Opinion
CRIMINAL ACTION NO. 1:01-CR-346-3-ODE
March 8, 2002
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND ORDER CERTIFYING CASE READY FOR TRIAL
This action is presently before the Court on Defendant's Motion to Define the Elements of the Offense Under the Controlled Substance Analogue Act. [Docket Entry No. 54]. On October 31, 2001, the Government filed a response to Defendant's motion. Defendant requested and was granted an extension of time to file a reply to the Government's response. Defendant filed his reply brief on November 21, 2001. An evidentiary hearing was scheduled for January 28, 2002, on the instant motion and on Defendant's Motion to Dismiss Based Upon the Void for Vagueness Doctrine [Docket Entry No. 39]. However, the Defendant withdrew his motion to dismiss based upon the void for vagueness doctrine and the parties indicated to the Court their desire for a ruling on the Defendant's motion to define the elements of the offense without any further briefing. For the reasons set forth below, the Court recommends that Defendant's Motion to Define the Elements of the Offense under the Controlled Substance Analogue Act be DENIED.
The Defendant has been indicted along with two others for violations of 21 U.S.C. § 802 (32), 813, 841(b)(1)(C) and 846. The indictment also includes forfeiture claims pursuant to 21 U.S.C. § 853. Specifically, the Defendant is alleged to have, in the Northern District of Georgia and elsewhere, conspired with Mark Zivitz, and Gary Zivitz, and others to knowingly and intentionally possess with intent to distribute gamma hydroxybutyric acid ("GHB"), a Schedule I controlled substance, and gamma butyrolactone (GBL), a controlled substance analogue intended for human consumption, all in violation of Title 21 United States Code, Sections 846, 802 (32), 813, and 841(b)(1)(C). The Defendant is also charged with knowingly and intentionally distributing 1, 4 butanediol, a controlled substance analogue intended for human consumption. In addition, the Defendant has also been indicted for racketeering in violation of 18 U.S.C. § 1952 (a)(3) and (2).
Mark and Gary Zivitz entered guilty pleas on September 10, 2001 before the District Court Judge Orinda D. Evans and are awaiting sentencing.
BACKGROUND FACTS
The Government contends that if this case proceeds to trial, its evidence will include, among other things, consensually-monitored tape recording testimony of Co-Defendants Mark and Gary Zivitz and Defendant Vickery agreeing to procure and distribute GHB and GBL, a controlled substance analogue intended for human consumption. The Government further alleges that over a period of several months, Defendant Vickery received several shipments of bottled liquid — including products identified as "Verve" and "Blue Nitro" from one or both of the Zivitz Co-Defendants. The Government further contends that the evidence will show that Defendant Vickery then distributed the liquid to others for profit. In addition, the Government asserts that according to its laboratory analysis, the bottled liquids contained either a combination of GHB and GBL or pure GBL. It is further alleged that in late 2000 either one or both of the Zivitz Co-Defendants and Defendant Vickery sought to obtain larger quantities of the liquid. Additionally, it is asserted that Defendant Vickery contacted a possible source of supply and received a sample of the product that the suppher had available, and on January 15, 2001, Defendant Vickery sent a sample of that product to a cooperating individual. The Government alleges that according to its analysis of the sample shipped to the cooperating individual, the sample contained 1, 4 butanediol, a chemical which the Government contends is also a controlled substance analogue of GHB. The Government further contends that GBL is also a controlled substance analogue of GHB.
LEGAL ANALYSIS
The issue before the Court is one of statutory interpretation. The statute at issue in this case is found under 21 U.S.C. § 802 (32)(A) (hereinafter "the Analogue Statute"). As defined by the Analogue Statute, a "controlled substance analogue" is statutorily defined as a substance:
(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule 1 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.21 U.S.C. § 802 (32)(A). Under federal drug laws, a controlled substance analogue, when sold or distributed for human consumption, is treated as a Schedule I controlled substance. 21 U.S.C. § 813.
