U.S. v. White, 76-1391
| Decision Date | 12 August 1977 |
| Docket Number | No. 76-1391,76-1391 |
| Citation | 560 F.2d 787 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alen Terry WHITE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.
Donald B. Mackay, U. S. Atty., Springfield, Ill., for plaintiff-appellee.
Before CUMMINGS, PELL and TONE, Circuit Judges.
White was indicted and convicted on one count charging conspiracy with eight named unindicted persons to distribute d, 1-amphetamine, "a Schedule II controlled substance," in violation of 21 U.S.C. § 846 and on three counts charging distribution of d, 1-amphetamine in violation of 21 U.S.C. § 841(a) (1). Numerous arguments are made on appeal.
White insists that the proof in the case was insufficient as to all counts because there was no evidence that the substances he distributed were controlled substances within the meaning of the pertinent statutory and regulatory authorities. The record contains abundant evidence that White distributed d, 1-amphetamine sulfate, and the district court instructed the jury on the point as follows: "You are instructed as a matter of law that amphetamine, its salts, optical isomers, or salts of its optical isomers, is a controlled substance as defined in Section 812, Title 21, United States Code." White does not attack the sufficiency of the evidence to support the jury's conclusion that he distributed a controlled substance as thus defined, but argues instead that this definition is inadequate, that the Government must also prove in amphetamine cases that the drug in question has a stimulant effect on the central nervous system, and that the record contains absolutely no evidence of the stimulant effect of the substances he distributed. 1 The Government concedes that no such proof was offered in the case.
The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., established a variety of regulatory and criminal provisions dealing with "controlled substances," including the prohibitions White is convicted of violating. Controlled substances are divided into five categories, or schedules, based on application of factors such as the degree of abuse potential, the existence of accepted medical uses, the possibility of safe uses, and the likelihood that abuse may lead to physical or psychological dependence. 21 U.S.C. § 812(b). Congress provided in the Act initial schedules, 21 U.S.C. § 812(c), which the Attorney General is required to update and republish periodically, 21 U.S.C. § 812(a), and the Attorney General is expressly authorized to add or remove substances from the controlled lists, and to move substances from one schedule to another, all pursuant to specified procedures and based on the above-mentioned factors, 21 U.S.C. § 811.
In the initial schedules incorporated into the Act, 21 U.S.C. § 812, Congress classified amphetamines as Schedule III substances:
(c) Schedules I, II, III, IV and V shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated:
SCHEDULE III
(a) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
(1) Amphetamine, its salts, optical isomers, and sales of its optical isomers. (Emphasis supplied.)
Subsequent to the enactment of the Act, the Attorney General rescheduled amphetamines as Schedule II substances. The
schedule in force at the times germane to the instant case provides, in pertinent part:
SCHEDULE II
(a) Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section. . . .
(d) Stimulants. (Emphasis in original.) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers. . . . (Emphasis added.)
21 C.F.R. § 1308.12 (1975), promulgated June 20, 1974. Seizing on the quoted language to which emphasis has been added, White urges us to hold that amphetamines may not be found in any trial to constitute a controlled substance unless it is proved beyond a reasonable doubt that the amphetamines in question have a stimulant effect on the central nervous system. We decline the invitation, for Congress and the Attorney General have already made that determination.
While we can agree with White that the merely denunciatory import of the "having a stimulant effect . . ." language could have been made clearer by more careful draftsmanship, we disagree that there is any reasonable doubt that such was the plain and intended meaning. The words themselves, naturally read, suggest that Congress (and later the Attorney General) determined that the listed substances have a stimulant effect. This determination, as to amphetamines at least, is perfectly in accord with medical fact. Dorland's Illustrated Medical Dictionary 70 (24th ed. 1965) (defining "amphetamine" and "amphetamine sulfate"). No doubt Congress can, for penal or regulatory purposes, use a word differently than its commonly accepted medical meaning would suggest, but we find absolutely no indications that such was intended here. Indeed, that "(a)mphetamines and derivatives thereof are central nervous system stimulants," S.Rep. No. 337, 89th Cong., 1st Sess., 1 U.S.Code Cong. & Ad.News 1895, 1898 (1965), was expressly recognized in the legislative history of the predecessor statute, and the legislative history of the 1970 Act, while silent on this specific point, surely gives no hint that Congress had decided, for the first time, to ignore medical reality in dealing with amphetamines.
An examination of other provisions of the 1970 Act strongly supports our conclusion. In 21 U.S.C. § 812(c), as has been noted, Congress provided...
To continue reading
Request your trial
-
State v. Samatar
...United States v. Durham (C.A.9, 1991), 941 F.2d 886; United States v. Picklesimer (C.A.3, 1978), 585 F.2d 1199; United States v. White (C.A.7, 1977), 560 F.2d 787; United States v. Nickles (C.A.5, 1975), 509 F.2d 810; State v. Light (App.1993), 175 Ariz. 62, 852 P.2d 1246; State v. Hernande......
-
U.S. v. Durham
...stimulant, since the regulation has already defined it as such. We join other circuits in rejecting this contention. United States v. White, 560 F.2d 787 (7th Cir.1977); see United States v. Nickles, 509 F.2d 810 (5th Cir.1975); see also United States v. Picklesimer, 585 F.2d 1199 (3rd Cir.......
-
State v. Hernandez
...a potential for abuse associated with a stimulant effect. United States v. Picklesimer, 585 F.2d 1199 (3rd Cir.1978); United States v. White, 560 F.2d 787 (7th Cir.1977); and United States v. Nickles, 509 F.2d 810 (5th Cir.1975), are to the effect that extra verbiage is simply descriptive o......
-
State v. Ali, No. C2-00-70.
...States v. Durham, 941 F.2d 886, 891 (9th Cir.1991); United States v. Picklesimer, 585 F.2d 1199, 1203 (3d Cir.1978); United States v. White, 560 F.2d 787, 790 (7th Cir.1977); United States v. Nickles, 509 F.2d 810, 811 (5th Cir.1975); State v. Light, 175 Ariz. 62, 852 P.2d 1246, 1248 (Ct.Ap......