United States v. Amalfi

47 F.4th 114

UNITED STATES of America, Appellee,

v.Michael AMALFI, Jr., Christopher Alvino, Peter Wilk, Michael Marciano, Defendants,Alexander Green, Charles Green, Defendants-Appellants.

Docket Nos. 19-997 (Lead)

19-1027 (Con)

August Term, 2021

United States Court of Appeals, Second Circuit.

Argued: December 7, 2021

Decided: August 31, 2022

William Easton, Easton Thompson Kasperek Shiffrin LLP, Rochester, N.Y., for Defendant-Appellant Charles Green ;

Jeffrey Lichtman (Jeffrey Einhorn, on the brief), Law Offices of Jeffrey Lichtman, New York, N.Y., for Defendant-Appellant Alexander Green;

Sean C. Eldridge, Assistant United States Attorney, for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Rochester, N.Y., for Appellee.

Before: Sack, Bianco, Circuit Judges, and Underhill, District Judge.^*

Sack, Circuit Judge:

To decide this appeal, we must determine the proper scope of rational basis review when analyzing equal protection and due process challenges to the scheduling of a controlled substance under the Controlled Substances Act ("CSA"), 21 U.S.C. § 801. Defendants-appellants Alexander and Charles Green (the "Green Brothers") urge us to limit the breadth of our constitutional analysis to the CSA's scheduling criteria; that is, they argue that the inclusion of marijuana on Schedule I—the CSA schedule with the strictest controls—violates the equal protection and due process guarantees of the Fifth Amendment because there is no rational basis on which to conclude that marijuana fulfills the statutory requirements for placement on that schedule. In particular, the CSA requires that a substance have no accepted medical use to be listed on Schedule I, and the Green Brothers argue that marijuana's scheduling is irrational because of the abundant evidence that marijuana has legitimate medical uses. They ask us to strike down marijuana's Schedule I classification as unconstitutional and, upon that basis, dismiss the narcotics conspiracy counts against them.

We decline to do so. The statutory criteria in the CSA are substantially irrelevant to our review of the Green Brothers' constitutional claims. The rational basis test requires us to ask whether there is any conceivable basis to support Congress's decision at issue (here, to include marijuana on the strictest CSA schedule). Thus, even if there are accepted medical uses of marijuana such that it would not satisfy the listing criteria for a Schedule I substance under the CSA, that fact would not be sufficient to render marijuana's scheduling unconstitutional . Because there are plausible considerations that could have motivated Congress to place marijuana on Schedule I, we conclude that marijuana's scheduling does not violate the Green Brothers' due process or equal protection rights. Accordingly, we affirm the decision of the United States District Court for the Western District of New York (Wolford, J .) denying their motion to dismiss the charges against them for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846.

BACKGROUND

Over a four-year period, the Green Brothers were engaged in a marijuana distribution scheme. Alexander Green obtained hundreds of kilograms of marijuana from California which he shipped to his brother, Charles Green, in New York State. The Green Brothers set prices for sale and, with the aid of co-conspirators, distributed and sold the marijuana in the Rochester, New York area. On March 27, 2014, a Western District of New York grand jury returned a two-count indictment against the Green Brothers charging them with conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846, and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h).

The Green Brothers filed a joint motion to dismiss the narcotics conspiracy count based on their argument that the CSA's classification of marijuana as a Schedule I controlled substance violates their due process and equal protection rights. They argued that marijuana's scheduling has no rational basis because it does not meet the statutory criteria for Schedule I classification; that is, the CSA requires that a substance have no currently accepted medical use in treatment in the United States to fall under Schedule I, see 21 U.S.C. § 812(b)(1), and marijuana does have accepted medical uses.¹ The Green Brothers made clear that they "do not request" a reclassification of marijuana under a different Schedule; they "simply request the Court strike the offending statutory classification as unconstitutional" and leave the issue of reclassification "to the legislative branch." Factual Allegations and Legal Authorities in Supp. of Def.'s Mots., App'x 40, ¶ 17 (Apr. 10, 2015). In their motion to dismiss, the Green Brothers requested an evidentiary hearing to present evidence of marijuana's medical uses and build upon expert declarations submitted by two professors.