The Defendant contends that the definition of "controlled substance analogue" in the Analogue Statute must be read in the conjunctive. In order to qualify as an analogue, the Defendant argues that both clause (i) and either clause (ii) or (iii) of 21 U.S.C. § 802 (32)(A) must be met. First, the substance must have a chemical structure that is substantially similar to that of a scheduled substance. Second, either the substance must be substantially similar in its "stimulant depressant, or hallucinogenic" effect on the body, or a person must intend or represent that the product have such effect. Conversely, the Government argues that Analogue Statute must be read disjunctively. Thus under this reading, the Analogue Statute contains three co-equal, dependent clauses, and therefore, proof of any one of the three suffices in a prosecution for trafficking in analogue: (1) similar chemical structure to controlled substance; (2) similar effect on central nervous system as controlled substance; or (3) represented as having similar effect. The undersigned agrees with the Government's reading. Accordingly, the Court finds that the Section 802 (32)(A), the Analogue Statute, provides three alternative definitions of a controlled substance analogue in three separate clauses for the reasons set forth and explained more fully below.
Initially, the Court notes that the first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (A basic principle of statutory construction is that, in interpreting a statute, a court must first look to the plain meaning of the statutory language). Where the language of a statute is unambiguous, it is presumed to reflect the intent of Congress and is therefore controlling. U.S. v. Roberts, 2001 WL 1646732 (S.D.N.Y.). However, "if the text of a statute is ambiguous, we must look to the statute as a whole and construct an interpretation that comports with its primary purpose and does not lead to anomalous or unreasonable results." American Tobacco, 456 U.S. at 71. Generally, in those cases where the language is unclear, courts look to the legislative history to drive Congress's intent. Blum v. Stenson, 465 U.S. 886, 896 (1984) (where "resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear.").
First, the Court finds that the plain language of the Analogue Statute unambiguously supports a disjunctive reading. The Court notes in reviewing Section 802 (32)(A) from a simple grammatical perspective, it contains three separate clauses, each clause bearing its own number (i), (ii) and (iii), and each of which provides its own meaning of a substance which congress considers a controlled substance analogue either (i), (ii) or (iii). Second, the very linguistic structure of the statute precludes a two-pronged conjunctive reading. When viewing the structure of each clause of Section 802 (32)(A), the undersigned notes that each clause is separated by a semicolon with the last two sections separated by an "or", thereby indicating independent and disjunctive clauses. As a general rule of statutory construction, an "or" placed before the last term in a series indicates that each term in the series is intended to be read in the disjunctive and given separate meaning. See United States v. Urban, 140 F.3d 229, 231 (3d Cir. 1998) ("Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings unless the context dictates otherwise." (internal quotations omitted)). Third, if Section 802 (32)(A) was read as the Defendant argues, the Court would have to judicially legislate the word "and" into the statute between clauses (i) and (ii). The undersigned is not inclined to do so. Furthermore, this Court has no authority to rewrite a statute by inserting a word into a bill that Congress enacted and the President signed into law. The undersigned's reading of Section 802 (32)(A) compels the conclusion that the Analogue Statute is plain and unambiguous and that there exists three separate and distinct means of establishing whether or not a substance qualifies as a controlled substance analogue. See U.S. v. Greig, 144 F. Supp.2d 386 (D.V.I. 2001). Ordinarily the Court's analysis would end upon a finding that the statute at issue is plain and unambiguous. However, the undersigned also notes that at least two other Courts have reached the same conclusion advanced by the Defendant. See U.S. v. Roberts, 2001 WL 1646732 (S.D.N.Y.) and U.S. v. Forbes, 806 F. Supp. 232 (D.Colo. 1992).
In Forbes, the District Court determined that Section 802 (32) (A) requires a two-pronged definition. There the Court held that a substance may be a controlled substance analogue only if it satisfies clause (i) and (ii) or (iii). Id. at 235, emphasis original. The Forbes Court acknowledged as this Court has, that as a matter of simple grammar, when an "or" is placed before the last term in a series, each term in the series is usually intended to be disjunctive. However, the Forbes Court further focused on segments of clauses (ii) and (iii) both beginning with the word "which." Id. at 234. The court in Forbes pointed out that the word "which" signaled the start of a dependent relative clause modifying the precedent noun, "chemical structure," found in clause (i). The Court further noted that because both clauses (ii) and (iii) can be read to modify clause (i), the statutory language can be fairly read as requiring the two-pronged definition asserted by defendants. Id. This conjunctive reading of Section 802 (32)(A) was also adopted by the District Court in U.S. v. Roberts, 2001 WL 1646732, *3 (S.D.N.Y.).
