United States v. Visman,
919 F.2d 1390 (9th Cir. 1990)
Pages 1392-1393.

DISCUSSION

I.  FEDERAL JURISDICTION

  [1]  Visman contends that there is no basis for federal jurisdiction over the criminal cultivation of marijuana plants found rooted in the soil.  First, Visman argues that there is no reasonable basis to assume that plants rooted in the soil affect interstate commerce.  Second, Visman argues that Congress does not have the authority to regulate intrastate illegal conduct that affects interstate commerce.

  [2]  We review a district court's assumption of jurisdiction de novo.  United States v. Layton, 855 F.2d 1388, 1394 (9th Cir. 1988) (citing United States v. Hill, 719 F.2d 1402, 1404 (9th Cir.l983)).  Federal jurisdiction over this matter was based on the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Drug Act).  21 U.S.C. § 801 to § 966.  Visman was convicted under § 841(a)(l), § 846 and § 856 of the Drug Act.

  Title 21 U.S.C. § 801 contains the introductory provisions to the Drug Act, including Congressional findings and declarations.  In § 801, Congress specifically found that a nexus exists between marijuana and interstate commerce, Congress concluded that controlled substances have a "detrimental effect on the health and general welfare of the American people."  21 U.S.C. § 801(2).  Congress also found that "local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances."  21 U.S.C. § 801(4).  Congress also found that "[f]ederal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic."  21 U.S.C. § 801(6).

  The Supreme Court has instructed that Congress may regulate those wholly intrastate activities which have an effect upon interstate commerce.  Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942); United States v. Darby, 312 U.S. 100, 120-21, 61 S.Ct. 451, 460-61, 85 L.Ed. 609 (1941).

  In Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the Court ruled that the defendants' local, illegal activity of loan sharking was within a "class of activity" that adversely affected interstate commerce and Congress had the power to regulate it.  Id. at 156-57, 91 S.Ct. at 1362-63.  The Court concluded that "[e]xtortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce."  Id. at 154, 91 S.Ct. at 1361.  The Court stated, "Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class."  Id. (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968)).

  This court has previously held that Congress may constitutionally regulate intrastate drug activity under 21 U.S.C. § 841(a)(1).  United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir.1972); United States v. Montes-Zarate, 552 F.2d 1330 (9th Cir.1977).  In United States v. Rodriquez-Camacho, the appellant argued that Congress may not constitutionally regulate the intrastate distribution of controlled substances under § 841(a)(1).  Rodriquez-Camacho, 468 F.2d at 1221.  We also stated that "Congress may regulate not only interstate commerce but also those wholly intrastate activities which it concludes have an effect upon interstate commerce."  Id. (citing Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971)).  We recognized further that "[m]arijuana is listed among the controlled substances in the challenged statute, and Congress has made specific findings as to the effect of intrastate activities in controlled substances on interstate commerce."  Rodriquez-Camacho, 468 F.2d at 1221.  We stated that "'[t]his court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.'"  Id. at 1221-22 (quoting Stafford v. Wallace, 258 U.S. 495, 521, 42 S.Ct. 397, 403, 66 L.Ed. 735 (1922)).  We concluded that Congress had a rational basis for making its findings and that "[t]his is a matter ... whose ultimate resolution lies in the legislature and not in the courts."  Id. at 1222.

  In United States v. Montes-Zarate, the appellant claimed that the district court did not have jurisdiction over the possession of marijuana with intent to distribute because no interstate nexus was established.  Montes-Zarate, 552 F.2d at 1331.  We held that § 841(a) "is constitutional and that no proof of an interstate nexus is required in order to establish jurisdiction of the subject matter."  Id.  We adopted the reasoning of the Fourth Circuit and concluded as follows:

Congressional findings on which the legislature rested disclosed that intrastate possession, distribution and sale of drugs ... directly and injuriously effected the introduction of them into other States to the injury of the public health and welfare there.  21 U.S.C. §§ 801, 812.  Thus the definition and proscription of transactions of 'controlled substances', 21 U.S.C. § 812(b), entirely within a State is altogether constitutional.

Id. (quoting United States v. Atkinson, 513 F.2d 38, 39-40 (4th Cir.1975)).

  [3,4]  We hold that Congress may constitutionally regulate intrastate criminal cultivation of marijuana plants found rooted in the soil.  We defer to Congress' findings that controlled substances have a detrimental effect on the health and general welfare of the American people and that intrastate drug activity affects interstate commerce.  Rodriquez-Camacho, 468 F.2d at 1221-22.  We further hold that local criminal cultivation of marijuana is within a class of activities that adversely affects interstate commerce.

United States v. Visman,
919 F.2d 1390 (9th Cir. 1990)
Pages 1392-1393.