United States of America, Plaintiff-appellee, v. Roberto Rodriquez-camacho, Defendant-appellant, 468 F.2d 1220 (9th Cir. 1972)

Appellant pleaded guilty in the United States District Court for the Southern District of California to one count of possession of a controlled substance (99 pounds of marijuana) with intent to distribute, in violation of 21 U.S.C. § 841 (a) (1).¹ 

On appeal he contends (1) that the words "intent to distribute" are inadequately defined, rendering the statute unconstitutionally vague, and (2) that the statute fails to state an offense against the United States. We affirm.

"Distribute" is defined by 21 U.S.C. § 802(11):

"The term 'distribute' means to deliver (other than by administering or dispensing) a controlled substance."

"Deliver" is defined by 21 U.S.C. § 802(8):

"The terms 'deliver' or 'delivery' mean the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship."

We conclude that Sec. 841(a) (1) and the corresponding definitions create a "sufficiently definite warning," United States v. Petrillo, 332 U.S. 1, 8, 67 S. Ct. 1538, 91 L. Ed. 1877 (1946), that possession with intent to deliver or transfer a controlled substance, either interstate or intrastate, constitutes a federal offense,²  and therefore is not unconstitutionally vague.

Appellant's second contention that "the statute fails to state an offense against the United States," is likewise without merit.

Appellant urges that Congress may not constitutionally regulate the intrastate distribution of controlled substances. We disagree. Congress may regulate not only interstate commerce but also those wholly intrastate activities which it concludes have an effect upon interstate commerce. Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971); Deyo v. United States, 396 F.2d 595 (9th Cir. 1968).³ 

Marijuana is listed among the controlled substances in the challenged statute,⁴  and Congress has made specific findings as to the effect of intrastate activities in controlled substances on interstate commerce.⁵  "This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent." Stafford v. Wallace, 258 U.S. 495, 521, 42 S. Ct. 397, 403, 66 L. Ed. 735 (1922). Such is not the case as regards controlled substances.

Congress has concluded that ". . . controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."⁶  Appellant urges that this assertion is inapplicable to marijuana. This is a matter, however, whose ultimate resolution lies in the legislature and not in the courts. It is sufficient that Congress had a rational basis for making its findings.

Furthermore, the United States is a party to the Single Convention on Narcotic Drugs,⁷  binding, inter alia, all signatories to control persons and enterprises engaged in the manufacture, trade and distribution of specified drugs.⁸  Marijuana (cannabis) is so specified.⁹  Enactment of Sec. 841(a) (1) is a permissible method by which Congress may effectuate the American obligation under that treaty. Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1920).

This particular statute has been upheld by two other circuits. United States v. Lopez, 459 F.2d 949 (5th Cir. 1972) and United States v. Scales, 464 F.2d 371 (6th Cir. 1972). See also United States v. Rodriguez, 438 F.2d 1164 (9th Cir. 1971) and White v. United States, 399 F.2d 813 (8th Cir. 1968).

We likewise uphold it. Judgment affirmed.