UNITED STATES v. FRY

http://altlaw.org/v1/cases/536631

UNITED STATES v. FRY

Cite as 787 F.2d 903 (4th Cir. 1986)

UNITED STATES of America, Appellee, v. Robert H. FRY, Appellant.

No. 85-5162.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 8, 1985. Decided March 31, 1986.

Rehearing and Rehearing En Bane Denied May 22,1986.

Defendant was convicted in the United States District Court for the Southern District of West Virginia, Elizabeth V. Halla-nan, I,, of growing and conspiring to grow and distribute marijuana. He appealed. The Court of Appeals, Haynsworth, Senior Circuit Judge, held that: (1) there was no fundamental right to produce or distribute marijuana commercially; (2) congressional decision to prohibit marijuana production and distribution was not so irrational as to [787 F.2d 903 904] deprive defendant of due process; (3) prohibition of production and distribution of marijuana was not so arbitrary as to amount to deprivation of equal protection; and (4) testimonial evidence was sufficient to support jury finding that plants defendant grew were marijuana plants.

Affirmed.

1. Constitutional Law <®=82(6) There was no fundamental right under Ninth Amendment [U.S.C.A. Const.Amend. 9] allowing defendant, who claimed that Ninth Amendment guaranteed him freedom to "recreate" through altering his consciousness, to produce or distribute marijuana commercially.

2. Constitutional Law @=258(3) Congressional decision to prohibit marijuana production and distribution was not so irrational as to deprive defendant, who was charged with those offenses, of due process. U.S.C.A. Const. Amend. 5; Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 401(a), 406, 21 U.S. C.A. §§ 841(a), 846.

3. Drugs and Narcotics @=»43 Prohibition of production and distribution of marijuana was not so arbitrary as to amount to deprivation of equal protection, although Congress did not enact statutes regulating alcohol and tobacco. U.S.C.A. ConstAmends. 5, 14.

HAYNSWORTH, Senior Circuit Judge:

This is an appeal from Fry's conviction for growing and conspiring to grow and distribute marijuana in violation of 21 U.S. C.A. §§ 841(a) and 846. He contends that the imposition of criminal sanctions upon the production of marijuana is so unreasonable and arbitrary as to be unconstitutional.

[snip]

[787 F.2d 903 905]

II.

Fry contends that the imposition of criminal penalties for the production and distribution of marijuana is so irrational and arbitrary that it violates the due process and equal protection clauses of the Fifth Amendment and his Ninth Amendment "liberty" right to be free of "gross arbitrary control" in his pursuit of happiness.

Fry claims that the Ninth Amendment guarantees him freedom to "recreate" through altering his consciousness. It is a fundamental right, he says, the exercise of which can be restricted or denied only upon a compelling governmental interest. See, e.ff., Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 524 (1969); Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). [1] Of course, there are limitations upon governmental regulation of private lives and all activity in the privacy of one's home, but Fry does not stand convicted of "private" activity. He stands convicted of participation in a conspiracy to manufacture and distribute a large quantity of marijuana and not for simple possession or use of a small quantity of the drug. See 21 U.S.C.A. § 844(a). Fry was convicted of commercial activity. There is no fundamental right to produce or distribute marijuana commercially. See United States v. Kiffer, 477 F.2d 349, 352-53 (2d Cir.), cert, denied, 414 U.S. 831, 94 S.Ct. 165, 38 L.Ed.2d 65 (1973); United States v. Berg-doll, 412 F.Supp. 1308, 1313 (D.Del.1976).

The congressional decision to impose criminal penalties upon these activities must be upheld unless it bears no rational relation to a legitimate- governmental purpose.

[snip]

Congress made such a legislative determination when it imposed criminal sanctions upon the commercial production and distribution of marijuana. We must defer to that determination. See Marshall v. United States, 414 U.S. 417, 427, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1974). Upon the conflicting evidence, we cannot agree that the congressional decision to prohibit marijuana production and distribution was so irrational as to deprive Fry of due process. [3] It is also contended that since alcohol and tobacco are legal substances, the prohibition of the production and distribution of marijuana is so arbitrary as to amount to a deprivation of equal protection. Whatever the harmful effects of alcohol and tobacco, however, Congress is not required to attempt to eradicate all similar evils. See Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). It is for Congress to weigh the conflicting considerations and determine the necessity and appropriateness of prohibiting trafficking in a dangerous substance, and it may conclude that prohibition of the trafficking in one such substance is appropriate though trafficking in another is left untouched. Kiffer, 477 F.2d at 355; United States v. Gaertner, 583 F.2d 308, 312 (7th Cir.1978) (per curiam).

[snip]

The court accepts the premise of defendants, conceded by the government at argument, that it would be unconstitutional for the government to criminalize possession of a completely harmless substance, although such principle does not appear specifically in the ninth or tenth amendments.

3. Drugs and Narcotics Statutes prohibiting possession of marijuana were not unconstitutional under the Ninth and Tenth Amendments on the ground that they punished crimes without victims where evidence did not clearly demonstrate that use of marijuana was harmless and where weighing of conflicting evidence about harmfulness of marijuana was task for Congress, not courts. U.S.C.A. Const. Amends. 9, 10; Comprehensive Drug Abuse Prevention and Control Act of 1970, § 401(a)(l), 21 U.S.C.A. § 841(a)(l).