UNITED STATES v. PASTOR

MANSFIELD, Circuit Judge:

Appellants Edward Pastor and Martin Weiner were convicted of obtaining and conspiring to obtain controlled substances through false representation and forgery in violation of 21 U.S.C. §§ 843, 846 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Act"), after a trial before a jury and Judge Constance Baker Motley of the Southern District of New York. Pastor was sentenced to concurrent terms of six months and four years. Execution of the four-year term was suspended, he was placed on probation for five years, and he was fined $5,000. Weiner was sentenced to a six-month term, imposition of which was suspended, placed on probation for two years, and fined $3,000. We affirm.

Only a brief summary of the underlying offenses is necessary to resolve the issues raised on appeal. Prior to June, 1973, Pastor and Weiner, pharmacists in the Philadelphia area, had been dealing in large quantities of anoretic drugs known as phendimetrazine and phentermine. These drugs are often prescribed for use in weight reduction programs, but are also in demand for illicit purposes because they have qualities similar to amphetamines ("speed"). Formerly these drugs could be obtained by pharmacists without complying with the regulations of the Act, 21 U.S.C. §§ 821, et seq. However, on June 15 and July 6, 1973, respectively, these drugs were placed on the schedules of controlled substances by order of the Attorney General pursuant to § 811 of the Act. Phendimetrazine was placed in Schedule III and Phentermine in Schedule IV, 21 U.S.C. § 812.

Thereafter, Pastor and Weiner continued to purchase these drugs from Charles Fernald and Douglas Berry, partners in Wingate Sales Corporation, a New York City drug distribution company. Each transaction was recorded by Fernald and Berry on invoices bearing the name of one Dr. Horace Johnson, a Philadelphia physician who had no knowledge of the transactions. In October, 1973, Pastor ordered from Fernald 250,000 capsules of phendimetrazine which Fernald obtained from Vitarine Corp., a Long Island drug manufacturer. The next month, however, Fernald informed Pastor and Weiner that Vitarine would no longer supply through him such large quantities of the drugs without a written request from a physician. Pastor then sent to Fernald a letter purporting to be from Dr. Johnson, which contained Dr. Johnson's drug registration number and a request to ship the capsules. In fact, the stationery and the signature had been falsified by Pastor. Fernald relayed the letter from New York to Vitarine in Long Island, and six shipments totalling 1,200,000 capsules were sent by the company to a Philadelphia terminal. There, Pastor, posing as Dr. Johnson, received the shipments and Pastor and Weiner paid Fernald in cash for each shipment.

On April 18, 1974, Pastor sent Fernald a second forged letter ordering an additional 1,000,000 phentermine capsules which were sent by Vitarine to Pastor who then paid Fernald.

The jury convicted appellants of two counts, one charging violation of 21 U.S.C. § 843, which prohibits the acquisition of a controlled substance by "misrepresentation, fraud, forgery, deception, or subterfuge," and the other charging conspiracy.

DISCUSSION Pastor's Sixth Amendment Claim

The first issue is whether Judge Motley violated Pastor's Sixth Amendment right to be present at his trial when she em paneled the jury in his absence on the first morning of the trial after Pastor failed to appear and advised the court that he was ill. Resolution of this issue depends upon whether the district court's finding that Pastor had voluntarily and without justification absented himself from the trial was clearly erroneous, and whether the court's decision to commence the proceedings was an abuse of discretion.

It is settled beyond dispute that an accused has a constitutional right to be present at all stages of his trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), F.R.Cr.P. 43(a), including the empaneling of the jury, United States v. Toliver, 541 F.2d 958 (2d Cir. 1976); United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969). However, it is equally well settled that the defendant may waive this right by voluntarily and deliberately absenting himself from the trial without good cause, United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972); United States v. Taylor, 478 F.2d 689 (1st Cir.), aff'd, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); United States v. Miller, 463 F.2d 600 (1st Cir.), cert. denied, 409 U.S. 956, 93 S.Ct. 300, 34 L.Ed.2d 225 (1972); United States v. Marotta, 518 F.2d 681, 684 (9th Cir. 1975); Government of Virgin Islands v. Brown, 507 F.2d 186, 188-90 (3d Cir. 1975); see Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), either before or during trial, United States v. Peterson, 524 F.2d 167, 183-86 (4th Cir. 1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976).

