333 F.2d 354 (10th Cir. 1964), 7709, Carter v. United States

Docket Nº:7709.
Citation:333 F.2d 354
Party Name:James Edward CARTER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 24, 1964
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 354

333 F.2d 354 (10th Cir. 1964)

James Edward CARTER, Appellant,

v.

UNITED STATES of America, Appellee.

No. 7709.

United States Court of Appeals, Tenth Circuit.

June 24, 1964

Page 355

Fred A. Gipson, Oklahoma City, Okl., for appellant.

Benjamin E. Franklin, Asst. U.S. Atty. (Newell A. George, U.S. Atty., on brief), for appellee.

Before MURRAH, Chief Judge, HILL, Circuit Judge, and ARRAJ, District judge.

MURRAH, Chief Judge.

The defendant appeals from a judgment after conviction on a two-count indictment, the first of which charged a conspiracy to violate § 1791, Title 18 U.S.C., by an agreement to introduce or attempt to introduce upon the grounds of a Federal penal institution, 'five jars of instant coffee without the knowledge and consent of the warden or superintendent of said Penitentiary.' The second count charged the substantive offense. The substantive statute provides: 'Whoever, contrary to any rule or regulation promulgated by the Attorney General, introduces or attempts to introduce into or upon the grounds of any Federal penal or correctional institution or takes or attempts to take or send therefrom any thing whatsoever, shall be imprisoned not more than ten years.' 18 U.S.C. § 1791. The applicable regulation provides: 'The introduction or attempt to introduce into or upon the grounds of any Federal penal or correctional institution * * * any thing whatsoever without the knowledge and consent of the warden or superintendent of such Federal penal or correctional institution is prohibited.' Title 28, Code of Federal Regulations, § 6.1.

Appellant first attacks the statute as an unconstitutional delegation of legislative authority. The contention seems to be that since violation of the statute is made to depend upon the violation of a rule or regulation of the Attorney General, the law itself is an unconstitutional delegation of the law-making function.

We know, of course, that Congress may not penalize the violation of an administrative rule or regulation which it has no constitutional power to authorize. See: Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446; and Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570. It is equally clear, we think, that Congress may penalize the violation of an administrative rule or regulation which it is constitutionally empowered to authorize. See: United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563. In the exercise of its law-making function, Congress has committed to the Attorney General the 'control and management' of Federal penal and correctional institutions, and has vested him with the duty and authority to 'promulgate rules for the government thereof.' 18...

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