CASE BEING CONSIDERED FOR TREATMENT
PURSUANT TO RULE 35(j) OF THE GENERAL RULES
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________________________________________________________
No. 94-1605
_________________________________________________________________
CARL ERIC OLSEN
Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION
Respondent.
_________________________________________________________________
Petition for Review of an order of the
Drug Enforcement Administration
_________________________________________________________________
Petitioner's Reply Brief
_________________________________________________________________
Carl Eric Olsen, Pro se
Post Office Box 4091
Des Moines, Iowa 50333
(515) 262-6957
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ........................................... i
TABLE OF AUTHORITIES ........................................ i
STATUTES AND REGULATIONS .................................... ii
ARGUMENT .................................................... 1
FAILURE TO FOLLOW PROPER ADMINISTRATIVE PROCEDURE ........... 14
CONCLUSION .................................................. 15
REQUEST FOR ORAL ARGUMENT ................................... 16
CERTIFICATE OF SERVICE ...................................... 16
TABLE OF AUTHORITIES
CASES Page
*Alliance for Cannabis Therapeutics v.
Drug Enforcement Administration,
930 F.2d 936 (D.C. Cir. 1991) ............. 4, 7, 9, 10, 11, 13
Alliance for Cannabis Therapeutics v.
Drug Enforcement Administration,
15 F.3d 1131 (D.C. Cir. 1994) ........................... 7, 11
Carl Eric Olsen v. Drug Enforcement Administration,
776 F.2d 267 (11th Cir. 1985) .............................. 14
Carl Eric Olsen v. Drug Enforcement Administration,
979 F.2d 1458 (D.C. Cir. 1989) .......................... 14-15
Carl Eric Olsen v. Drug Enforcement Administration,
No. 93-1109 (D.C. Cir. Dec. 9, 1993) ....................... 15
Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S.
837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ................ 7-8
*Grinspoon v. Drug Enforcement Administration,
828 F.2d 881 (1st Cir. 1987) ........................ 9, 10, 13
____________________
* Authorities chiefly relied upon
- i -
*National Organization for the Reform of Marijuana Laws v.
Drug Enforcement Administration,
559 F.2d 735 (D.C. Cir. 1977) ..................... 4, 5, 7, 10
*National Organization for the Reform of Marijuana Laws v.
Ingersoll, 497 F.2d 654 (D.C. Cir. 1974) ................... 14
United States v. Moore, 423 U.S. 122 (1972) ................... 6
*United States v. Walton, 514 F.2d 201
(D.C. Cir. 1975) .................................... 4, 10, 11
STATUTES
21 U.S.C. § 812 ............................................... 7
21 U.S.C. § 812(b)(2) ......................................... 6
FEDERAL REGULATIONS
21 C.F.R. § 1307.03 .......................................... 15
21 C.F.R. § 1308.11 .......................................... 13
21 C.F.R. § 1308.11(f)(1) ................................. 9, 14
21 C.F.R. § 1308.11(d)(25) .................................... 3
21 C.F.R. § 1308.12 .......................................... 13
50 Fed. Reg. 42,185 (1985) ................................ 2, 13
51 Fed. Reg. 17,476 (1986) ................................ 3, 13
57 Fed. Reg. 10,499 (1992) .................................... 6
INTERNATIONAL OBLIGATIONS
Convention on Psychotropic Substances, 1971 ................... 3
Official Records of the Economic and Social Council,
1991, Supp. No. 4 ........................................... 3
____________________
* Authorities chiefly relied upon.
- ii -
MISCELLANEOUS
Executive Order 12919 (June 3, 1994) .......................... 6
1993 Physician's Desk Reference ............................... 2
Psychotropic Substances Act, Pub. L. 95-633,
Nov. 10, 1978, 92 Stat. 2768 ................................ 4
Marihuana Tax Act, Aug. 2, 1937, 50 Stat. 551 ................ 10
- iii -
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_________________________________________________________________
No. 94-1605
_________________________________________________________________
CARL ERIC OLSEN
Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION
Respondent.
