United States v. Bays, CRIMINAL ACTION NO. 3:13-CR-0357-B

• Decision Date: 31 July 2014
• Docket Number: CRIMINAL ACTION NO. 3:13-CR-0357-B
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. BARRY BAYS (2), Defendant.
• Court: U.S. District Court — Northern District of Texas

UNITED STATES OF AMERICA, Plaintiff, v. BARRY BAYS (2), Defendant.

CRIMINAL ACTION NO. 3:13-CR-0357-B

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

July 31, 2014

MEMORANDUM OPINION AND ORDER

Before the Court are Defendant Barry Bays's Motion to Exclude Testimony of Plaintiff's Expert Jordan Trecki, Ph.D. ("Dr. Trecki") and Motion to Exclude Plaintiff's Expert Michael L. Van Linn, Ph.D. ("Dr. Van Linn") (docs. 177, 178), both filed on April 1, 2014. For the reasons described in this order, the Court DENIES these motions.

I.FACTUAL BACKGROUND

This case arises out of an alleged conspiracy to manufacture and distribute synthetic cannabis products across the country. On August 23, 2013, a complaint was filed against Defendant Barry Bays alleging violations of 21 U.S.C. §§ 841 and 846. Doc. 1, Compl. A federal grand jury returned a one-count indictment against Defendants Barry Bays, Samuel Madeley, and David Muise on September 17, 2013, charging the defendants with violating 21 U.S.C. § 846 (Conspiracy to Distribute a Controlled Substance Analogue). Doc. 13, Indictment 1. On January 23, 2014, Bays and five other defendants were named in a multi-count superseding indictment charging violations of 21 U.S.C. § 846 (Conspiracy to Distribute a Controlled Substance Analogue). Doc. 117, Second Sup.Indictment 1-2. The superseding indictment also separately charged Bays with violating 18 U.S.C. §§ 924(c)(1)(A) and (c)(2) (Possession of a Firearm in Furtherance of a Drug Trafficking Crime) and 21 U.S.C. § 843(b) (Using a Communication Facility to Facilitate a Drug Felony). Id.

On April 1, 2014, Defendant Bays filed both the Motion to Exclude Dr. Trecki (doc. 177), and the Motion to Exclude Dr. Van Linn (doc 178). Defendant Bays argues that under Federal Rules of Evidence 104, 702, and 703 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the opinions of Dr. Van Linn and Dr. Trecki should be excluded to the extent that they opine on the substantial similarity of the four chemical substances identified in the Second Superseding Indictment to schedule I synthetic cannabinoids.¹ Second Sup. Indictment 1-2; Def.'s Mot. to Excl. Trecki 1; Def.'s Mot. to Excl. Van Linn 1.

II.LEGAL STANDARD

Rule 702 of the Federal Rules of Evidence provides for the testimony at trial of an "expert by knowledge, skill, experience, training, or education," if such testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Accordingly, the Court acts as a "gatekeeper" that "may admit proffered expert testimony only if the proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2) the evidence is relevant to thesuit, and (3) the evidence is reliable." Nunn v. State Farm Mut. Auto. Ins. Co., No. 3:08-CV-1486-D, 2010 WL 2540754, at *2 (N.D. June 22, Tex. 2010) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

Whether an expert is qualified to testify is a question of law. Mathis v. Exxon Corp., 302 F.3d 448, 459 (5th Cir. 2002) (citing Fed. R. Evid. 104(a)). As such, "[b]efore a district court may allow a witness to testify as an expert, it must be assured that the proffered witness is qualified to testify by virtue of his knowledge, skill, experience, training, or education.'" Nunn, 2010 WL 2540754, at *2 (quoting United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009)(internal quotation marks omitted). However, "Rule 702 does not mandate that an expert be highly qualified in order to testify about a given issue." Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009). Instead, "[d]ifferences in expertise bear chiefly on the weight to be assigned to the testimony by the trier of fact, not its admissibility." Id.; see also Daubert, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.").

