U.S. v. Fisher

• Citation: 289 F.3d 1329
• Decision Date: 02 May 2002
• Docket Number: No. 01-11395.,No. 01-11320.,No. 01-13039.,01-11320.,01-11395.,01-13039.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark FISHER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Devon Sutton, a.k.a. Devon Daniel Sutton, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Arthur Robertson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

289 F.3d 1329

UNITED STATES of America, Plaintiff-Appellee, v. Mark FISHER, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Devon Sutton, a.k.a. Devon Daniel Sutton, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Arthur Robertson, Defendant-Appellant.

No. 01-11320.

No. 01-11395.

No. 01-13039.

United States Court of Appeals, Eleventh Circuit.

May 2, 2002.

COPYRIGHT MATERIAL OMITTED

Joseph L. Hammons, Hammons & Whitaker, P.A., Pensacola, FL, Kristen Gartman Rogers, Fed. Pub. Def., W.A. Kimbrough, Jr., Turner, Onderdonk, Kimbrough & Howell, P.A., Mobile, AL, for Defendants-Appellants.

Carlos A. Williams (Court-Appointed), Fed. Pub. Def., Mobile, AL, for Sutton.

Charles A. Kandt, Patsy Busby Dow, Mobile, AL, for U.S.

Appeals from the United States District Court for the Southern District of Alabama.

Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS^*, District Judge.

RICHARD MILLS, District Judge:

FACTS

On October 2, 2000, Appellants entered conditional pleas¹ to the charge of misprision of a felony:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S.C. § 4. The Government charged Appellants with knowledge of the commission of a felony involving the substance gamma-butyrolactone ("GBL").

Although GBL is not a controlled substance, the Government alleged that it was a controlled substance analogue of a Schedule I controlled substance — gamma-hydroxybutyrate acid ("GHB"). GHB is more commonly known as the "date-rape drug." According to the Drug Enforcement Administration ("DEA"), GHB can produce drowsiness, dizziness, nausea, visual disturbances, unconsciousness, seizures, severe respiratory depression and coma.² Addition of Gamma-Hydroxybutyric Acid to Schedule I, 65 Fed.Reg. 13235-13238 (March 13, 2000) (to be codified at 21 C.F.R. pts. 1301 and 1308).

Appellant Mark Fisher owns and operates Gold's Gym in Mobile, Alabama and Pensacola, Florida. Gold's Gym provides facilities for exercising, bodybuilding, and weight training and sells a number of commercial products that are popular with patrons of physical fitness centers. One of the products sold was called "Verve."³ Verve, a common industrial chemical, contained GBL which metabolized into GHB when ingested into the human body. GHB is believed by some to assist the release of growth hormones which in turn stimulate muscle growth. In addition, a human pharmaceutical formulation of GHB is being developed as a treatment for catalepsy, a condition associated with narcolepsy, a serious and debilitating disease.⁴ Pub. Law No. 106-172, § 2(5) (2000).

Appellant Fisher filed a Motion to Dismiss the Indictment arguing that the application of Public Law 106-172 through the Analogue Act was unconstitutionally vague, arbitrary, capricious, and denied Appellant due process.⁵ Specifically, Appellants argued that Public Law 106-172 and subsequently filed DEA rules did not put Appellants on notice that GBL was a controlled substance analogue. The district court denied Appellants' Motion holding:

[T]he court is of the opinion that the GBL is a controlled substance analogue of GHB, a Schedule I controlled substance, and that the notice to defendants was constitutionally adequate, for the reasons set forth in the government's written and oral responses. In making this ruling, the court specifically notes that no party contests the constitutionality of Public Law 106-172 (the Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000) and that no party denies that notice of the illegality of GHB was published in the Federal Register on March 13, 2000. Most importantly, it is undisputed that although GBL has no pharmacological effects on the human body in and of itself, it is quickly converted to GHB once it is ingested in the human body. Thus it readily appears that the only reason a person would ingest GBL would be to obtain the pharmacological effects that GHB produces on the human body. Arguments to the contrary belie the medical evidence and common sense.

United States v. Fisher, No. 00-00068 (D.Ala. Oct. 2, 2000) (order denying motion to dismiss indictment).

