norml23 - Page 82
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government is prepared to stipuJate that defendant's contentions with
respect to the administrator of the DEA's failure to abide by the CSA
procedures and the faiJure to reclassify marijuana are correct.
Finalty, if this court is prepared to ruJe that no showing of abuse of
discretion in the refusal to abide by CSA procedures and to reclassify
marijuana wouJd render the classification of marijuana within ScheduJe
of the CSA invaJido Jn any other situation--which seems the likely
situation here--an evJdentiary hearing is required° Further, as will be
shown beJow, defendant will be entitled to dismissaJ of the entire
indictment should his contentions be sustained.
IV. IF THE DEA ADMiNiSTRATOR HAS ABUSED THE DISCRETION VESTED IN
HIM BY 21 U.S.C. 811, THE iNDiCTMENT MUST BE DISMISSED UNDER
THE PRINCIPLE FIRST ANNOUNCED IN UNITED STATES V. HUDSON &
Before the criminal jurisdiction of the federal courts may be
invoked, the Congress must enact a vaJid statute not only defining the
elements of prohibited or commanded acts, but also fixing a precise
punishment; without both, there is no crime.
In denying the federal courts the commondaw power to define the
eJements of crime, the Supreme Court stated that: "the legislative
authority of the Union must first make an act a crime, affix a punish-
ment to it, and dectare the court that shall have jurisdiction of the
offense." United States v. Hudson & Goodwin, supr_i, 7 Crunch at 34.
Over 100 years Jater, the Second Circuit affirmed the vaJidity of that
ruling in Mossew v. United States, 266 F.Zd 18 (2d Cir. 1920). Still
more recently, the Supreme Court held, in lg48, that where Congress had
prohibited the conceaJing of an alien, but the penalty prescribed was
too vague, the person who did the forbidden act committed no crime
cognizabJe by the federaJ court. Accordingly, the defendant was
entitled to dismissal of the indictment° United States v. Evans, 333
U.S. 483 (1948).
The principle that a crime consists not onJy of forbidden or
proscribed conduct, but also of a preciseJy fixed penaJty, is
universalJy recognized by the Sending criminaJ law scholars writing
today. Thus, Professor PauJsen in the book which won the Coil award in
A crime is not merely any conduct forbidden by
law; it is forbidden conduct for which punishment
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