United States v. David Valdez Rodriguez

Rodriguez appeals from his conviction, following a jury trial, for conspiring with one Samuel Silva to sell and possess depressant and stimulant drugs (i. e., barbiturates and amphetamines) in violation of 21 U.S.C. § 331 (q) (2) and (3) and § 360a(b) and (c) (1). Appellant was acquitted on a count charging possession of amphetamines (21 U.S.C. § 360a(c)). His co-conspirator, Silva, who was not charged in the conspiracy count, pled guilty to a single count of possessing amphetamines. We affirm.

Constitutionality of the Statute

Appellant contends that 21 U.S. C. § 331(q) (3) and § 360a(c) (l) are unconstitutional because Congress is without constitutional authority to regulate traffic in barbiturates and amphetamines. This court has already concluded that regulation of these drugs, along with LSD, is a legitimate exercise of the commerce power. Deyo v. United States, 396 F.2d 595, 598-599 (9th Cir. 1968). Accord, United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004 , 90 S.Ct. 554 , 24 L.Ed.2d 495 (1970) (amphetamines); White v. United States, 399 F.2d 813, 820-825 (8th Cir. 1968) (amphetamines) ; White v. United States, 395 F.2d 5 (1st Cir.), cert.…