Pohlable also contends that MDMA was improperly scheduled as a Schedule I controlled

1

substance although Administrative Law Judge Young indicated that is was only properly

scheduled as a Schedule III substance. He does not provide any legal authority supporting the

proposition that Administrative Law Judge Young’s findings are binding on the Attorney General

or the DEA. Instead, the two Circuits that have addressed the scheduling process of MDMA

have upheld it. See United Stateve . Piaget, 915 F.2d 138, 140-141 (5 Cir. 1990) (MDMA

th

properly scheduled); see also United States v. Carlson, 87 F.3d 440, 444-45 (11 Cir. 1996).

th

On February 19, 2008, Defendant Michael Pohlable (“Pohlable”) filed a Motion styled as a

Demurrer or Pre-Trial Motion to Dismiss (the “Motion”). Eventually, the Government

responded and Pohlable replied. In addition, a number of surrebuttals, supplements and

appendices have been filed. After considering the parties filings and the oral argument of April

21, 2008, and for the following reasons, the Court hereby DENIES Pohlable’s motion.

Pohlable is the subject of six counts of an eight-count indictment returned on March 7, 2007

against he and four alleged coconspirators. He is charged with participating in a drug-trafficking

conspiracy for approximately 1,100 grams of 3,4-methylenedioxymethamphetamine - commonly

known as “MDMA” or “ecstasy” - in violation of 21 U.S.C. § 846 and distributing MDMA on

several occasions in violation of 21 U.S.C. § 841(a)(1).

The thrust of Pohlable’s Motion is that the statute he is accused of violating - the Controlled

Substances Act (“CSA”), 21 U.S. C. § 801 et seq. - is unconstitutional and an improper exercise

of congressional power.

Pohlable raises six challenge the constitutionality of the CSA both facially and as applied to his

conduct: 1) Congress’s delegation of authority to the Attorney General to schedule controlled

substances is improper; 2) the statute at issue and the schedule of controlled substances are

unconstitutionally vague; 3) the CSA exceeds Congress’s limited powers; 4) his conduct was not

criminal because there is no corpus delicti, because no plaintiff has standing, and because the

CSA prohbits malum prohibitum; 5) the SCA and the Scheduling of MDMA is unconstitutional

under the Fifth Amendment; and 6) officers violated his Fourth Amendment rights by placing

recording equipment in a private apartment without probable cause, and by engaging in

transactions involving MDMA.

Congress delegates authority to the Attorney General to schedule controlled substances. See 21

U.S. C. § 811. The Attorney General has delegated this power to the Drug Enforcement Agency

(“the DEA”). Pohlable contends that this delegation is “administrative law run amok.” This is

particularly troubling to him because it purportedly allows the Attorney General to serve both

legislative and executive functions. Pohlable also claims that the schedules for controlled

substances are not subject to bicameralism and presentment, and are therefore void.

1

Legislative powers are “vested in a Congress of the United States.” See U. S. Const. Art. I, § 1.

The delegation of this legislative authority is generally limited by the non-delegation doctrine.

In his Appendix to Oral Argument Pohlable made clear that a number of arguments

2

forwarded in his Initial Motion were ghost written by Douglas Palashack, a disbarred attorney.

The Court notes that Pohlable has repeatedly rejected assistance of CJA counsel as a

representative or in a stand-by capacity. The Court is somewhat hesitant to rule based on what is

evidently the work product of a disbarred attorney. However, the Court notes that there is no

practical means to control who Pohlable seeks advice from if he will not accept advice of

appointed counsel.

See Touby v. United States, 500 U.S. 160, 165, 111 S. Ct. 1752 (1991). However, Congress is

permitted to “seek assistance, within proper limits, from its coordinate branches.” Id. It “does

not violate the Constitution merely because [Congress] legislates in borad terms, leaving a

certain degree of discretion to executive or judicial actors.” Id.; see also J.W. Hampton, Jr. & Co.

