Appeal from the United States District Court for the Southern District of Illinois. No. S-CR-75-69 - Harlington Wood, Jr., Judge.
Cummings, Pell, and Tone, Circuit Judges.
White was indicted and convicted on one count charging conspiracy with eight named unindicted persons to distribute d, 1-amphetamine, "a Schedule II controlled substance," in violation of 21 U.S.C. § 846 and on three counts charging distribution of d, 1-amphetamine in violation of 21 U.S.C. § 841(a)(1). Numerous arguments are made on appeal.
White insists that the proof in the case was insufficient as to all counts because there was no evidence that the substances he distributed were controlled substances within the meaning of the pertinent statutory and regulatory authorities. The record contains abundant evidence that White distributed d, 1-amphetamine sulfate, and the district court instructed the jury on the point as follows: "You are instructed as a matter of law that amphetamine, its salts, optical isomers, or salts of its optical isomers, is a controlled substance as defined in Section 812, Title 21, United States Code." White does not attack the sufficiency of the evidence to support the jury's conclusion that he distributed a controlled substance as thus defined, but argues instead that this definition is inadequate, that the Government must also prove in amphetamine cases that the drug in question has a stimulant effect on the central nervous system, and that the record contains absolutely no evidence of the stimulant effect of the substances he distributed.*fn1 The Government concedes that no such proof was offered in the case.
The comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., established a variety of regulatory and criminal provisions dealing with "controlled substances," including the prohibitions White is convicted of violating. Controlled substances are divided into five categories, or schedules, based on application of factors such as the degree of abuse potential, the existence of accepted medical uses, the possibility of safe uses, and the likelihood that abuse may lead to physical or psychological dependence. 21 U.S.C. § 812(b). Congress provided in the Act initial schedules, 21 U.S.C. § 812(c), which the Attorney General is required to update and republish periodically, 21 U.S.C. § 812(a), and the Attorney General is expressly authorized to add or remove substances from the controlled lists, and to move substances from one schedule to another, all pursuant to specified procedures and based on the above-mentioned factors, 21 U.S.C. § 811.
In the initial schedules incorporated into the Act, 21 U.S.C. § 812, Congress classified amphetamines as Schedule III substances:
(c) Schedules I, II, III, IV, and V shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated:
(a) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system :
(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers. [Emphasis supplied.]
Subsequent to the enactment of the Act, the Attorney General rescheduled amphetamines as Schedule II substances. The schedule in force at the times germane to the instant case provides, in pertinent part:
(a) Schedule II shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section . . . .
(d) Stimulants. [Emphasis in original.] Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances ...