U.S. v. Brown

• Decision Date: 17 June 2003
• Docket Number: No. CR.A. 02-00185.,CR.A. 02-00185.
• Citation: 279 F.Supp.2d 1238
• Parties: UNITED STATES of America, v. Kevin Layne BROWN and Ronald Keith Brown, Defendants.
• Court: U.S. District Court — Southern District of Alabama

279 F.Supp.2d 1238

UNITED STATES of America, v. Kevin Layne BROWN and Ronald Keith Brown, Defendants.

No. CR.A. 02-00185.

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

June 17, 2003.

Carlos A. Williams, Christopher Knight, Federal Defender's Office, Gordon G. Armstrong, III, Mobile, AL, for Defendants.

Donna Barrow Dobbins, George F. May, U.S. Attorney's Office, Mobile, AL, for Plaintiff.

Kevin Layne Brown, pro se.

Ronald Keith Brown, pro se.

MEMORANDUM OPINION and JUDGMENT

BUTLER, District Judge.

This matter comes before the court on the bench trial of Defendants Kevin and Ronald Brown, with all the factual elements of the criminal act with which they were charged having been stipulated in a Joint Stipulation of Facts (Doc. 145), with the exception of the issue of whether the chemical structure of 1,4 butanediol ("BD") is substantially similar to the chemical structure of gamma-hydroxybutyric acid ("GHB") within the meaning of 21 U.S.C. § 802(32)(A) and § 813.

I. BACKGROUND

Kevin and Ronald Brown were both charged in a superseding information with conspiracy to distribute and possess with intent to distribute a controlled substance analogue, BD, knowing that the substance was intended for human consumption, in violation of 21 U.S.C. §§ 813, 841(a)(1) and 846. "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. The Analogue Act defines a "controlled substance analogue" as a substance:

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

Id. at § 802(32)(A).

II. SUBSTANTIAL SIMILARITY

The court finds it appropriate to first address whether Section 802(32)(A) should be read disjunctively or conjunctively since the Eleventh Circuit has never ruled on the issue. See United States v. Fisher, 289 F.3d 1329, 1338 (11th Cir.2002). Obviously, if the statute is read in the disjunctive, then the Defendants are guilty because they have stipulated that BD, once ingested and metabolized, has an effect on the central nervous system that is substantially similar to or greater than the effect on the central nervous system of the controlled substance, GHB. See Joint Stipulation at ¶ 3. The court notes that the majority of courts, in dealing with this issue, have read the statute in the conjunctive which requires the government to prove clause (i) and either clause (ii) or (iii). See, e.g., United States v. Hodge, 321 F.3d 429, 432-39 (3d Cir.2003) (surveying cases and going into extensive detail on the subject). Since a conjunctive or disjunctive interpretation of the Analogue Act is not the primary issue here, the court, for the purposes of the order, assumes that the statute should be read in the conjunctive.

Turning to the issue at hand, the Defendants contend that the term "similar in chemical structure" is not defined by statute and should be explained as it is used in the scientific community. Doc. 136. "[W]here Congress has used technical words or terms of art, `it (is) proper to explain them by reference to the art or science to which they (are) appropriate.'" Corning Glass Works v. Brennan, 417 U.S. 188, 201, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (citations omitted). Section 802(32)(A)(i) does not use the term "similar in chemical structure" as the Defendants contend; rather, the phrase reads "substantially similar to the chemical structure." There is no dispute that the term "chemical structure" should be explained as it is used in the field of chemistry, but the Defendants and the government are at odds over whether the phrase "substantially similar" should be interpreted according to its common or scientific meaning.

Words that have both a technical and common definition are construed in the latter sense unless the statute indicates otherwise. Huffman v. C.I.R., 978 F.2d 1139, 1145 (9th Cir.1992). Since the Analogue Act does not indicate that the term "substantially similar" is to be defined as it is used scientifically, the court will interpret those words as they are used in everyday language. The dictionary defines "similar" as "1: having characteristics in common: strictly comparable 2: alike in substance and essentials ... 3: not differing in shape but only in size or position." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 1093 (10th ed.1994). "Substantial" is defined in relevant part as "1a: consisting of or relating to substance b: not imaginary or illusory ... c: important, essential ... 2b: considerable in quantity: significantly great ... 5: being largely but not wholly that which is specified." Id. at 1174. Therefore, these definitions of the words "substantial" and "similar" will be the definitions employed by the court in determining whether the chemical structure of BD is substantially similar to the chemical structure of GHB.

