U.S. v. Turcotte

• Decision Date: 07 July 2003
• Docket Number: No. 00 CR 737.,00 CR 737.
• Citation: 286 F.Supp.2d 947
• Parties: UNITED STATES OF AMERICA, v. James R. TURCOTTE, Defendant.
• Court: U.S. District Court — Northern District of Illinois

286 F.Supp.2d 947

UNITED STATES OF AMERICA, v. James R. TURCOTTE, Defendant.

No. 00 CR 737.

United States District Court, N.D. Illinois, Eastern Division.

July 7, 2003.

COPYRIGHT MATERIAL OMITTED

Imani Chiphe, Federal Defender Program, Stanley L. Hill, Dalal M. Jarad, Stanley L. Hill & Associates, P.C., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

On November 22, 2002, following a jury trial, defendant James R. Turcotte was found guilty of three counts arising from the possession and distribution of controlled substances. Defendant filed motions seeking a judgment of acquittal or, alternatively, a new trial. For the following reasons, defendant's motions are denied.

BACKGROUND

In Count One of the indictment, defendant was charged with knowingly selling misbranded drugs, namely Gamma Hydroxybutyric Acid (GHB), Gamma Butyrolactone (GBL) and Butanediol (BD) in violation of 21 U.S.C. §§ 331(a) and 333(a)(2) and 18 U.S.C. §§ 371 and 372. In Count Two, defendant was charged with possessing, with the intent to distribute, mixtures containing controlled substances, during the period of March 13, 2000, to September 8, 2000, in violation of 21 U.S.C. §§ 841(a)(1) and 813. In Count Five, defendant was charged with possessing, with intent to distribute, approximately 60 gallons of GHB and GBL, in violation of 21 U.S.C. §§ 841(a)(1) and 813. Defendant's trial on these three counts began on November 12, 2002, and on November 22 2002, he was found guilty of all counts. January 22, 2003, was set as the final day for post-trial motions. On January 22, 2003, defendant, through his attorneys, presented a series of arguments seeking a judgment of acquittal or a new trial. On March 20, 2003, through separate counsel, defendant filed a supplemental memorandum to his post-trial motions, presenting new arguments in support of these motions.

DISCUSSION

Federal Rules of Criminal Procedure 29(c) and 33 allow a defendant to file motions for judgment of acquittal and for a new trial, respectively. These motions must be filed within seven days of a guilty verdict or within any other time established by the court during the seven-day period. While we recognize that defendant's supplemental memorandum, which presented new arguments, was filed well after the allowable period for post-trial motions, we will deal with all arguments presented by defendant's counsel. The arguments presented in the supplemental memorandum are closely related to those contained in the original motion and the government's attorneys had a fair opportunity to respond.

Defendant argues: (1) the jury instructions defining "controlled substance analogue" were defective in that they asked the jurors to read the elements in the disjunctive; (2) the jury instructions for Count Five were fatally defective in that they allowed defendant to be found guilty, without knowing that a specific drug was a controlled substance; (3) the government failed to disclose "Brady" material; (4) the controlled substance analogue act as applied to GBL and GHB, and the emergency scheduling of GHB, are unconstitutionally vague; (5) the evidence that GBL and BD are analogues of GHB was insufficient; (6) other federal law prevents BD and GBL from being controlled substance analogues; (7) the scheduling of GHB as a Schedule I controlled substance has expired; and (8) the defendant's fundamental constitutional rights were infringed when the government decided to regulate these controlled substances.

The jury instructions defining controlled substance analogue were not defective when read in conjunction with the special verdict forms. In determining whether specific substances were analogues of the Schedule I substances, the jury was asked to read the three elements of 21 U.S.C. § 802(32)(a) in the disjunctive.¹ This allowed the jury to determine that GBL and BD were analogues of GHB without necessarily determining that the chemical structures of the substances were substantially similar. A number of district courts have read the statute in the conjunctive in order to avoid absurd results, see United States v. Vickery, 199 F.Supp.2d 1363, 1371 (N.D.Ga.2002); United States v. Clifford, 197 F.Supp.2d 516 522 (E.D.Va.2002), and we are inclined to agree. The Seventh Circuit has never dealt with the reading of Section 802(32)(A). Such a determination, however, does not affect defendant's conviction. The jury's special verdict forms establish that the government proved all three elements of Section 802(32)(A) beyond a reasonable doubt with respect to GHB and that it did not prove BD was an analogue. And in finding defendant guilty of Count Five, the jury made it abundantly clear that it found defendant had engaged, with another, to possess with intent to deliver GHB.

The jury instructions detailing the elements of Count Five were also sufficient. 21 U.S.C. § 841(a)(1) clearly contains a knowledge element. But "knowingly" is customarily interpreted as factual knowledge, as distinguished from knowledge of the law, consistent with the maxim that ignorance of the law is no excuse. Bryan v. United States, 524 U.S. 184, 192-95, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). The jury verdict established that defendant knowingly possessed GBL and the special verdict established that GBL is a controlled substance analogue of GHB. GHB is a Schedule I controlled substance, and, pursuant to 21 U.S.C. § 813, a controlled substance analogue intended for human consumption is treated as a Schedule I controlled substance.

The defendant possessed an analogue with intent to distribute and, according to United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989), that is enough even if he did not know it was an analogue. Perhaps that goes too far, as it might, possibly, in other circumstances, ensnare individuals engaged in apparently innocent conduct. See Bryan v. United States, supra, at 194, 118 S.Ct. 1939. But here, by the special verdict, the jury determined that defendant represented or intended that GBL had a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar or greater than the effect of GHB.

There is no evidence that the government failed to disclose any "Brady" material to the defendant, thereby resulting in prejudice to the defendant. The Constitution requires that prosecutors disclose any evidence they possess that is material to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Prosecutors turned over the Investigational Drug Applications (INDs) promptly, after learning of their existence. Defense attorneys were therefore able to review the material and use it during the trial. Moreover, defendant, even now, directs us to no information contained in the INDs that leads us to believe that defendant sold the controlled substances for legitimate uses or that otherwise serves to undermine confidence in the result of the trial. See United States v. Gonzalez, 93 F.3d 311, 315 (7th Cir.1996) quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

The Controlled Substance Analogue Statute is not unconstitutionally vague as applied to GBL and GHB. A criminal statute is void for vagueness only if ordinary people cannot figure out what type of conduct is prohibited. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The jury in this case determined by the special verdict form that defendant sold GBL as an alternative to GHB, representing or intending that it have a similar effect. Moreover, the evidence clearly established the chemical and functional similarities of the two components. The Eleventh...