The Circuit today affirmed the defendant’s conviction in United States v. Michael O’Brien, which principally rejects, on fact-specific credibility grounds, his 4th and 5th Amendment arguments concerning Miranda and an alleged consent to search. Judge Kearse’s typically thorough opinion lays out the details; no legal ground is broken.
The only issue of note is the Court’s rejection of O’Brien’s additional claim that the substance he was accused of distributing — methylone (a.k.a. Molly) — was improperly placed on the federal list of controlled substances. O’Brien argues that Congress unconstitutionally delegated its legislative power by authorizing the Attorney General (who in turn re- or sub-delegated that authority to the D.E.A.) to determine whether a substance belongs on the federal schedule of controlled substances.
Judge Kearse rejected this argument on procedural and substantive grounds. First, it was untimely because he did not make this argument until after he was convicted. Rule 12(b)(3) of the FRCrimP requires that such a motion (which the Court concluded qualified as one asserting “a defect in instituting the prosecution” or “a defect in the indictment”) be made before trial (unless there is “good cause” for not doing so, id. 12(c)(3)). Second, the argument was meritless in light of Touby v. United States, 500 U.S. 160, 162 (1991), which rejected a very similar delegation challenge — Congress’s delegation to the AG of authority to add temporarily a new controlled substance to the federal schedule.
Perhaps the Circuit should have waited a few more weeks, however. As Supreme Court watchers know, the Nine will soon decide United States v. Gundy, Sup. Ct. No. 17-1686, which asks whether Congress violated the non-delegation principle in the Sex Offender Registration and Notification Act (SORNA) by authorizing the AG to determine whether offenders whose qualifying convictions occurred before the Act’s enactment are subject to its requirements. Touby is the Government’s principal ally in Gundy. Therefore, a decision in defendant’s favor in Gundy (NB: this Office represents Mr. Gundy) may well undermine that precedent. And if it does, a defendant may well succeed in arguing that there was “good cause” for not raising the non-delegation challenge earlier, given Touby and the fact that the Supreme Court has not struck down a law under the delegation doctrine since 1935.