People v. Brown

• Decision Date: 22 May 2008
• Docket Number: Docket No. 271164.
• Citation: 279 Mich. App. 116,755 N.W.2d 664
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig Gordon BROWN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

755 N.W.2d 664

279 Mich. App. 116

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Craig Gordon BROWN, Defendant-Appellant.

Docket No. 271164.

Court of Appeals of Michigan.

Submitted November 16, 2007, at Detroit.

Decided May 22, 2008, at 9:00 a.m.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Thomas R. Grden, Assistant Prosecuting Attorney, for the people.

Robert J. Dunn and Craig G. Brown, Bay City, in propria persona.

Before: ZAHRA, P.J., and WHITE and O'CONNELL, JJ.

ZAHRA, P.J.

Defendant appeals as of right his jury trial conviction in the Oakland Circuit Court of violating MCL 333.7401(2)(b)(ii) (delivery and manufacture of a controlled substance classified in schedule 1, 2, or 3) and MCL 333.7403(2)(b)(ii) (possession of a controlled substance classified in schedule 1, 2, or 3).¹ The trial court sentenced him to one year of probation, the first 90 days to be served in jail, and $4,200 in costs. The most significant issue presented on appeal is whether Mich. Admin Code, R 338.3122(2) is unconstitutionally vague. We hold it is not. Rule 338.3122(2) focuses on the possessor's intent. Possession of an anabolic steroid that is "intended for administration through implants to cattle" is not illegal. Id. Conversely, possession of an anabolic steroid intended for human consumption is illegal. We affirm.

I. Basic Facts and Proceedings

Defendant was a police officer with the Almont Police Department and the Brown City Police Department. Lieutenant Timothy Donnellon of the St. Clair County Sheriff's Department testified that in February 2003, he was investigating Brown City Police Officer Albert Geoit for anabolic-steroid use. Donnellon testified that the Geoit investigation led him to investigate defendant. The search warrants issued in this case indicate that Geoit told the police that defendant supplied him anabolic steroids.

Donnellon asked Michael Winters, an inspector with the Postal Inspection Service, to intercept any suspicious parcels addressed to P.O. Box 364, Lakeville, Michigan, which is within Oakland County. The post office box was registered to defendant, and only defendant had access to the post office box. On February 28, 2003, a parcel arrived for defendant's post office box. Winters requested a federal search warrant to inspect the parcel. After obtaining the warrant, Winters executed the search himself. The parcel contained ten packages of Finaplix-H, which the Michigan State Police laboratory confirmed contained Trenbolone. The package did not contain an applicator for animal injection. At trial, Winters admitted that defendant did not arrive to pick up the parcel. Winters also admitted that he had previously testified that, in regard to Trenbolone, "[i]f it's for veterinary use, its legal."

On March 1, 2003, Donnellon executed a warrant to search defendant's residence. The owner of the building, Gladys Graves, lived on the second story and defendant rented the first floor. The police found evidence linking defendant to the first floor including a filled-out employment application and credit cards. In the only first-floor bedroom that appeared to be lived in, the police found a magazine, "Anabolics 2000," lying on the bed. In the first-floor kitchen, the police found a topical anabolic steroid, Testosterone Androgel, which is available by prescription. The police discovered additional anabolic steroid-related magazines. The police also found defendant's credit-card statements reflecting purchases from Websa Co., the source of the Finaplix-H in the parcel, and Finafarm, a company that sells a kit that makes possible the human consumption of anabolic steroids (kit). Lapeer County Sheriff Detective Nancy Stimson recovered such a kit in a garbage bag from defendant's house. Donnellon ordered a kit from Finafarm and Stimson testified regarding the similarities between the kit found at defendant's residence and the kit ordered by Donnellon. Donnellon also testified that the kit he received was very similar to the kit found in defendant's residence.