_________________________________________________________________
Petition for Review of an order of the
Drug Enforcement Administration
_________________________________________________________________
Petitioner's Reply Brief
_________________________________________________________________
ARGUMENT
The Drug Enforcement Administration (DEA) claims that the
issue of whether (-)-delta-9-(trans)-tetrahydrocannabinol (also
known as levo-trans-delta-9-tetrahydrocannabinol) has been, or
should have been, rescheduled to Schedule II of the Controlled
Substances Act is being raised for the first time in this
petition for judicial review. This objection is without merit.
The matter of the scheduling of (-)-delta-9-(trans)-
tetrahydrocannabinol1 was implicit in the original petition for
rescheduling of marijuana.
____________________
1 Throughout the remainder of this brief, the abreviation
"THC" will be used in place of the term "tetrahydrocannabinol."
- 1 -
There are four isomers of delta-9-THC: (1) levo-(trans)-
delta-9-THC; (2) levo-(cis)-delta-9-THC; (3) dextro-(trans)-
delta-9-THC; and (4) dextro-(cis)-delta-9-THC. Of these four,
only one is found naturally occurring in the marijuana plant:
levo-(trans)-delta-9-THC (also known as (-)-delta-9-(trans)-
THC).2 Levo-(trans)-delta-9-THC is also the only one of the
four isomers that is active (or psychoactive). This isomer is
the same isomer found in the commercial product Marinol®. This
isomer has also been given the U.S. Adopted Name (USAN) of
dronabinol.
In the petitioner's brief which accompanied the original
petition to the DEA, A. 3-4,3 a substance by the name of
dronabinol was clearly identified. A DEA proposal to reschedule
dronabinol to Schedule II of the Controlled Substances Act was
also cited in the orignal brief filed with the DEA by the
petitioner. 50 Fed. Reg. 42,186 (Oct. 18, 1985). According to
the DEA and the Physician's Desk Reference, this substance is
clearly identified as "the principle psychoactive substance in
Cannabis sativa L., marijuana." 1989 Physician's Desk Reference,
page 1859. In other words, dronabinol can be made synthetically
or extracted from marijuana, the plant in which it occurs
naturally. Dronabinol is exactly the same no matter whether it
is produced synthetically in a test tube, or extracted from a
marijuana plant. This is an important distinction, because
____________________
2 Another name for this isomer is levo-(trans)-delta-1-
THC, or (-)-delta-1-(trans)-THC.
3 "A." references are to the bound appendix submitted by
the petitioner with his brief.
- 2 -
dronabinol is not exclusively a semi-synthetic substance like
heroin,4 or a synthetic substance like alphacetylmethadol.5
Of course, the actual substance which was later rescheduled
was not dronabinol, but rather "dronabinol (synthetic) in sesame
oil and encapsulated in a soft gelatin capsule." 51 Fed. Reg.
17,476 (1986). However, this combination of drug and food
substances was not mentioned in the petitioner's brief which was
attached to the original petition filed with the DEA. The reason
this combination was not mentioned was because sesame oil and
soft gelatin capsules are foods. Sesame oil is not added for
purpose of diluting dronabinol, nor does encapsulation in gelatin
capsules change the strength or potency of dronabinol.
The original brief filed with the DEA also referred to an
international treaty, the Convention on Psychotropic Substances,
February 21, 1971, 32 U.S.T. 543, T.I.A.S. 9725, 1019 U.N.T.S.
175, which was amended at the request of the United States in
1991, and which included the rescheduling of all the
stereochemical variants of THC.6 E/1991/24 E/CN.7/1991/26, 24
May 1991. The United States is bound by this treaty and the
____________________
4 Pursuant to a telphone conversation of November 27,
1995, with John P. Morgan, Professor of Pharmacology, City
Univerity of New York, Medical School, Room J903, 138th Street at
Convent Avenue, New York, New York 10031; telephone (212) 650-
8255. Professor Morgan stated that heroin does not occur
naturally in the opium poppy. Heroin is a semi-synthetic
derivative of morphine.