"A defendant who deliberately fails to appear in court does so voluntarily, and thus the important question is whether his absence can be considered a `knowing' waiver. We hold that it can. The deliberate absence of a defendant who knows that he stands accused in a criminal case and that the trial will begin on a day certain indicates nothing less than an intention to obstruct the orderly processes of justice. No defendant has a unilateral right to set the time or circumstances under which he will be tried." United States v. Tortora, supra, 464 F.2d at 1208.

Where the court finds that the defendant has voluntarily absented himself from the proceedings, it may decide to proceed in his absence only after balancing a "complex of issues" including the additional burdens, waste and expense inflicted upon the court, government, witnesses, and co-defendants, and the public's interest in seeing the accused brought to trial as well as the court's responsibility to do so speedily. United States v. Tortora, supra; United States v. Peterson, supra. While the Sixth Amendment demands that courts give the utmost solicitude to the defendant's right to be present at each stage of trial, it does not require the trial judge to accept at face value a defendant's claim of inability to appear in court, particularly where other defendants are involved, United States v. Tortora, supra, 464 F.2d at 1210, and where the government has spent considerable time, energy and money in preparing for trial and assembling witnesses and a panel of veniremen in the expectation that trial will proceed as scheduled. Cf. United States v. Wilson, 421 U.S. 309, 318, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975).

The decision as to whether the defendant's voluntary absence from the trial amounts to a waiver is thus vested in the sound discretion of the trial judge, who is usually in a superior position to evaluate the evidence, including witnesses' credibility, because of familiarity with the background and circumstances. Moreover, where an evidentiary hearing is conducted to examine these circumstances, the trial judge's findings which form the basis of his or her decision on the issue will not be disturbed unless found to be clearly erroneous. See United States v. Lucchetti, 533 F.2d 28, 36 (2d Cir. 1976); United States ex rel. Delle Rose v. La Vallee, 468 F.2d 1288, 1290 (2d Cir. 1972), cert. den., 414 U.S. 1014, 94 S.Ct. 380, 38 L.Ed.2d 251 (1973); 3 Wright, Fed.Practice and Procedure, § 675, p. 130 (1969).

In the present case the question of whether Judge Motley abused her discretion in concluding that Pastor's absence amounted to a waiver entitling her to proceed with the trial, or based this conclusion on any clearly erroneous material findings, requires us to review the background. In 1966 Pastor suffered a heart attack and in 1968, 1972 and 1974 he was hospitalized for varying periods suffering from angina pectoris, which refers to chest pains often due to coronary disease. However, since his 1966 attack Pastor has never suffered another heart attack. Following the indictment of Pastor and Weiner on July 31, 1975, Pastor was arraigned on August 18, 1975. On September 10, complaining of chest pains, he went into the hospital where he remained until September 22, when his counsel appeared before Judge Motley for a pretrial conference and furnished the court with a letter from Pastor's personal physician describing his heart condition and advising that surgery within the next three to four months was being contemplated. However, no such surgery was ever performed. After further postponements of pretrial motions at Pastor's request and over government objection, the case was scheduled for trial on January 15, 1976. However, trial was further postponed to February 13, 1976, when Pastor's counsel filed additional motions, including one for a medical examination to determine Pastor's fitness to stand trial.

A motion seeking further delay because of the filing of a superseding indictment was denied on the ground that the new indictment was essentially the same as the old and did not contain any significant changes.

On February 10, 1976, Pastor was examined by Dr. Leslie A. Kuhn, his doctor, and on February 11, 1976, by Dr. Meyer Texon, a physician selected by the government. When Judge Motley scheduled a hearing for February 17 to examine into Pastor's fitness to stand trial and directed that he be present for examination, particularly regarding his ability voluntarily to testify before the Federal Trade Commission for several hours on January 14, 1976, in spite of his claims of inability to stand trial, Pastor entered a philadelphia hospital the day before his scheduled appearance. On February 17 Judge Motley went ahead with a full day's hearing at which the two doctors (Kuhn and Texon) testified at length with respect to the nature and extent of Pastor's heart condition and the reasons for his absence from court that day. The proof disclosed that the government's physician, relying primarily on Pastor's description of his own subjective symptoms (mostly pain), diagnosed his condition as "mild" congestive heart failure (which is not a heart attack but insufficient pumping of blood) and prescribed 7 to 10 days rest. Pastor's physician represented that several months confinement would be required.

