U.S. v. Ticchiarelli, Criminal No. 95-21-B.

• Decision Date: 02 October 1996
• Docket Number: Criminal No. 95-21-B.
• Citation: 943 F.Supp. 77
• Parties: UNITED STATES of America v. Rinaldo TICCHIARELLI, Bradley Oliver Bowen and Diana Pierce, Defendants.
• Court: U.S. District Court — District of Maine

943 F.Supp. 77

UNITED STATES of America v. Rinaldo TICCHIARELLI, Bradley Oliver Bowen and Diana Pierce, Defendants.

Criminal No. 95-21-B.

United States District Court, D. Maine.

October 2, 1996.

Timothy D. Wing, Asst. U.S. Atty., James M. Moore, Bangor, ME, for Government.

Robert C. Granger, Roy, Beardsley & Williams, Ellsworth, ME, John C. Mattes, Miami, FL, for Defendant Ticchiarelli.

David W. Bate, Bangor, ME, for Defendant Pierce.

J. Bradford Coffey, Farrell, Rosenblatt & Russell, Bangor, ME, for Defendant Bowen.

ORDER DETERMINING THE NATURE OF THE CONTROLLED SUBSTANCE FOR PURPOSES OF SENTENCING

HORNBY, District Judge.

These three defendants have pleaded guilty to (Ticchiarelli and Pierce) or been found guilty of (Bowen) trafficking in a controlled substance. The sentencing issue common to them, and the limited issue on which the cases are consolidated, is what to denominate that substance under the Sentencing Guidelines. I conducted an evidentiary hearing at which experts testified on August 9, 1996.

All the experts agree (or do not disagree) on the following physical characteristics of the substance: it is derived from the cannabis sativa (marijuana) plant; it has a strong odor; it is a black or near-black tarry substance rather like road tar; it is not a solid, but it does not pour unless heated; it originates in Jamaica; it contains tetrahydrocannabinol (THC) in the thirteen to sixteen percent range as well as cannabinol and cannabidiol; it contains no visible fragments of vegetation, but under a microscope transparent cells can be observed that one expert believes come from the plant's glandular hairs and that he believes can be felt as a residue on the fingers if one rubs the substance between the fingers; it contains no cystolithic hairs; it contains chlorophyll and magnesium.¹

There are four possible sentencing classifications for a substance deriving from the cannabis sativa plant: marijuana; hashish; hashish oil; or tetrahydrocannabinol, organic and synthetic — in ascending order of seriousness for guideline sentencing calculations. See United States Sentencing Commission, Guidelines Manual, § 2D1.1, Drug Equivalency Tables, at 91, 93 (Nov. 1995). Tetrahydrocannabinol is not applicable to this case, and the parties all agree that the substance here is not hashish, which they agree comes from the flowering tops of the plant.² This substance, in contrast, is derived from a variety of plant debris from cannabis sativa.³

The defendants argue that the term "hashish oil" should be limited to a high potency cannabis substance (THC levels of twenty to fifty percent or higher) that is a non-viscous, pourable oil derived from crushing the flowering tops of cannabis sativa. They say that it is transparent and honey-colored with an odor like cedar and pepper and originates primarily in countries from the Mediterranean to India. The Government argues that the term "hashish oil" covers any concentrated marijuana extract (regardless of its country of origin) that is not a solid, with the plant material — and specifically the cystolithic hairs — filtered out; and that it is generally dark, viscous, odorous and sticky with a THC content of ten to thirty percent.

For federal law purposes, the term hashish oil first appeared in the United States Code in 1984 when Congress introduced it with a sentencing ratio of 50:1 compared to marijuana. Pub.L. No. 98-473, 98 Stat. 2030, 2068, 2070 (codified as amended at 21 U.S.C. § 841(b)(1)(D) (1994)). Congress did not define the term. The Sentencing Commission followed suit in 1988, replicating the sentencing ratio and likewise failing to define the term. See United States Sentencing Commission, Guidelines Manual, § 2D1.1, Drug Equivalency Tables, at 61, 67 (rev. ed. 1988). The Commission finally provided a definition in 1995, Guideline 2D1.1(c),⁴ but the defendants argue that the new definition is a change in the law and cannot constitutionally be applied to their conduct, which occurred before the definition was adopted. Because I cannot determine whether the new definition changed, the previous law without determining first what that previous law amounted to, I proceed without regard to the new Guideline definition.

The three experts presented by the parties were as deficient on the subject of definitions as Congress and the Sentencing Commission. One government expert admitted candidly that there is no scientific definition for the term hashish oil. His definition came simply from his DEA training. The other government expert learned what the term meant from her supervisor during the course of her training. Neither government expert could point to any treatises or scientific articles or professionally accepted definition among chemists. The defendants' expert testified that his definition came from perusing books and periodicals some years ago at the government's marijuana farm library in Oxford, Mississippi, but he could not identify any of the literature.

