U.S. v. Bowen

• Decision Date: 06 May 1997
• Docket Number: 96-2290,Nos. 96-2289,s. 96-2289
• Citation: 127 F.3d 9
• Parties: UNITED STATES, Appellee, v. Bradley Oliver BOWEN, Defendant--Appellant. UNITED STATES, Appellee, v. Rinaldo TICCHIARELLI, a/k/a Ronaldo, a/k/a Whitney Dorey, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 9

127 F.3d 9

UNITED STATES, Appellee, v. Bradley Oliver BOWEN, Defendant--Appellant.

UNITED STATES, Appellee, v. Rinaldo TICCHIARELLI, a/k/a Ronaldo, a/k/a Whitney Dorey,

Defendant--Appellant.

Nos. 96-2289, 96-2290.

United States Court of Appeals First Circuit.

Heard May 6, 1997.

Decided Sept. 24, 1997.

J. Bradford Coffey, Bangor, ME, by appointment of the Court, with whom Farrell, Rosenblatt & Russell, was on brief, for appellant Bradley Oliver Bowen.

G. Richard Strafer, Miami, FL, with whom Quinon & Strafer, P.A. was on brief, for appellant Rinaldo Ticchiarelli.

Margaret D. McGaughey, Assistant United States Attorney, Portland, ME, with whom Jay P. McCloskey, United States Attorney, Bangor, ME, James L. Moore, Assistant United States Attorney, and Timothy D. Wing, Assistant United States Attorney, Bangor, ME, were on brief, for appellee.

Before TORRUELLA, Chief Judge, BOWNES and CYR, Senior Circuit Judges.

TORRUELLA, Chief Judge.

This appeal presents an issue of first impression, namely, whether the term "hashish oil" under 21 U.S.C. § 841(b)(1)(D) and U.S.S.G. § 2D1.1 is unconstitutionally vague, or so ambiguous as to require the application of the rule of lenity, as applied to conduct occurring prior to a November 1995 amendment to the Sentencing Guidelines that provided, for the first time, a definition for the term.

Appellants were convicted for importing and trafficking, prior to the Guideline amendment, in a controlled cannabis-derived substance the precise classification of which was left to be determined during sentencing. The sentencing court determined the substance to be "hashish oil," as opposed to "marihuana," and concluded that it was appropriate to apply a fifty to one quantity conversion ratio under the Drug Quantity Table of the Sentencing Guidelines. See U.S.S.G. § 2D1.1(c). Finding that genuine ambiguity regarding the definition of "hashish oil" prior to 1995 mandates the application of the rule of lenity in this case, we reverse and remand for re-sentencing.

BACKGROUND

Defendants-Appellants Bradley Oliver Bowen and Rinaldo Ticchiarelli participated in a scheme, along with three other co-conspirators, to smuggle controlled substances from Jamaica into the United States, to store the substances in Maine, and from there to eventually smuggle contraband drugs into Canada. With Bowen's assistance, Ticchiarelli organized two boat trips to Jamaica to pick up marihuana and a marihuana-based substance and stored large quantities of these controlled substances in Maine, for later export into Canada.

The illicit substances involved were marihuana and much greater quantities of a black, tar-like marihuana-based substance. In a consolidated appeal, Brown and Ticchiarelli challenge the district court's determination during sentencing that the tar-like substance in which they were trafficking was "hashish oil." ¹ Both seek to be sentenced as though the controlled substance were "marihuana." Prior to the sentencing stage, their cases travelled different procedural routes.

Pursuant to a plea agreement, Ticchiarelli pled guilty on September 14, 1995 to Counts One, Eight and Ten of a ten-count indictment. Although these counts made specific reference to "hashish oil," as part of his plea agreement Ticchiarelli did not concede that the Schedule I controlled substance was "hashish oil." Count One alleged a conspiracy to commit and the commission of, with Bowen and three others, the following crimes occurring between August 1994 and March 1995: importing a Schedule I controlled substance ("hashish oil") derived from marihuana into the United States in violation of 21 U.S.C. § 952; importing marihuana into the United States in violation of 21 U.S.C. § 952; distributing the "hashish oil" intending that it would be unlawfully imported, in violation of 21 U.S.C. § 959(a)(1); possessing with intent to distribute a Schedule I controlled substance ("hashish oil") derived from marihuana, as well as possessing with intent to distribute marihuana, in violation of 21 U.S.C. § 841(a)(1); exporting a Schedule I controlled substance ("hashish oil") as well as marihuana from the United States, in violation of 21 U.S.C. § 953. Count Eight charged Ticchiarelli with making false representations to the Customs Service by presenting false identification, in violation of 18 U.S.C. § 1001, and Count Ten recited the other counts in invoking the criminal forfeiture provision of 21 U.S.C. § 853.

