United States v. Barker
| Decision Date | 12 December 2016 |
| Docket Number | Case No. 1:16-CR-31 |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. ERIC SCOTT BARKER, aka "Skateboard," aka "Skate," RANDALL LEE BARKER, and MEGAN EILEEN DUNIGAN, Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
(JUDGE KEELEY)
This matter is before the undersigned pursuant to Defendant Eric Barker's Motion to Dismiss filed on September 18, 2016 (ECF No. 83). Co-Defendants Randall Barker (ECF No. 87) and Megan Dunigan (ECF No. 84) subsequently joined in that motion. United States District Judge Irene M. Keeley referred the pending motion to the undersigned for a Report and Recommendation on September 23, 2016 (ECF No. 89). The Government filed a Response in Opposition on September 26, 2016 (ECF No. 91). On November 9, 2016, came parties for a hearing on the Motion - the Government, by counsel Andrew Cogar, Assistant United States Attorney; Defendant Eric Barker, in person and by counsel, Brian Kornbrath; Defendant Randall Barker, in person and by counsel, George Cosenza; Defendant Megan Dunigan, in person and by counsel, Charles Berry. Following the motion hearing, the undersigned ordered the parties to supplement their briefs (ECF No. 115). Defendant Eric Barker filed a supplemental brief on November 15, 2016 (ECF No. 119). The Government filed a supplemental brief on November 16, 2016 (ECF No. 128). Considering all of the parties' briefs and oral argument on the matter, the undersigned provides the following report and recommendation that Defendant's Motion to Dismiss be granted for the reasons set forth below.
The Indictment charges all three Defendants with Conspiracy to Distribute and Possession with Intent to Distribute MAM-22011 (Count One), Maintaining a Drug Involved Premises (Count Two), all between April 2014 and April 2016, and six counts of Distribution of the Controlled Substance Analogue MAM-2201 on or about February 17, 2016 (Counts Five through Eleven) (ECF No. 2). The Indictment also charges Defendants Eric Barker and Randall Barker with two additional counts of Distribution of the Controlled Substance Analogue MAM-2201 in August 2015 (Counts Three and Four). Id. The Indictment included a Forfeiture Allegation pursuant to 21 U.S.C. § 853, upon obtaining a conviction, for $22,408.00 and a money judgment of at least $150,000.00. Id.
Defendant Eric Barker filed a Motion to Dismiss all Counts of the Indictment on September 18, 2016 (ECF No. 83). The motion was joined by Megan Dunigan on September 21, 2016 (ECF No. 84), and by Randall Barker on September 23, 2016 (ECF No. 87). In his motion, Eric Barker argued that the Analogue Act was void for vagueness, both facially and as applied to MAM-2201, and prosecution under the Act violated due process (ECF No. 83).
More specifically, Defendant argues that statute lacks sufficient definiteness, as the term "substantially similar" is undefined, and there is no agreed upon method for determiningsubstantial similarity in the relevant scientific field. Id. at 4. Defendant also argues that the statute provides inadequate notice because, although the government maintains and publishes a list of controlled substances under the Controlled Substance Act ("CSA"), there is no such list of analogues. Id. at 8. The public therefore has no means by which to readily determine whether a particular substance is an analogue. Id. As a result of these defects, the statute also invites arbitrary and discriminatory enforcement. Id. at 9. Lastly, Defendant joins the Tenth Circuit's concerns voiced in United States v. Makkar, 810 F.3d. 1139 (10th Cir. 2015) regarding the Analogue Act in light of Johnson v. United States, 135 S.Ct. 2551 (2015).
The Government argues as to notice that, regardless of any vagueness with respect to the term "substantially similar," Defendant has no excuse because "anyone with internet access has had either constructive or actual notice of both the chemical properties and legal status of MAM2201" (ECF. No. 91 at 4). Citing United States v. Klecker, 348 F.3d 69, 72 (4th Cir. 2003), the Government argues that substantial similarity of MAM-2201 to a scheduled controlled substance is a question of fact for a jury. Id. at 5. Lastly, the Government argues that the scienter requirement alleviates any vagueness concerns under United States v. McFadden, 135 S. Ct. 2298, 2307 (2015). Id. at 6.
On November 15, 2016, Defendant Eric Barker filed a Supplemental Brief containing internal DEA communications that show the DEA had determined MAM-2201 to be substantially similar in chemical (physical) structure to two schedule I controlled substances (JWH-018 and 2C-B) as early as April 6, 2012 (ECF No. 119 at 11). Those communications also note that "the pharmacological effects are still under evaluation" (Id. at 13). In addition, thecommunications also identify an internal list of analogues maintained by the DEA's Office of Diversion Control, Drug and Chemical Evaluation Section (ODE). Id at 14.
In its supplemental brief filed on November 16, 2015, the Government identified undisputed facts, including that "the Government is not aware of any initiation of federal scheduling procedures (temporary or otherwise) for the substance [MAM-2201]" (ECF No. 128 at 1). The Government observes that "Some states, however, have already scheduled MAM-2201," and that "the Attorney General (through DEA) has initiated temporary scheduling for other synthetic cannabinoids." Id. at 1-2. The Government further argued:
Nothing in the Analogue Act imposes any time limits or scheduling-related conditions to determine the illegality of controlled substance analogues, and no court or statute has suggested otherwise. Accordingly, the failure to schedule a known controlled substance analogue has no bearing on the criminality of the analogue . . . the Act's constitutionality is not dependent on whether the substance at issue is temporarily scheduled. The only conceivable constitutional question associated with the Analogue Act is whether it is void under the Fifth Amendment for vagueness.
Id. at 3. The Government further argued, in essence, that the issue before the Court had been resolved by Klecker and McFadden, and that Johnson v. United States has no bearing on this case. Id.
The Government urges the undersigned to declare the matter resolved by our precedent in Klecker and by McFadden. Because this case presents an issue of first impression warranting full and thoughtful consideration, the undersigned must decline the invitation.
As this recommended holding is based on separate grounds - statutory interpretation - not addressed in either McFadden or Klecker, the undersigned believes it to be unconstrained by prior precedent. Because facial challenges are appropriate when a statute implicates FirstAmendment rights, this review is limited to an as-applied challenge. United States v. Mazurie, 419 U.S. 544. 95 S.Ct. 710, 42 L.Ed.2d 706 (2010). See also Klecker, citing United States v. Sun, 278 F.3d 302, 309 (4th Cir. 2002). The nature of the analysis, however, first requires a review of the history of the relevant legislation.
In 1970, Congress enacted the Controlled Substances Act (hereinafter "CSA"); the controlled substances scheme is located in Title 21, Chapter 13, and comprised of Subchapter 1, Parts A through F. 21 U.S.C. § 801 et. seq. Part B, "Authority to Control; Standards and Schedules," categorized controlled substances into five schedules (I - V) according to various criteria pertaining to its potential for medical use or recreational abuse. 21 U.S.C. § 812. Part B also authorized the Attorney General to add or remove substances from the schedules, or to move a substance to a different schedule, upon compliance with specified procedures. 21 U.S.C. § 811(a). Compliance with those procedures, however, took some time and effort:
(1991). As a result of the "designer drug" time lag, the CSA...
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