V. United States, 276 U.S. 394, 409, 48 S. Ct. 248 (1928).

In Touby, supra, the Supreme Court upheld the power of the Attorney General to temporarily

schedule controlled substances pursuant to an expedited procedure. Additionally, the Ninth

Circuit has consistently held that the guidelines for scheduling substances provide sufficient

guidance to the DEA to pass constitutional scrutiny. See United States v. Davis, 564 F.2d 840,

843-44 (9 Cir. 1977) (“There are sufficient guidelines and standards expressed in the language

th

of 21 U.S.C. § 811); United States v. Alexander, 673 F.2d 287, 289 (9 Cir. 1982) (“clearly

th

constitutional”). Other circuits have reached the same conclusion. See United States v. Piaget,

915 F. 2d 138, 140-141 (5 Cir. 1990) (MDMA properly scheduled); United States v. Pastor,

th

557 F.2d 930, 941-41 (2d Cir. 1977).

In line with binding precedent from this Circuit as well as others, the Court finds that Congress’s

delegation of authority to schedule controlled substances is permissible.

In his Initial Motion, Pohlable made what appeared to the Court and the Government to be akin

to a vaugeness challenge - he claimed that he was unable to locate the statute defining “controlled

substance.” He also indicated that the Illicit Drug Anti-Proliferation Act, 21 U.S.C. § 841,

“mentions neither ecstasy, methylenedioxymethamphetamine, nor MDMA.”

2

In order to withstand a vagueness challenge, the legal prohibition must be “clearly defined.”

Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294 (1972). In other words, the

statute must be phrased so that “ordinary people can understand what conduct is prohibited” and

it “does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S.

352, 357, 103 S. Ct. 1855 (1983) (citations omitted); United States v. Kim, 449 F.3d 993, 941-42

(9 Cir. 2007). They(sic) fundamental consideration is whether the statute gives sufficient notice

th

of the prohibited conduct. See United States v. Purdy, 264 F.3d 809, 811 (9 Cir. 2001).

th

The provision at issue here, 21 U.S.C. § 841, has repeatedly been found adequate by the Ninth

Circuit. See United States v. Rodrigues-Camacho, 468 F.2d 1220, 1221 (9 Cir. 1972); United

th

States v. Rosenberg, 515 F.2d 190, 192-93 (9 Cir. 1975); United States v. Davis, 36 F.3d 1424,

th

1433-34 (9 Cir. 1994)(not vague as applied to possession of cocaine base). This is binding

th

precedent on the Court, and must be applied.

Indeed, the term “controlled substance” is defined in 21 U.S.C. § 802 (6) as a substance listed in

Schedules I through V of 21 U.S.C. § 812. Section 812 provides that the schedules are subject to

modification under 21 U.S.C. § 811, and that the Schedules shall be published on an annual

Pohlable also argues that by prohibiting certain substances, Congress has shirked its

3

responsibility to (actively) “regulate” commerce. This argument misinterprets the meaning of

basis. The specific Schedules can be found in the Code of Federal Regulations at 21 C.F.R. §

1308.11, which specifically identifies 3,4-methylenedioxymethamphetamine or “MDMA.”

Although it takes a bit of statutory and regulatory searching, the text of the statute and associated

regulations is perfectly clear in defining MDMA as a controlled substance.

Therefore, the CSA and the Schedules for controlled substances are not unconstitutionally vague.

Pohlable contends that “telling us what to eat” is not within the limited powers of Congress. He

points out that th e18th Amendment was required to prohibit liquor, and so similar constitutional

amendment should be required to prohibit MDMA.

He furhter contends that, to the extent they are inconsistent, Constitutional Amendments control

versus Constitutional Articles. See Shick v. United States, 195 U.S. 65, 68, 24 S. Ct. 826 (1904)

(under the well-established principle that the last statement of the will of the legislature controls,

Constitutional Amendments govern where they are in conflict with the text of the Constitution.)

Therefore, his rights property, recognized by the Fifth Amendment, and other rights recognized

in the Bill of Rights , trump grants of Congressional authority, such as the Commerce Clause.

Conversely, the Government points out that the Commerce Clause as a grant of Congressional

authority that authoritzed enactment of the CSA. The Commerce Clause, U.S. Const. Art. I § 8,

authorizes Congress to regulate “Commerce... among the several states.” In Gonzales v. Raich,

545 U.S. 1, 16-22 (2006) the Supreme Court reaffirmed that the CSA’s prhibitions on

possession, distribution and manufacture of controlled substances are proper exercise of

Congress’s Commerce Clause power.