Furthermore, the court is guided by controlling precedent in defining the language "substantially similar" found in the Analogue Act by its common meaning. In United States v. Carlson, 87 F.3d 440, 443-44 (11th Cir.1996), the Eleventh Circuit, in finding that the phrase "substantially similar" in the Analogue Act was adequately defined, relied on the holding of United States v. Hofstatter, 8 F.3d 316, 322 (6th Cir.1993). Carlson, 87 F.3d at 444. In Hofstatter, the Sixth Circuit held that "a penal statute must define the offense with sufficient definiteness to enable ordinary people to understand what conduct is prohibited and must do so in a manner that does not encourage discriminatory enforcement." Hofstatter, 8 F.3d at 321 (citations omitted). The Sixth Circuit then found that the language "substantially similar" was "sufficiently precise to enable an ordinary person in the position of [the defendants] to know that listed precursor chemicals ... should not be possessed for the purpose of manufacturing, for human consumption, substances similar to [controlled substance analogues]." Id.

Likewise, in United States v. McKinney, 79 F.3d 105 (8th Cir.1996) overruled on other grounds by 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997), the defendant argued that the Analogue Act was unconstitutionally vague because there was no scientific consensus that the chemicals at issue were controlled substance analogues. McKinney, 79 F.3d at 108. The defendant asserted that "if experts disagree as to whether the chemical structure of one drug is substantially similar to a controlled substance, then the statute is unconstitutionally vague as to that drug." Id. The Eighth Circuit rejected the defendant's argument and instead focused on how a reasonable layperson would have examined the two chemical structures. Id.

In our case, a reasonable layperson could, for example, have examined a chemical chart and intelligently decided for himself or herself, by comparing their chemical diagrams, whether the chemical structure of two substances were substantially similar. At trial, two experts testified that aminorex and phenethylamine were analogues under the statute, and one expert apparently drew diagrams of phenethylamine and methamphetamine for the jury's comparison. We have examined the charts that appellant has submitted and believe that they would have put a reasonable person on notice that the substances in question were substantially similar within the meaning of the statute.

Id. Therefore, it is apparent to the court that the phrase "substantially similar," as contained in the Analogue Act, does not hinge on how a scientist would interpret the term, but how ordinary people use the language.

Three courts have dealt with the two substances at issue here, BD and GHB. See United States v. Washam, 312 F.3d 926 (8th Cir.2002); United States v. Niemoeller, 2003 WL 1563863 (S.D.Ind. Jan.24, 2003); and United States v. Roberts, 2002 WL 31014834 (S.D.N.Y.2002). In Washam, the defendant argued that the Analogue Act was vague as it applied to him because there was no scientific consensus that BD's chemical structure was substantially similar to GHB's chemical structure. Washam, 312 F.3d at 930. The Eighth Circuit again defined the term "substantially similar" as a person of ordinary intelligence would. Id. at 930-31. The Circuit Court found the phrase sufficiently definite:

The term "substantially similar," as used in the statute, does not mean "exactly the same." There obviously will be differences in chemical structures between an "analogue" chemical and a schedule I or II chemical. If two chemicals' structures are exactly the same, the chemical in question would no longer be an "analogue," but instead it would be the same chemical as the listed chemical. Thus, some level of difference is acceptable between an analogue's chemical structure and a proscribed chemical's structure.

Id. In Niemoeller, the defendant alleged that the Analogue Act was unconstitutionally vague because there was no clear scientific meaning of the term "substantially similar." Niemoeller, 2003 WL 1563863, at *2. The district court found that the phrase did not render the statute defective because it put persons of average intelligence on notice of the proscribed conduct even though it did not provide absolute certainty to a person seeking to "experiment in...