United States v. White, Cr. No. 25582.

• Citation: 295 F. Supp. 893
• Decision Date: 26 December 1968
• Docket Number: Cr. No. 25582.
• Parties: UNITED STATES of America v. Jessie James WHITE.
• Court: U.S. District Court — Northern District of Georgia

295 F. Supp. 893

UNITED STATES of America v. Jessie James WHITE.

Cr. No. 25582.

United States District Court N. D. Georgia, Atlanta Division.

December 26, 1968.

Theodore E. Smith, Asst. U. S. Attorney, Atlanta, Ga., for plaintiff.

Paul L. Wayman, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

Defendant, a federal prisoner, was indicted for violation of 18 U.S.C.A. § 1791, which 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 anything whatsoever, shall be imprisoned not more than ten years." (Emphasis added.)

The violation charged is framed as a violation of a certain prison regulation relating to

"TRAFFIC IN CONTRABAND ARTICLES IN FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS. § 6.1. Consent of warden or superintendent required. The introduction or attempt to introduce into or upon the grounds of any Federal penal institution or the taking or attempt to take or send therefrom anything whatsoever without the knowledge and consent of the warden or superintendent of such Federal penal or correctional institution is prohibited." 28 C.F.R. Chapter I, Part 6. (Emphasis added.)

18 U.S.C.A. § 1791 is attacked as delegating to the Attorney General (and his wardens) the power, not merely to set standards as to what shall be contraband, but to declare that contraband shall exist, with full criminal consequences, at his whim or notion at whatever time he should choose. Defendant urges that the Attorney General has in fact done this by 28 C.F.R. Chapter I, Part 6, as italicized above, in prohibiting the transmission of anything whatsoever, and thereby allowing a warden to declare any act of transmission criminal at any time.

A legislative body may validly provide a criminal penalty for violations of regulations which it may empower administrative agencies to enact. Avent v. United States, 266 U.S. 127, 45 S.Ct. 34, 69 L.Ed. 202 (1924); McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668 (1919). As to the statute before the court, it was declared constitutional by the Court of Appeals for the Tenth Circuit in Carter v. United States, 333 F.2d 354 (1964). In an opinion by Chief Judge Murrah, it was said:

"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 Poultry 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

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