Pohlable rebouts this contention by arguing first that his activity was wholly intrastate and cannot

have had the “substantial effect” on interstate commerce required under the limiting principals

laid out in United States v. Lopez, 514 U..S. 540, 115 S. Ct. 1624 (1995) and United States v.

Morrison, 529 U.S. 592, 120 U.S. 1740 (2000). However, the regulated activity need not cross

state lines in order to have a material impact on interstate commerce, they are properly regulated

under the Commerce Clause even if they are wholly interstate. See Raich, 545 U.S. at 17.

Further, Pohlable’s conduct in distributing or conspiring to distribute MDMA is plainly

commercial in nature and can be aggregated with all similar acts in determining whether it has a

sufficient impact on interstate commerce. See Wickard v. Filbur, 317 U.S. 111, 128-29, 63 S. Ct.

82 (1942). Thus, “even if [the] activity be local and though it may not be regarded as commerce,

it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect

on interstate commerce.” id at 125.

As the Supreme Court recognized in Raich, the trafficking in illicit drugs has a substantial impact

on the interstate and foreign commerce. Raich, supra. Millions (if not billions) of dollars in

contraband cross state and national borders on an annual basis and stream into this country from

across the world. The drug trade also brings with it violence, corruption and other ills that

impact legal commerce across national and international boundaries. Finally, the act of

trafficking in drugs requires the use of interstates channels, and the instrumentalities of interstate

and international commerce such as railways, roads, and airlines It is clearly the sort of activity

that Congress has authority to regulate.

3

“regulate,” it is certainly within the scope of regulation to prohibit certain commercial activities

altogether.

Because the Supreme Court has recognized the CSA as a proper exercise of Congress’s

Commerce Clause power, Pohlable’s arguments to the contrary are unavailing.

Pohlable contends that the distribution of a controlled substance is not properly considered a

crime. He argues that Congress made an “end-run around the [Fourth Amendment] by

criminalizing malum prohibitum acts such as mere possession of non-stolen property.”

According to Pohlable, the fact that no injury occurred to a specific individual invalidates his

prosecution for several reasons.

First, Pohalble argues that, because no harm occurred, there is no Plaintiff with standing to bring

a proceeding against him. In order to have standing, “[a] plaintiff must show that he himself is

injured by the challenged action of the defendant.” Village of Arlington Heights v. Metropolitan

Housing Development, 429 U.S. 252, 262, 97 S. Ct. 555 (1977). The injury must be “distinct and

palpable.” See Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197. Because the standing

requirement is jurisdictional, he argues that the Court lacks subject matter jurisdiction over the

case. See National Org. For Women, Inc. V. Scheidler, 510 U.S. 249, 255, 114 S. Ct. 798

(1994).

The Government correctly points out that the authorities cited by Pohlable relate to standing in

civil cases. The United States attorney is authorized, indeed duty bound, to prosecute “all

offenses against the United States,” including violations of the drug laws. 28 U.S.C. § 547.

Additionally, 18 U.S.C. § 3231 provides for jurisdicion in the District Courts for all offenses

against the laws of the United States. Because the United States is injured by the detriminetal

effects of the drug trade on the health and general welfare of the American people, and because

such conduct violates the laws of the United States, the prosectuion has standing and the Court

has jurisdiction.

The corpus delicti rule is also inapplicable to the instant case. “In popular language [corpus

delicti] is used to describe the visible evidence of the crime, such as the dead body of a murdered

person.” Black’s Law Dictionary, corpus delicti. That rule is an evidentiary doctrine that has

largely fallen out of use in modern jusprudence. It provides that the Government cannot rely

only on a confession for proof of a crime. Instead, the prosecutor must prove that the “body” of

the offense through corroborating extrinsic evidence. See United States v. Corona-Garcia, 210

F.3d 973, 978 (9 Cir. 2000); see also Opper v. United States, 348 U.S. 84, 87-93, 75 S. Ct. 158

th

(1954). The fact that the corpus delicti rule is inapplicatble to possession or distribution offenses

where there is no “body” does not invalidate those offenses as inherently non-criminal. Quite the

contrary: “the corpus delicti concept is not relevant to a crime such as the present one where

there is no tangible injury or loss and the crime cannot be found to have been committed without

reference to a specific defendant.” U.S. v. Shunk, 881 F.2d 917, 920 (10 Cir. 1989) (inapplicable

th

to the possession of a firearm).

