United States v. Gross

• Decision Date: 20 November 2014
• Docket Number: Crim. Action No. 13–0268–WS.
• Citation: 60 F.Supp.3d 1245
• Court: U.S. District Court — Southern District of Alabama
• Parties: UNITED STATES of America, v. Travis Edward GROSS, Defendant.

60 F.Supp.3d 1245

UNITED STATES of America

v.Travis Edward GROSS, Defendant.

Crim. Action No. 13–0268–WS.

United States District Court, S.D. Alabama, Southern Division.

Signed Nov. 20, 2014.

Deborah A. Griffin, U.S. Attorney's Office, Mobile, AL, for USA.

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter is before the Court on the government's motion for pretrial ruling on scienter requirement. (Doc. 56). The defendant has filed a response and the government a reply, (Docs. 67, 72),¹ and the motion is ripe for resolution.²

Counts Two and Three of the indictment involve an alleged controlled substance analogue (“CSA”), specifically, XLR11. The government's motion is limited to these two counts. The instant motion asks the Court to rule that, in order to obtain a conviction under Counts Two and Three, the government need not prove that the defendant knew XLR11 was a CSA. The answer to that question depends on an analysis of the relevant statutes.

“A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.” 21 U.S.C. § 813.³ That is, to obtain a conviction based on a CSA, the government must prove the elements of a controlled substance crime. The Court therefore looks to the elements of the offenses with which the defendant is charged and, specifically, to whether they contain a requirement that the government prove the defendant knew the substance at issue was a controlled substance.

Count Two charges that the defendant violated 21 U.S.C. § 846 by conspiring to distribute, and to possess with intent to distribute, XLR11. (Doc. 1 at 12). “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. The underlying offense is found in Section 841(a) : “[I]t shall be unlawful for any person knowingly or intentionally ... to ... distribute ... or ... possess with intent to ... distribute ... a controlled substance.” Id. § 841(a)(1).

Count Three charges that the defendant violated 21 U.S.C. § 963 by conspiring to import XLR11 into the United States. (Doc. 1 at 13). “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 21 U.S.C. § 963. The underlying offense is found in Section 952(a) : “It shall be unlawful to import ... into the United States from any place outside thereof, any controlled substance in schedule I or II....” Id. § 952(a).

“The § 841(a) offense is complete once the person commits the proscribed act and knows that the substance is a ‘controlled substance.’ ” United States v. Sanders, 668 F.3d 1298, 1309 (11th Cir.2012) ; accord United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir.1990) (“[I]t is well-settled that to sustain a conviction for possession with intent to distribute a controlled substance, it need not be proved that the defendant had knowledge of the particular drug involved, as long as he knew he was dealing with a controlled substance.”); United States v. Mejia, 97 F.3d 1391, 1392–93 (11th Cir.1996) (Gomez “held that, to sustain a defendant's conviction for possession with intent to distribute a controlled substance, the government ... did need to prove that he knew he was dealing with a controlled substance”) (emphasis omitted).⁴

What is true for the substantive offense under Section 841(a) is also true for a conspiracy to commit the substantive offense under Section 846. Sanders, 668 F.3d at 1311 (“Because the indictment charges generic, ‘controlled substance’ violations of §§ 841(a) and 846, the district court correctly instructed the jury that Sanders had to know only that he was conspiring to distribute, and possess with intent to distribute, any controlled substance.”); accord United States v. Scott, 579 Fed.Appx. 930, 933–34 (11th Cir.2014) ; United States v. Granda, 346 Fed.Appx. 524, 526 (11th Cir.2009) (“To support a conspiracy conviction under § 841 [sic], ... it is not necessary that the government prove that the defendant knew that he was involved with cocaine, but only that the defendant had knowledge that he was dealing with a controlled substance.”).⁵

And what is true under Sections 841(a) and 846 is also true under Sections 952(a) and 963. “Although knowledge that the substance imported is a particular narcotic need not be proved, 21 U.S.C. 952(a) is a ‘specific intent’ statute and requires knowledge that such substance is a controlled substance.” United States v. Restrepo–Granda, 575 F.2d 524, 527 (5th Cir.1978) ; accord United States v. Zapata, 497 F.2d 95, 98 n. 7 (5th Cir.1974) (Section 952(a) maintains the requirement of its predecessor “that the defendant ... had knowledge that the substance he was importing was a narcotic substance”); United States v. Peart, 888 F.2d 101, 104 n. 2 (11th Cir.1989) (“The 28 U.S.C. § 952(a)charge requires proof that the defendant had knowledge that he was importing a controlled substance.”); United States v. Leavitt, 878 F.2d 1329, 1337 (11th Cir.1989) (same); United States v. Lewis, 676 F.2d 508, 512 (11th Cir.1982) (“To sustain a conviction for importation of a controlled substance it need not be proved that the defendant had knowledge of the particular drug involved, but only that he is importing some controlled substance.”).⁶