The plea agreement signed by Ticchiarelli stated that the Schedule I controlled substance of Count One was "hashish" when processed into liquid form, but Ticchiarelli nowhere conceded that the substance was "hashish oil," and the district court reserved the issue of the precise identity of the substance for determination at sentencing when it accepted the guilty plea.

Bowen, unlike Ticchiarelli and the other conspirators named in Count One of the indictment, did not enter into a plea bargain. On February 6, 1996, Bowen was convicted after a jury trial on Counts One, Six and Seven. Counts Six and Seven charged a second instance, in March 1995, of possession with intent to distribute a Schedule I controlled substance ("hashish oil"), in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B)(vii), and possession with intent to distribute marihuana, in violation of 21 U.S.C. § 841(b)(1)(D). The Presentence Investigation Report (PSR) in Bowen's case states that the contested Schedule I controlled substance was hashish oil. Bowen disputed that PSR determination and contended that the Guideline's use of the term "hashish oil" was unconstitutionally vague. Bowen sought to consolidate his case with those of his co-conspirators with respect to the issue of the nature of the controlled substance referred to as "hashish oil" in the indictment, and as to the legal validity of this allegedly ambiguous provision.

The cases were consolidated and on August 9, 1996, the district court convened an evidentiary hearing to determine the proper characterization of the controlled Schedule I substance for the purposes of sentencing Bowen, Ticchiarelli, and another co-conspirator. At the hearing, experts on each side offered differing definitions of the term hashish oil. On October 2, 1996, the district court ruled that based on undisputed facts regarding the physical appearance and chemical composition of the substance, the substance fit within the ambit of the "ordinary meaning" of hashish oil. See United States v. Ticchiarelli, 943 F.Supp. 77, 83 (D.Me.1996) (Order Determining the Nature of the Controlled Substance for Purposes of Sentencing). The district court also stated, however, that after considering expert testimony proffered by the government and the defendants, and after consulting further materials in order to ascertain the meaning of the term "hashish oil," it had discovered that "there is no scientific nor any universally accepted precise definition of the term hashish oil." Id. at 82.

Having found the controlled substance to be hashish oil, the court established the base offense level for Bowen and Ticchiarelli by following section 2D1.1(c): it multiplied the quantity (measured by weight) of the "hashish oil" attributable to the defendants by a factor of fifty, added that figure to the amount of other marihuana attributable to them, and determined the base offense level corresponding to the resulting, marihuana-equivalent drug quantity figure. ² The base offense levels for Bowen and Ticchiarelli were 36 each, and, ultimately, their total offense levels were determined to be 38.

On appeal, both Ticchiarelli and Bowen assert that Sentencing Guideline section 2D1.1's use of "hashish oil" without a definition (prior to November 1995) was unconstitutional, and, in the alternative, that the rule of lenity required that any ambiguity as to the definition of "hashish oil" be resolved in their favor--that is, through a finding that the marihuana-based substance was not hashish oil for sentencing purposes. Bowen additionally claims error in the admission of certain evidence in his criminal trial and asserts that the fifty to one ratio between marihuana and hashish oil is arbitrary and irrational, thereby violating the Due Process clause of the Fifth Amendment.

DISCUSSION

I. The Meaning of "Hashish Oil"

The district court's interpretation of the meaning of "hashish oil" under the Sentencing Guidelines presents a legal question over which we assume de novo review, as does the legal issue of whether the term was vague or ambiguous prior to the 1995 amendment. United States v. Camilo, 71 F.3d 984, 986 (1st Cir.1995); United States v. Bohai Trading Co., Inc., 45 F.3d 577, 580 (1st Cir.1995). The sentencing court's findings of fact regarding the properties of the controlled substance itself are subject to review for clear error. Camilo, 71 F.3d at 986.

The following factual findings regarding the controlled substance are undisputed: (1) it is derived from marihuana plant matter (cannabis sativa), and not from marihuana resin or hashish; (2) it is a black or near-black substance resembling road tar; (3) it is not pourable at room temperature; (4) it contains tetrahydrocannabinol (THC) in the 13 to 16 percent range; (5) it contains cannabinol and cannabidiol; (6) it contains no fragments of vegetation perceptible to the naked eye; (7) it contains chlorophyll and magnesium; (8) it originates in Jamaica. See 943 F.Supp. at 78. The appeal turns on whether this substance can be said to be "hashish oil."

Under the amendments to the Sentencing Guidelines effective November 1, 1995, the following definition of hashish oil was provided:

Hashish oil, for the purposes of this guideline, means a preparation of the soluble cannabinoids derived from cannabis that includes: (i) one or more of the tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(25)), (ii) at least two of the following: cannabinol, cannabidiol, or cannabichromene, and (iii) is...