Finally, Pohlable argues that the possession with intent to distribute is not a real crime because It

requires neither an actus reas or mens re and constitutions a malum prohibitum offense - i.e. it is

only wrong because it is unlawful. The statute clearly identifies both and act and a mental state

requirement: (the act of) possession and the specific intent to distribute. The Constitution

If Pohlable’s concern is that he can be convicted of a crime without due process, it is

4

misguided. Pohlable is entitled to a full trial before a jury if he so chooses.

In his appendix to oral argument, Pohlable suggests that the SCA is a bill of attainder

5

and an ex post facto law. See U.S. Const. Art. I, § 9. It is neither. See Blacks Law Dictionary,

bill of attainder (“A special legislative act prescribing punishment without trial, for a specific

person or group.”); Black’s Law Dictionary, ex post facto law (“A law that impermissibly applies

retroactively, esp. in a way that negatively affects a person’s rights, as by criminalizing an action

that was legal when it was committed.”)

requires no more. See Unites States v. Greenbaum, 138 F.2d 437, 438 (3 Cir. 1943) (no

rd

Constitutional requirement that crimes contain a mens rea element). In addition, Pohlable’s

conduct was malum in se. Those who enacted the drug laws certainly considered the conduct

inherently wrong due to the perceived dangerousness of drugs and drug trafficking. See Church

of Scientology Flag Service Org. V. City of Clearwater, 2 F.3d 1514 (11 Cir. 1993) (drug

th

crimes identified as malum in se); U.S. v. Cordoba-Hincapie, 825 F. Supp. 485, 493 (E.D.N.Y.

1993)(same). This characterization is particularly apt in light of the high mental state

requirements underlying possession with intent to distribute and conspiracy.

Despite Pohlable’s protestations to the contrary, he has been charged with a crime.

Pohlable claims that the CSA is unconstitutoinal under the Fifth Amendment Due Process

Clause. First, he contends that the statute is unconstitutional because it impermissibly infringes

his right to property. According to Pohlable, the Ninth Amendment and other sources of liberty

indicate that Congrss cannot properly regulate the exercise of property rights to possession and

disposition by labeling property a “controlled substance.” See U.S. Const. Amend. IX (“The

enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage

others retained by the people.”); U.S. Const., Amend X (“The powers not delegated to the United

States by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”) Additionally, he argues that the statue is improper because it

deprives him of property without due process. He also argues that is was improper for Congress

4

to regulate only certain substances by(sic) not others.

5

As the Government correctly points out, there is no fundamental right to possess a controlled

substance. See Raich v. Gonzales (Raich II), 500 F.3d 850, 866 (9 Cir. 2007)(no fundamental

th

right to medical marijuana); United States v. Fogarty, 692 F. 2d 542, 547 (8 Cir. 1983) (no

th

fundamental right to possess or sell marijuana); United States v. Horsley, 519 F.2d 1264, 1265

(5 Cir. 1965)(same).

th

Pohlable responds that the Declaration of Independence recognizes that individuals are endowed

with, “certain unalienable rights...” According to Pohlable, these natural, God given rights

predate the existence of the constitutional and are therefore not dependent on the Constitution.

Among these is the right to pursue happiness, through illicit drug use or otherwise. Accordingly,

he suggests that the “fundamental rights” analysis recognized under prevailing due process

doctrine is misguided.

However, this Court cannot reject outright the prevailing constitutional doctrine established by

Pohlable contends that the CSA was selectively enforced because neither the informant

6

used against him nor the officers who confiscated the MDMA were prosecuted. This argument is

also faulty. See Ciechon v. City of Chicago, 686 F.2d 511, 523 n.16 (7 Cir. 1982)(“Selective

th

prosecution is permissible as long as it is not based on clearly impermissible grounds such as

discrimination on the basis of race, religion, the exercise of first amendment rights, or bad faith.”