5 Id. Professor Morgan, footnote 4, supra. Professor
Morgan also stated that alphacetylmethadol is not a naturally
occuring substances. It is made synthetically.
6 This international rescheduling included all four
isomers of delta-9-THC, along with all other forms of THC found
in the plant, e.g., those found in 21 C.F.R. § 1308.11(d)(25).
- 3 -
amendment pursuant to the Psychotropic Substances Act, Pub. L.
95-633, November 10, 1978. This international rescheduling
procedure allowed the United States to reschedule dronabinol,
although the DEA is claiming that only the specific isomer
dronabinol (and only when made synthetically) in sesame oil and
encapsulated in a soft gelatin capsule was actually rescheduled.
The petitioner's original petition and brief did not tell
the DEA that rescheduling of dronabinol was being sought, because
it was implicit in the argument that marijuana should be
rescheduled. The petitioner argued that dronabinol had already
been rescheduled to Schedule II, and, therefore, marijuana is now
the source of a Schedule II substance, dronabinol. Contrary to
the DEA's assertions, this issue is not being raised for the
first time on judicial review. The DEA could have asked for
clarification, if it was unsure of the grounds for the petition.
The fact that no cite case law was cited in the Petitioner's
original brief does not mean that none existed. All of the ideas
expressed in the petitioner's original petition and brief were
taken from prior decisions of this court in United States v.
Walton, 514 F.2d 201 (D.C. Cir. 1975), National Organization for
the Reform of Marijuana Laws v. Drug Enforcement Administration,
559 F.2d. 735 (D.C. Cir. 1977), and Alliance for Cannabis
Therapeutics v. Drug Enforcement Administration, 930 F.2d 936
(D.C. Cir. 1991). There is nothing original about these
arguments, as they were all presented by this court in these
three cases.
- 4 -
On page 3 of its brief, the DEA talks about 20 years of
rescheduling petitions, all of which have been appealed and
denied. The DEA fails to mention that none of these previous
petitions raised the issue presented here. In all of the cases
cited by the DEA, the petitioners were seeking either
recreational, medical, or sacramental use of the marijuana plant,
in its natural form. The matter presently before this court
seeks none of these, and that's why the issue presented here has
never been raised before, even though it was invited by this
court in National Organization for the Reform of Marijuana Laws
v. Drug Enforcement Administration, 559 F.2d 735, 748 (D.C. Cir.
1977).
If this case is successful in transferring marijuana from
Schedule I to Schedule II of the Controlled Substances Act (CSA),
the most that could be hoped for is that dronabinol could be
extracted from marijuana, rather than being made entirely
synthetically. Both cocaine and morphine can be made
synthetically, but neither of them are commonly made that way.
It is more economical to extract cocaine and morphine from their
natural sources (the plants they come from, coca and opium
poppy).7 The trend is to go with extraction, rather than
synthesis.
The United States government currently grows marijuana under
contract with the University of Mississippi, and it could easily
____________________
7 Id. Professor Morgan, footnote 4, supra. Professor
Morgan also stated that aspirin is not even made synthetically,
because it's cheaper to extract it from it's natural plant
source.
- 5 -
license others to manufacture marijuana for the purpose of
extracting dronabinol. In 1942, the federal government actually
exempted farmers from military service if they agreed to grow
marijuana for the production of hemp fiber during World War II.
Marijuana is still mentioned as a strategic military resource in
Section 901(e) of the Executive Order 12919 of June 3, 1994
(National Defense Industrial Resources Preparedness).
