U.S. v. Hofstatter
| Decision Date | 28 September 1993 |
| Docket Number | Nos. 92-1805,s. 92-1805 |
| Citation | 8 F.3d 316 |
| Parties | 39 Fed. R. Evid. Serv. 1006 UNITED STATES of America, Plaintiff-Appellee, v. Karl HOFSTATTER (92-1836) and Michael Griffor (92-1805), Defendants-Appellants. /1836. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Terrence G. Berg (argued and briefed), Office of the U.S. Atty., Detroit, MI, for U.S.
Douglas R. Mullkoff (argued and briefed), Ann Arbor, MI, for Michael Edward Griffor.
F. Randall Karfonta (argued and briefed), Mogill, Posner & Cohen, Detroit, MI, for Karl Hofstatter.
Before: NELSON and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
Under 21 U.S.C. § 841(d)(1), it is a criminal offense knowingly or intentionally to possess a "listed" chemical with intent to manufacture a controlled substance. Under 21 U.S.C. § 813, as enacted in the Controlled Substance Analogue Enforcement Act of 1986, a "controlled substance analogue" is treated as a controlled substance to the extent that it is intended for human consumption.
The defendants in the case at bar were found guilty of possessing and conspiring to possess the chemicals ephedrine and phenylpropanolamine--"listed precursor chemicals" under 21 U.S.C. § 802(34)(C) and (I)--with intent to manufacture controlled substance analogues. One of the questions raised by the defendants in their appeal is whether, under the circumstances of the present case, the statutory definition of a controlled substance analogue (see 21 U.S.C. § 802(32)) is unconstitutionally vague. Concluding that the statute does not run afoul of the void-for-vagueness doctrine in its application here, and resolving the remaining issues in favor of the government as well, we shall affirm the convictions of both defendants and reject a challenge one of them has made to his sentence.
In May of 1989 the Drug Enforcement Administration received information from a chemical company in Connecticut that a suspicious order had been received from "JAH Company," of Ann Arbor, Michigan, for the chemical phenylpropanolamine. The DEA subsequently monitored numerous purchases of precursor chemicals by defendants Hofstatter and Griffor, ostensibly acting on behalf of JAH or "Robert Kaye and Company." On one occasion defendant Griffor was found to have used the name "Michael Edwards" in picking up a shipment of ephedrine.
On June 20, 1991, agents of the DEA executed a warrant to search the premises at 712 and 715 East Kingsley, in Ann Arbor where the defendants had gone after one of their pickups of chemicals. At 712 East Kingsley the agents found laboratory equipment and supplies, including vacuum flasks and a turkey baster, along with written records of experiments involving the manufacture of methylcathinone, an analogue of the controlled substance methamphetamine. In a box with chemicals and equipment was a notebook detailing the experiments. One entry in the notebook read as follows: "let some sit for 3 days (less smell) closer to amphed." Another read "took first sample at 8:00 pm--quality: (all est. from - 1--+ 10) euphoria (7), speed (6), conversation (8), smell (2) * taste (1), jones (4) (one being no jones)." Taped to the inside covers of the notebook were photographs of Mr. Griffor and his dogs. Also seized were personal papers of Mr. Hofstatter and address books containing names of chemical supply companies and various chemical formulae. In a kitchen freezer agents found more than a kilogram of phenylpropanolamine solution. Elsewhere in the house they found chemicals needed for the manufacture of methylcathinone, cathinone, 4-methylaminorex, and n-methyl-4-methylaminorex. There was no toluene (a solvent widely used in making such substances), but, as noted above, there was evidence that toluene had been used.
Mr. Griffor's automobile, which had been used the day before to pick up ephedrine, was parked in the driveway of 715 East Kingsley. The automobile was also searched. Inside the car were found two bags containing personal papers, notebooks, and envelopes in the name of Mr. Hofstatter. The documents described "khat" (an East African plant containing cathinone) and methylaminorex (a drug also known as "rex" or "U4euh," a homophone of euphoria). Formulae for the manufacture of methylcathinone were found in the car, as was a Federal Register notice indicating that methylaminorex was to be scheduled as a controlled substance by the DEA.