Even though it is clear from the foregoing that, in a prosecution involving a controlled substance brought under Section 841(a), 846, 952(a) or 963, the government must prove the defendant knew the substance involved was a controlled substance, and even though a CSA is “treated ... as a controlled substance” for purposes of these statutes, the government denies that it must prove the defendant knew that XLR11 was a CSA. In support of this proposition, the government relies on cases from the Fourth and Fifth Circuits.

In United States v. Desurra, 865 F.2d 651 (5th Cir.1989), the Court ruled that “the defendant need not know that the drug he possesses is an analogue. It suffices that he know what drug he possesses, and that he possess it with the statutorily defined bad purpose.” Id. at 653. The Court stated that the defendant's contrary position “misunderstands the intent requisite to convictions under 21 U.S.C. §§ 813, 841, 952, and 960,” id., but it did not explain the source of its understanding of the intent requirement of those statutes. In particular, it did not attempt to square its ruling with Fifth Circuit precedents requiring the government to prove that the defendant knew the involved substance was controlled.⁷

In United States v. McFadden, 753 F.3d 432 (4th Cir.2014), the Court ruled that a proposed jury charge requiring the government to prove the defendant knew (or strongly suspected, or deliberately avoiding knowing) that the substances at issue were CSAs was incorrect. Id. at 443–44. The Court performed no independent analysis but stated only that the issue had been resolved by United States v. Klecker, 348 F.3d 69 (4th Cir.2003).

In Klecker, a conspiracy prosecution under Section 846, the Court addressed whether the definition of “CSA” was unconstitutionally vague as applied. As set forth in note 3, supra, the definitional section of the Analogue Act (Section 802(32)(A) ) requires that the chemical structure of the substance be substantially similar to that of a controlled substance and that the physiological effects also be substantially similar to, or greater than, that of a controlled substance.⁸ If these requirements are met, Section 813 treats the CSA as a controlled substance to the extent it is “intended for human consumption.” The Klecker Court ruled that the definitional section was not unconstitutionally vague, due in part to the presence of the intent requirement in Section 813. 348 F.3d at 71–72. The Court declined to decide whether a defendant's actual awareness that the substance at issue was a CSA would of itself defeat a vagueness challenge, “because we conclude that the Analogue Act would not be constitutionally vague as applied to Foxy even with respect to a defendant who lacked actual notice.” Id. at 72.

It seems clear that Klecker did not address, much less resolve, whether the government must prove the defendant's knowledge that the substance at issue was a CSA in order to obtain a conviction. Klecker dealt only with an antecedent constitutional challenge. A ruling that the defendant's knowledge is unnecessary to defeat a vagueness challenge based on Section 802(32)(A) is not, and cannot be, a ruling that knowledge is unnecessary to obtain a conviction under Section 846 after the hoops of Sections 802(32)(A) and 813 have been navigated.⁹

While the Court thus disagrees with the McFadden Court's reading of Klecker, McFadden has clearly announced that, to obtain a conviction, the government need not prove the defendant's knowledge that the substance at issue was a CSA. As with Desurra, however, the Fourth Circuit offered no explanation how such a result could be reached, and it did not acknowledge its precedents requiring the government to prove the defendant's knowledge that the substance involved is controlled.¹⁰

The government casually suggests the Eleventh Circuit has “apparent[ly] approv [ed]” the approach of the Fourth and Fifth Circuits. (Doc. 56 at 3). In United States v. Forbes, 806 F.Supp. 232 (D.Colo.1992), the Court announced, while addressing (and sustaining) a vagueness challenge, that “the definition of controlled substance analogue does not require any scienter—a defendant does not have to ‘know’ that a substance has a substantially similar chemical structure to an illegal drug.” Id. at 238. In United States v. Carlson, 87 F.3d 440 (11th Cir.1996), the Court, in rejecting a vagueness challenge, ...