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 MarinolŪ.  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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