Having read and considered those cases, the undersigned finds the court's analysis in U.S. v. Greig, 144 F. Supp.2d 386 (D.V.I. 2001), more persuasive and consistent with the legislative history of the Analogue Statute. In Greig, the Court held that Section 802 (32)(A) provides three alternative definitions of a controlled substance analogue in three separate clauses. Id. at 388. There the court further pointed out that the plain and unambiguous language of the statute consists of a main clause, "the term `controlled substance analogue' means a substance," followed by a dash and a series of three subordinate relative clauses signaled by the pronoun "which": (1) "the chemical structure of which is substantially similar to . . ." (or, recast slightly "of which the chemical structure is substantially similar to . . ."); (2) "which has a stimulant . . ."; and (3) "which such person represents or intends to have . . . ." Id. at 389.
Furthermore, the legislative history of the statute does not show a clearly expressed legislative intent to the contrary to this plain reading of the statute. As in all cases involving statutory construction, it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used. American Tobacco, 456 U.S. at 68. "Thus, absent a clearly expressed intent to the contrary, the language must be ordinarily regarded as conclusive." Id. In fact, the legislative history of the analogue statute supports the notion that Congress intended for the three prongs, i, ii, and in to be read in the disjunctive and considered co-equal definitions of the term "controlled substance analogue."
The main problem Congress was attempting to solve with the legislation was errant chemists' production of new designer drugs, which were similar to the controlled substances already covered by law but had differing chemical structures and were therefore, not covered under the Controlled Substance Act. H.R. Rep. No. 99-848, pt. 1, at 4-5 (1986); see also Controlled Substances Analogs Enforcement Act of 1985-S.1437: Hearings on ¶ 1437 Before the U.S. Senate Judiciary Committee, 99th Cong. 20-22 (1985) (statement of Stephen S. Trott, Assistant Attorney General, Criminal Division, United States Department of Justice). The creation of these new drugs was outpacing the ability of the Attorney General on behalf of the Drug Enforcement Agency to suggest that a drug to be scheduled as a controlled substance as well as the Secretary of Health and Human Services' ability to make the required findings that a particular drug needed to be controlled or rescheduled. H.R. Rep. No. 99-848, Pt. 1, at 4-5 (1986). The House of Representatives' initial versions of the bill created to solve this problem, which appear to have been ultimately rejected, was crafted in a manner that reflects the Defendant's reading of the legislation which ultimately was passed by Congress. The House version of the bill is as follows:
(31)(A) Except as provided in subparagraph (B), 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; and
(ii)(I) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system; or
(II) 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 of a controlled substance.
