United States v. Lopez, No. 71-3248 Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTHORNBERRY, COLEMAN and INGRAHAM, Circuit
Citation459 F.2d 949
Docket NumberNo. 71-3248 Summary Calendar.
Decision Date19 June 1972
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Amado LOPEZ and Thomas Llerena, Defendants-Appellants.

459 F.2d 949 (1972)

UNITED STATES of America, Plaintiff-Appellee,
v.
Amado LOPEZ and Thomas Llerena, Defendants-Appellants.

No. 71-3248 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

May 11, 1972.

Rehearing Denied June 19, 1972.


459 F.2d 950

Martin S. Saxon, Richard M. Gale, Miami, Fla., for Lopez and Llerena.

Robert W. Rust, U. S. Atty., Harold F. Keefe, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge:

Amado Lopez and Thomas Llerena appeal judgments of conviction entered in the United States District Court for the Southern District of Florida. We affirm.

In Count I of a three count indictment, both appellants were charged with conspiring to possess, with intent to distribute, approximately two kilograms of cocaine in violation of § 401(a) (1) of Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841(a) (1), and with committing certain overt acts in furtherance of the conspiracy in violation of § 406 of the same Act, 21 U.S.C. § 846.1 In Count II, Amado Lopez was charged with knowingly and intentionally distributing approximately two kilograms of cocaine, and in Count III with knowingly and intentionally distributing approximately 3.6 grams of heroin, both violations of § 401(a) (1) of the aforementioned Act, 21 U.S.C. § 841(a) (1).

Ample evidence supports the convictions. Lopez received a seven year sentence and five thousand dollar fine on both Count I and Count II and a three year sentence and twenty-five hundred dollar fine on Count III. Sentences imposed on Count II and Count III were to run concurrently with the sentence imposed on Count I. Llerena was sentenced to imprisonment for eighteen months on Count I.

Appellants present seven issues for review, six of which concern certain rulings of the lower court during the course of the trial. We find no merit in these contentions.

Appellants also challenge the constitutionality of § 401(a) (1) and § 406 of Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841(a) (1) and § 846. It is argued that Congress exceeded the power granted by the Commerce Clause, Article I, § 8 of the Constitution of the United States, that is, by prohibiting and making unlawful particular activities in controlled substances without requiring both allegation and proof that the particular activity involved in each individual case has affected interstate commerce.2 It is contended that the Act

459 F.2d 951
is invalid because it includes no provision for an independent inquiry in each case regarding the effect on interstate commerce of the particular activity involved

Appellants also contend that these sections of the Act violate the Tenth Amendment of the Constitution of the United States, because, contrary to that amendment, they constitute an invasion of the state's residual police power.

The principles governing the resolution of the constitutional issues presented by this appeal have repeatedly been established.

The Tenth Amendment does not operate upon the valid exercise of powers delegated to Congress by the Commerce Clause. United States v. Barrow, 3 Cir., 1966, 363 F.2d 62, cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967); see, also, Fernandez v. Wiener, 326 U.S. 340, 66 S.Ct. 178, 90 L.Ed. 116 (1945). If the passage of these sections of the Act was a valid exercise of those powers, no violation of the Tenth Amendment can occur.

It is well settled under the Commerce Clause that the power of Congress "extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make their regulation an appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce". United States v. Wrightwood Dairy Company, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942), see, also, Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964).

A familiar exercise of that power is the regulation of intrastate activities which are so commingled with or related to interstate activities that all must be regulated if interstate commerce is effectively to be controlled. The fact that interstate and intrastate activities are commingled does not frustrate or restrict the power of Congress to protect and control that which is committed to its own care. United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941); Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939).

Consequently, where it is apparent that an attempt to separate interstate activities from intrastate activities would be a futile exercise substantially interfering with and obstructing the exercise of the granted power of Congress to regulate interstate commerce, that attempt is not required. White v. United States, 1 Cir., 1968, 395 F.2d 5, cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266 (1968); White v. United States, 8 Cir., 1968, 399 F.2d 813.

While sometimes leaving to the courts the task of determining whether interstate commerce is affected by particular intrastate activities or whether an attempt to separate intrastate activities from those interstate would be a futile exercise, Congress, in passing this Act, has for itself made this determination.

The same determination was made by Congress in passing the Consumer Credit Protection Act of 1964 and the Drug Abuse Control Amendments of...

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62 practice notes
  • United States v. Rinaldi, 3:18-CR-279
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 18, 2019
    ...846 is permissible under the Commerce Clause and showing an interstate commerce nexus is not required.")(citing United States v. Lopez, 459 F.2d 949, 953 (5th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972)). For these reasons, Defendant's motions to dismiss the indic......
  • Pryor v. Reno, Civil Action No. 97-D-1396-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • March 13, 1998
    ...does not violate the Tenth Amendment. Cheffer v. Reno, 55 F.3d 1517, Page 1325 1519 (11th Cir.1995)(citing United States v. Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972)).7 Defendants assert that the DPPA was valid exercise of Congress'......
  • United States v. Martinez, No. 72-2685.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 14, 1973
    ...States v. Simpson, 481 F.2d 582 (5th Cir. 1973); United States v. Scales, 464 F.2d 371, 376 (6th Cir. 1972). 20 United States v. Lopez, 459 F.2d 949 (5th Cir. 1972); United States v. Scales, 464 F.2d 371, 375 (6th Cir....
  • U.S. v. Kirk, No. 94-50472
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 3, 1997
    ...scheme. See, e.g., United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir.1995); Lopez, 2 F.3d at 1367, n. 51; United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert. denied sub nom. Llerena v. United States, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). 24 The nature of controlle......
  • Request a trial to view additional results
62 cases
  • United States v. Rinaldi, 3:18-CR-279
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 18, 2019
    ...846 is permissible under the Commerce Clause and showing an interstate commerce nexus is not required.")(citing United States v. Lopez, 459 F.2d 949, 953 (5th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972)). For these reasons, Defendant's motions to dismiss the indic......
  • Pryor v. Reno, Civil Action No. 97-D-1396-N.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • March 13, 1998
    ...does not violate the Tenth Amendment. Cheffer v. Reno, 55 F.3d 1517, Page 1325 1519 (11th Cir.1995)(citing United States v. Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972)).7 Defendants assert that the DPPA was valid exercise of Congress'......
  • United States v. Martinez, No. 72-2685.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 14, 1973
    ...States v. Simpson, 481 F.2d 582 (5th Cir. 1973); United States v. Scales, 464 F.2d 371, 376 (6th Cir. 1972). 20 United States v. Lopez, 459 F.2d 949 (5th Cir. 1972); United States v. Scales, 464 F.2d 371, 375 (6th Cir....
  • U.S. v. Kirk, No. 94-50472
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 3, 1997
    ...scheme. See, e.g., United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir.1995); Lopez, 2 F.3d at 1367, n. 51; United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert. denied sub nom. Llerena v. United States, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972). 24 The nature of controlle......
  • Request a trial to view additional results

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