This is a multipart series that will examine the prosecution of controlled substance “analogs” by both the state and federal governments.
- Part one: The controlling law
- Part two: What is an analog? The scientific problem
- Part three: Efforts to define analog
- Part four: Ohio v. Silmi et al.
With the advent into the marketplace the highly profitable endeavor of synthetic drug production, federal and state legislatures have attempted to keep pace with the development of synthetic cannibnoids and synthetic cathinones such as the JWH compounds, the HU compounds, Benzylpiperazines, Phenethylamines, Tryptamines, Pyrrolidinophenones and the like. The issue for law enforcement is that as soon as one compound becomes scheduled, the producers of these drugs quickly switch to another compound.
The traditional reaction of both federal and state legislatures has been to resort of “analog acts.”
The first of these analog acts was passed in 1986 by our federal government. In its current form it can be found at 21 U.S.C. § 802(32).
The Federal Controlled Substance Analogue Enforcement Act of 1986 reads as follows:
(A) Except as provided in subparagraph (C), the term controlled substance analogue means a substance
- (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
- (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II, or
- (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
(B) The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue.(C) Such term does not include
- (i) a controlled substance;
- (ii) any substance for which there is an approved new drug application;
- (iii) with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or
- (iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.
The act provides for a two part analysis with the second part being a disjunctive or alternative element of proof. The first part of subsection A calls for a structural analysis and an opinion that the molecule is “substantially similar.” Without this first element, there can be no successful prosecution.
The case law of this statute reveals a hodge-podge of decisions. It includes:
Void for Vagueness Doctrine
- Definition of “controlled substance analogue” in Comprehensive Drug Abuse Prevention and Control Act is specific enough to give constitutionally adequate notice of misconduct prohibited. U.S. v. Reichenbach, 29 M.J. 128 (CMA 1989).
- Controlled Substance Analogue Enforcement Act of 1986 was not unconstitutionally vague as applied, in light of sufficiently precise statutory language to enable ordinary person in position of defendants to know that listed precursor chemicals should not have been possessed for purpose of manufacturing for human consumption, substances similar to amphetamine, methamphetamine, and 4-methylaminorex; defendants had copy of government notice that methylaminorex was to be scheduled as controlled substance, and had used false names in ordering precursor chemicals. U.S. v. Hofstatter, 8 F.3d 316 (C.A.6-Mich. 1993), certiorari denied 114 S.Ct. 1101.
- Although analogue statute, under which chemical can be considered a drug if it is an analogue to listed controlled substance, was “somewhat elastic,” it was not unconstitutionally vague as applied to defendant for trafficking in aminorex and phenethylamine as analogues to cis-4-methylaminorex and methamphetamine respectively, since chemical charts would have put reasonable person on notice that substances were substantially similar within meaning of statute. U.S. v. McKinney, 79 F.3d 105, (C.A.8-Minn. 1996) rehearing and suggestion for rehearing en banc denied, vacated 117 S.Ct. 1816, on remand 120 F.3d 132.
- Analogue Act, under which a substance that is substantially similar to controlled substance analogue is itself treated as controlled substance analogue, was not unconstitutionally vague under Fifth Amendment as applied to controlled substance analogues 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” and alpha-methyltryptamine (AMT); defendant had actual notice of Analogue Act and researched and discussed its applicability, thus foreclosing a vagueness challenge, defendant showed witnesses at least one website warning that “Foxy” could be prosecuted under the Analogue Act, defendant attempted to conceal his activity from law enforcement, defendant attempted to obtain precursor chemicals from a supplier alleging that he was a research company conducting a study of their pharmacological effects. U.S. v. Klecker, 228 F.Supp.2d 720 (E.D.Va.2002), affirmed 348 F.3d 69, certiorari denied124 S.Ct. 1896.
- Statutory definition of the term “controlled substance analogue” was unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance hydroxybutyric acid (GHB); there was no scientific consensus as to whether the two substances had substantially similar chemical structures, and it was not sufficient that 1,4-butanediol converted in the body into GHB, particularly in light of several naturally occurring substances that differed from GHB in the same manner as 1,4-butanediol, but which were not prosecuted. U.S. v. Roberts, 2002 WL 31014834, Unreported, (S.D.N.Y.2002) vacated 363 F.3d 118, on remand 2005 WL 992004.
- Statutory definition of the term “controlled substance analogue” was not unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance gamma hydroxybutyric acid (GHB), given that 1,4-butanediol differed from GHB by only two atoms and was converted into GHB upon ingestion. U.S. v. Roberts, 363 F.3d 118 (C.A.2-N.Y. 2004), on remand 2005 WL 992004.
Elements of the crime
- Drug may be controlled substance “analogue” only if it meets both chemical structure and pharmacological effects prongs of statutory definition. U.S. v. Forbes, 806 F.Supp. (232 D.Colo.1992).
