U.S. v. Geborde

• Decision Date: 24 January 2002
• Docket Number: No. 00-50000.,00-50000.
• Citation: 278 F.3d 926
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lindley T. GEBORDE, aka Seal A, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.3d 926

UNITED STATES of America, Plaintiff-Appellee, v. Lindley T. GEBORDE, aka Seal A, Defendant-Appellant.

No. 00-50000.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2001.

Filed January 24, 2002.

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Kenneth Jost, Assistant Director (argued), Sara Anjargolian, Trial Attorney, U.S. Department of Justice, Office of Consumer Litigation, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Robert J. Timlin, District Judge, Presiding. D.C. No. CR-98-00028-RT-1.

Before: PREGERSON, REINHARDT and SILVERMAN, Circuit Judges.

SILVERMAN, Circuit Judge:

Defendant Lindley Geborde manufactured and gave away to several teenagers a home-made designer drug called gamma hydroxy butyrate, commonly known as GHB. Geborde's concoction killed one of the teenage boys who drank the stuff. Geborde was convicted of manslaughter in state court and sentenced to prison. The present case involves the efforts of federal authorities to prosecute Geborde on drug charges arising out of the same events. Although GHB is now a controlled substance as defined by federal law, it wasn't at the time, and therefore, wasn't covered by the usual federal statutes dealing with illegal drugs. Unable to bring a conventional drug case, the government charged Geborde with various violations of the Food, Drug, and Cosmetic Act ("FDCA"), a regulatory scheme administered by the Food and Drug Administration. The problem is that the FDCA was not designed to deal with the wholly gratuitous distribution of homemade substances. We now have to decide whether the square pegs of Geborde's conduct can be pounded into the round holes of the FDCA.

Geborde was convicted of one count of operating an unregistered drug manufacturing facility with the intent to defraud or mislead in violation of 21 U.S.C. §§ 331(p), 333(a)(2); and seven counts of misbranding of drugs held for sale after receipt in interstate commerce, with the intent to defraud or mislead, in violation of 21 U.S.C. §§ 331(k), 333(a)(2).

Geborde concedes that the government proved that he operated an unregistered drug manufacturing facility in violation of 21 U.S.C. § 331(p). A violation of 21 U.S.C. § 331(p) is a misdemeanor unless the failure to register is committed with the intent to defraud or mislead, in which event, pursuant to 21 U.S.C. § 331(a)(2), the offense becomes a felony. Because Geborde was charged with failure to register, his intent to defraud or mislead must relate to his failure to register, and not to some other possible wrongdoing. The government presented no evidence from which a jury could have inferred that in failing to register Geborde had the intent to defraud or mislead. Accordingly, we reverse Geborde's conviction and sentence as to Count One, and we remand to the district court with instructions to enter a judgment of conviction for misdemeanor failure to register and to re-sentence Geborde accordingly.

As for Counts Two through Eight, misbranding of a drug under 21 U.S.C. § 331(k), the government failed to prove an essential statutory element of the offense — that the misbranding occurred while the drug was "held for sale." The undisputed evidence established that Geborde did not sell the GHB or hold it for sale; he gave it away, free of charge, to the ultimate users with whom he socialized. Accordingly, we reverse Geborde's convictions of Counts Two through Eight and remand with directions to enter a judgment of acquittal as to those counts.

I. Facts

In the fall of 1995, Geborde was a 25-year old aspiring disc jockey and musician from Los Angeles who moved to Yucca Valley, California and soon became something of a Pied Piper among a group of young locals. According to the testimony, he was admired as a deejay and regarded as cool. One morning in October, 1995, following a party the prior evening, a number of young people gathered at one of their homes. Geborde drove his van to the front of the residence and made a batch of GHB. He did this by mixing, in a bucket, sodium hydroxide and a common industrial solvent called gammabutyrolactone. Sodium hydroxide, more commonly known as caustic soda beads and lye, is an ingredient of such products as Drano. Geborde tasted the substance, added water, and then poured the concoction into an unlabeled five-gallon water bottle. Geborde told his teenage friends that they needn't worry about law enforcement because the stuff looked like water and, if questioned, they could say that it was water. These facts form the basis of Count One, operating an unregistered drug manufacturing facility.

