United States v. Farber

306 F. Supp. 48, 1969 U.S. Dist. LEXIS 8759
CourtDistrict Court, N.D. California
DecidedOctober 10, 1969
DocketCrim. No. 42471
StatusPublished
Cited by3 cases

This text of 306 F. Supp. 48 (United States v. Farber) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Farber, 306 F. Supp. 48, 1969 U.S. Dist. LEXIS 8759 (N.D. Cal. 1969).

Opinion

MEMORANDUM AND ORDER

OLIVER J. CARTER, District Judge.

The Grand Jury for the Northern District of California returned an indict-[50]*50merit charging the defendants herein with conspiring to committ offenses against the United States in violation of 18 U.S.C. § 371. Specifically, the indictment charges the defendants with conspiring “to sell, deliver and dispose to another party and parties, a quantity of a depressant, stimulant, and hallucinogenic drug, lycergic acid diethylamide (commonly known as and referred to in this indictment as “LSD”) all in violation of Title 21 United States Code, Sections 331(q) (2), 360a(b), and 321(v) (3).” The case has proceeded to trial before a jury. The government’s evidence includes proof that the alleged conspiracy ultimately led to an offer by the defendant Farber to sell approximately 50,000 pills. The evidence shows that these pills are d-lysergic acid diethylamide in a salt form, not the free base form. The issue presented to the Court is whether or not the government must offer proof that the confiscated pills are lysergic acid diethylamide in the free base form in order to obtain a conviction of these defendants.

The substantive offenses with which the defendants are charged with conspiring to commit are herein set forth in pertinent part:

21 U.S.C. § 331: The following acts and the causing thereof are prohibited: * * *
(q) * * * (2) the sale, delivery, or other disposition of a drug in violation of section 36a(b) of this title; * * *.
21 U.S.C. § 360a(b): No person, other than [persons exempt from prohibition] shall sell, deliver, or otherwise dispose of any depressant or stimulant drug to any other person.
21 U.S.C. § 321 (v): The term “depressant or stimulant drug” means—
(3) lysergic acid diethylamide and any other drug which contains any quantity of a substance which the Secretary [properly finds and designates] .

Both the statute (21 U.S.C. § 321 (v) (3)) and the indictment in this case use the phrase “lysergic acid diethylamide” in designating the drug that is the subject matter of the offense involved. The defendants have moved the Court for a judgment of acquittal on the ground that the government’s evidence fails to support a conviction of conspiring to dispose of lysergic acid diethylamide. More specifically, the defendants contend that the phrase “lysergic acid diethylamide” as used in the statute and in the indictment, does not include “lysergic acid diethylamide in the salt form.” In addition, the defendants contend that even if the phrase “lysergic acid diethylamide” as used in the statute and in the indictment, is interpreted to include “lysergic acid diethylamide in the salt form,” either or both of the statute and the indictment are fatally vague for indefiniteness and fail to give sufficient notice of the elements of the offense defined and of the offense charged. The Court concludes that a conviction of the defendants in this case of the commission of the charged conspiracy is sustainable as far as the issues discussed herein are involved.

The Court has given an instruction to the jury charging that the defendants should be found guilty if the jury finds beyond a reasonable doubt that the defendants conspired to dispose of d-lysergic acid diethylamide in the free base form1 or in the salt form. The Court [51]*51holds that this instruction is proper for the reasons set forth below.

I. FEDERAL FOOD, DRUG, AND COSMETIC ACT

Prior to October 24, 1968, federal law prohibiting the disposition of the drug “LSD” was partly based on administrative regulation.2 On that date, Congress amended the Federal Food, Drug, and Cosmetic Act by specifically including “lysergic acid diethylamide” in the definition of a “depressant or stimulant drug.” Pub.L. No. 90-639 (Oct. 24,1968). Congress also amended the Act by providing for an increase in penalties for unlawful acts involving this and other drugs. Id. The legislative history accompanying this enactment clearly indicates that Congress used the phrase “lysergic acid diethylamide” synonymously [52]*52with the term “LSD.” 3 It also establishes that Congress intended by use of the phrase “lysergic acid diethylamide”, to curb use by many of the young people across the nation of a drug known to them as “LSD.” Throughout the legislative history of the amending bill there is repeated use of the term “LSD” in context which convinces this Court that the term “LSD” was used by the Congressmen as it is understood by them and by the public. This understanding is due to the widespread use of the term by the mass media and by members of the public itself who have had occasion to use or hear the term on the streets. As so used and heard, the term “LSD” means any form of a drug which chemically contains the substance lysergic acid diethylamide and which has the hallucinogenic potential of that substance.

Therefore, the Court concludes that the term “LSD” as found in the legislative history means a drug which contains the chemical substance known as lysergic acid diethylamide, a derivative of lysergic acid. In turn, Congress’ use of the phrase “lysergic acid diethylamide” in the statute is intended to mean and does in fact mean a drug in any chemical form which contains that substance and does not significantly distort the characteristics of lysergic acid diethylamide in its free base chemical state.

II. LSD-25 from SANDOZ

PHARMACEUTICALS

In support of their contention that Congress did not intend to include the salt form of lysergic acid diethylamide when it designated the prohibited drug as “lysergic acid diethylamide,” the defendants have made an attempt to prove that use of the term “LSD” in the legislative history of the 1968 amendment was restricted to lysergic acid diethylamide in the free base form. Evidence has been introduced to show the source and history of the drug referred to as “LSD”. That history is now briefly discussed.

Albert Hofmann is credited as the man chiefly responsible for the discovery of what is now known as “LSD”. His discovery came while he was working as a chemist for Sandoz Pharmaceuticals, a commercial firm in Basel, Switzerland, in the 1930’s. It was at this time that DLysergic Acid Diethylamide was discovered and given the designation “LSD-25” by Sandoz Pharmaceuticals. Since that time, Sandoz Pharmaceuticals has produced LSD-25 and has distributed the drug to a restricted number of recipients for the purpose of investigation. In the United States, distribution was made through the Hanover, New Jersey affiliate of Sandoz Pharmaceuticals. In 1966, Sandoz discontinued distribution in the United States of the product which is called “LSD-25”.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Philpot
365 A.2d 122 (Supreme Judicial Court of Maine, 1976)
United States v. Billy Ray Huff
512 F.2d 66 (Fifth Circuit, 1975)
State v. Waggoner
490 P.2d 1308 (Washington Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
306 F. Supp. 48, 1969 U.S. Dist. LEXIS 8759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-farber-cand-1969.