I have found the following definitional materials from the parties' and my own research.

In 1975, well before Congress added the reference to hashish oil in the United States Code, Senator James Eastland said that hashish oil is "one of the most frightening drugs on the market today. At the average potency of 40 to 50% THC, an ounce of it is enough to intoxicate over 1,000 people. It is, moreover, very easy to prepare; and it is attractive to the traffickers, additionally, because it is so easily concealed and because they can get so high a return for it." Hearing Before the Subcomm. to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of the Senate Comm. on the Judiciary, 94th Cong., 1st Sess. part 2, at vi (1975).

Merriam-Webster's word repository provides published uses of the term. The references from their files that provide descriptions of hashish oil are as follows:

The brothers were dealing in hash oil, Burke said, "now the hottest new commodity on the international market. It is a distillation of hash where they use 180 proof alcohol in boiling it down and then come up with what they refer to as the essence of hashish. Your normal hashish has a THC [tetrahydrocannibinol] [sic] — which is the basic ingredient of the marijuana plant — content of between eight and 12 percent, and the liquid hashish oil has a THC count of 58 percent. A tiny drop onto a regular filter cigarette can knock you out." Joe Eszterhas, The Strange Case of the Hippie Mafia, Rolling Stone Mag., Dec. 21, 1972, at 3.

There was a big increase in a new type of cannabis known as "hash oil" or "liquid cannabis" which is made by distilling resin to produce a black, sticky molasses-type fluid. The Guardian (London), Dec. 31, 1973, at 5.

There was a big increase in smuggling of a new type of cannabis first found in 1972. It is known as "hash oil" or liquid cannabis, and is made by distilling resin to produce a black, sticky molasses-type fluid which is easily concealed in travellers' baggage, in plastic cosmetic bottles, toothpaste tubes and airspray [sic] containers.... The liquid is at least 20 times more potent than resin and sells at £7,000 a pound. After delivery it is diluted until it pours like water and cigarettes are soaked in the fluid. £8m of Cannabis Seized this Year, The Times (London), Dec. 2, 1973, at 2.

A 1974 Drug Enforcement Administration ("DEA") publication includes a picture of pouring hashish oil and states in the caption:

Tetrahydrocannabinol (THC) is the active ingredient of marihuana as well as this dark, viscous substance, known as liquid hashish or hashish oil. The THC content of most marihuana in the United States is between 0.5 percent and 2 percent; the THC content of liquid hashish normally ranges from 20 to 65 percent. The concentrate serves to reduce the risks of the smuggler, while compounding those of the consumer.

DEA, U.S. Dep't of Justice, The Cannabis Controversy, Drug Enforcement, at 27 (Fall 1974).

In 1975, a DEA publication stated: "A concentrate of cannabis, hashish oil is produced by a process of repeated extraction to yield a dark, viscous liquid, samples of which have been found to contain from 20 to 60 percent THC. A drop or two of this liquid on a cigarette is equal in psychoactive effect to an entire marihuana cigarette." John H. Langer, et al., Drugs of Abuse, 2:2 Drug Enforcement 27 (1975).

In 1976, Virginia statutes added a reference to hashish oil and defined it as "any oily extract containing one or more cannabinoids, but shall not include any such extract with a tetrahydrocannabinol content of less than fifteen percent." Va.Code Ann. § 54-524.2(16) (Michie 1976 cum. supp.). It also stated that "some trade or other names" for hashish oil were "hash oil; liquid marijuana; liquid hashish." § 54-524.84:4(18). In 1982, Virginia reduced the minimum THC content to twelve percent. § 54-524.2(16) (Michie 1982).

The Second Barnhart Dictionary of New English, published in 1980, defines "hash oil or hashish oil" as "tetrahydrocannabinol (THC), the active ingredient of marijuana and hashish," attributes its origins to the year 1972 and says that it is "so called because of its resemblance to motor oil." The Second Barnhart Dictionary of New English 234 (1980).

In 1982, Alaska statutes added a reference to hashish oil and defined it as "the viscous liquid concentrate of tetrahydrocannabinols extracted from the plant (genus) Cannabis." Alaska Stat. § 11.71.900(11) (1982).

In 1987-88, Professors Rudolf Brenneisen and Mahmoud A. ElSohly characterized the drugs as follows: "Herbal Cannabis (Cannabis marijuana), Cannabis resin (hashish), and extracts of Cannabis resin (hashish oil) are still the most abused illicit drugs of the world." Rudolf Brenneisen & Mahmoud A. ElSohly, Chromatographic and Spectroscopic Profiles of Cannabis of Different Origins: Part 1, 33:6 J. Forensic Sci. 1385, 1385 (1988).

In 1984, the book Marihuana in Science...