On seven different occasions between September, 1995 and January, 1996, Geborde gave his homemade GHB to his young friends, usually at parties. In regard to Count Two, for example, while at a party, Geborde offered a 14 year old girl a cocktail of GHB, which he called "G," and vodka. The girl had never heard of "G" and asked if it was gin. He said that it was not, but did not tell her what it really was. She drank it and got sick to her stomach shortly thereafter. With regard to Count Three, Geborde and several of the youngsters went to a party in an abandoned house in the desert. Geborde offered them GHB. He said it was not illegal and was all natural. Several of the girls drank a capful from what appeared to be an unlabeled water bottle. He told one of the 16-year-olds that GHB was "all natural," that "it wasn't bad for you," and that it was actually "good for you." He told another girl that GHB would make her feel "stoned but happy." The facts with regard to the Counts Four through Eight are not materially different; in each instance, at a party or in some other social setting, Geborde gave his teenage groupies GHB, either straight or mixed with vodka. The GHB was stored in water bottles, half-gallon milk jugs or vodka bottles, none of which bore labels identifying the contents as GHB. Count Eight is the instance in which Geborde, while partying with his young friends at a place called Giant Rock in North Landers, California, gave GHB to 15-year-old Lucas Bielat. Bielat died from ingesting a toxic level of GHB. It is undisputed, however, that Geborde never sold or offered to sell GHB.

Geborde was charged with one count of operating an unregistered drug manufacturing facility in violation of 21 U.S.C. § 331(p)¹ and seven counts of misbranding of a drug held for sale after receiving it in interstate commerce in violation of 21 U.S.C. § 331(k).² The indictment further alleged, pursuant to 21 U.S.C. § 333(a)(2), that Geborde committed these offenses with the intent to defraud or mislead. A simple violation of § 331 is a misdemeanor, punishable by a maximum of one year imprisonment and/or a maximum fine of $1,000. 21 U.S.C. § 333(a)(1) (1995). However, if the person commits a § 331 "violation with the intent to defraud or mislead," the crime becomes a felony carrying a maximum sentence of three years imprisonment and/or a $10,000 fine. 21 U.S.C. § 333(a)(2).³

A jury convicted Geborde of all counts and found the intent to defraud or mislead. The district court sentenced Geborde to 41 months: 5 months on count one to run consecutive to 36-month concurrent sentences for counts two through eight. We have jurisdiction of this appeal under 28 U.S.C. § 1291.

II. Sufficiency of the evidence

Geborde challenges the sufficiency of the evidence supporting his convictions for operating an unregistered drug manufacturing facility with the intent to defraud or mislead, and for misbranding of a drug. On appeal, we view the evidence in the light most favorable to the prosecution, and must affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.), cert. denied, 531 U.S. 969, 121 S.Ct. 406, 148 L.Ed.2d 313 (2000).

A. Count I — Operating an unregistered drug manufacturing facility in violation of 21 U.S.C. §§ 331(p) and 333(a)(2)

Geborde concedes that there is sufficient evidence showing that he operated an unregistered drug manufacturing facility in violation of 21 U.S.C. § 331(p). The point of contention, however, is whether the government proved that Geborde's intent in failing to register — as opposed to, say, his intent in distributing the substance in unlabeled bottles — was to defraud or mislead as required by § 333(a)(2). The government offered plenty of evidence that Geborde misrepresented the safety and the nature of the substance in the course of distributing the GHB to his teenage friends. He told them that "G" was good for them when it wasn't, he kept it in unlabeled bottles, and he never disclosed what it truly was.

The problem is that Geborde was not charged in Count One with distributing GHB with the intent to defraud or mislead. He was charged with failing to register as a drug manufacturing facility with the intent to defraud or mislead. To prove a case of felony failure to register, the government had to prove that the failure to register was committed with fraudulent intent. It is not enough for felony treatment that Geborde may have intended to evade the watchful eyes of local or federal authorities. That is already implicit in simple failure to register, which is itself an evasion of the FDA enforcement process. For felony failure to register, Congress additionally required that the failure to register be activated by the specific intent to defraud or mislead. There was no evidence of Geborde's intent in failing to register, assuming he even knew he was required to register.

To reiterate, Geborde may have had the intent to mislead those to whom he distributed GHB, but that is not what he was charged with in Count One. Accordingly, Geborde's conviction for felony operating an unregistered drug manufacturing facility...