USA v. Castro CR-95-002-M 10/12/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff,

v. Criminal No. 95-2-1, 2, 3-M

Noel Castro, Kelvin Franco, and Allen Randall, Defendants.

O R D E R

Defendant, Noel Castro, is charged with possession with

intent to distribute cocaine base ("crack") and conspiracy to

possess with intent to distribute crack in violation of

(a)(1) and 846. Both sections 841(a)(1) and 846 are part

of the Comprehensive Drug Abuse Prevention and Control Act of

1970 (the "Drug Act"). Castro moves to dismiss the indictment.

Fed. R. Crim. P. 12(b)(2), on grounds that sections 841(a)(1) and

846 are unconstitutional both facially and as applied to him.

I. DISCUSSION

Castro argues that in enacting the Drug Act Congress

exceeded its authority under the Commerce Clause of the United

States Constitution. Castro contends that the provisions of the

Act under which he is charged regulate intrastate drug activities

that do not substantially affect interstate commerce. As such,

the provisions violate the Commerce Clause test recently

articulated by the Supreme Court in United States v. Lopez, 115 S. C t . 1624, 1630 (1995) (holding that a federal statute falls

within the scope of Congress' authority under the Commerce Clause

if it regulates activity that "substantially affects" interstate

commerce).

Courts have uniformly rejected Commerce Clause challenges to

the Drug Act since Lopez. See, e.g.. United States v. Leshuk,

(4th Cir., Sept. 18, 1995); United States v.

Gonzolez,

(S.D. Cal. 1995); United States v.

Bramble,

(D. Haw., July 21, 1995). In passing the

Drug Act, Congress made detailed findings that intrastate

possession and distribution of controlled substances, as a class

of activities, "have a substantial and direct effect upon

interstate commerce."

(3). Courts have relied on

these findings in concluding that Congress may regulate

intrastate drug activities consistent with the limits imposed by

the Commerce Clause. See Leshuk,

. The

Drug Act is, on its face, constitutional.

In addition, sections 841(a)(1) and 846 of the Drug Act are

constitutional as applied to Castro. In Lopez, the Supreme Court

reaffirmed that "where a general regulatory statute bears a

substantial relation to commerce, the de minimis character of

individual instances arising under that statute is of no

conseguence." Lopez, 115 S. C t . at 1629 (guoting Maryland v.

Wirtz,

, 197 n.27 (1968)). Accordingly, Castro's

motion to dismiss is denied.

2 II. CONCLUSION

For the reasons stated above,

(a) (1) and 846

do not violate the Commerce Clause, either facially or as applied

to Castro. Accordingly, Castro's motion to dismiss (document no.

123) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 12, 1995

cc: United States Attorney United States Marshal United States Probation Bjorn R. Lange, Esg. Michael M. Burke, Esg. Marc A. Chretien, Esg.

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