U.S. v. Hodge, 01-2198.

• Citation: 321 F.3d 429
• Decision Date: 11 March 2003
• Docket Number: No. 01-2199.,No. 01-2198.,01-2198.,01-2199.
• Parties: UNITED STATES of America v. Richard "Bird" HODGE Richard Hodge, Appellant. United States of America v. Akil Greig, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 429

321 F.3d 429

UNITED STATES of America v. Richard "Bird" HODGE Richard Hodge, Appellant.

United States of America v. Akil Greig, Appellant.

No. 01-2198.

No. 01-2199.

United States Court of Appeals, Third Circuit.

Argued May 13, 2002.

Filed March 11, 2003.

David L. Atkinson, United States Attorney, Kim L. Chisholm (Argued), Assistant U.S. Attorney, United States Courthouse, Charlotte Amalie, St. Thomas, USVI, for Appellee.

Richard Della Fera (Argued), Entin, Margules & Della Fera, Fort Lauderdale, FL, for Appellant Richard Hodge.

Stephen A. Brusch (Argued), Charlotte Amalie, St. Thomas, USVI, for Appellant Akil Greig.

Before AMBRO, FUENTES and GARTH, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Richard "Bird" Hodge and Akil Greig appeal their convictions on drug and firearm charges. Greig also appeals his conviction for assault on a federal officer. The primary issue in this appeal is whether the appellants possessed and distributed a "controlled substance analogue" within the meaning of 21 U.S.C. § 802(32)(A) when they sold a mixture of candle wax and flour to undercover agents under the pretense that it was crack cocaine. We hold that the wax and flour mixture is not a controlled substance analogue.

I. Background

On April 12, 1999, Special Agent Michael Patrick of the Bureau of Alcohol, Tobacco, and Firearms, posing as a Jamaican drug dealer and accompanied by a confidential informant ("CI"), entered the Paul M. Pearson Housing Community in St. Thomas, United States Virgin Islands. Another officer videotaped the operation from a distance and the CI wore a "wire" recording device. Patrick and the CI approached a group of individuals that included Hodge and inquired about purchasing crack cocaine. Hodge informed them that he had nothing with him, but that they should return in approximately one hour.

After Patrick and the CI left, Yambo Williams, an acquaintance of Hodge and Greig, retrieved a mixture of candle wax and flour which "looked like crack." Hodge divided the mixture into two packages. He gave one package to Greig to sell to the "Yardies"¹ — by which he meant Patrick and the CI — under the pretense that it was crack cocaine. Hodge, Greig, Williams, and Williams's father intended to defraud Patrick and the CI of $800, the price of an ounce of crack cocaine, and share the proceeds. In addition, Greig had a gun with him and announced that he planned to rob the Yardies when they returned, but Hodge told him that a gun would not be necessary.

When Patrick and the CI returned to the Pearson Housing Community at around 11 a.m., Hodge was not present, but Williams and Greig were. Greig informed them that Hodge had sent him to complete the transaction. In an alley, Patrick paid $800 for the wax/flour mixture, which he described as a "rock crystalline substance." Patrick and the CI turned to leave, but Greig called them back and asked if they would like another ounce for $600. Patrick stated that he was not interested in additional purchases. At the same time, Williams tugged on Patrick's shirt, exposing his firearm. Patrick attempted to exit the alley, but Greig then grabbed Patrick by his shirt and tried to pull him back. After a momentary scuffle, Patrick shoved free from Greig. As Patrick was walking away he heard a gun shot fired behind him. He turned around to see Williams, Greig, and the CI, but he could not tell who fired the gun. Williams then fled into apartment 81 of the housing community. Greig followed him into the apartment and gave him his gun. Williams escaped from the back door to the apartment and tossed the firearm onto the balcony of apartment 95. It was later recovered with five rounds of ammunition remaining in the cylinder chamber; one round had been fired.