"Evidence is relevant if 'it has any tendency to make any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 882 (5^th Cir. 2013) (quoting Fed. R. Evid. 401(a)). Said differently, expert testimony is relevant when the expert's "reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 593. Conversely, "[e]xpert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." Id. at 591

Evidence is reliable if "'the reasoning or methodology underlying the testimony is scientifically valid.'" Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509U.S. at 593). To determine whether the methodology employed by an expert is scientifically valid, the Court considers five non-exclusive factors: "1) whether the expert's technique or theory can be or has been tested-that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; 2) whether the technique or theory has been subject to peer review and publication; 3) the known or potential rate of error of the technique or theory when applied; 4) the existence and maintenance of standards and controls; and 5) whether the technique or theory has been generally accepted in the scientific community." Florer v. Elec. Data Sys. Corp., No. 303CV1175H, 2004 WL 1562851, at *3 (N.D. Tex. July 13, 2004).

To be sure, the reliability test is a flexible one that grants district courts wide discretion, and Daubert's dictates apply "not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire, 526 U.S. at 141. Reliability does not mean certainty, but more than speculation is required. Nunn, 2010 WL 2540754, at *2 (citing Daubert, 509 U.S. at 590). Correspondingly, a court may consider one or more of the Daubert factors, as well as other factors "'relevant to the case at hand,'" in determining the reliability of proffered testimony Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009) (quoting Black v. Food Lion Inc., 171 F.3d 308, 312 (5th Cir. 1999)); see Kumho Tire, 526 U.S. at 138 ("A trial judge determining the admissibility of an . . . expert's testimony may consider one or more of the specific Daubert factors.").

III.ANALYSIS

The Defendant's Motions to Exclude Expert Testimony are considered within the contextof the Controlled Substance Analogue Enforcement Act of 1986 ("CSAEA"), which "Congress enacted . . . to keep up with rapidly progressing drug technologies and to target the distribution of so-called 'designer drugs.'" United State v. Nasir, No. 5:12-CR-102-JMH, 2013 WL5373619, at *1 (E.D. Ky. Sept. 25, 2013) (citing United States v. Washam, 312 F.3d 926, 933 (8th Cir. 2002)); 21 U.S.C. § 813. DEA has concluded that each of the substances at issue-AM2201, 5F-PB-22, PB-22, and 5F-UR-244 (a.k.a. XLR11)-is a schedule I controlled substance or controlled substance analogue. 21 C.F.R. § 1308.11 (g)-(h); Doc. 184, Pl.'s Resp. 2. A controlled substance analogue is 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 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). In short, a chemical substance must be "substantially similar" to a controlled substance in schedule I or II. Defendant notes that "'substantially similar' is not a scientific concept,'" and that "the analogue act does not indicate that the term 'substantially similar' is to be defined in any scientific sense." Def.'s Mot. to Excl. Trecki 2-3 (quoting Anacker & Imwinkelried, Controlled Substance Analogue Enforcement Act Criminal Defense, 37 SW. U. L. REV. 267, 295 (2008) (internal quotation marks omitted).

The Court agrees. Indeed, "there is no indication that Congress intended the words 'substantially similar' to have a specialized or scientific meaning." United States v. Reece, No. 12-00146, 2013 WL 3865067, at *9 (W.D. La. July 24, 2013). "Therefore, these words should be given their ordinary meanings." Id.; see also United States v. Brown, 279 F. Supp. 2d 1238, 1240-41 (S.D. Ala. 2003), aff'd 415 F.3d 1257 (11th Cir. 2005) ("Since the Analogue Act does not indicate that the term 'substantially similar' is to be defined as it is used scientifically, the court will interpret those words as they are used in everyday language."). Under this construct, "substantially similar" is read "as having 'essential elements in common.'" Alemeda Mall, L.P. v. Shoe Show, Inc., 649 F.3d 389, 392 (5th Cir. 2011) (citing Random House Webster's College Dictionary (2d ed. 1999)) (defining "substantially similar" in a trade-name dispute). Accordingly, Defendant asserts that Dr. Van Linn and Dr. Trecki are unfit to testify as to whether AM2201, PB-22, and 5F-UR-144 (a.k.a. XLR11) have essential elements in common with JWH-018, and whether 5F-PB-22 has essential elements in common with AM2201. Def's Mot. to Excl. Trecki; Def.'s Mot. to Excl. Van Linn.

A. Van Linn

1. Qualifications

Defendant first complains that Dr. Van Linn, due to his embrace of flawed...