FRED J. GREENE, PETITIONER V. UNITED STATES OF AMERICA No. 89-6753 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-6a) is reported at 892 F.2d 453. JURISDICTION The judgment of the court of appeals was entered on December 19, 1989. The petition for a writ of certiorari was filed on February 20, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the federal government's prosecution of petitioner for distributing marijuana is consistent with the Free Exercise Clause of the First Amendment. 2. Whether the classification of marijuana as a Schedule I substance under the Controlled Substances Act, 21 U.S.C. 801 et. seq., was rational and thus consistent with the Due Process Clause of the Fifth Amendment. STATEMENT Following a conditional guilty plea in the United States District Court for the Middle District of Tennessee, petitioner was convicted on two counts of distributing marijuana, in violation of 21 U.S.C. 841(a)(1). He was sentenced to two concurrent terms of 18 months' imprisonment. The court of appeals affirmed. 1. The charges against petitioner arose from the discovery by police of four kilograms of marijuana, $18,000 in cash, and two loaded firearms in petitioner's home. The marijuana was packaged in 386 small bags. Pet. App. 3a. Petitioner moved to dismiss the indictment on two grounds; he claimed that the charges violated his free exercise of religion and that the inclusion of marijuana in Schedule I under the Controlled Substances Act, 21 U.S.C. 801 et. seq., is arbitrary and irrational and thus a violation of the Due Process Clause of the Fifth Amendment. At a hearing on the motion, petitioner testified that his religious beliefs combine elements of Nativde American religion with certain teachings from the Bible. Petitioner explained that smoking marijuana enables him to commune with "the Great Spirit," whom he worships. Petitioner also stated that he sold marijuana to promote his musical talent which he believed to be a gift from God. He admitted, however, that he did not consider bagging four kilograms of marijuana into 386 individual packages to be a religious experience. He also admitted that as many as 100-150 people came to his house each day to obtain marijuana. Pet. App. 2a-3a. To support his due process claim, petitioner called an expert witness, who testified that marijuana does not meet the statutory criteria for classification as a Schedule I controlled substance. The witness stated that marijuana's active ingredient has some therapeutic uses and that marijuana does not produce physical dependence. The expert witness admitted, however, that the drug does cause psychological dependence in regular users. Pet. App. 2a. The district court denied petitioner's motion. Id. at 1b-2b. 2. The court of appeals affirmed petitioner's convictions. First, the court held that the classification of marijuana as a Schedule I substance was not arbitrary or irrational and therefore did not violate the Due Process Clause. The court observed that Congress provided a mechanism in the Controlled Substances Act for the Attorney General to revise the narcotics schedules based on new scientific evidence. In light of Congress's clearly expressed preference for administrative, rather than judicial, review of the narcotics schedules, the court declined to hold that it was improper for marijuana to be included in Schedule I. Pet. App. 3a-5a. The court also rejected petitioner's claim that the imposition of criminal penalties for using and distributing marijuana interfered with his free exercise of religion. The court noted that while the Free Exercise Clause provides absolute constitutional protection to religious beliefs, religious conduct may be regulated in order to protect society. Pet. App. 5a. Accordingly, the court held that Congress's determination that marijuana poses a threat to individual health and social welfare justifies criminal penalties for its possession and distribution, "even where such penalties may infringe to some extent on the free exercise of religion." Pet. App. 6a. ARGUMENT 1. Petitioner contends (Pet. 5-14) that his use of marijuana is constitutionally protected because it is an integral part of his religious worship ritual. But petitioner was indicted and convicted for distributing marijuana, not for using it. Petitioner admitted that he did not consider distributing marijuana to be a religious experience. Pet. App. 3a. Thus, petitioner fails to present a claim that would entitle him to relief from his convictions, even assuming his legal premise is correct. In any event, however, petitioner's claim that laws prohibiting the use of marijuana violate the Free Exercise Clause is without merit. As this Court recently held in Employment Div., Dept. of Human Resources of Oregon v. Smith, No. 88-1213, slip op. (Apr. 17, 1990), "if prohibiting the exercise of religion * * * is * * * merely the incidedntal effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended." Id., slip op. 5-6. The Court's holding in Smith that a criminal statute governing the use of peyote is a "generally applicable and otherwise valid provision" is equally germane to criminal provisions governing the use and distribution of marijuana. 