Browning is not the first to challenge the statute on these
general grounds, yet his claim differs in significant particulars
from those made before. Defendants in all previous cases have
attacked the statute for allegedly granting the Administrator a
de facto ability to classify each drug in whichever schedule he
so desired. The courts, noting the detailed criteria contained in
sections 811(b), (c) and 812(b), have uniformly and correctly
rejected this claim. United States v. Erwin, 602 F.2d 1183, 1185
(5th Cir. 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1014, 62
L.Ed.2d 752 (1980); United States v. Barron, 594 F.2d 1345,
1351-53 (10th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2180,
60 L.Ed.2d 1056 (1979); United States v. Gordon, 580 F.2d 827,
837-40 (5th Cir.), cert. denied, 439 U.S. 1051, 1079, 99 S.Ct.
731, 1079, 58 L.Ed.2d 711, 59 L.Ed.2d 49 (1978); United States v.
Roya, 574 F.2d 386, 392 (7th Cir.), cert. denied, 439 U.S. 857,
99 S.Ct. 172, 58 L.Ed.2d 165 (1978); United States v. Davis,
supra, 564 F.2d at 844; United States v. Pastor, 557 F.2d 930,
939-41 (2d Cir. 1977); United States v. Piatti, supra, 416
F. Supp. at 1205-06; cf. State v. Peloquin, 427 A.2d 1327 (R.I.
1981), and cases cited therein (rejecting similar attack on
analogous state statute). But cf. Nat. Org. for Reform of
Marijuana Laws v. Bell, 488 F. Supp. 123, 140 (D.D.C. 1980) (three
judge court) ("The statutory criteria of section 812(b)(1) are
guides in determining the schedule to which a drug belongs, but
they are not dispositive. Indeed, the classifications at times
cannot be followed consistently. . . .") The Roya Court remarked
that the argument "borders on the frivolous." 574 F.2d at 392.
Browning thus concedes, as he must, that the standards guiding
the reclassification process, once it has started, are
sufficient. He alleges, though, that the statute offers
absolutely no guidance as to when the Administrator should begin
the procedure in the first place. The scenario Browning attempts
to conjure is of the Administrator "sitting" on a mountain of
data exonerating cocaine. Since the Administrator is allegedly
under no obligation to initiate a rulemaking proceeding under
even these circumstances, he could thus thwart Congress' will by
extending the Act's criminal prohibitions beyond their useful
life. The Administrator, not Congress, would be the ultimate
Browning is plainly wrong. The statute is not silent as to when
rulemaking should or should not begin. Section 811(b) provides
that "upon gathering the necessary data," the Administrator
"shall . . . request from the Secretary [of Health and Human
Services] a scientific and medical evaluation, and his
recommendations, as to whether such drug or other substance
should be so controlled or removed as a controlled substance."
The legislative history underlying this provision indicates that
the "necessary data" has been gathered when the Administrator
"has reason to believe that there may be ground for controlling
or decontrolling a drug or other substance." H.R. 91-1444, 91st
Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News
The Administrator is bound by whatever "scientific and medical"
findings the Secretary makes. 21 U.S.C. § 811(b). The
Administrator "shall initiate" section 811(a) rulemaking
proceedings if he "determines that these facts and all other
relevant data constitute substantial evidence of potential for
abuses such as to warrant control or substantial evidence that
the drug or other substance should be removed entirely from the
The statute thus creates two trigger points that must be
satisfied before rulemaking begins. The Administrator must
determine first that referral to the Secretary is appropriate
and, second, that the Secretary's findings (in combination with
"all other relevant data") justify further proceedings. Moreover,
these decisions must be made with reference to the concededly
valid standards that determine if control is appropriate and in
Browning's delegation argument has no merit.*fn4
His challenge to the current classification of cocaine
similarly fails. Most basically, it is irrelevant whether the
current state of medical knowledge supports Schedule II
classification. The relevant time frame for analysis is the
period during which the alleged offenses were committed.
"Reclassification . . . subsequent to the date of the alleged
offense would, in no way, relieve defendant of the criminal
responsibility for his acts." United States v. Creswell,
515 F. Supp. 1268, 1271 (E.D.N.Y. 1981); see also United States v.
Jones, 480 F.2d 954, 960 (5th Cir.), cert. denied, 414 U.S. 1071,
94 S.Ct. 582, 38 L.Ed.2d 476 (1973); cf. United States v. Nocar,
497 F.2d 719 (7th Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct.
526, 42 L.Ed.2d 315 (1974) (Court looked to the date of violation
when measuring the Government's compliance with the republication
provisions of 21 U.S.C. § 812(a)).*fn5
Moreover, even if amended to challenge the propriety of
cocaine's classification during the correct time period,
Browning's motion would still merit dismissal without a hearing.
Two district courts have ruled that reclassification defenses of
this nature are barred by the doctrine of exhaustion of remedies:
"The proper method to argue for reclassification of cocaine is
through a petition to the Attorney General [to initiate a §
811(a) rulemaking proceeding; see note 4, supra]." United States
v. Gaertner, 519 F. Supp. 585, 594 (E.D.Wis. 1981); accord, United
States v. LaFroscia, 354 F. Supp. 1338, 1341 (S.D.N.Y. 1973); cf.
United States v. Stieren, 608 F.2d 1135, 1137 (8th Cir. 1979)
("If cocaine is to be reclassified, defendant's argument should
be made to the legislative branch, not the courts.") Under this
view, an individual cannot knowingly trade in controlled
substances and only later claim that his activities are
legitimate. He must first change the law, not break it.
I find the rationale of these decisions compelling, though I
recognize that the Supreme Court has cautioned against
indiscriminate use of the exhaustion doctrine in the criminal
First of all, it is well to remember that use of the
exhaustion doctrine can be exceedingly harsh. The
defendant is often stripped of his only defense; he
must go to jail without having any judicial review of
an assertedly invalid order.
McKart v. United States,