Benny Lee Whalen v. United States

PER CURIAM. This is an appeal from a judgment entered on a jury verdict finding the appellant guilty of unlawful possession for purpose of sale and unlawful sale and delivery of d-amphetamine sulfate powder, a “depressant or stimulant drug” within the meaning of 21 U.S.C. § 321 (v) (2). The illegal sale or possession of depressant or stimulant drugs is prohibited by 21 U.S.C. § 331(q) (2) and (3), whether or not the drugs have been sold or shipped in interstate commerce at any time. The sole question here is the constitutionality of the applicable statutes. Appellant contends that they are unconstitutional in that the 1965 amendments to the Federal Food, Drug and Cosmetic Act exceed the constitutional grant of power to Congress over interstate commerce under Article 1, Section 8, Clause 3 of the United States Constitution. The identical question was decided adversely to appellant’s contention in White v. United States, 399 F.2d 813 (8th Cir. July 9, 1968). We affirm on the basis of the soundly reasoned opinion in White, supra. See also, Deyo v. United States, 396 F.2d 595 (9th Cir., June 5, 1968).