United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Presently before the Court is Alia Bober's ("Defendant") Motion to Dismiss Counts One and Two of the Indictment (#67). The Government filed a response in opposition (#70), to which Defendant has replied (#76). Co-defendants have also filed a Motion for Joinder to Defendant's Motion to Dismiss (#69) and Motions for Joinder to Defendant's reply to response (#77, #78).
Federal statute 21 U.S.C. § 811 grants the DEA Administrator ("Administrator") the power to schedule controlled substances on both a permanent and a temporary basis. Congress granted the power to schedule on a temporary basis so long as there was an "imminent hazard to public safety[.]" 21 U.S.C. §811(h). In October 2011, the Administrator published a temporary placement of three substances, one of which is 3, 4-methylenedioxy-N-methylcathinone ("methylone"), which is the sole substance at issue here, to the schedule I controlled substances list. Schedules of Controlled Substances: Temporary Placement of Three Synthetic Cathinones Into Schedule I, 76 Fed. Reg., 65, 371-375 (October 11, 2011) (to be codified at 21 C.F.R. pt. 1308). To support her decision, the Administrator considered the substance's history and current pattern of abuse; the scope, duration, and significance of abuse; and the risk to the public health. She also considered three sub-criteria: actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. Id. at 65, 372-74. The Administrator filed a permanent order in April 2013.
Defendant allegedly shipped methylone to Las Vegas in November 2012, December 2012, and February 2013 (#70 at 1-2). In September 2013, the United States Attorney for the District of Nevada filed a three count indictment against Defendant (#26). Count One alleges, among other things, that "Defendant [...] did knowingly and intentionally combine, conspire, and agree to manufacture and possess, with intent to distribute, [...] a controlled substance analogue as defined in 21 U.S.C. § 802(32)" (#26 at 2). Count Two alleges, among other things, that "Defendant [...] did knowingly and intentionally posses with the intent to manufacture and distribute a mixture and substance containing a detectable amount of methylone" (#26 at 2-3). Count Three is not at issue in the present motion.
II. Legal Standards
A. Pre-trial Motion to Dismiss
The Federal Rules of Criminal Procedure provide an opportunity for defendants to challenge the Government's indictment before trial. Rule 12(b)(2) provides that "a party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." A pre-trial motion to dismiss an indictment cannot be brought to challenge the merits of the case and cannot be used as a device for a summary trial of the evidence. United States v. Jensen , 93 F.3d 667, 669 (9th Cir. 1996). Further, when reviewing a pre-trial motion to dismiss, the court accepts the Government's allegations as true. United States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002).
B. Intelligible Principle
When reviewing a challenge to administrative action, the court must first determine whether the statute that delegates power to the agency contains an intelligible principle. Mistretta v. United States , 488 U.S. 361, 372 (1989). If the statute contains an intelligible principle, the final inquiry is whether the administrative agency has properly followed the statute or impermissibly acted in an arbitrary and capricious manner. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 (1983). The Supreme Court instituted the intelligible principle test to determine whether a delegation of legislative power to an administrative agency was proper. Mistretta , 488 U.S. at 372. So long as Congress gives "an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power." Mistretta , 488 U.S. at 372 (quoting Hampton v. United States , 276 U.S. 394, 409 (1928). Congress' delegation is not improper merely by legislating in broad terms, or by leaving a degree of discretion to executive or judicial actors. Touby v. United States , 500 U.S. 160, 165 (1991). The Supreme Court has specifically held that the language "imminent hazard to the public safety" in the C.F.R. allowing temporary scheduling of substances provides an intelligible principle, even if the statute results in criminal penalties. Touby v. United States , 500 U.S. 160, 165-66 (1991).
If the statute contains an intelligible principle, the court must then determine whether the agency has properly followed the statute. State Farm , 463 U.S. at 43. An agency violates the statute by acting in an arbitrary and capricious manner. Id . The scope of review is narrow, meaning that the court should not substitute its judgment for that of the agency. Id . Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action. Id . An agency's action is arbitrary and capricious if the agency: (1) has relied on factors which Congress has not intended it to consider; or (2) entirely failed to consider an important aspect of the problem; or (3) offered an explanation for its decision that runs counter to the evidence before the agency; or (4) is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id.
C. Temporary Listing of a Controlled Substance
21 U.S.C. § 811 grants the Administrator the authority to classify certain substances as a controlled substance, depending upon eight factors. Section 811(h) grants the Administrator the authority to temporarily classify a substance as a schedule I substance to avoid an imminent hazard to the public safety.
To temporarily schedule a drug under section 811(h), the Administrator must consider only three of eight factors required for permanent scheduling. Specifically, the Administrator must consider the substance's: "history and current pattern of abuse, " the "scope, duration, and significance of abuse, " and the "risk [...] to the public health." 21 U.S.C. § 811 (c)(4)-(6). When considering these criteria, the Administrator should also consider actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. § 811(h)(3). After these factors have been considered, the Administrator transmits her temporary listing to the Secretary of the Department of Health and Human Services. 21 U.S.C. § 811(h)(4). If the Secretary responds, the Administrator must take the comments into consideration. Further, the Administrator must publish a thirty day notice of proposed ...