September 12, 1977

Proposed District of Columbia Uniform Controlled

Substances Act

This is in response to your request for our opinion whether, under 

District of Columbia (D.C.) Code § l-147(a)(3), the District of Columbia Council has the authority to enact § 503 of the subject bill. D.C. bill 

2-53 provides for forfeiture of narcotics and other property to the 

District. It is suggested that § 503 would conflict with the right of the 

United States under 21 U.S.C. § 881 to property forfeited on controlledsubstances grounds. After careful consideration of the question, we 

believe that D.C. Code § l-147(a)(3) denies to the Council that 

authority.

Section 602(a)(3) of the District of Columbia Self-Government and 

Reorganization Act, 87 Stat. 754, D.C. Code § l-147(a)(3), restricts the 

legislative authority of the District of Columbia Council as follows:

(a) The Council shall have not authority to pass any act contrary 

to the provisions of this Act except as specifically provided in this 

Act, or to—

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(3) enact any act, or enact any act to amend or repeal any Act of 

Congress, which concerns the functions or property of the United 

States or which is not restricted in its application exclusively in or 

to the District.

Under the Comprehensive Drug Abuse Prevention and Control Act 

of 1970, 21 U.S.C. § 881(a), all controlled substances manufactured, 

dispensed, distributed, or acquired in violation of the Act, all raw 

materials and equipment used in manufacturing these substances, all 

containers for the substances, certain conveyances used to transport 

controlled substances, raw materials, or equipment, and all books and 

records used in violation of the Act are subject to forfeiture to the

77-49 MEMORANDUM OPINION FOR THE

UNITED STATES ATTORNEY FOR THE

DISTRICT OF COLUMBIA

199
Attorney General. The procedure followed is the same as for the 

customs laws: notice, suit for condemnation by the United States on 

showing of probable cause, and judicial hearing with the burden of 

proof on the claimant. 21 U.S.C. § 881(d); see 19 U.S.C. §§ 1595-1615. 

The Attorney General may retain such forfeited property for official 

use, transfer it to the General Services Administration, or forward it to 

the Drug Enforcement Administration for medical or scientific use. 21 

U.S.C. § 881(e).

Under a District of Columbia law enacted in 1956, all unlawfully 

possessed narcotics and dangerous drugs seized by the District are 

forfeited to the Secretary of the Treasury pursuant to § 4733 of the 

Internal Revenue Code of 1954. D.C. Code §§ 33-417, 33-711; see 26

U.S.C. §4733 (1964 ed.). The forfeiture now runs to the Attorney 

General. Reorganization Plan No. 1 of 1968, § 1, 82 Stat. 1367, 21 

U.S.C. § 881. The District of Columbia Code does not currently provide for forfeiture of raw materials, equipment containers, conveyances, 

and books and records connected with the violation of the controlled 

substances laws. Thus, under the law in force in the District when the 

Self-Government and Reorganization Act took effect in 1973, all of the 

items enumerated in 21 U.S.C. § 881(a) became property of the United 

States even though seized by District officers.

Section 503(a) of the bill would subject to forfeiture to the District 

exactly the same types of property covered by 21 U.S.C. § 881(a), if 

used in violation of the District of Columbia Controlled Substances 

Act. Moreover, the bill’s penal provisions cover the same conduct as 

the Federal ■ statute. As a result, the bill would give the District a 

competing claim to property in which the United States now possesses 

the sole right of forfeiture.

Therefore, it is our opinion that § 503 “concerns the functions or 

property of the United States,” a matter subject to the prohibition in 

D.C. Code § 1-147(a)(3).

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

200