On June 27, 2016, after briefing and oral argument, Magistrate Judge Jonathan Feldman issued a Report and Recommendation recommending that no evidentiary hearing be conducted and that the Green Brothers' motion to dismiss Count 1 be denied. United States v. Green , No. 14-CR-6038, 2016 WL 11483508 (W.D.N.Y. June 27, 2016) (Report and Recommendation).

On December 7, 2016, the United States District Court for the Western District of New York issued a decision and order adopting the Magistrate Judge's Report and Recommendation and denying the Green Brothers' motion to dismiss. United States v. Green , 222 F. Supp. 3d 267, 269 (W.D.N.Y. 2016).

As an initial matter, the district court tentatively rejected the government's argument that the court lacked jurisdiction over the Green Brothers' challenge to marijuana's scheduling because CSA scheduling is an administrative determination that is only subject to review in a circuit court. Id. at 272-73. The district court concluded that it had jurisdiction to hear a "proper constitutional challenge" to marijuana's scheduling. Id. at 272. However, it was "not convinced that Defendants' argument constitutes a proper constitutional challenge" because "[w]hen Defendants' argument is dissected, it essentially becomes an attack on the scheduling of marijuana based on the criteria set forth in the statute," which is "an argument that really should be asserted in a petition filed with the Attorney General." Id. at 273. Nevertheless, the court identified binding precedent that "stands for the proposition that a defendant may challenge the scheduling of marijuana through a constitutional attack brought in the district court," even though the court "question[ed] the soundness of [that] decision[ ] as applied to the circumstances present here." Id. at 274 (citing United States v. Kiffer , 477 F.2d 349 (2d Cir. 1973) ).

The district court also questioned whether the Green Brothers properly raised an equal protection claim. The court "ha[d] trouble reconciling how the classification of a drug, in and of itself, could implicate an individual's equal protection rights" because "[d]rugs do not have constitutional rights—people do." Id. Even so, the court continued its inquiry because (1) the Green Brothers also asserted a due process claim, which is more inclusive yet leads to a similar analysis, and (2) other courts have allowed defendants to launch equal protection challenges based on classifications of things (rather than people ). Id. at 274-75.

Applying rational basis review,² the court held that the Schedule I classification of marijuana did not violate the Green Brothers' due process and equal protection rights. Although the court agreed with the defendants that "marijuana is ... currently being used for medical purposes," it concluded that the Green Brothers misidentified the key question in the case. Id. at 275. They "focus their argument on the claim that it is not rational for Congress or the DEA to continue to conclude that there is no acceptable medical use for marijuana," but "[r]ational basis review asks not whether it is reasonable to conclude that the specific criteria in the statute have been met, but, rather, whether there is any conceivable basis that might support the classification." Id. at 277. Because "there are numerous conceivable public health and safety grounds" for placing marijuana on Schedule I, the court concluded that there is a rational basis and declined to dismiss the count. Id. at 279.³

On October 3, 2018, the Green Brothers pled guilty to a two-count Superseding Information that charged them with a marijuana distribution conspiracy and conspiracy to commit money laundering. The district court sentenced Alexander Green to 48 months' imprisonment on each count, to be served concurrently, and Charles Green to 27 months' imprisonment on each count, also to be served concurrently. The Green Brothers reserved the right to appeal the denial of their motion to dismiss the marijuana conspiracy count, which they now do.

DISCUSSION

I. Standard of Review

We review de novo the denial of a motion to dismiss an indictment. United States v. Smilowitz , 974 F.3d 155, 158 (2d Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 2570, ––– L.Ed.2d –––– (2021).

II. Controlled Substances Act and Marijuana's Scheduling

The CSA—which Congress enacted as part of the broader Comprehensive Drug Abuse Prevention and Control Act of 1970—places controlled substances into five schedules based on three factors: "[1] their accepted medical uses, [2] the potential for abuse, and [3] their psychological and physical effects on the body." Gonzales v. Raich, 545 U.S. 1, 13, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). The schedule on which a drug is placed determines the strictness of manufacturing, distribution, and use controls. Id. at 14, 125 S.Ct. 2195. To fall under Schedule I—the strictest schedule—a controlled substance must have ...