U.S. v. Ansaldi
| Decision Date | 16 June 2004 |
| Docket Number | No. 03-1259L.,No. 03-1273(CON).,03-1259L.,03-1273(CON). |
| Citation | 372 F.3d 118 |
| Parties | UNITED STATES of America, Appellee, v. Scott ANSALDI, Rodney Dean Gates, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Before: NEWMAN and CALABRESI, Circuit Judges, and UNDERHILL,* District Judge.
This appeal concerns the application of the Controlled Substances Act ("CSA"), 21 U.S.C. §§ 801 et seq., to the chemical substance gamma butyrolactone ("GBL"). Under certain circumstances — most notably upon human ingestion — GBL converts into the chemical gamma hydroxybutyric acid ("GHB"), a Schedule I controlled substance that is commonly known as a date-rape drug. Scott Ansaldi and Rodney Gates ("Defendants") sold GBL over the internet, and were convicted of conspiracy to distribute GHB, conspiracy to distribute GBL, and conspiracy to launder money. Their appeal requires us to answer two questions: (1) Is the definition of "controlled substance analogue" contained in 21 U.S.C. § 802(32) unconstitutionally vague as applied to GBL? (2) Can a defendant who sells GBL be convicted of both a conspiracy to distribute GBL as an analogue of GHB and a conspiracy to distribute GHB itself?
The question of the vagueness of the term "controlled substance analogue" was recently addressed by this Court in United States v. Roberts, 363 F.3d 118, 125-26 (2d Cir.2004). We find the reasoning of that opinion applicable here as well, and therefore do not find the statute vague as applied to the sale of GBL. Because Defendants engaged in only one conspiracy, however, even if they conspired to violate two laws, they could not be convicted on two counts of conspiracy. Accordingly we agree with Defendants that one of the conspiracy convictions must be vacated.
Defendants also make a host of arguments relating to the admission of evidence and the charging of the jury. All are without merit.
GHB is a behavioral depressant; upon ingestion, its effects are somewhat similar to those of alcohol. There is also some evidence that it stimulates the body's production of growth hormones. In 1999, Congress became aware of significant problems stemming from the drug's presence in sexual-assault and driving-under-the-influence cases. In response to these problems, Congress enacted the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000 ("Date-Rape Drug Act"), which resulted in the scheduling of GHB as a Schedule I controlled substance. Pub.L. No. 106-172, 114 Stat. 7 (2000) ().
Congress also noted a significant and growing problem for law enforcement arising from the use of various precursors and analogues to GHB. Specifically, Congress expressed concern about the fact that "[i]f taken for human consumption, common industrial chemicals such as gamma butyrolactone ... are swiftly converted by the body into GHB." Id. § 2. Although Congress did not schedule GBL as a controlled substance, it did make GBL a "listed chemical" subject to various registration requirements. Id. § 3 (codified at 21 U.S.C. § 802(34)(X)). It also noted that "[t]he designation of gamma butyrolactone ... as a listed chemical... does not preclude a finding ... that the chemical is a controlled substance analogue." Id. § 5 (codified at 21 U.S.C. § 802(32)(B)).
In 1999, John Goetz, Claudine Dematos and Ansaldi began using the internet to sell a product called "Invigorating." The active ingredient in Invigorating was GHB, which was then unregulated. The business — named Scott's Supplies — was successful and eventually hired two additional employees — Mitchell Dufanel and Berge Nalbantian.
At some point in 1999, Scott's Supplies learned of pending legislation that would prohibit the sale of GHB and, perhaps in anticipation, ceased selling Invigorating. Invigorating was quickly replaced with a new product, "Verve." Verve was a mixture of water, blueberry Kool-Aid, sugar and — most importantly — GBL. Scott's Supplies purchased Verve exclusively from Gates.
Scott's Supplies continued to purchase Verve from Gates and resell it, even after the passage of the Date-Rape Drug Act. In the summer of 2000, Ansaldi, Gates, Dematos and Goetz were arrested by DEA agents and local police. Goetz died before he could be tried. Dematos entered into a plea agreement, under which she agreed to testify against Ansaldi and Gates. Ansaldi and Gates proceeded to trial.