On February 23, 1976, over the government's objection, Judge Motley granted the application for postponement of the trial and adjourned it to May 17, 1976. On March 1, 1976, Pastor was discharged from the hospital, despite the representations by his physician. When, in March, Pastor's attorney became ill with a back ailment, Judge Motley advised that the trial would not be adjourned beyond May 17 and suggested, against the possibility that his attorney would be unable to participate, that Pastor obtain additional counsel (his own lawyer headed a firm in which there were several other lawyers) and that the court would pay the additional expense if Pastor could not afford it.

Most suspicious is the hospital record for this period submitted to Judge Motley, which shows that Pastor's symptoms improved dramatically on the very day that the court adjourned trial and continued to do so until he was discharged on March 1.

As the May 17, 1976, trial date approached, efforts were once again made by Pastor, who had not required any hospitalization since the earlier threat of trial, to postpone the trial. First, a three months postponement was sought on the ground that his attorney was convalescing from the back ailment. This was denied by the district court and we denied a writ of mandamus to compel a further adjournment. On May 9, 1976, Pastor was re-examined by Dr. Texon, the government physician, who reported that

"This patient now presents no evidence of congestive heart failure. His lungs are clear. He is able to ambulate at will in his own home and there is no evidence that infraction or tachy-arrhythmia has appeared at any time since he has been observed during the past ten years. The anginal pains are relatively stable and appear controlled with Nitrol ointment or Nitroglycerin. . . . I believe his cardiac reserve may be considered diminished but is presently adequate to allow him to be up and about, to travel by automobile, and to participate in a court proceeding. . . . Although this patient may experience chest pain in a court proceeding, I believe it is very unlikely and only remotely possible that a myocardial infarction will occur as a result of his antecedent atherosclerosis at precisely the time of his participating in a court proceeding. Further clinical manifestations of the patient's heart disease such as tachycardia or pulmonary congestion are possible — but these, in my opinion, can be successfully controlled as in the past and constitute no serious risk or hazard to the patient's health or life in view of the relatively good cardiac status of the patient at this time."

On May 14, 1976, Judge Motley found, based on reports by both physicians (Texon and Kuhn) and the evidence taken at the hearing of February 17, "that Mr. Pastor is able to withstand the stress of participation in a criminal trial, and to assist in his own defense, without grave risk to his life or health." Recognizing that both doctors had predicted an increase in pain to Pastor from the stress of trial, Judge Motley ordered that trial proceed for only four hours per day, including recesses, and provided for the presence of Pastor's physician and a registered nurse, and for periodic examinations during the course of the trial. In addition Judge Motley specified that there would be "such recesses as are required to enable Mr. Pastor to rest outside the courtroom and to receive medication," that he would be examined every two days by Dr. Texon to assure "that his health is not being seriously affected by his presence at the trial," and that Pastor's doctor could be present to conduct his own examination.

On Monday, May 17, Pastor appeared at court for hearings on pretrial suppression motions. Because of the four-hour per day limitation, the hearings were suspended and court was adjourned at 1:00 P.M., with directions to return at 9:00 A.M. on the following morning for the selection of a jury from the large panel of veniremen who had been kept waiting on Monday. However, on the following morning, May 18, neither Pastor nor his attorney appeared. Instead, his attorney's associate counsel informed Judge Motley that the defendant was suffering from a heart problem and that his wife had given him oxygen but could not get him clothed. However, the lawyer failed to present to or obtain for the court a doctor's statement, either written or oral, nor did he state whether Pastor had been examined by a physician or admitted to a hospital. Instead, he advised that Pastor's counsel had been unsuccessful in inducing Dr. Texon, the government's physician, to examine Pastor and that he did not know whether Dr. Kuhn would "be able to see Mr. Pastor or not."

