405 F.3d 515 (7th Cir. 2005), 03-2988, United States v. Turcotte

Docket Nº:03-2988.
Citation:405 F.3d 515
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James R. TURCOTTE, Defendant-Appellant.
Case Date:April 19, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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405 F.3d 515 (7th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


James R. TURCOTTE, Defendant-Appellant.

No. 03-2988.

United States Court of Appeals, Seventh Circuit

April 19, 2005

Argued Nov. 1, 2004.

Rehearing and Suggestion for Rehearing En Banc Denied June 14, 2005.

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Monika Bickert (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Derek J. Sarafa (argued), Winston & Strawn, Chicago, IL, for Defendant-Appellant.

Before CUDAHY, ROVNER and WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

Appellant James Turcotte was convicted of three counts of violating the Controlled Substances Act, including a conviction for possession and distribution of a controlled substance analogue as defined by 21 U.S.C. § 802(32). Turcotte now appeals his conviction before this Court, alleging that (1) the district court issued at least two erroneous and prejudicial jury instructions relating to the Analogue Provision of the Controlled Substances Act, (2) the prosecution improperly withheld Brady material at trial, (3) his conviction was precluded by existing federal law, (4) the Analogue Provision of the Controlled Substances Act is unconstitutionally vague and (5) the district court made several errors in trial management. We now affirm.


In this case we confront Congress's attempt to adapt the nation's controlled substances laws to the dizzying pace of innovations in drug technology. This case also marks the most recent chapter in one man's ill-fated personal and professional odyssey from bricklayer to bodybuilder to drug merchant. James Turcotte worked as a bricklayer throughout most of the 1990s. In late 1998 or early 1999, Turcotte was contacted by Brian Gore and asked to do some construction work at Max Muscle, a store selling vitamins, supplements, sports apparel and weightlifting

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equipment in a shopping mall in Downers Grove, Illinois. Max Muscle had been recently opened by Gore's friend Scott Wright. In September, 1999, Turcotte participated in a bodybuilding contest sponsored by Max Muscle, which required contestants to use Max Muscle products while preparing for the competition. In conjunction with this competition, Turcotte purchased nutritional supplements from Max Muscle, including "Verve 5.0," a purported vitamin supplement that contains the chemicals GHB, GBL and BD. 1

Sometime in March 2000, Gore sold Best Buy Supplements, an internet-based company through which Turcotte was to sell Verve 5.0, to Turcotte. Best Buy Supplements conducted its business through the websites bestbuysupplements.com and growthhormoneshop.com, offering a variety of bodybuilding and fitness products including Verve 5.0 and other "Growth Hormone Products." The bestbuysupplements.com website, which listed Turcotte as its "owner," touted Verve 5.0 as the "absolute finest quality GHB precursor" and acknowledged that both "furanone"--another name for GBL--and "butanediol" (BD) are "illegal nationwide." To fulfill customer orders, Turcotte purchased cases of Verve labeled "cleaning supplies."

In August of 2000, the Drug Enforcement Administration (DEA) began an undercover investigation of Turcotte's sales of Verve after arresting Kevin Masquida, who had purchased Verve online from Best Buy Supplements. Masquida entered into a plea agreement with the government under which he agreed to help the DEA arrange an undercover purchase of Verve from Turcotte. After a series of phone calls from Masquida, the purchase was scheduled for 5:00 p.m. on September 8, 2000, at a Shell gas station in Mokena, Illinois. Masquida agreed to buy twenty cases of Verve for $10,000.

On the day of the transaction, undercover DEA agent Robert Coleman accompanied Masquida, posing as an individual interested in purchasing Verve. The entire transaction was monitored by DEA surveillance. Turcotte and Gore met Masquida and Coleman at the Shell station as planned, and they drove to a nearby Wendy's parking lot where Turcotte had parked his van. Coleman handed Turcotte a styrofoam cup containing $10,000 in cash, and Turcotte directed the group to transfer 20 cases of Verve from Turcotte's van to Masquida's van. When the transfer began and Coleman was able to confirm that the cases did contain Verve, DEA agents arrived to arrest Turcotte and Gore.