Appellants raise two issues. (1) Whether the Analogue Act 21 U.S.C. § 813, as applied to GBL, is unconstitutionally vague in that it provides inadequate notice of illegal behavior and allows arbitrary and discriminatory law enforcement? And (2) whether GBL is a controlled substance analogue of GHB?⁶ Courts that have addressed the constitutionality of the Analogue Act have evaluated it as it applies to a specific substance. Therefore, these issues are wrapped up together into the single issue of whether Appellants had constitutional notice that GBL was a controlled substance analogue of GHB?

The district court's decision that 21 U.S.C. § 813 is not unconstitutionally vague is reviewed under a de novo standard. United States v. Carlson, 87 F.3d 440, 443 (11th Cir.1996). The court's factual finding that GBL is a controlled substance analogue of GHB is reviewed for clear error. United States v. Reid, 69 F.3d 1109, 1113 (11th Cir.1995).

ANALYSIS

"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). "Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine `is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.'" Kolender, 461 U.S. at 357, 103 S.Ct. 1855 quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). Statutes without identifiable standards "allow[] policemen, prosecutors, and juries to pursue their personal predilections." Smith, 415 U.S. at 575, 94 S.Ct. 1242. Except where First Amendment rights are involved, vagueness challenges must be evaluated in the light of the facts of the case at hand. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).

The Analogue Act⁷

The Fifth Circuit has addressed whether the Analogue Act is unconstitutionally vague. See United States v. Granberry, 916 F.2d 1008 (5th Cir.1990). The court held:

[D]espite Granberry's contention to the contrary, the term "controlled substance analogue" in § 813 is clearly and specifically defined, in terms readily comprehensible to the ordinary reader. It provides adequate notice of what conduct is prohibited. The statute makes plain that drugs which have been chemically designed to be similar to controlled substances, but which are not themselves listed on the controlled substance schedules, will nonetheless be considered as schedule I substances if (1) they are substantially similar chemically to drugs that are on those schedules; (2) if they produce similar effects on the central nervous system as drugs that are on those schedules; or (3) are intended or represented to produce effects similar to those produced by drugs that are on those schedules. There is nothing vague about the statute.

Granberry, 916 F.2d at 1010.

The Eleventh Circuit has cited Granberry with approval. United States v. Carlson, 87 F.3d 440, 443 (11th Cir.1996). In Carlson, defendants argued that the definition of a controlled substance analogue was unconstitutionally vague as applied to 3,4-Methylenedioxymethamphetamine (MDMA). Specifically, defendants argued that the phrase "substantially similar" was not adequately defined and that they did not receive fair warning that their conduct was illegal. Carlson, 87 F.3d at 443. The court rejected defendants' argument and held that the Analogue Act was not unconstitutionally vague. Id. at 444.

A district court in Colorado reached a contrary result in a case involving alphaethyltryptamine ("AET"). In United States v. Forbes, 806 F.Supp. 232 (1992), defendants were charged with distribution of AET in violation of 21 U.S.C. §§ 813, 841, 846. The indictment alleged that AET was a controlled substance analogue because it had a substantially similar chemical structure to dimethyltryptamine ("DMT") and diethyltryptamine ("DET"), both schedule I controlled substances. Forbes, 806 F.Supp. at 233. The court dismissed the indictment because there was no scientific consensus that AET had a chemical structure that was substantially similar to DMT or DET. Id. at 239. Therefore, the district court held that the Analogue Act, as applied to AET, was unconstitutionally vague. Id.

Appellants here argue that the Analogue Act was unconstitutionally vague as applied to GBL because Public Law 106-172 and subsequently issued DEA rules did not state any criteria by which a layperson could determine that GBL was a controlled substance analogue. They assert that the statute's lack of specificity failed to give them constitutional notice that GBL was an illegal substance and consequently, the public is subjected to arbitrary and/or discriminatory law enforcement.

Public Law 106-172 and DEA Rules

In Public Law 106-172, Congress found that the abuse of GHB was "an imminent hazard to the public safety." Pub. Law No. 106-172, § 3(a)(1) (2000). Accordingly, Congress ordered the Attorney General to issue a final order placing the drug in Schedule I. On March 13, 2000, the Drug Enforcement Administration, under authority delegated by the Attorney General, issued its Final Rule naming GHB a Schedule I...