The penalties for illegal possession of a Schedule II
substance are no different from those for illegal possession of a
Schedule I substance. Therefore, there is no valid enforcement
concern for the Drug Enforcement Administration, because the
DEA's mission is strictly one of enforcement. United States v.
Moore, 423 U.S. 122, 135 (1972). As the DEA Administrator stated
in 1992, "Clearly, the Controlled Substances Act does not
authorize the Attorney General, nor by delegation the DEA
Administrator, to make the ultimate decision as to whether a drug
should be used as medicine." 57 Fed. Reg. 10,499, 10,505 (March
26, 1992). Rescheduling marijuana from Schedule I to Schedule II
would not set any precedent for further rescheduling, nor would
it lead to increased drug diversion when the strict Schedule II
requirements for manufacture are met.8
Although the DEA in its brief continually refers to the
statutory criteria for scheduling set forth in 21 U.S.C. §
812(b)(2) Schedule II, and is quick to point out that marijuana
____________________
8 Manufacturers would be required to meet the same
standards as those currently employed by the federal government's
marijuana farm at the University of Mississippi.
- 6 -
fails to satisfy any of them, it completely sweeps under the rug
the fact that coca and opium poppy, both Schedule II substances,
also fail to satisfy any of them. The DEA refers to the plain
meaning of the statute, but fails to explain this obvious
inconsistency between its argument and the plain wording of the
statute. Congress was clearly using other factors to determine
scheduling, which this court properly recognized in 1977. Id.
NORML v. DEA, 559 F.2d at 748.
To be fair, the DEA has admitted there is an inconsistency
in its argument. In footnote 9, on page 16 of its brief, the DEA
admits that some courts, including this one, have found that the
scheduling criteria in 21 U.S.C. § 812 are neither cumulative nor
exclusive. However, the DEA gives two reasons why these doubts
should be resolved in its favor.
First, the DEA claims that the dicta in these cases were
overruled by this court's decisions in Alliance for Cannabis
Therapeutics v. Drug Enforcement Administration, 15 F.3d 1131,
1133 (D.C. Cir. 1991), and Alliance for Cannabis Therapeutics v.
Drug Enforcement Administration, 930 F.2d 936, 938-940 (D.C. Cir.
1994). The problem with the DEA's reasoning is that the issue in
this case was not raised by the Alliance for Cannabis
Therapeutics cases, and, therefore, it is not res judicata in
this matter.
The second argument given by the DEA is that this court
should give deference to the DEA's interpretation of the statute
because of the guidelines for statutory interpretation
articulated by the U.S. Supreme Court in Chevron , U.S.A, Inc. v.
- 7 -
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Again, the problem with this reasoning is that Chevron requires
this court to first look at the plain meaning of the statute.
This court must first resolve the inconsistency of the scheduling
of coca and opium poppy under the statute. According to the
DEA's reasoning, neither coca and opium poppy could be scheduled
in Schedule II of the statute. The DEA has never moved to
correct this inconsistency by attempting to reschedule coca and
opium poppy to Schedule I. Therefore, it is obvious that the DEA
has failed to properly interpret the statute in this matter.
The DEA admits that, in drafting the statute, Congress was
aware that coca and opium poppy were the sources of accepted
medicines, but fails to acknowledge that this creates an
additional scheduling criterion (being the natural plant source
of an accepted medicine), and that Congress was equally aware
that marijuana was not the source of any accepted medicine at the
time the Controlled Substances Act was written. Things have
changed. Marijuana is now the source of an accepted medicine,
even though the DEA makes an artificial distinction between the
synthetic and the naturally extracted equivalent of the drug.