- Based on legislative history, ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively, i.e. substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either second or third prong, respectively requiring substantially similar effect on human nervous system or intent to have such an effect. U.S. v. Hodge, 321 F.3d 429 (C.A.3-Virgin Islands 2003).
- Ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively, i.e. substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either have a substantially similar effect on the central nervous system or be purported or intended to have such an effect. U.S. v. Turcotte, 405 F.3d 515 (C.A.7-Ill. 2005), rehearing and suggestion for rehearing en banc denied, certiorari denied 126 S.Ct. 1022.
Interpretation of substantially similar
- Methylenedioxymethamphetamine (MDMA) or Ecstasy could be treated as “controlled substance analogue” under the Analogue Act, even though it had previously been scheduled as Schedule I controlled substance, once Schedule I scheduling was held invalid. U.S. v. Franz, 818 F.Supp. 1478 (M.D.Fla.1993)
- Statutory definition of controlled substance “analogue” encompassed wax-and-flour mixture sold as crack cocaine to undercover agent, even though mixture was not chemically similar to controlled substance; mixture fell within third of three disjunctive definitions, “[substance] which [defendant] represents … to have a stimulant, depressant, or hallucinogenic effect … that is substantially similar to or greater than [that of] controlled substance in schedule I or II.” U.S. v. Greig, 144 F.Supp.2d 386 (D.Virgin Islands 2001), affirmed in part, reversed in part 321 F.3d 429.
- Pills containing ginseng and vitamin B, which defendants represented to purchaser to contain schedule I controlled substance, did not constitute “controlled substance analogue” as required for conspiracy to possess and distribute controlled substance analogue conviction; there was no indication in legislative history that Controlled Substances Analogue Enforcement Act was meant to forbid individuals from passing off over-the-counter nutritional supplements or vitamins as controlled substances. U.S. v. Clifford, 197 F.Supp.2d 516 (E.D.Va.2002).
- Chemical structure of 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” was substantially similar to that of DET, a controlled substance analogue, so as to support treatment of “Foxy” as a controlled substance analogue under Analogue Act; “Foxy” and DET shared same core arrangement of atoms, known as tryptamine, which was the core element of a number of hallucinogenic drugs, experts agreed that “Foxy”, which was lengthened by one methyl group, had a slightly higher lipophilicity rating than DET, which meant it had greater ability to penetrate the blood stream. U.S. v. Klecker, 228 F.Supp.2d 720 (E.D.Va.2002), affirmed 348 F.3d 69, certiorari denied 124 S.Ct. 1896.
- Substance could be a “controlled substance analogue,” for purpose of statute stating that a controlled substance analogue shall, to the extent intended for human consumption, be treated as a controlled substance in schedule I, only if it satisfied both the chemical structure prong of statutory definition, and either the second or third prong of statutory definition, requiring either a substantially similar effect on the human nervous system or the intent to have such an effect. U.S. v. Vickery, 199 F.Supp.2d 1363 (N.D.Ga.2002).
- In U.S. v. Hodge, , 321 F.3d 429 (C.A.3-Virgin Islands, 2003) held that a wax-and-flour mixture sold to undercover federal agent as “crack cocaine” did not constitute “controlled substance analogue” within meaning of Controlled Substance Analogue Enforcement Act as mixture did not satisfy Act’s definition requiring “substantially similar” chemical structure.
- In U.S. v. Brown, 415 F.3d 1257 (C.A.11-Ala. 2005), rehearing and rehearing en banc denied 163 Fed.Appx. 850, certiorari denied 126 S.Ct. 1570, an expert called by the defense to testify as to what constitutes “substantially similar” in chemistry, and to refute the prosecution’s theory of the case was precluded from testifying. That court held that even if this expert witness proffered by defendants in prosecution for conspiracy to distribute a controlled substance analogue to testify concerning the similarity between gamma-hydroxybutyric acid (GHB), a controlled substance, and 1,4 butanediol, an alleged controlled substance analogue, was qualified to testify as an expert, witness’s testimony was based on unreliable methodology unreasonably applied. In that court’s opinion the proffered expert witness overemphasized the differences between the two chemicals by unnecessarily double-counting a substructre present in GHB but not in 1,4-butanediol and witness did not know and could not explain how the computer programs he used defined similarity.
Cases that comment on knowledge of substance as a requirement
- A mens rea (scienter) element of the crime exists. This means that to be convicted of possessing with intent to distribute mixtures containing a controlled substance, it must be shown that the defendant knew that the substance at issue had a chemical structure substantially similar to that of a controlled substance, and he or she must either have known that it had similar physiological effects or intended or represented that it had such effects. U.S. v. Turcotte, 405 F.3d 515 (C.A.7-Ill. 2005), rehearing and suggestion for rehearing en banc denied, certiorari denied 126 S.Ct. 1022.
Comment
The interpretation of a statute can either be amazingly simple or downright complicated. These guidelines are generally referred to as the cannons of construction.