H.R. 5246, 99th Cong., H.R. Rep. No. 99-848, pt. 1, at 1 (1986). (emphasis added). The House of Representatives version of the bill was intended to define "controlled substance analogue' to require "a chemical relationship to the substance which is controlled (i.e. a chemical structure substantially similar to that of any controlled substance) and either the existence of some stimulant, depressant or hallucinogenic effect on the central nervous system, or a representation or intent that the substance have a stimulant, depressant or hallucinogenic effect substantially similar to, or greater than, such effect of any controlled substance." H.R. Rep. No. 99-848, pt. 1, at 2, 6 (1986). The House reported that its version of the bill was designed to make the criminal and regulatory systems of control of the Controlled Substances Act available for regulation of designer drugs or analogues. H.R. Rep. No. 99-848, pt. 1, at 2-3 (1986). According to House Report No. 99-848, Section 31 (ii)(II), which is similar to the portion of the Act which appears to be at issue in this case, required that a prosecutor show that some person, namely the defendant, intended or represented the substance to have an effect on the central nervous system which is substantially similar to or greater than the effect of a controlled substance. H.R. Rep. No. 99-848, pt. 1, at 6 (1986). According to the House Committee Report discussing the legislation, the American Chemical Society, which was a supporter of the legislation, urged that to be a controlled substance analogue, the substance must have both a chemical structure and effect on the central nervous system similar to that of other scheduled controlled substances. H.R. Rep. No. 99-848, pt. 1, at 4-5 (1986). The Committee Report explains that the legislation was drafted in this manner in order to avoid criminalizing coffee. H.R. Rep. No. 99-848, Pt. 1, at 7 (1986). The Committee Report states:
Coffee, for example, has a stimulant effect on the central nervous system, but it is not chemically substantially similar to a controlled substance. To punish someone under the Controlled Substances Act who makes or distributes a new substance that has a chemical structure similar to a controlled substance, there ought to be evidence either of some effect on the central nervous system (such as that of caffeine), or that the person has made a representation or evidenced an intent that the drug mimic the effect of a controlled substance. If the person were to merely say this substance is as powerful as a cup of coffee, and no stimulant or other central nervous system effect is found, then no harm has been committed that ought to involve the Controlled Substances Act.
H.R. Rep. No. 99-848, pt. 1, at 7 (1986). The Senate's competing version of the legislation, which is similar in structure to the legislation which was ultimately adopted, was quite different in construction from the House version of the bill. The Senate version (S1437), which was drafted by the United States Department of Justice Attorneys as well as Department of Health and Human Service officials, Controlled Substances Analogs Enforcement Act of 985-S.1437: Hearings on S.1437 Before the U.S. Senate Judiciary Committee, 99th Cong. 18 (1985) (statement of Stephen S. Trott, Assistant Attorney General, Criminal Division, United States Department of Justice). The Senate version of the bill (S1437) provided as follows:
(31) The term "controlled substance analog' as used in section 403A means a substance other than a controlled substance that has a chemical structure substantially similar to that of a controlled substance in schedules I or II or that was specifically designed to produce an effect substantially similar to that of a controlled substance in schedules I or II. Examples of chemical classes in which controlled substance analogs are found include, but are not limited to, the following: Phenethylamines, N-substituted piperidines, morphinans. ecogonines. quinazolinones, substituted indoles, and arylcycloalkylamines.
The original version of the bill utilized the term "designer drug" in the place of "controlled substance analogue." See S. Res. 1347, as found in Designer Drugs: Hearing on S.1437, 99th Cong. 206 (1985). The Senate Resolution was subsequently amended to replace the term designer drug with controlled substance analogue because it was believed that the term designer drug was too enticing. 131 Cong. Rec. S17842 (1985) (statement of Sen. Thurmond).
S. Res. 1437, 99th Cong., as printed in S. Rep. No. 99-196, at 8 (1985) (emphasis added). The drafting of two co-equal, disjunctive prongs in the Senate version of the bill was not accidental. Stephen S. Trott, who was the Assistant Attorney General of the Criminal Division for the Department of Justice, provided a statement for the Senate Judiciary Committee, in which he stated:
The definition in S.1437 provides a two-prong approach to the designer drug problem. A prosecution must be based on a substantial similarity in either chemical structure or effect between the substance in question and a Schedule I or II controlled substance. (If the effect prong is in issue, it must be shown that the substance was specifically designed to produce such an effect.) The prosecution must satisfy only one prong of this test, although evidence may be presented on both."