At trial, Stimson also testified that Graves had a computer upstairs that Graves allowed the police to search. Stimson brought the computer to Robert Gottschalk, an expert in electronic-data retrieval, for investigation. Gottschalk removed the hard drive and used EnCase forensic software to make a copy of the hard drive. Gottschalk testified that EnCase software allows reproduction of all files that have not been overwritten, including Internet files. In particular, he testified that

it created — it created the image, which is a — refer to as a mirror image, is an exact copy of everything that's on the hard drive; not only the data but everything else that's there. Maybe a file that was deleted at one time. It copies all of the data off of it.

Gottschalk searched the copied hard drive for anabolic-steroid-related terms, and found numerous e-mails relating to defendant's purchases of anabolic steroids.

Donnellon also obtained a warrant to search defendant's urine for anabolic steroids. Defendant refused to provide a urine sample several times, but he eventually did so. The sample was sent to American Institute of Toxicology (AIT). Defendant's urine sample first was tested generally for steroids, but not specifically for Trenbolone. The test was negative, but Michael Evans, founder and director of AIT, later retested defendant's urine specifically for Trenbolone, and it was positive.

Evans, an expert in toxicology, testified that Trenbolone is used in veterinary practices to increase muscle mass in cattle. A special syringe injects a pencil-like Trenbolone pellet into cattle to be slowly released. He testified that Trenbolone can be extracted from the pellets with a kit; specifically, a conversion kit like that received by Donnellon, which is similar to the one found at defendant's residence. Evans testified that each Finaplix-H package in defendant's post office box contained 20,000 milligrams of Trenbolone, which is between 200 and 400 dosages. He testified that this amount is more than one human would require. Evans testified that Trenbolone is inappropriate for use in smaller animals, such as cats and dogs.

Michael Henry, defendant's friend, testified for the defense. Henry testified that he asked defendant to order Finaplix-H for Henry's dog. The jury convicted defendant, and he appeals as of right.

II. Constitutionality of Mich. Admin Code, R 338.3122(2)

Defendant argues that Michigan Board of Pharmacy Rule 338.3122(2) is unconstitutional.

MCL 333.7401(1), provides:

Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a counterfeit prescription form. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.

MCL 333.7401(2)(b)(ii) further provides that "[a] person who violates this section as to[,][a]ny other controlled substance classified in schedule 1, 2, or 3, except marihuana[,] is guilty of a felony punishable by imprisonment for not more than 7 years or a fine of not more than $10,000.00, or both."

Similarly, MCL 333.7403(1), provides that

[a] person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.

MCL 333.7403(2)(b)(ii) further provides that "[a] person who violates this section as to"

[a] controlled substance classified in schedule 1, 2, 3, or 4, except a controlled substance for which a penalty is prescribed in subdivision (a), (b)(i), (c), or (d), or a controlled substance analogue is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

Here, the central question is whether Trenbolone, a drug contained in the Finaplix-H, is a controlled substance classified in schedule 1, 2, or 3. Rule 338.3122(1), entitled, "Schedule 3; anabolic steroids; exemptions," states that,

[u]nless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of an anabolic steroid, including its salts, isomers, and salts of isomers if the existence of such salts of isomers is possible within the specific chemical designation, is included in schedule 3. As used in this rule, the term "anabolic steroid" means any of the following drugs or hormonal substances which are chemically and pharmacologically related to testosterone, other than estrogens, progestins, and corticosteroids, and which promote muscle growth[.]

Rule 338.3122(1)(w) then expressly identifies "Trenbolone."

Rule 338.3122(2) provides that "[a]n anabolic steroid which is expressly intended for administration through implants to cattle or other nonhuman species and which has been approved by the United States drug enforcement administration for such administration is specifically excepted from schedule 3." Trenbolone is an anabolic steroid that has been approved by the United States Secretary of Health and Human Services for administration through implants to cattle or other nonhuman species. 21 CFR 1308.

Defendant argues that Rule 338.3122 is unconstitutionally void for vagueness because it fails to provide fair notice of prohibited conduct. Specifically, defendant claims...