White v. United States, No. 7018.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtALDRICH, , McENTEE and COFFIN, Circuit
Citation395 F.2d 5
PartiesLawrence W. WHITE, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 7018.
Decision Date17 May 1968

395 F.2d 5 (1968)

Lawrence W. WHITE, Defendant, Appellant,
v.
UNITED STATES of America, Appellee.

No. 7018.

United States Court of Appeals First Circuit.

May 17, 1968.


Kevin M. Keating, Needham, Mass., with whom Joseph S. Oteri and Crane, Inker & Oteri, Boston, Mass., were on brief, for appellant.

John Wall, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., and Albert F. Cullen, Jr., Asst. U. S. Atty., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges

COFFIN, Circuit Judge.

This is an appeal from a conviction based on an indictment in two counts charging defendant with unlawfully,

395 F.2d 6
knowingly and wilfully selling and disposing of a quantity of lysergic acid diethylamide (LSD), a "depressant or stimulant drug" within 21 U.S.C. § 321 (v) (3)1, to an agent of the Bureau of Drug Abuse Control, Food and Drug Administration, in violation of 21 U.S.C. § 331(q) (2).2 The indictment contained no allegation that the drugs in question traveled in interstate commerce or that the defendant intended to transport them in interstate commerce

Appellant challenges the constitutionality of both 21 U.S.C. § 331(q) (2) and 21 U.S.C. § 321(v) (3) asserting, as to the former, that the statute exceeds the power delegated to Congress under the Commerce Clause for the reason that it is not expressly limited, or intended to be limited, to matters in, mingled with, or found to affect interstate commerce; and, as to the latter, that the statute defining a "depressant or stimulant drug" and delegating to the Secretary of Health, Education and Welfare authority to classify certain drugs under that rubric is a delegation of legislative authority in violation of Article I, Section 1 of the Constitution.

The 1965 amendments to the Federal Food, Drug and Cosmetic Act of 1938, 21 U.S.C. §§ 301-392, including the two sections challenged here, were sought in order "to provide a much needed strengthening of * * * controls * * available under the Act * * * and * * * to provide additional sanctions * * *." Hearings on H.R. 2 Before the House Committee on Interstate & Foreign Commerce, 89th Cong., 1st Sess., at 8 (1965). These amendments were enacted into law during the summer of 1965 based upon congressional findings and declaration of policy that may be reduced to the following propositions: (1) the unsupervised use of depressant and stimulant drugs is a hazard to public health and safety — including safety on the highways — without distinction between interstate and intrastate traffic; (2) there is a widespread illicit traffic in such drugs moving in or affecting interstate commerce; (3) it is impossible to determine whether such drugs, held for illicit sale, often unlabelled, have been in or have affected interstate commerce; (4) therefore, effective regulation of interstate commerce requires regulation of intrastate commerce. 1965 U.S.Code Cong. & Adm.News, p. 241. These findings stem from varied and extensive testimony as to the extent of illegal drug traffic and unauthorized use, the diversion of basic chemicals and finished

395 F.2d 7
drugs from legitimate channels of production and distribution, and the physical and mental harm, temporary and longlasting, resulting from drug misuse. Hearings, supra

It is not argued that the congressional purpose is other than a wise and timely response to the evidence adduced at the hearings. The sole question is whether Congress can achieve its purpose through its Commerce Clause power. That Congress may protect legitimate interstate traffic in depressant and stimulant drugs against competition from illicit interstate traffic by forbidding the latter is clear. That it can go so far as to forbid intrastate traffic which is specifically found to affect interstate commerce is also established doctrine. But whether it can forbid the intrastate sale, delivery, or other disposition of the covered drugs, without requiring proof that interstate commerce is affected by the specific transaction, is the question to be resolved here.

