Opinion
A05-052 CR (JWS/JDR), (Docket Nos. 56,), 59).
October 5, 2005
RECOMMENDATION REGARDING MOTION TO DISMISS
Defendant Matthew J. O'Connor moves to dismiss the indictment on grounds that the controlled substance identified in the Indictment was not in fact a controlled substance for purposes of illegal distribution as proscribed by Title 21 United States Code § 841(a)(1) (b)(1)(C) 859 as charged in the Indictment. Docket No. 56. Co-defendant Glade R. Lusk filed a joinder in the motion, Docket No. 59. The motion is opposed by the government. Docket No. 63. For reasons stated below I recommend that the court reject the defendants' arguments and deny the motion(s) to dismiss.
Counts 1 and 2 of the Indictment charge both defendants on two separate occasions with knowingly and intentionally distributing a liquid mixture or substance containing a detectible amount of 1,4 Butanediol (BD) a controlled substance analogue of Gamma Hydroxybutyric Acid (GHB) in violation of 21 U.S.C. §§ 841(a)(1) (b)(1)(C), and 859. Count 1 alleges that the victim died as a result of the use of the substance. The Indictment alleges that pursuant to 21 U.S.C. § 813, a controlled substance analogue, to the extent that it is intended for human consumption, is treated the same as a controlled substance in Schedule I.
Defendants acknowledge that whether the chemical 1,4-Butanediol, if distributed, was in fact a controlled substance analogue as provided in 21 U.S.C. § 802 raises a factual issue for the fact finder at trial.
The motion to dismiss assumes for purposes of the motion only that 1,4 Butanediol has a substantial similar chemical structure and effect on the central nervous system as GHB. Defendants argue that the government cannot show as a matter of law that the underlying controlled substance, GHB, is a Schedule I or Schedule II substance. Defendants argue that GHB appeared on Schedule I pursuant to a temporary or emergency scheduling order that expired around March 2001 and thus GHB was not a Schedule I or II controlled substance on the dates alleged on the Indictment since they were after the expiration of the emergency order.
Count 1 alleges an offense occurring on or about June 12, 2003. Count 2 alleges an offense occurring on or about June 11, 2003.
The defendants arguments are flawed. First, the findings described in § 2 of the Controlled Substance Act expresses no intent by Congress to regulate GHB for a limited period of one year.
Pub. Law No. 106-172, § 2(4)(2000) provides in pertinent part:
"If taken for human consumption, common industrial chemicals such as gamma butyrolactone and 1,4-butanediol are swiftly converted by the body into GHB. Illicit use of these and other GHB analogues and precursor chemicals is a significant and growing law enforcement problem."
Gamma Butyrolactone is contained in List I of the Controlled Substances Act, 65 Fed. Reg. 21645 (Apr. 24, 2000), codified at 21 C.F.R. § 131.02. Section 802(32) of Title 21, U.S.C. provides:
"If taken for human consumption, GBL and other chemicals, including 1,4-butanediol, are swiftly converted into GHB-like substances is a significant law enforcement and public health problem. GBL and 1,4-butanediol are structurally and pharmacologically similar to GHB and are often substituted for GHB. Under certain circumstances they may satisfy the definition of a controlled substance analogue."
Gamma-Hydroxybutyric Acid has been added to Schedule I, 65 Fed.Reg. 13235, 13236 (Mar. 13, 2000) ("[The] FDA has also declared 1,4-butanediol, a chemical related to both GHB and GBL, a Class I Health Hazard. On May 11, 1999, the FDA issued another warning on 1.4-butanediol, GHB, and GBL stating that these substances pose a significant health hazard.").
In the Farias Reid Date-Rape Drug Prohibition Act of 2000, passed into law February 18, 2000, Pub. Law. 106-172, Congress decided that the "abuse of elicit gamma hydroxybutyric acid is an imminent hazard to the public safety." The Act directed the Attorney General to issue within sixty (60) days a "final order" scheduling GHB "as would apply to the scheduling of a substance" under 21 U.S.C. § 811(h)(1), relating to imminent hazards to the public safety. See Section 3(a)(1) of the Act. On March 13, 2000 the Drug Enforcement Administration, acting on behalf the Attorney General, issued a "final rule" placing GHB in Schedule I. See Attachment 2 to the Government's opposition containing 21 C.F.R. parts 1301 and 1308. The delegation authority from the Attorney General to DEA is addressed in 28 C.F.R. subpart R, Section 0.100et seq. See Attachment 3 to Government's opposition.
A copy of the statute appears as Attachment 1 to the Government's opposition, Docket No. 63.
When 21 U.S.C. § 811(h) was invoked by Congress as a means to have GHB immediately regulated, the stated intent was to permanently schedule GHB as a controlled substance. Pub. Law 106-172 amends § 102(32) of the Controlled Substances Act. Section 3(a)(2) of Pub. Law 106-172 indicates that if the emergency order is not issued within the sixty days after the enactment of the Act, Gamma Hydroxybutyric Acid (together with its salts, isomers, and salts of isomers) is deemed to be scheduled under § 202(c) of the Controlled Substances Act in accordance with the policies described in paragraph one of that public law.
Congress did not choose to list known controlled substance analogue themselves. Rather, it left the determination of what qualifies as a controlled substance analogue to legislative or administrative commentary (and to the courts). The Act's definition of "controlled substance analogue" is not unconstitutionally vague and gives sufficient public warning that 1,4-butanedoil qualifies as a controlled substance analogue.United States v. Roberts, 363 F.3d 118 (2nd Cir. 2004).
The Drug Enforcement Administration of the Department of Justice issued a final rule placing GHB and its salts, isomers, and salts of isomers into Schedule I of the Controlled Substances Act (CSA) pursuant to Pub. Law 106-172 by agency action on March 13, 2000. With the issuance of that final order GHB became subject to the regulatory controls and administrative sanctions both civil and criminal applicable to the manufacture, distribution, dispensing, importing and exporting of a Schedule I controlled substance with the exception as noted by this published ruling. Thus, any activity with GHB not authorized by, or in violation of, the CSA or the Controlled Substance Import and Export Act became unlawful on or after March 13, 2000. 65 FR page 13238. The emergency listing of GHB although expiring one year later did not require subsequent rule making by the Attorney General for GHB to remain a controlled substance.
Defendants do not challenge the decision of the Attorney General to temporarily schedule the substance on an emergency basis as requested by Congress. The Attorney General is not statutorily precluded from delegating his power to temporarily schedule controlled substances to the Drug Enforcement Agency.Touby v. United States, 500 U.S. 160, 111 S. Ct. 1752 (1991).
Defendants have been indicted for distributing 1,4-butanediol, which, under the "Analogue Statute," 21 U.S.C. § 802(32)(A), is an analogue of the Schedule I controlled substance gamma hydroxybutyric acid (GHB) because it has a chemical structure which is substantially similar to the chemical structure of GHB, and it 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 GHB. Thus, as a controlled substance analogue of a Schedule I controlled substance, pursuant to 21 U.S.C. § 813, to the extent it is intended for human consumption, 1,4-butanediol is treated, for the purposes of any federal narcotics laws, as a controlled substance in Schedule I. On March 13, 2000, GHB was added and remains as a Schedule I controlled substance to the Controlled Substance Act.
Wherefore, the motion to dismiss should be denied. IT IS SO RECOMMENDED.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, Friday October 14, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, Wednesday, October 19, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).