The facts, as developed at a post-trial hearing and found by Judge Motley, were that despite Pastor's assertion that he had first suffered severe pain and sweating at 7:00 A.M. on the morning of May 18, 1976, no effort was made to call his physician, Dr. Kuhn. Pastor's wife testified that she telephoned his attorney at 8:00 A.M. The attorney, instead of calling Pastor's physician (Kuhn), who was at home and available, telephoned the government physician (Texon), who understandably refused to treat or examine Pastor without a court order. No effort was made to communicate with Dr. Kuhn until shortly before 9:00 A.M. when he arranged for Pastor to go to the Mount Sinai Hospital for examination at 10:00 A.M. Thus Pastor was not examined until three hours after his "attack" had occurred, even though his own doctor had been available for consultation and examination.

In the meantime, in the absence of medically-confirmed incapacity, Judge Motley, having experienced earlier efforts by Pastor to adjourn trial despite expert medical opinion to the effect that he was able without any serious risk to his health to stand trial, revoked Pastor's bail and ordered that he be brought to court by the United States Marshal. She then proceeded with selection of the jury from the panel of veniremen in order to allow the others to return home. All other proceedings in the case were suspended until the next day. In a later-written opinion Judge Motley stated that Pastor's "failure to have a doctor's affidavit, or even an unsworn doctor's statement, in court by 9:00 A.M. constituted (in view of the arrangements made in this case to have defendant's doctor examine him during trial) a voluntary absence by the defendant. It was too plain for argument that the public interest required that the court proceed."

At 11:30 A.M. on May 18, after trial had proceeded against both Pastor and his codefendant Weiner, with counsel for each participating, and after the jury had been selected, the court received an affidavit from Dr. Kuhn indicating that Pastor had experienced a painful attack and suspected the possible existence of acute myocardial infarction, a deterioration in Pastor's condition. At 6:00 P.M. the government physician examined Pastor and found no acute myocardial infarction, but simply "another episode of angina pectoris — possibly more severe clinically than usually — but still reversible," and recommended that Pastor return to the court on May 20th. As Pastor's presence at trial over the next two weeks demonstrated, this diagnosis proved correct.

After hearing testimony on the defendant's condition on May 19, Judge Motley refused to reinstate defendant's bail, and found that in view of the precautions taken for the trial, Pastor was able to be present and participate. Thereafter, Pastor experienced no physical difficulties preventing his attendance and appeared at trial each day. During the trial, Pastor was reprinted by the court for displaying to the jury several bottles of pills, his hospital wristband, and the heart monitoring devices attached to his chest visible through a see-through shirt.

After completion of the 12-day trial Judge Motley resumed the evidentiary hearing with respect to Pastor's condition on May 18, 1976, to determine whether he had been able to attend trial on that date, taking testimony of various witnesses, including Mr. and Mrs. Pastor. On November 16, 1976, Judge Motley filed her findings of fact and opinion denying Pastor's motion for a new trial, which had been based on his absence during the empaneling of the jury. Judge Motley found that, assuming Pastor had experienced pain on the morning of May 18 and that his symptoms, which had been almost entirely subjective, were accepted at face value, he "did not suffer a physiological impairment so severe and so serious as to excuse his absence from the court on that morning"; and that he had "intentionally manipulated what was — at worst — a marginally more painful episode of his chronic angina pectoris as an excuse to frustrate and delay the commencement of his trial on the criminal charges in this case." Instead of immediately seeking help from his own doctor or going to the hospital, which might have led to his having to go to court, he had deliberately delayed doing so, even though he knew that a physician's statement would be required to obtain an adjournment. His gesture in calling the government doctor was found to be a "transparent ploy" designed to avoid standing trial. Furthermore, the court found that while some of the cardiographs were consistent with his claims of pain, they were by no means conclusive and in any event did not indicate he was suffering a heart attack or anything more serious than the malady which he had experienced all along. Judge Motley concluded that, given the totality of the circumstances, he had voluntarily and without justification absented himself from the trial.

Since Judge Motley denied Pastor's motion for a new trial on September 17, 1976, prior to the taking of this appeal, and advised the parties at that time that she would draft an opinion setting forth her findings of fact and reasoning, there is no bar to our consideration of her decision, Reinstine v. Rosenfield, 111 F.2d 892 (7th Cir. 1940). Compare United States v. Ellenbogen, 390 F.2d 537, 542 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). Indeed, we have serious doubts about the position our colleague takes in dissent, because it would encourage litigants to appeal an or an order when it would be to their advantage to present this court with an incomplete record, even though the trial judge (as here) has specified that a written opinion would follow.
The better practice would be for the district judge to refuse to issue a final order until a contemporaneous set of findings have been prepared, and for litigants fearing that such an oral order might trigger the time limitations on the perfection of an appeal to urge the court to state for the record that its order will not be "final" until the filling of the written decision.

