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July 20, 1982


The opinion of the court was delivered by: Getzendanner, District Judge:


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 presumed.

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.

Prosecutorial Vindictiveness

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 Amendment.

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 involved.

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 ...

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