The defendants were indicted on charges of conspiracy to possess listed chemicals with intent to manufacture controlled substances and controlled substance analogues (count one); possession of listed chemicals with intent to manufacture controlled substance analogues and controlled substances (counts two as to Griffor, three as to Hofstatter, and four, five, and six); conspiracy to open or maintain a place for the purpose of manufacturing controlled substance analogues and controlled substances (count seven), and endangering human life while attempting to manufacture a controlled substance illegally (count eight as to Hofstatter).
DEA chemist Terry Dal Cason determined that the seized documents contained 23 iterations of the formula for manufacturing methylcathinone. Cason testified at trial that the defendants had the chemicals and the know-how necessary to manufacture methylcathinone, cathinone, 4-methylaminorex, and n-methyl-4-methylaminorex. Cason also testified that methylcathinone has a chemical structure substantially similar to that of the controlled substance methamphetamine; that cathinone has a chemical structure substantially similar to that of amphetamine, which is likewise a controlled substance; that 4-methylaminorex is a controlled substance; and that n-methyl-4-methylaminorex has a chemical structure substantially similar to that of 4-methylaminorex.
DEA Agent Mary Sandy testified that while posing as a chemical supply store employee she had twice sold listed precursor chemicals to Mr. Hofstatter. She went on to tell the jury that after the ephedrine purchase on June 19, 1991, agents followed Messrs. Hofstatter and Griffor to 715 Kingsley in Ann Arbor, where Mr. Hofstatter removed items from Mr. Griffor's car while it was parked in the driveway. Through the car window Agent Sandy was able to see a computer and other items.
The government also introduced evidence that in May of 1987 local authorities had discovered chemicals, laboratory equipment, formulae, and small quantities of 4-methylaminorex in a trailer rented by Mr. Hofstatter in Pasco County, Florida. It would be fair to infer from this evidence that the trailer had been used as a site for illicit manufacture of a controlled substance.
The jury found Mr. Hofstatter guilty on all counts in which he was charged except counts seven and eight. Mr. Griffor was convicted on all of the counts in which he was charged except counts two and seven.
Mr. Hofstatter was sentenced to concurrent terms of imprisonment for 96 months. The sentence reflected a two-level enhancement in Mr. Hofstatter's guideline offense level because of his having played a leadership role. Mr. Griffor was sentenced to concurrent sentences of 36 months. Both defendants perfected timely appeals.
Under 21 U.S.C. § 813, as noted above, a "controlled substance analogue" is treated as a controlled substance to the extent that the analogue drug is intended for human consumption. The statutory definition of a controlled substance analogue, subject to exceptions not relevant here, is as follows:
"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 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 defendants argue that this statute is void for vagueness under the Fifth Amendment because the "substantially similar" language is insufficiently precise. Under Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), a penal statute must define the offense with sufficient definiteness to enable ordinary people to understand what conduct is prohibited--see Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)--and must do so in a manner that does not encourage discriminatory enforcement. 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, 714, 42 L.Ed.2d 706 (1975). The latter principle was recognized and applied in United States v. Forbes, 806 F.Supp. 232, 237 (D.Colo.1992), where the "substantially similar" component of 21 U.S.C. § 802(32)(A) was held to be unconstitutionally vague as applied to alphaethyltryptamine (AET). (AET had been marketed by Upjohn Chemical Corporation as an anti-depressant, but had been taken off the market after some patients experienced toxic side effects from it.)
Under the evidentiary record presented here, it seems clear that the statutory language was sufficiently precise to enable an ordinary person in the position of Mr. Hofstatter or Mr. Griffor to know that listed precursor chemicals such as ephedrine and phenylpropanolamine should not be possessed for the purpose of manufacturing, for human consumption, substances...
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