The congressional findings reveal two justifications for exercising an across-the-board prohibition. Both speak to the impossibility of the intrastate-interstate distinction as a useful concept in regulating this particular problem. One addresses the inseparability of effect on safety of drug consumption; the other, the inseparability of the problem of regulating distribution. Unlike many other objects of federal regulation, depressant and stimulant drugs are not an inert, passive substance, which, after use, pass into the realm of statistics of consumption. They exert an influence on the consumer, which may spell danger or disaster for people or property from or in other states. As for distribution, Congress has acknowledged that attempts prior to 1965 to regulate proscribed interstate traffic have failed because of the impracticability and impossibility of determining source of origin identification.

We think that Congress has adequately identified a situation where its dual objective of fostering proper interstate commerce and proscribing improper interstate commerce would be aborted without the power to regulate all interstate commerce. That this is a farreaching conclusion we acknowledge. We also recognize that it is subject to abuse. But as between allowing exercise to the outer limit of the commerce power in what we deem a proper case and forbidding it because of fears of its use in an improper case, we choose the former, having confidence in the ability of both Congress and the courts to distinguish use from abuse.

The traditional landmark cases under the Commerce Clause, such as Houston, East & West Texas Ry. Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L. Ed. 1341 (1914); Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); and Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), have upheld the exercise of federal power to protect, foster,...

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34 practice notes
  • U.S. v. Pastor, Nos. 577
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 19 Mayo 1977
    ...a clear and precise measure of Congress' intent and a reasonably certain guide for the Attorney General. See White v. United States, 395 F.2d 5 (1st Cir. 1968), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266 (1968) (upholding against a challenge for vagueness the "potential for ab......
  • United States v. Synnes, No. 20438.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 1 Febrero 1971
    ...554, 24 L.Ed. 2d 495 (1970); White v. United States, supra; Deyo v. United States, 396 F.2d 595 (9th Cir. 1968); White v. United States, 395 F.2d 5 (1st Cir.), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed. 2d 266 (1968). We do not think that a statute prohibiting the mere possession or......
  • United States v. Pastor, No. 75 CR. 753
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 26 Mayo 1976
    ...scheduling authority to the Secretary of Health, Education, and Welfare previously found in 21 U.S.C. § 321(v)(3).2 White v. United States, 395 F.2d 5 (1st Cir. 1968), cert. den. 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266 (1968); Iske v. United States, 396 F.2d 28 (10th Cir. 1968). In both ......
  • Stevens v. United States, No. 20488.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 22 Marzo 1971
    ...259; United States v. Cerrito, 413 F.2d 1270 (7th Cir.), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495; White v. United States, 395 F.2d 5 (1st Cir.), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266. See also United States v. Biancofiori, 422 F.2d 584 (7th Cir.), cert. ......
  • Request a trial to view additional results
34 cases
  • U.S. v. Pastor, Nos. 577
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 19 Mayo 1977
    ...a clear and precise measure of Congress' intent and a reasonably certain guide for the Attorney General. See White v. United States, 395 F.2d 5 (1st Cir. 1968), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266 (1968) (upholding against a challenge for vagueness the "potential for ab......
  • United States v. Synnes, No. 20438.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 1 Febrero 1971
    ...554, 24 L.Ed. 2d 495 (1970); White v. United States, supra; Deyo v. United States, 396 F.2d 595 (9th Cir. 1968); White v. United States, 395 F.2d 5 (1st Cir.), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed. 2d 266 (1968). We do not think that a statute prohibiting the mere possession or......
  • United States v. Pastor, No. 75 CR. 753
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 26 Mayo 1976
    ...scheduling authority to the Secretary of Health, Education, and Welfare previously found in 21 U.S.C. § 321(v)(3).2 White v. United States, 395 F.2d 5 (1st Cir. 1968), cert. den. 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266 (1968); Iske v. United States, 396 F.2d 28 (10th Cir. 1968). In both ......
  • Stevens v. United States, No. 20488.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 22 Marzo 1971
    ...259; United States v. Cerrito, 413 F.2d 1270 (7th Cir.), cert. denied, 396 U.S. 1004, 90 S.Ct. 554, 24 L.Ed.2d 495; White v. United States, 395 F.2d 5 (1st Cir.), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266. See also United States v. Biancofiori, 422 F.2d 584 (7th Cir.), cert. ......
  • Request a trial to view additional results

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