Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division - No. 73 F CR 94 Jesse E. Eschbach, Judge.
Fairchild and Tone, Circuit Judges, and Perry, Senior District Judge.*fn*
Defendants were convicted in a trial before a jury of unlawful possession with intent to distribute lysergic acid diethylamide, commonly known as LSD. They argue that there is a variance between the indictment and the proof, or alternatively an insufficiency in the evidence, because although the indictment charges and the evidence shows that they possessed and distributed LSD, the evidence also shows that they described the material only as psilocybin and mescaline. Defendant Mullins also contends that the evidence in support of Count I of the three-count indictment was insufficient as to him because it does not show that he was involved in the transaction proved under that count.*fn1
Defendants offered no evidence. The government's evidence was as follows:
On the evening of May 29, 1973, a confidential informant and Charles E. Hampshire, who was working with the Narcotics and Dangerous Drugs Section of the Indiana State Police, met the two defendants at a residence in Gas City, Indiana. Moser asked Hampshire what he was interested in, and Hampshire asked what "they" had. Moser answered "that they had psilocybin, mescaline, PCP and coke."*fn2 Hampshire asked "what their prices were," and Moser gave the prices of the various drugs he had mentioned. Hampshire stated that he "would be interested in purchasing an ounce of the psilocybin and a gram of the coke, and that if it proved satisfactory [he] would possibly want a half pound or a pound." Moser then stated that Hampshire and the confidential informant should return between 9:00 and 10:00 P.M. Later they returned and again met with the two defendants. Moser stated that he had the psilocybin but the coke had not been any good. Mullins said that he had injected himself with $25 worth of the cocaine and that "he still was not very high." Hampshire then said that he would not want the coke but "would try the psilocybin." Moser then handed Hampshire a bag containing reddish powder in exchange for $55. Moser stated that he would contact his supplier the next day and would have some additional coke that night.
The following evening Hampshire and the confidential informant returned to the same residence and met again with the defendants. Moser stated that he had not contacted his coke supplier yet but still had mescaline and gave the prices for various amounts. Hampshire said he would be interested in an ounce of the mescaline and "if it moved well" he might be interested in "half pound each of the psilocybin and the mescaline." Moser said that he did not have the mescaline bought yet and Hampshire should return later. Hampshire and the confidential informant left and returned later, at which time Moser handed Hampshire a package containing a blue powder that he said was mescaline in return for $55.
On July 10 Hampshire again met the defendants, this time at a residence near Jonesboro, Indiana. Mullins stated he wanted to take Hampshire and the confidential informant to his "stash," i.e., the place where he kept his drugs. The defendants got into Hampshire's car and directed him to a place along a railroad track. Mullins left the car and returned shortly with a plastic bag containing a blue powder, which he handed to Hampshire, stating "that it was pure and that it would cut to a pound . . . that it was $550 a pound and $575 buffed." Hampshire asked the price of half a pound and Mullins said "$275 pure and $300 buffed." Hampshire then looked at Moser, who nodded his head in the affirmative. Hampshire told them he would "be interested in a half a pound buffed, if he could watch them buff it." They all then returned to the residence where they had met earlier. Moser left "to get the scales and stuff," and returned with scales, cornstarch and a bowl. The defendants then proceeded to mix other substances and the blue powder in measured amounts in the bowl. Eventually Moser delivered half the contents of the bowl to Hampshire, stating, "You owe us $300." Hampshire then paid Mullins the $300.
Anne Rummel, a chemist employed by the Indiana State Police Department, testified that she had chemically analyzed the substances received by Hampshire on the three occasions and they all contained LSD.
Each of the three counts of the indictment charged that the defendants unlawfully possessed with intent to distribute a quantity "of lysergic acid diethylamide, a Schedule I Controlled Substance, in violation of 841(a)(1), Title 21 of the United States Code." That section makes it "unlawful for any person knowingly or intentionally --
"(1) to . . . distribute, . . . or possess with intent to . . . distribute, . . . a controlled substance . . . ."
Section 841 is section 401 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236 (1970). Section 102(6) of the Act, 21 U.S.C. § 802(6), defines "controlled substance" to mean "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V or part B of this subchapter." Section 202 of the Act, 21 U.S.C. § 812, which is contained in part B, establishes five schedules of controlled substances, contains a list of the substances which each schedule "shall initially consist of," and provides that the schedules "shall be updated and republished" periodically thereafter. Section 201 of the Act, 21 U.S.C. § 811, delegates the duty of updating and republishing of the schedules to the Attorney General. Schedule I, contained in section 202, lists in subsection (c) "any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers . . .: