Darren Guy Erlin v. United States

After waiver of a jury trial, appellant was convicted by the Court on a two count indictment charging him with unlawful sales of LSD (d-lysergic acid diethylamide) in violation of 21 U.S.C. §§ 331 (q) (2), 321 (v) (3) and 333(a), D.C., 283 F.Supp. 396 .

Appellant concedes, as he must, that the constitutionality of this legislation has been previously considered and upheld as a proper delegation of authority. White v. United States, 395 F.2d 5 (1st Cir. 1968), and as a proper exercise of congressional regulatory power under the commerce clause. Deyo v. United States, 396 F.2d 595 (9th Cir. 1968); United States v. Heiman, 406 F.2d 767 (9th Cir. 1969).

Appellant would avoid the impact of these decisions by arguing that the specific designation of LSD, as a prohibited drug, is found in a regulation, rather than in the statute itself, and for that reason he was not given fair notice that his conduct was criminal in nature. Appellant is not in a position to complain. LSD was first included as a prohibited drug on May 18, 1966. This administrative finding was first published in the Federal Register on March 19, 1966. This is not a case where the act was committed immediately after…