Deyo v. United States

• Decision Date: 05 June 1968
• Docket Number: No. 22058.,22058.
• Citation: 396 F.2d 595
• Parties: Dennis C. DEYO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

396 F.2d 595 (1968)

Dennis C. DEYO, Appellant, v. UNITED STATES of America, Appellee.

No. 22058.

United States Court of Appeals Ninth Circuit.

June 5, 1968.

Kent Ten Brink (argued), Los Angeles, Cal., for appellant.

Arthur A. Dickerman (argued), Dept. of Health, Education & Welfare, William M. Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, William J. Gargaro, Jr., Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and MERRILL, Circuit Judges, and BELLONI, District Judge.

MERRILL, Circuit Judge:

Appellant was convicted of the possession and sale of LSD-25 in violation of the 1965 amendments to the Federal Food, Drug, and Cosmetic Act.¹ There is no dispute of the fact that he acted in violation of these statutes. The sole question here raised is their constitutionality.²

The amendments are challenged as exceeding the constitutional grant of power to Congress in that the regulation in question is not brought within the ambit of any enumerated constitutional power such as taxation, the declaration of war or the control of interstate and foreign commerce. Specifically, it is claimed that the 1965 Act is unconstitutional in that, as contrasted with acts dealing with other drugs, it makes criminal the sale or possession for sale of LSD without regard to whether the drug has crossed state lines or international boundaries.

The amendments involved relate to "depressant and stimulant drugs." There is no question but that Congress here has resorted to a wholly new technique for bringing the regulation of drug traffic within the scope of the commerce clause. Through more conventional legislation Congress has sought to control interstate traffic in "dangerous drugs" that are suitable for bona fide prescription sales, 21 U.S.C. §§ 331, 353(b) (1), and unproven "new drugs" (which include some of the dangerous drugs not yet suitable for prescription sales), 21 U.S.C. §§ 355, 321(p). See United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297 (1948); United States v. 2600 State Drugs, Inc., 235 F.2d 913 (7th Cir.), cert. denied, 352 U.S. 848, 77 S.Ct. 68, 1 L.Ed.2d 59 (1956). Where proof of origin is especially difficult through lack of indicia, as in the case of heroin and marijuana, which move through international and interstate channels in clandestine manner, the facts of importation and knowledge are established by presumption founded on rational inference from unexplained possession. 21 U.S.C. §§ 174, 176a.

The statute here in its elimination of the necessity for establishing interstate transportation, even by presumption, is characterized by appellant as "a blatant attempt to appropriate for the federal government general police powers," which the Constitution specifically reserves to the states.

The ostensible basis for this regulation under the commerce clause appears in the "Congressional Findings and Decision of Policy" contained in the Act. 21 U.S.C.A. § 360a Note.³ There Congress found a clear danger of national proportions in unregulated traffic of depressant and stimulant drugs necessitating its action respecting interstate traffic in such drugs;⁴ that since interstate traffic cannot be distinguished from intrastate traffic due to lack of indicia of drug origin, the former cannot effectively be regulated without as well regulating the latter; and that regulation of interstate commerce, without regulation of intrastate commerce, would adversely affect the former.

It may be questioned whether the problem of identifying the origin of a drug would alone justify regulation as broad as that here imposed which encompasses drugs admittedly local in origin and identifiable as such. (It would be no defense to the crime here charged to prove that the LSD was local in origin.)⁵

This question, however, we need not reach. Regulation of intrastate commerce in "stimulant and depressant" drugs is constitutionally justifiable because, under the congressional findings, not only is there a problem of identifying their origin, but such commerce also adversely affects interstate commerce in these drugs. Where intrastate transactions are so commingled with and have such an economic effect upon interstate transactions that regulation of both types of commerce is required if there is to be effective regulation of either, the Supreme Court has in the past upheld the regulation of purely local traffic. In the Minnesota Rate Cases, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511 (1913), and the Shreveport Case (Houston, East & West Texas Railway Co. v. United States), 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), it was held that intrastate railroad rates could be federally controlled because of their competitive relation to interstate rates. If left unregulated, lower intrastate rates could severely injure interstate railroad commerce. In the Minnesota Rate Cases the Court said, 230 U.S. at 399, 33 S.Ct. at 739:

"The authority of Congress extends to every part of interstate commerce * * * and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the Nation may deal with the internal concerns of the State, as such, but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere."

This rationale was later adopted to sustain federal regulation of the price of milk produced and sold intrastate in United States v. Wrightwood Dairy, 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942), where the Court said:

"The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce."

The Court found that, as in the case of railroad traffic, intrastate and interstate milk were in direct competition and in fact were often physically commingled. The resulting interference with the effectiveness of federal regulation of interstate milk, together with the discriminatory effect upon interstate milk which nonregulation of intrastate milk would have, justified regulation of all milk prices.

Federal regulation of wages and hours of labor, United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941), intrastate tobacco, Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1939), and completely home-produced and consumed wheat, Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), has been sustained by the Supreme Court on a similar constitutional basis. Other Federal Food, Drug and Cosmetic Act legislation than that presently before us has explicitly relied upon this history of commerce clause interpretation to support its regulation of intrastate transactions. See Oleomargine Act of 1950, 21 U.S.C. §§ 347(a), 347a. It seems late in the day for appellant now to argue that the regulation of intrastate activities by Congress is in all cases an unconstitutional usurpation of the police power of the states.⁶

This past line of decisions is clearly applicable to amphetamines and barbiturates, both of which have established legitimate medical uses and as to which extensive legitimate interstate commerce exists.⁷ The rigid record keeping federally required of manufacturers, processors and dispensers of such drugs by 21 U.S.C. § 360a(d) for the purpose of eliminating their diversion to illicit uses imposes an onerous duty which many would avoid if they could through confining themselves to wholly intrastate manufacture, shipment and sale. The incentive to avoid the consequences of federal regulation by not purchasing drugs manufactured or processed out of state would thus, absent regulation of intrastate commerce, discriminate against and adversely affect legitimate interstate commerce.

That the same is true of experimental new drugs such as LSD is not so clear. Prescription sale does not yet constitute a source of legitimate interstate commerce with which unregulated intrastate commerce may compete and which it might adversely affect.

With respect to such new drugs (whose safety, effectiveness and potential for public good have not yet been established) it is, however, the policy of Congress to encourage their nationwide distribution for legitimate investigational use under appropriate safeguards so that they may be made available to the public as soon as their usefulness and safety are proven. 21 U.S.C. §§ 321(p) (1), 355(i); 21 C.F.R. § 102.3; cf. Turkel v. Food & Drug Administration, 334 F.2d 844 (6th Cir. 1964), cert. denied, 379 U.S. 990, 85 S.Ct. 704, 13 L.Ed.2d 611 (1965). At present research is continuing on the efficacy of LSD as an aid in alchoholic and prisoner rehabilitation, to relieve pain and bring solace to the dying, to treat neuroses, and for other forms of psychotherapy. Clark, Religious Aspects of Psychedelic Drugs, 56 Calif.L.Rev. 86, 92-94 (1968); Comment, LSD and Freedom of Religion, 1 U.S.F.L.Rev. 131, 133-34 (1966); Hearings on Drug Safety Before a Subcommittee of the House Committee on Government Operations, 89th Cong., 2d Sess., at 2208-71 (June 9, 1966). Interstate commerce does, then, exist in the protection of which Congress can properly act.

There can be little doubt that unregulated and widespread local manufacture, sale and use of such drugs drastically interferes with the federal purpose and with the orderly investigation, development and marketing of...