(Citing United States v. Blitsteign, 626 F.2d 774, 782 (10 Cir. 1980)). The informant and police

th

officers were simply not “similarly situated” to Pohlable in relevant respect.

the Supreme Court, which requires that this Court determine whether Pohlable had a fundamental

right to engage in the accused conduct. See Raich II, 500 F.3d at 863 (rights at issue must be

narrowly defined; rejecting broad definition of medical marijuana use). In order to be deemed

fundamental, a right mus be, “so rooted in the traditions and conscience of our people as to be

ranked as fundamental,” Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S. Ct.

330 (1934), or “implicit in the concept of ordered liberty.” Palko v. State of Connecticut, 302

U.S. 319, 325, 58 S. Ct. 149 (1937). The Ninth Circuit’s decision in Raich II forecloses this

analysis for MDMA. It cannot be plausibly argued that possession of MDMA is more deeply

rooted in our history or more strongly implicates ordered liberty than do other controlled

substances such as marijuana.

As an aside, when taken to a logical extreme, Pohlable’s “property rights” argument could lead to

a very dangerous state of affairs. Even if Pohlable is correct that MDMA is harmless, the

nebulous “right to possession of non-stolen property” might well encompass other “property”

such as hazardous chemicals or nuclear weapons. It could just as well apply to classical literature

as child pornography. Accordingly, the Court is hesitant to recognize a right to property that

does not yield to any government regulation. Instead, it recognizes a set of fundamental rights

that act as a stop against oppressive legislation. While this state of affairs may be unsatisfactory

to some, this is a concern that the Court lacks jurisdiction to answer.

Additionally, there is no subject classification in prohibiting the possession of (sic) distribution

of MDMA - drug users are not a discrete and insular minority. See United States v. Carolene

6

Products Co., 304 U.S. 144, 152,n.4, 58 S. CT. 778 (1938)(“prejudice against discrete and

insular minorities may be a special condition, which tends seriously to curtail the operation of

those political processes ordinarily to be relied upon to protect minorities, and which may call or

a correspondingly more searching judicial inquiry.”) Additionally, heightened scrutiny is not

implicated b the fact that Congress chooses to regulate only some substances and not others, See

McDonald v. Board of Elections, 384 U.S. 802, 807-09, 89 S. Ct. 1404 (1969).

Because heightened scrutiny is not implicated in the instant case, the CSA is merely subject to

“rational basis review” - i.e. the statute must be rationally related to some plausible legitimate

government interest. Doe v. United States, 419 F.3d 1058, 1063 (9 Cir. 2005); United States v.

th

Baker, 197 F.3d 211, 216 (9 Cir 1999). While Pohlable claims that substantial evidence

th

suggests that MDMA is harmless, he concedes that the Government’s statistics show otherwise.

The Government is permitted to rely on these statistics, even in light of other evidence, as long as

some modicum of evidence exists in support of its decision. Given that the government has

identified a legitimate interest in preventing the physical harm associated with consumption of

MDMA, it is beyond dispute that prohibition on distribution of that substance is rationally related

to this interest.

Therefore, the statute meets constitutional scrutiny under the Fifth Amendment.

Pohlable contends that the Government violated his Fourth Amendment rights by hiding video

and audio equipment in a private apartment without a warrant or probable cause and by using a

confidential informant and law enforcement officers who broke the law. These areguments are

not substantiated with any evidence. For instance, Pohlable fails to suggesst that the private

apartment belonged tohim or that he resided in it. Therefore it is unclear that he had standing to

assert the Fourth Amendment. Additionally, a demurrer is not the appropriate proceeding to raise

this evidentiary concern.

On the issue of the informant or law enforcement breaking the law, it is true that this may well be

improper. Olmstead v. United States, 277 U.S. 438, 482 48 S. Ct. 564 (1928) (Brandeis, J.

dissenting) (law enforcement officers do not have authority to break the law). However, Pohable

has not submitted any factual predicate for this claim. Accordingly, the claim cannot form the

basis for his Motion.

The alleged improper investigation is not sufficient to justify dismissing the indictment against

Pohlable

For the reasons identified above, Pohlable’s Motion is hereby DENIED.