Based on our examination of the record, we are satisfied that these findings, being supported by evidence of record, are not clearly erroneous. We further conclude that Judge Motley did not abuse her discretion in proceeding with the selection of a jury in Pastor's absence. Although this defendant had repeatedly been found physically able, despite his illness, to stand trial, he had previously attempted, by exaggerating his illness and resorting to hospitalization, to postpone the proceedings in this case, as we evidenced by his voluntary hospitalization in September, the suspiciously short February hospitalization, and his various other motions for adjournment. His principal symptom (pain) was subjective and his other symptoms could have been self-induced. He apparently had been quite able, when it served his purpose, to testify at length before the Federal Trade Commission in January, 1976. The timing of his claim of illness on the morning trial was to proceed, coupled with his failure to get in touch with his doctor, who was available, when considered against the foregoing background, was extremely suspicious. Moreover, Judge Motley who viewed the defendant, his wife and the doctors as witnesses, found the defendant to be an incredible manipulator. In short, having a full and detailed grasp of the situation, she was satisfied that Pastor was attempting to deceive the court in a vain effort to escape trial. It is significant that, when this bluff was called, Pastor was physically able to attend the 12-day trial without any interruption attributable to his illness.

While it is undisputed that Pastor suffered from arteriosclerosis, hardening of the arteries, both the government physician and Pastor's own physician characterized his attack on May 18 as angina pectoris, which is chest pain resulting from inadequate blood flow to the heart due to reduced artery capacity. Necessarily, the key symptom of such an attack is the patient's subjective statement that he is feeling pain.

Physical activity, which taxes the reduced capacity of the arteries, is known to cause angina pectoris, and Pastor's "mild" congestive heart failure of February 17, characterized by coughing and the presence of fluid in the lungs, can be self-induced in a patient suffering from arteriosclerosis by ingestion of large amounts of liquids.

Against Pastor's interest in postponing his trial, there were other weighty interests favoring the continuance of trial. More than 50 veniremen had been called and kept waiting on Monday, May 17, at considerable trouble and expense. Because of the small size of the courtroom in which the case was to be tried, which could not accommodate 50 potential jurors, another courtroom had to be borrowed by special arrangement for the selection of the jury. Pastor's co-defendant, Weiner, was entitled to proceed with trial rather than face the indefinite adjournment that would probably have otherwise occurred since, if the court had not ordered trial to proceed, Pastor would have remained hospitalized or resorted again to hospitalization. In the event of a severance the government would have been obligated to try the case, which took 12 days for trial, twice. In addition, the government had assembled its witnesses, including one elderly and enfeebled material witness, Dr. Horace Johnson. Lastly, Judge Motley had arranged her schedule and time for the trial and could hardly be expected to find another case ready for immediate trial.

With due respect, Judge Van Graafeiland's forceful dissent would have us, in considering the propriety of the district court's action in this case, confine ourselves to the events of the morning of May 18, 1976, and even then to consideration only of the evidence tending to support appellant's contentions. Were we to so limit ourselves, the justification for affirmance would, of course, not be so compelling. But we refuse to take such a view, which is limited to but a fragment of the entire record.

The events of May 18 must be appraised in the revealing light of what went on before and after that date. The record discloses persuasive evidence of studied prior efforts on the part of Pastor repeatedly to gain postponements or other advantages by hospitalizing himself on the basis of subjective complaints that appear to be suspiciously lacking in substance. This occurred, for instance, just prior to his counsel's September 22, 1975, pretrial conference, which was called for the usual purposes, including the fixing of a trial date, and again immediately before Pastor's scheduled appearance on February 17, 1976, to determine his ability to stand trial. On each occasion, as soon as the hospitalization had served its purpose, Pastor emerged from the hospital to go about his daily business. Moreover, he voluntarily testified before the FTC in January 1976, when it was in his interest to do so.