Controlled Substances Analogs Enforcement Act of 1985 — S.1437: Hearings on S.1437 Before the US. Senate Judiciary Committee, 99th Cong. 25 (1985) (statement of Stephen S. Trott, Assistant Attorney General, Criminal Division, U.S. Dep't of Justice). Most importantly, Mr. Trott stated, that the Department of Justice needed the separate standards because of the "need to provide flexibility in addressing a problem of which the boundaries are not yet known." Controlled Substances Analogs Enforcement Act of 1985 S.1437: Hearings on S.1437 Before the US. Senate Judiciary Committee, 99th Cong. 25 (1985) (statement of Stephen S. Troll, Assistant Attorney General, Criminal Division, U.S. Dep't of Justice). Mr. Trott further elaborated:
In cases in which there is a substantial similarity in chemical structure between the designer drug and a controlled substance, the evidence regarding the chemical similarity may be so difficult to grasp that evidence as to the drug's effect may aid in the proceeding by enabling the jury to choose a different route in determining whether a violation has occurred. Moreover, given the ingenuity of scientists and the technological advances we have witnessed in recent years, the designer drugs of the future may be quite different from the designer drugs of today. At present the designer drugs of greatest interest are substantially similar in chemical structure to Schedule I or II controlled substances. However, in the future substances may be developed which are not at all chemically similar to such controlled substances but which, nevertheless, are designed to and do in fact produce a substantially similar effect. These substances will be as useful to the illicit drug market as are the substances which are chemically similar to controlled substance. Thus, in order to avoid incorporating a serious loophole, the bill includes the effect prong in the definition of designer drug.Id. at 25. Thus, the Department of Justice preferred that the legislation provide flexibility to enable it to prosecute in more situations in which the chemical structure of the drug was not substantially similar to that of a controlled substance. Id. at 25.
The Court concludes that the final version of the bill shows that the Congress ultimately rejected the House's more rigid version of the legislation in favor of the more flexible approach requested by the Department of Justice and adopted by the Senate. Congress rejected the version of the bill originating in the House which would have clearly accomplished the objective of requiring the prosecutor to prove substantially similar chemical structure and either substantially similar effect or that the defendant represented the substance to have a substantially similar effect. In the legislation which was enacted, Congress not only omitted the "and" at the end of clause (i) of the House's version, it also eliminated the "(1)" and the "(II)" in clause (ii), as signals of alternative conjunctive terms. Therefore, the undersigned concludes that Congress must have intended for each of the three prongs of the definition of controlled substance analogue to be read in the manner the legislation appears, in the disjunctive.
Apparently, the Fifth Circuit concurs with this result. According to a panel of the Fifth Circuit Court of Appeals, "[t]he statute makes plain that drugs which have been chemically designed to be similar to controlled substances, but which are not themselves listed on the controlled substance schedules, will nonetheless be considered as schedule I substances if 1) they are substantially similar chemically to drugs that are on those schedules, 2) if they produce similar effects on the central nervous system as drugs that are on those schedules, or 3) are intended or represented to produce effects similar to those produced by drugs that are on those schedules." United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990); see also Clayton L. Smith, The Controlled Substance Analogue Enforcement Act of 1986: The Compromising of Criminalization, 16 Am. J. Crim. L. 107 (1988) (providing a more comprehensive analysis of the legislative history and also reaching the conclusion that the three prongs in the definition of controlled substance analogue should be considered disjunctive.
In addition, in light of the fact that Congress considered whether the statute should be read more flexibly and in the disjunctive, or whether the prosecution should have to prove the first and the second prong or the first and the third prong, the fact that Congress adopted a construction which plainly leads to the more flexible test proposed by the Senate persuades the undersigned that Congress adopted the more flexible test. Moreover, at the very least, it cannot be said that the legislative history so points to the more rigid test that the plain reading of the statute should be abandoned. See American Tobacco Co. 456 U.S. at 75 (rejecting respondent's construction of a statute when legislative history did not amount to clearly expressed legislative intent contrary to the plain language of the statute).
RECOMMENDATION
Based on the foregoing, the undersigned RECOMMENDS that the Defendant's Motion to Define the Elements of the Offense [Docket Entry No. 54] be DENIED. There are no further motions pending before the undersigned magistrate judge. Therefore, this action is CERTIFIED READY FOR TRIAL.
ORDER FOR SERVICE OF REPORT AND RECOMMENDATION
Attached is the report and recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636 and this Court's Local Rule 72.1C. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.Pursuant to 28 U.S.C. § 636 (b)(1), each party may file written objections, if any, to the report and recommendation within ten (10) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the report and recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
The Clerk is directed to submit the report and recommendation with objections, if any, to the district court after expiration of the above time period.