The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
The facts underlying this case have been set forth at length in
my previous decisions rejecting defendants' claims of wiretap
abuse and double jeopardy violation. See United States v. Suquet,
547 F. Supp. 1034 (N.D.Ill. 1982) (wiretap); United States v.
Suquet, No. 80 CR 718 (N.D.Ill. August 23, 1982), affd. sub nom.
United States v. Bounos, 693 F.2d 38 (7th Cir. 1982) (double
jeopardy). Knowledge of these facts will for the most part be
This memorandum opinion seeks to explain why the court
previously denied various defense motions. Two of these motions
ask for dismissal of the entire indictment. Two others request
dismissal of particular counts.
Defendant Michael Bounos seeks dismissal of the indictment on
grounds of prosecutorial vindictiveness. He alleges he was
indicted in September 1980 in case number 80 CR 490 on charges of
participating in a 1980 cocaine conspiracy. The case was assigned
to Judge Nicholas J. Bua of the Northern District of Illinois.
Bounos "filed numerous pre-trial motions, some of them granted by
Judge Bua. It was clear that the defendant intended to go to
trial in 80 CR 490."*fn1
In December 1980 the present 71 count indictment was handed
down. It deals with a 1978-79 cocaine conspiracy and subjects
Bounos to the possibility of "extra decades of punishment" over
and above that which was already threatened by the indictment in
80 CR 490. Therefore, Bounos charges, it must be presumed that
the present indictment was sought solely to induce Bounos to
plead guilty in 80 CR 490, i.e., to retaliate "against a
defendant who insist[ed] upon his constitutional right to be
proven guilty beyond a reasonable doubt." (Quotations from
defendant's brief). Such vindictiveness, Bounos concludes, is
impermissible under the Due Process clause of the Fifth
What is most striking about this argument is that Bounos has
brought forth no evidence of "actual" vindictiveness. He can
therefore prevail "only if a presumption of vindictiveness —
applicable in all cases — is warranted." United States v.
Goodwin, ___ U.S. ___, ___, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74
(1982) (emphasis in original). It is not. "Bordenkircher [v.
Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)] made
clear that the mere fact that a defendant refuses to plead guilty
and forces the Government to prove its case is insufficient to
warrant a presumption that subsequent changes in the charging
decision are unjustified." United States v. Goodwin, supra, 102
S.Ct. at 2494. The filing of pre-trial motions is routine and
expected in criminal cases; it is therefore "unrealistic to
assume that a prosecutor's probable response to such motions is
to seek to penalize and to deter." Id. at 2493.
The Proper Statutory Classification of Cocaine
Defendant John Browning urges dismissal of the indictment on
the theory that the statutes relied upon by the Government are
defective. Browning asserts that the Controlled Substances Act
("the Act") embodies an unconstitutional delegation of
legislative power. He further charges that cocaine cannot
rationally remain classified as a Schedule II substance, given
the current state of scientific knowledge. I will discuss each of
these contentions in turn.
The Act criminalizes various forms of conduct involving
"controlled substances." 21 U.S.C. § 841-48. Controlled
substances are subdivided into five schedules, each pertaining to
a different category of drug. Id. at § 812. The penalties imposed
by sections 841-48 vary according to the schedule of the drug
Section 812(c) lists the drugs that were deemed to fall within
each schedule at the time of the Act's enactment in 1970.
Congress recognized, however, that evolving medical and social
knowledge might render its initial judgments obsolete. Therefore,
to create an updating mechanism, Congress delegated to the
Attorney General the following authority:
The Attorney General shall apply the provisions of
this subchapter to the controlled substances listed
in the schedules established by section 812 of the
title and to any other drug or other substance added
to such schedules under this subchapter. Except as
provided in subsections (d) and (e) of this section,
the Attorney General may by rule —
(1) add to such a schedule or transfer between such
schedules any drug or other substance if he —
(A) finds that such drug or other substance has a
potential for abuse, and
(B) makes with respect to such drug or other
substance the findings prescribed by subsection (b)
of section 812 of this title for the schedule in
which such drug is to be placed; or
(2) remove any drug or other substance from the
schedules if he finds that the drug or other
substance does not meet the requirements for
inclusion in any schedule.
Rules of the Attorney General under this subsection
shall be made on the record after opportunity for a
hearing pursuant to the rule-making procedures
prescribed by subchapter II of chapter 5 of Title 5.
Proceedings for the issuance, amendment, or repeal of
such rules may be initiated by the Attorney General
(1) on his own motion, (2) at the request of ...