The "uncontroverted and undisputed testimony," moreover, discloses that, despite the use by the hospital and doctors of medical terminology that may sound impressive to laymen (and apparently to our colleague), there was no appreciable change in Pastor's basic condition on the morning of May 18. It was essentially the same as it had been for months, if not for years. Furthermore, it was consistent with pain or absence of pain. The existence of "angina" or "angina episode," which had occurred in the past and might be expected to recur in the future, depended on Pastor's word. In fact, there was no further injury to or alteration in the condition of his heart. Absent a doctor's statement of some sort, oral or written, indicating that Pastor's "attack" on the morning of May 18 was more than one more effort to delay his trial, Judge Motley acted reasonably in denying the application for a postponement. Moreover her decision to proceed was confirmed by the fact that Pastor proved to be fully capable of attending and participating thereafter in the trial which lasted from May 17 to June 4, 1976.

Thus, even viewed with the benefit of hindsight, Judge Motley's conduct was not erroneous and does not call for the characterizations used by our dissenting colleague. Although our distinguished colleague reacts differently to the events of the morning of May 18 and takes the view that the better course would have been to delay trial for a few hours or a day to obtain further medical reports, this assumes that Pastor would not then have resorted to even further claims of pain and stayed in the hospital indefinitely rather than have promptly returned to the courtroom and attended trial upon learning that Judge Motley was not to be deceived. If Pastor's past efforts are any indication, he would almost certainly have remained in the hospital if his tactics had been successful in securing any postponement. Accordingly, we refuse to find that the trial judge, who was intimately acquainted with the circumstances, erred in concluding that Pastor's absence was but one more ploy in an elaborate game designed to disrupt the trial and the court's control of it.

Appellant's Claims of an Unconstitutional Delegation

We turn next to appellants' claim that 21 U.S.C. § 811, which empowers the Attorney General to add to or rescheduled substances subject to the restrictions of the Act, is an unconstitutional delegation of legislative power. Since Phentermine and phendimetrazine became controlled by order of the Attorney General, appellants claim that their convictions must be reversed. We disagree, and find that the delegation to the Attorney General is necessary and properly designed to give effect to a clear statement of Congressional policy.

Under § 811 of the Act, the Attorney General may add a substance to the control schedules in the Act "if he (A) finds that such drug or other substance has a potential for abuse, and (B) makes with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which the drug is to be placed." Section 811(b) provides that before initiating this procedure, the Attorney General "shall" request from the Secretary of Health, Education and Welfare a report on the drug and a recommendation of scheduling. It then states that, "The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug . . not be controlled, the Attorney General shall not control the drug . . . ."

Section 811(c) of the Act adds eight additional criteria which the Attorney General "shall consider" with respect to the decision to control a drug, and § 812 lists factors to be taken into account in determining the appropriate schedule in which to place the drug on the basis of the potential for abuse, the extent of legitimate uses of the drug, and the type of physical and psychological dependence resulting from abuse of the drug.

Despite this particularized Congressional mandate, appellants claim that the delegation is unconstitutional, that the standards prescribed under the Act for the scheduling of substances are vague, and that the agencies failed to adhere to the prescribed standards. Neither appellant makes the claim that the drugs with which this case is concerned are not dangerous enough to be subject to regulation under the Act.

The seminal case in the area of delegation of legislative power is Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935), in which the Supreme Court overturned a conviction and fine for transportation of petroleum products in violation of an executive order issued pursuant to a statute providing that:

"The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any state law or valid regulation."

In analyzing the validity of the broad authority vested in the President, the Court sought to determine whether Congress had declared a clear policy in the area, whether it had set up standards to govern the President's actions, and whether Congress had required any factual finding by the President in the exercise of his authority. 293 U.S. at 415, 55 S.Ct. 241. It found all of these to be missing and the statute therefore invalid:

"The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased." 293 U.S. at 418, 55 S.Ct. at 247.

In Panama Refining Chief Justice Hughes also set out circumstances in which a delegation would withstand scrutiny, recognizing that

"The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply." 293 U.S. at 421, 55 S.Ct. at 248.

Thus, while the Supreme Court struck down the statute at hand, it laid down the important principle that "Congress may not only give such authorizations to determine specific facts but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy . . . `to fill up the details'". 293 U.S. at 426, 55 S.Ct. at 251. See also Schechter Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, (1935), in which the Court again struck down a statute as an improper delegation to the President, but did not depart from its analysis in Panama Refining.