2. Petitioner's contention (Pet. 15-18) that the classification of marijuana as a Schedule I substance is irrational and therefore violates the Due Process Clause is also without merit. As an initial matter, the court of appeals' rejection of petitioner's due process challenge is consistent with the decisions of all of the courts of appeals that have addressed that issue. See United States v. Fry, 787 F.2d 903, 905 (4th Cir.), cert. denied, 479 U.S. 861 (1986); United States v. Fogarty, 692 F.2d 542, 547 (8th Cir. 1982), cert. denied, 460 U.S. 1040 (1983); United States v. Middleton, 690 F.2d 820, 822-823 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983). Thered is therefore no conflict among the circuits on this issue that might call for this Court's review. Nor is there force to petitioner's argument that the inclusion of marijuana in Schedule I is irrational. Petitioner does not challenge the rationality of Congress's decision in 1970 to place marijuana in Schedule I when it enacted the Controlled Substances Act. See 21 U.S.C. 812(c). Rather, he contends that the new scientific evidence he presented to the district court demonstrates that marijuana does not meet current statutory requirements for inclusion in that schedule. /1/ Congress, however, delegated to the Attorney General the task of reviewing and revising the classifications of scheduled drugs. The Attorney General was given the authority to remove any substance from scheduling or to reclassify a substance from a particular schedule to another schedule if he found that it did not meet the requirements for inclusion in that schedule, which are set forth in 21 U.S.C. 812(b). See 21 U.S.C. 811(a)(2). In the case of drugs required by an international treaty or convention to be controlled, however, Congress left to the Attorney General the discretion to "control() such drugs under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by (21 U.S.C. 811(a) or 21 U.S.C. 812(b))." 21 U.S.C. 811(d)(2). The Single Convention on Narcotic Drugs, June 24, 1967, 18 U.S.T. 1407, T.I.A.S. No. 6298, provides for the control of marijuana (cannabis) by the parties to the convention. See 18 U.S.T. at 1421, 1559, 1562. The Attorney General therefore is authorized under 21 U.S.C. 811(d)(2) to control marijuana in a schedule that will meet the requirements of the Single Convention regardless of whether marijuana meets the standards set forth in 21 U.S.C. 812(b). Marijuana must be placed in at least Schedule II to comply with the Single Convention. See National Organization for the Reform of Marijuana Laws v. Drug Enforcement Administration, 559 F.2d 735, 752 (D.C. Cir. 1977). And, in light of 21 U.S.C. 811(d)(2), there is no legal impediment to the Attorney General's continuing to classify marijuana as a Schedule I drug. In any event, petitioner has not followed the proper procedure to seek review of the Attorney General's decision to continue classifying marijuana as a Schedule I drug. That determination is subject to judicial review after an administrative proceeding. /2/ Having failed to invoke the administrative process that Congress established for changing the law, petitioner may not now argue that it is improper to apply the law to him in the form that Congress wrote it. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General RICHARD A. FRIEDMAN Attorney APRIL 1990 /1/ Section 812(b)(1) of Title 21 provides that a drug may be placed in Schedule I if a finding has been made that: (A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision. /2/ After conducting an administrative proceeding addressing the question whether marijuana should be in Schedule I or Schedule II, the Drug Enforcement Administration has ordered that marijuana remain in Schedule I. 54 Fed. Reg. 53767 (Dec. 29, 1989). /3/ Petitioner relies (Pet. 11-15) on a number of state cases that have held that the classification of marijuana as a narcotic under state criminal law is irrational in light of the available scientific evidence. Those cases, however, do not in any way undermine the rationality of Congress's decision to include marijuana in Schedule I, which is not limited to "narcotic" drugs. Compare 21 U.S.C. 802(17) with 21 U.S.C. 812(c).