Coca and opium poppy are the evidence that Congress did not
consider the scheduling of plants and their included chemicals to
be distinct, and the DEA half-heartedly admits as much.9
____________________
9 It is important to note that coca, opium, and marijuana
plants are not only the source of accepted medicines, but those
medicines are all the principle psychoactive drugs contained
within those plants. In other words, these plants are only
medically active (psychoactive) to the extent they contain these
drugs. Of course, that is not to say that these plants have no
- 8 -
There is no difference between a synthetic drug and its
naturally extracted twin. By definition, a synthetic molecule
must be identical to its natural equivalent. The Food and Drug
Administration verifies this fact. A. 16. Synthetic dronabinol
and the (-)-delta-9-(trans)-THC found in the marijuana plant are
the same thing. The DEA is saying that only synthetic dronabinol
in sesame oil and encapsulated in soft gelatin capsules has been
rescheduled, and the Code of Federal Regulations actually
distinguishes (wrongly) synthetic from naturally occurring
dronabinol (as if synthetic and naturally occurring drugs were
not the exact same thing). 21 C.F.R. § 1308.11(f)(1). However,
the DEA is saying that dronabinol itself was not transferred from
Schedule I to Schedule II of the CSA. The DEA claims that only a
pharmaceutical product, dronabinol (synthetic) in sesame oil and
encapsulated in soft gelatin capsules, was transferred to
Schedule II.
On page 21 of its brief, the DEA briefly mentions Grinspoon
v. Drug Enforcement Administration, 828 F.2d 881, 891-892 (1st
Cir. 1987), but completely fails to mention its subsequent
approval by this court in Alliance for Cannabis Therapeutics v.
Drug Enforcement Administration, 930 F.2d 936, 939-940 (D.C. Cir.
1991). The Grinspoon court held that the DEA cannot rely on FDA
marketing approval in making scheduling decisions. While it is
true, as the DEA points out in footnote 13, on page 21 of its
brief, that FDA marketing approval is sufficient to establish
_________________________________________________________________
other medicinal qualities, just none that are presently
recognized by the medical profession.
- 9 -
accepted medical use, the DEA fails to acknowledge that lack of
FDA marketing approval does not necessitate a finding that the
substance has no medical use. Alliance, 930 F.2d at 939;
Grinspoon, 828 F.2d at 891. As this court wrote in 1977,
If, as respondent contends, a determination that the
substance has no accepted medical use ends the inquiry,
then presumably Congress would have spelled that out in
its procedural guidelines. Its failure to do so
indicates an intent to reserve to HEW a finely tuned
balancing process involving several medical and
scientific considerations.
NORML, 559 F.2d at 748. It would be ludicrous to assume that
dronabinol has no medical value unless it is in sesame oil and
encapsulated in soft gelatin capsules, or that it would have no
medical value if it were extracted from a marijuana plant.
It is interesting to note in footnote 7, on page 11, and,
again on page 14 of the DEA's brief, that the DEA recognizes that
Congress had strong doubts about placing marijuana in Schedule I
and fully intended that further research would clarify this
matter. Further research has indeed revealed that marijuana has
at least as much therapeutic value as coca and opium poppy.
It is also disturbing how the DEA ignores the holdings in
United States v. Walton, 514 F.2d 201 (D.C. Cir. 1975). This
court specifically held that marijuana was illegal only to the
extent that it contained THC. This court interpreted the plain
meaning of the statute, as well as its history in the Marihuana
Tax Act of 1937, and determined that it was plain from the face
of the statute that THC10 was the controlling factor in
____________________
10 The term "THC", as used by this court, referred to
dronabinol, since it is the only isomer of delta-9-THC which is
- 10 -
marijuana's scheduling. The DEA seems to think this holding has
been overruled by subsequent decisions in Alliance for Cannabis
Therapeutics v. DEA, 930 F.2d 936, and Alliance for Cannabis
Therapeutics v. DEA, 15 F.3d 1131. Again, the issues raised were
not the same, and neither of the Alliance rulings are res
judicata as to the issue presented here.