Greig, Hodge, and Williams subsequently were arrested and indicted.² Williams pleaded guilty and testified for the prosecution; Hodge and Greig were tried together. A jury in the United States District Court for the Virgin Islands convicted Greig on Counts I (assault on a federal officer), II (using a firearm during a drug trafficking crime and a crime of violence), IV (conspiracy to possess with intent to distribute a controlled substance analogue), and V (possession with intent to distribute a controlled substance analogue). The jury convicted Hodge on Counts III (using a firearm during a drug trafficking crime); IV (conspiracy to possess with intent to distribute a controlled substance analogue), and V (possession with intent to distribute a controlled substance analogue). Greig was sentenced to twenty-four months imprisonment for his convictions on Counts I, IV, and V, to be served concurrently, and to ten years imprisonment for his conviction on Count II, to be served consecutively to his sentences on Counts I, IV, and V. Hodge was sentenced to twenty-one months imprisonment for his convictions on Counts IV and V, to be served concurrently, and to ten years imprisonment for his conviction on Count III, to be served consecutively to his sentences on Count IV and V. Both defendants filed motions for a judgment of acquittal pursuant to Fed.R.Crim.P. 29 and for a new trial pursuant to Fed. R.Crim.P. 33. The District Court denied both motions, United States v. Greig, 144 F.Supp.2d 386 (D.Vi.2001), and these timely appeals followed.³

II. Discussion

A. Controlled Substance Analogue

1. Background

A "controlled substance analogue," which is defined more precisely below, is "substantially similar" to a controlled substance but not specifically prohibited under the federal drug laws. 21 U.S.C. § 802(32)(A). The Controlled Substance Analogue Enforcement Act of 1986 (the "Analogue Act") provides that "[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 object of the Analogue Act is to prevent underground chemists from producing slightly modified drugs that are legal but have the same effects and dangers as scheduled controlled substances. Examples of controlled substance analogues include gamma-butyrolactone, an analogue of GHB (more commonly called the "date-rape drug"), and 1-(3-oxy-3 phenyl-propyl)-4 phenyl-4-propionoxypiperidine, which is a synthetic form of heroin. See United States v. Fisher, 289 F.3d 1329 (11th Cir. 2002); United States v. Ono, 918 F.2d 1462 (9th Cir.1990). At issue in this case is whether the mixture of candle wax and flour that appellants sold to Patrick and the CI is a controlled substance analogue.

The statutory definition of the term "controlled substance analogue" states:

[With certain exceptions not relevant here,] the term "controlled substance analogue" means 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.

21 U.S.C. § 802(32)(A).

The Government, focusing on the word "or" between subparts (ii) and (iii), proposes a disjunctive interpretation for § 802(32)(A), namely that a substance is a controlled substance analogue if it satisfies any one of clauses (i), (ii), or (iii). If so, the mixture of candle wax and flour that Hodge and Greig sold appears to be a controlled substance analogue under subpart (iii). Hodge and Greig "represent[ed]" their product to be crack cocaine and, therefore, to have a "stimulant ... effect on the central nervous system" "substantially similar" to a "controlled substance in schedule I or II." Appellants, on the other hand, read § 802(32)(A) conjunctively. They argue that a controlled substance analogue must satisfy both clause (i) and either clause (ii) or (iii). A candle wax and flour mixture is not "substantially similar" in chemical structure to crack cocaine as required under clause (i). Accordingly, under appellants' reading, it cannot be a controlled substance analogue regardless whether they represented it to be crack cocaine.

The District Court in this case read the definition disjunctively, but every other federal court to consider the issue has read it conjunctively. We exercise plenary review over the District Court's interpretation of a statute and, more generally, its legal conclusions. See In re CM Holdings, Inc., 301 F.3d 96, 101 n. 3 (3d Cir.2002). This is a matter of first impression in our Court. Moreover, no federal court of appeals has considered the issue in any depth. See McKinney v. United States, 221 F.3d 1343 (Table) (8th Cir.2000) (paraphrasing the test in the conjunctive without discussion); United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990) (stating the test in the disjunctive without discussion); see also Fisher, 289 F.3d at 1338 (expressly declining to decide the issue). A more thorough treatment is found in a number of district court opinions.

In United States v. Forbes, 806 F.Supp. 232 (D.Col.1992), the District Court for the District of Colorado held that the text of § 802(32)(A) either plainly supports the conjunctive reading or is otherwise "[a]t best ... ambiguous." Id. at 235. It reasoned that the "operative segments of clauses (ii) and (iii) both begin with the word `which,' signaling the start of a dependent relative clause modifying a precedent noun." Id. Moreover, because "[m]odifying phrases generally refer to immediately...