Carter v. United States, 7709.

• Decision Date: 24 June 1964
• Docket Number: No. 7709.,7709.
• Parties: James Edward CARTER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

333 F.2d 354 (1964)

James Edward CARTER, Appellant, v. UNITED STATES of America, Appellee.

No. 7709.

United States Court of Appeals Tenth Circuit.

June 24, 1964.

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 U.S.C. § 4001. In the performance of his statutory duty, the Attorney General undoubtedly may provide by regulation that nothing shall be brought into or taken out of a Federal penal institution without the knowledge and consent of the warden or superintendent of such institution. And, the regulation does not lose its administrative character simply because Congress has seen fit to make its violation a public offense. See: United States v. Grimaud, ibid; and United States v. Ruckman, D.C., 169 F.Supp. 160. The validity of the regulation is unquestioned here — the power of Congress to penalize its violation is unquestionable.

The second point on appeal is that the proof in support of the two-count indictment is at fatal variance with the allegations therein. The conspiracy count of the indictment alleged that the defendants, Robert Eldon Ludlum, Jr. and appellant-Carter, planned and arranged for the introduction onto the grounds of the United States Penitentiary at Leavenworth, Kansas, contrary to the rules and regulations promulgated by the Attorney General, of five jars of instant coffee, without the knowledge or consent of the warden or superintendent of said Penitentiary. It is then alleged that upon formation of the agreement and to effect its object, the defendants committed two overt acts: (1) When the defendant Ludlum came to the Penitentiary at Leavenworth on April 4, 1962, appellant Carter gave him $10, $5 of which was for the purchase price of coffee and $5 to be retained by Ludlum for his services in purchasing and introducing the same into the Penitentiary; and, (2) on April 6, 1962, defendant Ludlum brought into the United States Penitentiary five jars of instant coffee, contrary to the rules and regulations governing the institution, and delivered the same to appellant Carter. The second count alleged the introduction of the five jars of coffee, as aforesaid.

In support of the allegations in the indictment, Ludlum testified that he was employed as a truck driver during the week of April 2 through 6, 1962; that in the course of his duties on April 4, 1962, he drove his truck from Lawrence, Kansas to the Federal Penitentiary at Leavenworth; that while unloading the truck at a warehouse on the Penitentiary grounds, Carter approached him, gave him $10 and asked him to buy $5 worth of instant coffee and keep $5 for himself; that the coffee was to be left in the cab of the truck for appellant to pick up the following day; that the next day he did purchase five jars of instant coffee from a grocery store in Lawrence, drove to the warehouse on the Penitentiary grounds, and left the package containing the coffee in the cab of his truck; and,...