In footnote 10, on page 16 of its brief, the DEA makes an
interesting analogy to a substance by the name of levo-
alphacetylmethadol. This is a great analogy, because it's almost
exactly the same situation as we have with levo-(trans)-delta-9-
THC. The other three isomers of delta-9-THC are psychoactively
inactive. In other words, they have little, if any, medical
value, which means that it's highly unlikely they will ever be
rescheduled to Schedule II (or below) under the DEA's currently
proposed (and faulty) standards. It also means they have
practically no abuse potential, which means that it's highly
unlikely they would have ever been scheduled in Schedule I (or
any schedule) if it had not been for their psychoactive
counterpart (dronabinol). As this court noted in Walton, it was
the psychoactive isomer of delta-9-THC that caused marijuana to
be outlawed in the first place.11 If none of the isomers of
delta-9-THC were psychoactive, it would be highly unlikely that
_________________________________________________________________
present in the marijuana plant, and it is the only form of THC
which is psychoactive.
11 At the time Walton was decided, the term THC was used
as if it were the same thing as dronabinol, because the levo-
(trans) isomer is the only isomer of delta-9-THC that is actually
produced by the plant. The other isomers can only be produced in
a chemical laboratory.
- 11 -
Congress would ever have even thought of outlawing marijuana.
Without the psychoactive isomer of delta-9-THC, marijuana is just
another weed.
Marijuana is the source of dronabinol, and not the source of
the other three isomers of delta-9-THC. Practically speaking, it
is the levo-(trans) isomer of delta-9-THC that we are speaking of
when we refer to delta-9-THC. In the DEA's analogy,
alphacetylmethadol would be the equivalent of delta-9-THC, and
levo-alphacetylmethadol would be the equivalent of dronabinol.
Alphacetylmethadol doesn't come from a plant, it's made
synthetically.12 If alphacetylmethadol came from a plant, that
plant would only be controlled to the extent that it contained
the psychoactive substance levo-alphacetylmethadol and not the
other isomers of alphacetylmethadol which are psychoactively
inactive.13 The difference between alphacetylmethadol and
marijuana is that the former comes from a test tube and the
latter comes from a seed. The genesis of alphacetylmetadol is a
test tube and the genesis of delta-9-THC is a plant. The
precedent for the treatment of plants has already been
established by Congress in drafting the Controlled Substances
Act. The analogy breaks down, because alphacetylmethadol does
not come from a plant. Both alphacetylmethadol and the three
non-dronabinol isomers of delta-9-THC can only be made
synthetically. However, dronabinol is produced either
____________________
12 Id. Professor Morgan, footnote 4, supra.
13 Id. Professor Morgan, footnote 4, supra.
- 12 -
synthetically or by a plant, while levo-alphacetylmethadol can
only be made synthetically.
One last point that should be mentioned again is that the
DEA originally sought to reschedule dronabinol itself. 50 Fed.
Reg. 42,186 (Oct. 18, 1985). On page 19 of the DEA's brief, the
DEA incorrectly states that this proposal was only for synthetic
dronabinol in sesame oil and encapsulated in a soft gelatin
capsule. The original proposal was for dronabinol itself, not a
U.S. Food and Drug Administration approved product. The actual
rescheduling order changed the rescheduling to "dronabinol in
sesame oil and encapsulated in soft gelatin capsules." 51 Fed.
Reg. 17,476 (1986). This is not difficult to understand, because
this action was prior to the 1987 ruling in Grinspoon v. Drug
Enforcement Administration, 828 F.2d 881, 891-892 (1st Cir.
1987), where the First Circuit ruled that the DEA could not rely
solely on FDA marketing approval in making scheduling decisions.
This court approved the holding of the Grinspoon court in
Alliance for Cannabis Therapeutics v. Drug Enforcement
Administration, 930 F.2d 936, 939-940 (D.C. Cir. 1991).