At trial the government introduced evidence that Gates and Ansaldi sold Verve for human consumption and that both of them had knowledge that GBL converted to GHB upon ingestion. The government also produced an expert who testified regarding the chemical similarity of GBL and GHB molecules. Although the evidence showed that some GBL actually converted to GHB in the bottle — and so Verve, in fact, contained GHB — no evidence suggested that either Ansaldi or Gates was aware of that fact.
The jury convicted Ansaldi and Gates of three of the counts charged in the indictment: (1) Count Three, knowingly and intentionally conspiring to distribute and possess with the intent to distribute the controlled substance GHB; (2) Count Four, knowingly and intentionally conspiring to distribute and possess with the intent to distribute for human consumption the controlled substance analogue GBL; (3) Count Five, conspiring to conduct financial transactions that affected interstate commerce using the proceeds of a specified unlawful activity. The District Court sentenced Gates principally to 80 months' incarceration and Ansaldi principally to 72 months' incarceration.
This appeal followed.
Defendants contend that the definition of "controlled substance analogue" contained in 21 U.S.C. § 802(32) is unconstitutionally vague as applied to their conduct.1 We find none of Defendants' arguments persuasive. Regardless of any other ways in which the laws governing controlled substance might be vague, there is one thing they make perfectly clear — the sale of GBL for human consumption is illegal.
A penal statute is void for vagueness if it does not define the criminal offense with sufficient definiteness to allow ordinary people to understand what conduct is prohibited or if the statute is sufficiently indefinite to allow arbitrary or discriminatory law enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). When technical terms are used in a statute, it is proper to look to the relevant science to explain them. United States v. Jackson, 968 F.2d 158, 161 (2d Cir.1992).
Before addressing Defendants' arguments, we point out that the subsection defining "controlled substance analogue" specifically states that "[t]he designation of gamma butyrolactone ... as a listed chemical ... does not preclude a finding ... that the chemical is a controlled substance analogue." 21 U.S.C. § 802(32)(B) (emphasis supplied). Thus, GBL is one of the substances that the statute actually identifies as a potential controlled substance analogue. Additionally, as noted above, in passing the Date-Rape Drug Act, Congress specifically found that GBL presented a significant law enforcement problem.
Defendants' main argument is that the statute's definition of an analogue is unclear to the extent it requires that the substance's chemical structure be "substantially similar to the chemical structure of a controlled substance." 21 U.S.C. § 802(32)(A)(i). They argue that this vagueness is exacerbated by the fact that the determination whether a substance is an analogue is entrusted to a jury.
It is an interesting question under what circumstances a statute that depends on the resolution of a factual question about which reasonable juries can disagree is specific enough to withstand a vagueness challenge. That question is not presented here. Although a jury did make the determination that GBL was an analogue of GHB, that fact — independent of the jury's confirmation — is clear enough to have put an ordinary person on notice of the illegality of the sale of GBL for human consumption.2
This Court recently addressed this exact issue in the context of the distribution of another precursor to GHB — the chemical 1,4-butanediol. Roberts, 363 F.3d 118. Roberts held that when there is both readily cognizable similarity between the alleged analogue and the controlled substance prior to ingestion and metabolization of the alleged analogue into the controlled substance after ingestion, an ordinary person is sufficiently on notice that the chemicals are "substantially similar" within the meaning of the statute. Id. at 125. The Roberts panel held that the defendants in that case were sufficiently on notice that 1,4-butanediol — which differed from GHB by two atoms and converted into GHB upon ingestion — was a controlled substance analogue. Id.
Here, the government's expert offered uncontroverted testimony that GBL's chemical structure differed from that of GHB by only three atoms. He also testified that GBL converted into GHB after ingestion. On these facts — both of which were either known to or readily ascertainable by Defendants — the decision in Roberts makes clear that Defendants had sufficient warning that GBL was a controlled substance analogue and that its distribution for human consumption was illegal.
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