Turcotte was charged on three counts of a five-count indictment. Count One charged Turcotte with knowingly and intentionally conspiring to defraud and mislead the government by introducing misbranded drugs (GHB, GBL and BD) into interstate commerce. Count Two charged Turcotte with conspiring to possess and distribute GHB (a Schedule I Controlled Substance), GBL (a Schedule I controlled substance analogue under 21 U.S.C. § 802(32)), and BD (a Schedule I controlled substance analogue under § 802(32)) in violation of the Controlled Substances Act (CSA or "the Act"), 21 U.S.C. §§ 841(a)(1) and 813. Count Five charged Turcotte with knowingly and intentionally possessing with intent to distribute 60 gallons of GHB and GBL in violation of §§ 841(a)(1) and 813 of the CSA. As to GBL and BD, these charges come under the Analogue Provision of the

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Controlled Substances Act, 21 U.S.C. § 802(32), which provides that substances satisfying the definition of a "controlled substance analogue" may be regulated as controlled substances even though they are not formally classified as such under federal law.

On November 12, 2000, Turcotte proceeded to trial. Government witnesses included Agent Coleman, Masquida, officials from the Food and Drug Administration (FDA), a forensic drug chemist from the DEA, toxicology and medical experts, registered distributors of GBL and other law enforcement and fact witnesses who testified about the physiological effects of GBL. During the trial, the government claims it suddenly became aware of Investigational New Drug Reports (INDs) which detailed research into potential medical uses for GHB, including a treatment for narcolepsy involving a new drug named Xyrem. Turcotte immediately requested copies of the INDs. The district court, while opining that the INDs would probably prove to be of little use to the defense, provided that the government's witnesses would remain available for recall after presentation of the government's case-in-chief so that Turcotte could cross-examine them further about the content of the new INDs. In his defense, Turcotte testified personally and also called his own forensic chemistry and medical experts to testify. Turcotte admitted that he knew Verve was a chemical solvent and that he had sold it for human consumption.

At the conclusion of the trial, the district court issued its instructions to the jury. Two of them are at issue here. First, with regard to the definition of a controlled substance analogue, the district court instructed the jury that the three clauses of the CSA's Analogue Provision, 21 U.S.C. § 802(32), should be read in the disjunctive rather than the conjunctive. After acknowledging that the Seventh Circuit had not yet endorsed either reading of the provision, the court gave the jury special verdict forms on which they could rule specifically on each of the Analogue Provision's three clauses. The court explained that it would temporarily defer ruling on the proper reading of the Act but would revisit the issue if the special jury forms revealed that the different readings of the provision--conjunctive versus disjunctive--would have produced different results. Second, with regard to Count Five, the district court instructed the jury on the scienter requirement of the CSA's analogue provision, telling jury members they could convict Turcotte even if they did not find that he knew GBL was a "controlled substance."

On November 22, 2002, the jury convicted Turcotte on all counts, returning special verdict forms finding that GBL met all three criteria listed in the CSA's Analogue Provision, 21 U.S.C. § 802(32), but that BD met only one of these criteria. On January 22, 2003, Turcotte timely filed a motion for a judgment of acquittal or a new trial. He claimed that (1) the district court's jury instruction mandating a disjunctive reading of the CSA's Analogue Provision was error, (2) the court's jury instruction regarding the Analogue Provision's scienter requirement was erroneous, (3) the prosecution improperly withheld Brady materials (the new INDs) and (4) the Analogue Provision of the CSA is unconstitutionally vague. Turcotte later filed an untimely motion further alleging (1) that GBL and BD are not controlled substance analogues of GHB because GHB is no longer a Schedule I Controlled Substance, and (2) that the Dietary Supplements Health & Education Act (DSHEA) prevents BD and GBL from being classified as controlled substance analogues.

The district court considered all of Turcotte's claims--timely and untimely alike--

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and denied his post-trial motions for an acquittal or a new trial in a memorandum disposition dated July 7, 2003. United States v. Turcotte, 286 F.Supp.2d 947 (N.D.Ill.2003). Turcotte was sentenced to 54 months' imprisonment for each of the three counts (to run concurrently), three years' supervised release and a fine. Turcotte now appeals the district court's denial of his post-trial motions and asks that his conviction be reversed, or, in the alternative, that the case be remanded for resentencing.


Since Turcotte was charged with a violation of the federal Controlled Substances Act (21 U.S.C. §§ 841(a)(1) and 846), the district court had jurisdiction pursuant to 18 U.S.C. § 3231, which provides for district court jurisdiction over "all offenses against the...

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