The DEA's assertion that dronabinol was not rescheduled,
along with its assertion that marijuana is not the source of an
accepted medicine are false. Evidence of the DEA's error is the
list of controlled substances contained in Schedule I and
Schedule II in the Code of Federal Regulations at 21 C.F.R. §§
1308.11 and 1308.12. Dronabinol is the only substance that
contains the following added language:
- 13 -
(synthetic) in sesame oil and encapsulated in a soft
gelating capsule in a U.S. Food and Drug Administration
approved drug product
21 C.F.R. § 1308.11(f)(1). Every other substance in Schedule I
and Schedule II is identified only by its chemical name.14 The
addition of sesame oil and gelatin capsules does nothing to
change the nature of the substance dronabinol. In the
petitioner's brief attached to the original petition filed with
the DEA, the substance identified is dronabinol, not a U.S. Food
and Drug Administration approved product.
FAILURE TO FOLLOW PROPER ADMINISTRATIVE PROCEDURE
Since the DEA is concerned about following proper
administrative procedure, it should be noted that the DEA has
failed to follow proper administrative procedure on numerous
occasions, particularly in four cases (three in which the
petitioner has been a party). National Organization for the
Reform of Marijuana Laws v. Ingersoll, 497 F.2d 654 (D.C. Cir.
1974) (case remanded because DEA refused to accept a rescheduling
petition); Carl Eric Olsen v. Drug Enforcement Administration,
776 F.2d 267 (11th Cir. 1985) (DEA scolded for refusing to
respond to a rescheduling petition); Carl Eric Olsen v. Drug
____________________
14 Admittedly, there is some cross-scheduling of
substances in the lower schedules (e.g., codeine is in Schedule
II, while codeine diluted to "not more than 200 milligrams of
codeine per 100 milliliters or per 100 grams" is in Schedule V),
but such cross-scheduling involves diluted forms of the same
drug. It is important to note that codeine is in Schedule II,
not Schedule I, because it has medical use. To suggest that
codeine be included in Schedule I unless it is in sesame oil and
encapsulated in soft gelatin capsules would be absurd. It is
also important to note that there is no cross-scheduling between
Schedule I and Schedule II (with the exception of dronabinol).
- 14 -
Enforcement Administration, 878 F.2d 1458 (D.C. Cir. 1989)
(petitioner had to file for a writ of mandamus to compel the DEA
to accept a rescheduling petition, and case later remanded
because DEA failed to properly address the issues raised); Carl
Eric Olsen v. Drug Enforcement Administration, No. 93-1109 (D.C.
Cir. Dec. 9, 1993) (case remanded because DEA refused to accept a
rescheduling petition). This record shows that the DEA has made
a consistent effort to obstruct justice and deny petitioners the
first amendment constitutional right to petition government for a
redress of grievances.
CONCLUSION
The regulations of the DEA clearly state that a petition to
reschedule can be brought by any interested party. 21 C.F.R. §
1307.03. It is important that citizens be encouraged to keep an
eye on government officials; in fact, it is a civil duty. It is
not the function of the government to keep the citizen from
falling into error; it is the function of the citizen to keep the
government from falling into error.
The DEA improperly failed to reschedule marijuana and
dronabinol when it rescheduled the pharmaceutical equivalent of
dronabinol. The DEA improperly refused to reschedule marijuana
when this error was brought to its attention. The appropriate
remedy is for this court to order that marijuana and dronabinol
are both included within Schedule II of the Controlled Substances
Act of 1970.
- 15 -
REQUEST FOR ORAL ARGUMENT
The petitioner respectfully requests that he be granted oral
argument in this matter.
Respectfully submitted,
___________________________________
Carl Eric Olsen, pro se
Post Office Box 4091
Des Moines, Iowa 50333
(515) 262-6957
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing
Petitioner's Reply Brief were mailed by first class mail on this
28th day of November, 1995, to:
John F. Farley
Trial Attorney
Narcotics and Dangerous Drug Section
Criminal Division
U.S. Department of Justice
P.O. Box 27312, Central Station
Washington, D.C. 20038
___________________________________
Carl Eric Olsen, pro se
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