U.S. Court Overturns Drug Case Convictions

A federal appeals court on Tuesday overturned the drug convictions of three Los Angeles men, ruling that the Drug Enforcement Administration had no authority to impose emergency bans on popular “designer drugs.”

In a 2-1 decision, the U.S. 9th Circuit Court of Appeals ruled that the DEA was never delegated the power to impose a temporary ban on MDMA, a consciousness-altering drug known as “Ecstasy” that had become increasingly popular on college campuses.

The ruling could clear the way for the acquittal of other drug dealers charged during the 14 months the temporary ban was in effect, but authorities could provide no estimate of how many cases might be involved.

However, they said, the ruling’s impact will be limited because the Justice Department has already moved to clarify the DEA’s role in controlling newly developed drugs.

MDMA was permanently classified as a “Schedule 1” controlled substance in February, restricting its use to research. The court’s ruling covers the temporary ban that was in effect until the completion of studies and hearings required for imposing a permanent ban.

William Waldo Emerson, Scott Wollman and Bruce Ehrlich were charged with possession with intent to distribute MDMA following the DEA’s temporary ban on the drug, imposed in June of 1985 in the face of growing evidence that the drug could cause permanent nerve damage.

The three men challenged the indictment, arguing that criminal charges stemming from an emergency ban that was adopted prior to any hearings or full studies violated their constitutional rights.

“What one day had not been a crime the next day was a crime, and the agency that made it a crime (the DEA) was the agency charged with enforcing that crime,” said Michael D. Nasatir, Ehrlich’s lawyer. “It’s like giving the police authority to make something a crime, rather than the Legislature.”

The appeals court did not find that the emergency ban violated the defendants’ rights to due process. Nor did the court conclude that such emergency bans are not permissible because there is no opportunity for public notice or comment.

Instead, Judge Robert Boochever, joined by Judge Procter Hug Jr., focused on a provision of the law authorizing the U.S. attorney general to delegate his authority to classify drugs to the DEA. While the attorney general specifically delegated that authority in the case of permanent bans, there had been no such express delegation for temporary bans, which were authorized by Congress later, the court found.

At least one other federal appeals court reached a similar conclusion last year. In response, the attorney general in July officially empowered the DEA to handle all drug classifications, emergency or temporary.

The court said it would not rule on whether the attorney general had resolved the issue of the DEA’s authority, but Steve Stone, associate chief counsel for the DEA, said there is no question that the agency now has authority to temporarily classify drugs.

Dissenting Opinion

Judge Charles E. Wiggins dissented from the majority opinion, arguing that the DEA clearly had authority to impose temporary bans even before the new amendment.

“I believe the majority demands too much of the government’s crime-fighting efforts in the face of an unambiguous delegation of responsibility by Congress,” Wiggins wrote.