In American Power v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 91 L.Ed. 103 (1946), the Court upheld a delegation of power to the SEC which authorized it to act to prohibit any holding company structure which might "unduly or unnecessarily complicate" the corporate structure or "unfairly or inequitably distribute voting power among security holders." In testing this broad delegation of authority the Court took into consideration the "necessities of modern legislation dealing with complex economic and social problems." It said:

"The legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority. Private rights are protected by access to the courts to test the application of the policy . . . ." 329 U.S. at 105, 67 S.Ct. at 142. See also Yakus v. United States, 321 U.S. 414, 424-26, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

In light of these decision, it is clear that the delegation involved in this case is a proper one. The standards governing the actions of the Attorney General in selecting substances to be controlled under the Act are specifically aimed at achieving a balance between legitimate and illicit demand for a drug or other substance that may have potential for abuse, and are rooted in a strong, clearly expressed Congressional policy. The vesting of authority in the Attorney General is a recognition of the need for agency rather than Congressional response in an area where legislative action could not keep pace with the speed of technological developments, "for with new drugs being discovered and introduced at an unprecedented rate, it would be impossible for Congress to determine beforehand those drugs to which it wishes a particular policy to be applied and to formulate specific rules for each situation." Iske v. United States, 396 F.2d 28, 31 (10th Cir. 1968).

Although defendants claim that the "potential for abuse" standard in § 811(c) is impermissibly vague, the accompanying standards in that section and other sections, as well as the detailed legislative history relating directly to the phrase, see 1970 U.S.Code and Admin.News, 4601, adequately provide a clear and precise measure of Congress' intent and a reasonably certain guide for the Attorney General. See White v. United States, 395 F.2d 5 (1st Cir. 1968), cert. denied, 393 U.S. 928, 89 S.Ct. 260, 21 L.Ed.2d 266 (1968) (upholding against a challenge for vagueness the "potential for abuse" standard as used by Congress in delegation of power in a predecessor drug control statute).

We find that the delegation of authority to the Attorney General under the Act is made pursuant to a clear statement of Congressional policy, is governed by precise standards consistent with the statement of policy, and requires that specific findings be made concerning the qualities and dangers of the substances as a condition precedent to regulation. Moreover, the necessity for speedy, detailed and expert agency action in the area of drug technology cannot be disputed. The procedures prescribed by Congress for regulation of the Attorney General's decision, coupled with the availability of judicial review under § 877 of the Act, assure that the delegate will not act capriciously or arbitrarily. The delegation is therefore constitutionally valid.

Appellants also contend that the delegation of authority to the Attorney General to schedule substances under the Act is inherently unfair because he is also primarily responsible for the enforcement of federal drug laws. While this claim might have some merit if the Attorney General's discretion were unfettered and the defendants could make some colorable showing of bad faith in their prosecution, this is decidedly not true in the case at bar. Under the Act, the Attorney General is prohibited from acting contrary to the recommendation of the Secretary of Health, Education and Welfare in deciding whether to schedule a drug and thereby to outlaw its use without compliance with the Act. He is also required to follow the public notice and hearing requirements of the Administrative Procedure Act, and his findings are subject to judicial review under § 877 of the Act. These checks on the actions of the Attorney General provide sufficient assurance that his dual role will not be used unfairly. Moreover, appellants have failed to show any evidence of improper motivation on the part of the Attorney General in deciding to control these substances, and there is adequate support in the record for Judge Motley's finding that substantial evidence supported the Attorney General's decision. In addition, none of the manufacturers of these drugs, the parties most directly affected by the decision to control the substances, sought judicial review of the Attorney General's decision. Nor do appellants now contend that he was in error in scheduling the drugs. We are therefore satisfied that the Attorney General properly carried out his functions under the Act.

We also find that appellants' challenge to the assertion of venue in the Southern District of New York is without merit. Under 18 U.S.C. § 3237 "Any offense involving the use of the mails . . is a continuing offense and . . . may be inquired of and prosecuted in any district from, through or into which such . . . mail matter moves." In the case at bar, the record shows that in two instances forged letters were sent by defendants to Fernald in New York City and were received by him there and sent on to Vitarine in Long Island. Venue is therefore proper in New York City.

We find that appellants' other claims lack sufficient merit to warrant discussion. The judgments of conviction are affirmed.