U.S. v. Washam

• Decision Date: 11 December 2002
• Docket Number: No. 02-1681.,02-1681.
• Citation: 312 F.3d 926
• Parties: UNITED STATES of America, Appellee, v. Thomas William WASHAM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

312 F.3d 926

UNITED STATES of America, Appellee, v. Thomas William WASHAM, Appellant.

No. 02-1681.

United States Court of Appeals, Eighth Circuit.

Submitted: October 10, 2002.

Filed: December 11, 2002.

Rehearing and Rehearing En Banc Denied: January 14, 2003.

Joseph P. Tamburino, argued, Minneapolis, MN, for appellant.

Jeffrey S. Paulsen, argued, Minneapolis, MN, for appellee.

Before LOKEN, BEAM and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

A jury found Thomas William Washam ("Washam") guilty of two counts of distributing a controlled substance analogue of gamma-hydroxybutyric acid (GHB) in violation of 21 U.S.C. §§ 841(a)(1), 813 and 802(32). Washam appeals the judgment and the denial of his motion to dismiss the indictment, claiming a violation of his Fifth Amendment due process rights. Washam argues that the definition of a controlled substance analogue in 21 U.S.C. § 802(32) ("Analogue Statute") denies him due process because it is unconstitutionally vague as applied to the facts of his conviction. We disagree and affirm the district court.¹

I. BACKGROUND

In August of 2000, Washam began working for "Nutri-Tech," a nutrition store located in College Station, Texas. While at Nutri-Tech, Washam began using and selling products containing 1,4-Butanediol. Washam researched 1,4-Butanediol in order to ascertain its legality, and he determined that a similar substance, GHB, was illegal and that another similar substance, gamma-butyrolactone (GBL), was an illegal analogue to GHB, but 1,4-Butanediol was not listed as an illegal substance. Through the owner of Nutri-Tech, Washam began importing 1,4-Butanediol from Mexico for sale in the United States for human consumption.

With the help of Kyle Anderson, who was being charged with possession of GBL in an unrelated case, the government set up an undercover purchase of 1,4-Butanediol from Washam. Washam agreed to sell Anderson 1500 four-ounce bottles of 1,4-Butanediol for $55,000. Washam shipped 540 bottles to Anderson via FedEx, which was received on July 13, 2001. A second shipment of bottles from Washam to Anderson was never located. On July 13, Washam also met Anderson and an undercover officer, Robert Nance, at a hotel in St. Paul, Minnesota. During this meeting, Washam delivered 501 bottles to Anderson and indicated that he knew the substance he was selling was to be used for human consumption, and that it was illegal as such. Officer Nance gave Washam the cash and then placed him under arrest.

At trial, the central issue was whether 1,4-Butanediol is a controlled substance analogue of GHB, as defined in the Analogue Statute. The government offered the opinions of two experts. Dr. Richard Irwin, a research scientist with the National Institutes of Health, testified that the human body converts 1,4-Butanediol into GHB and that at least two deaths had been attributed to the use of the substance.

Dr. James DeFrancesco, a Drug Enforcement Administration ("DEA") chemist, also testified for the government. He said that 1,4-Butanediol and GHB are both linear compounds containing four carbons and that there is only one difference between the substances on one side of their molecules. He stated that this difference does not preclude a substantially similar chemical structure and that his opinion, and the official opinion of the DEA, was that 1,4-Butanediol was an analogue of GHB under the definition in the Analogue Statute.

Washam also presented two experts. Dr. J. Thomas Ippoliti, a chemistry professor at the University of St. Thomas, testified that the difference between 1,4-Butanediol and GHB was in their respective functional groups. Functional groups allow chemists to differentiate between chemical structures and to determine a chemical's physical properties and reactivity. This difference in functional groups means that the two chemicals are not substantially similar in chemical structure.

Dr. Jordan Holtzman, a physician with a Ph.D. in pharmacology, testified that 1,4-Butanediol metabolizes into GHB through a two-step process in the body. MSG, a food additive, also metabolizes into GHB in the body. Dr. Holtzman stated that GHB and 1,4-Butanediol are very different substances outside of the body. GHB works as a neurotransmitter, while 1,4-Butanediol does not, and GHB is 100 billion times more acidic than 1,4-Butanediol. Dr. Holtzman testified that 1,4-Butanediol and GHB are not substantially similar in chemical structure.

The jury heard all of this expert testimony, was instructed to determine whether 1,4-Butanediol is a controlled substance analogue under the Analogue Statute, determined that it was a controlled substance analogue, and found Washam guilty of distributing a controlled substance analogue. Washam appeals this determination, claiming that the definition of a controlled substance analogue in 21 U.S.C. § 802(32) is void for vagueness because it fails to provide notice of the conduct proscribed and because it lends itself to arbitrary enforcement.

II. DISCUSSION

We review a constitutional challenge to a federal statute de novo. United States v. Whiting, 165 F.3d 631, 633 (8th Cir.1999).

The Fifth Amendment guarantees every citizen the right to due process. Stemming from this guarantee is the concept that vague statutes are void. Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Id. "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed." United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). "[L]aws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). "[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).

In determining whether a statute is unconstitutionally vague on the facts at hand, we apply a two-part test. First, the statute must provide adequate notice of the proscribed conduct. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Second, the statute must not lend itself to arbitrary enforcement. Id. at 358, 103 S.Ct. 1855. Washam argues that section 802(32) violates both parts of this test because the statute does not provide adequate notice of proscribed conduct and because it allows for arbitrary enforcement.

A.

A penal statute is void if it does not sufficiently define a criminal offense so that ordinary people can understand what conduct is prohibited. Kolender, 461 U.S. at 357, 103 S.Ct. 1855. This inquiry looks at what a person of "common intelligence" would "reasonably" understand the statute to proscribe, not what the particular defendant understood the statute to mean. Nat'l Dairy Prods., 372 U.S. at 32-33, 83 S.Ct. 594; Connally, 269 U.S. at 391, 46 S.Ct. 126. The statute in question in this case defines a controlled substance analogue as 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 ... 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 ... effect on the central nervous system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A).²

Washam argues that there is no consensus in the scientific community regarding whether 1,4-Butanediol has a "substantially similar" chemical structure to GHB under provision (i) of this definition, and thus the definition is unconstitutionally vague as applied. The government argues that Washam had actual notice that his conduct was illegal and so he cannot claim that the statute is void for vagueness as applied to him. Additionally the government argues that a person of common intelligence has sufficient notice under the statute that 1,4-Butanediol is a controlled substance analogue. We agree with the government.

We think the government's "actual notice" argument has some appeal and is supported by United States v. Saffo, 227 F.3d 1260, 1270 (10th Cir.2000), cert. denied, 532 U.S. 974, 121 S.Ct. 1608, 149 L.Ed.2d 473 (2001). In Saffo, the defendant challenged a statute as unconstitutionally vague. The court held that the defendant could not sustain the challenge because she concealed her activities and lied to DEA agents, which showed that she had actual knowledge of the illegality of her actions. Id. Thus, the defendant was not in "a situation where she `could not reasonably understand that [her] contemplated conduct [was] proscribed.'" Id. (quoting Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)) (first alteration in original). Similarly, the evidence in the present case shows that Washam knew his conduct was illegal because even though the shipping label said not to ingest, Washam told the buyers how much to ingest, he charged an exorbitant mark-up price on the chemical, and he commented about other chemicals that were legal for human consumption.

Additionally, even if we overlook...