What is applicable here from strictly the legal point of view are three different matters that do intermix, but are separate and distinct principles: in pari materia, the strict construction of penal statutes, and the Rule of Lenity.
- All statutes should be read as a harmonious whole, with its separate parts (such as subparts) being interpreted within their broader statutory context in a manner that furthers statutory purpose. This is called In pari materia. Justice Scalia of the Supreme Court of the United States once wrote: ““Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (citations omitted).
- The strict construction of the penal statutes means that all statutes that are penal in nature must be strictly applied (they are to be applied as they are written and nothing “extra” interpreted into them).
- If statutory language is unambiguous, the rule of lenity is inapplicable. Beecham v. United States, 511 U.S. 368, 374 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463-64 (1991)). Accord, National Org. for Women v. Scheidler, 510 U.S. 249, 262 (1994). The “rule of lenity” requires that “before a man can be punished as a criminal . . . his case must be plainly and unmistakably within the provisions of some statute.” United States v. Gradwell, 243 U.S. 476, 485 (1917). Lenity principles “demand resolution of ambiguities in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422 (1990). See also United States v. Granderson, 511 U.S. 39, 54 (1994) (“In these circumstances — where text, structure, and [legislative] history fail to establish that the Government’s position is unambiguously correct — we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor”); Cleveland v. United States, 531 U.S. 12, 25 (2000) (before choosing a “harsher alternative” interpretation of the mail fraud statute, “it is appropriate . . . to require that Congress should have spoken in language that is clear and definite”). The reasons for the rule are that “‘fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed’” and that “‘legislatures and not courts should define criminal activity.’” Ratzlaf v. United States, 510 U.S. 135, 148-49 (1994) (quoting Boyle v. United States, 283 U.S. 25, 27 (1931) (Justice Holmes for Court)).
Clearly under the Federal Analog Act, there is a prerequisite of proof that the government must show prior to getting into the chemistry or the seller’s intent of all of this. The government has to affirmatively prove that it was intended for human consumption. They can do this by direct evidence. The seller said this will get the buyer high, for example. Or they can do this by circumstantial evidence if it meets the burden of proof beyond a reasonable doubt. Circumstantial evidence does not give the fact finder permission to lower the burden of proof, but simply allows it make reasonable inferences based upon other admitted evidence. This is why those who produce these things cannot simply stamp on there “not for human consumption.” The government can use a context to try to prove this such as the items being sold in a head shop right next to the smoking devices that promote a sale if you bundle the two together. The government all the time tries to employ a “negative corpus” or “burden shifting” tactic that is framed as “there are no known non human consumption uses for these chemicals so that it direct proof of intended use for human consumption” (There is no logic in a negative corpus argument. In fact it is illogical.) and “They didn’t come in here and offer any proof that it wasn’t used for human consumption” which is impermissible burden shifting. If they cannot prove that it was used for human consumption, then its all over.
Under this statute, some chemist has to come in and explain structure and offer an opinion to meet the burden of production and persuasion beyond a reasonable doubt that it is “substantially similar” to a controlled substance. If they do not carry that element, the prosecution is all over too.
If they do, then they are only part way to a conviction as they either have to prove pharmacodynamic effect or the seller held it out as if it had pharmacodynamic effect. Fail to meet either, the case is over too. In my thought, it is the second of these disjunctives that is much easier to prove with a lot of these cases. The first is either lacking in meaningful research in humans or with pig studies (to my knowledge) or are based on questionable self-reporting anecdotal reports from Emergency Rooms or Poison Control Centers.
On the other hand, if the law says pharmacological effect AND chemical structural class (in that order), the government would have to provide evidence first to the pharmacological effect and then to the structural class to meet their burden to prove a controlled substance. If they cannot prove the pharmacological effect, structural class never even comes into play. In such a statutory scheme, a chemist (alone) could not testify to a drug being a controlled substance under that law even if that specific drug was listed as an example under a listed structural class. Because of this interpretation, it is misleading to the court to produce a chemistry report that says anything that could be interpreted as “Drug X is a controlled substance or its analog.”
When the DEA or other rule making body and/or Congress or some other legislative body makes something illegal, it is a taking of property, plain and simple. It is a depriving of a property right. As such, it is subject to Due Process review (Good old fashioned Fifth Amendment or Fourteenth Amendment). As this Due Process claim does not involve a suspect or quasi-suspect class or a fundamental right, it defaults to the rational basis test. The rational basis test simply means that the government has to have a legitimate reason for a law or regulation that is rationally linked to it (in other words, the connection is not a non sequitur). In order to survive a true constitutionally based challenge, one must word any statute the way that the pharmacodynamic effect must be proven first before it can be criminalized. Otherwise, we have no rational relation to the harm trying to be prevented. In other words, we are banning things (which is a form of taking of property rights) without it being linked to a demonstrated harm.
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