United States v. Nahmani

• Decision Date: 11 August 2017
• Docket Number: No. 15-14599,15-14599
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RONEN NAHMANI, Defendant - Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RONEN NAHMANI, Defendant - Appellant.

No. 15-14599

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

August 11, 2017

[DO NOT PUBLISH]

D.C. Docket No. 1:14-cr-20926-KMM-1

Appeal from the United States District Court for the Southern District of Florida Before MARCUS, JILL PRYOR and SILER,^* Circuit Judges.

JILL PRYOR, Circuit Judge:

After a six-day trial, a jury convicted defendant Ronen Nahmani of one count of conspiring to possess with intent to distribute controlled substances and controlled substance analogues. The district court sentenced him to 240 months' imprisonment, the statutory maximum. On appeal, Nahmani challenges his conviction and sentence on numerous grounds.

Nahmani's challenges include whether: (1) the indictment was defective because it alleged Nahmani conspired to possess with intent to distribute controlled substances and controlled substance analogues but failed to identify the specific substances that were the object of the conspiracy; (2) evidence seized from his automobile should be suppressed on the basis that there was no probable cause at the time of the search to believe that he was engaged in illegal conduct; (3) cumulative errors warranted a new trial; (4) the district court erred in applying a 20 year, as opposed to one year, statutory maximum when the indictment explicitly alleged a conspiracy to possess with intent to distribute a controlled substance analogue; and (5) the district court clearly erred in finding that the most closely related substance referenced in the drug equivalency tables in the United States Sentencing Guidelines was THC, not marijuana. After careful considerationand with the benefit of oral argument, we conclude that there was no reversible error and thus affirm.

I. STATUTORY BACKGROUND

We begin with an overview of the law regarding controlled substances and their analogues. The Controlled Substances Act prohibits possession with intent to distribute a controlled substance, as well as conspiring to possess with intent to distribute a controlled substance. 21 U.S.C. §§ 841(a)(1), 846. A controlled substance is any drug or other substance listed in five schedules, I through V, which were established by the Controlled Substances Act.¹ Id. §§ 802(6), 812(a).

The maximum sentence for a controlled substance offense depends on which schedule lists the controlled substance. The maximum sentence for an offense involving a schedule I substance generally is 20 years' imprisonment.² See id. §§ 841(b)(1)(C), 846. In contrast, the maximum sentence for an offense involving a schedule V substance is one year of imprisonment. Id. § 841(b)(3).

The Controlled Substances Analogue Enforcement Act ("Analogue Act"), 21 U.S.C. §§ 802(32), 813, prohibits the possession with intent to distribute acontrolled substance analogue, as well as conspiring to possess with intent to distribute a controlled substance analogue. Congress passed the Analogue Act "to prevent underground chemists from altering illegal drugs in order to create new drugs that are similar to their precursors in effect but are not subject to the restrictions imposed on controlled substances." United States v. Klecker, 348 F.3d 69, 70 (4th Cir. 2003).

The Analogue Act defines a controlled substance analogue as 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). We have not previously decided whether this definition should be read disjunctively, meaning a substance that satisfies any one of the three criteria qualifies as a controlled substance analogue, or conjunctively, meaning that a substance must (1) have a chemical structure substantially similar to a controlled substance in schedule I or II and (2) either a substantially similar effect on the central nervous system or be purported or intended to have such aneffect. See United States v. Brown, 415 F.3d 1257, 1261 (11th Cir. 2005). Here, the district court read the definition conjunctively, and neither party challenges this reading. Because Nahmani's challenge fails even under the conjunctive reading of the Analogue Act—which places a more demanding burden on the government—we assume for our purposes here that the district court's reading was correct.³

A substance that qualifies as a controlled substance analogue, when intended for human consumption, is treated as a schedule I controlled substance. 21 U.S.C. § 813. Accordingly, an offense involving a conspiracy to possess with intent to distribute a controlled substance analogue is generally punishable by up to 20 years' imprisonment.

II. FACTUAL BACKGROUND

A. The Indictment

A federal grand jury indicted Nahmani of one count of conspiring to possess with intent to distribute controlled substances and controlled substance analogues during the period from approximately April 1 through July 28, 2014. More specifically, the indictment provided that:

From on or about April 1, 2014, the exact date being unknown to the Grand Jury, through on or about July 28, 2014 . . . Ronen Nahmani[] did knowingly and willfully combine, conspire,confederate, and agree with others known and unknown to the Grand Jury, to

a. possess with intent to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1), and Title 18, United States Code, Section 2.

b. possess with intent to distribute controlled substance analogues as defined in Title 21, United States Code, Section 802(32)(A), knowing that the substances were intended for human consumption as provided in Title 21, United States Code, Section 813.

All in violation of Title 21, United States Code, Section 846.

The controlled substances involved in the conspiracy attributable to the defendant as a result of his own conduct, and the conduct of other conspirators reasonably foreseeable to him, include Schedule I controlled substances, that is, AB-FUBINACA, PB-22, and XLR11, in violation of Title 21, United States Code, Section 841(a)(1).

The controlled substance analogues involved in the conspiracy attributable to the defendant as a result of his own conduct, and the conduct of other conspirators reasonably foreseeable to him, include THJ-2201, 5-Chloro-UR-144, and 5-Bromo-UR-144, which are analogues of Schedule I controlled substances, in violation of Title 21, Untied States Code, Section 841(a)(1), 802(32)(A), and 813.

Indictment (Doc. 3).⁴ Nahmani raised no objection to the indictment prior to trial.

B. The Trial

During a six-day trial, the government presented evidence that Nahmani operated a business importing synthetic cannabinoids⁵ from China and Hong Kongthat he sold throughout the United States. The government presented to the jury testimony and evidence about its investigation of Nahmani, which showed that he acted essentially as a wholesale distributor for synthetic cannabinoids. In addition, the government introduced expert testimony to establish that the items seized from Nahmani included the chemicals listed in the indictment, and that three of these chemicals, which were not listed on the schedules at the time of the conspiracy—THJ-2201, 5-Bromo-UR-144, and 5-Chloro-UR-144—qualified as controlled substance analogues.

1. Nahmani's Business⁶

Nahmani imported synthetic cannabinoids in powder form from suppliers in China and Hong Kong who shipped the substances to Nahmani by UPS and other international carriers. He paid these suppliers through wire transfers, which sometimes were sent by his brother, Israel Nahmani. At times, Nahmani discussed in emails with his suppliers the specific chemicals they were sending him, showing that he knew the chemicals included AB-Fubinaca and THJ-2201.⁷

Nahmani operated as a wholesaler, selling to others around the country the synthetic cannabinoids in powder and smokeable forms. He sold large quantities of synthetic cannabinoids in powder form, including more than 40 kilograms of powder to a single purchaser. He also set up in a storage space a laboratory to turn the powder into consumable products that could be smoked with plant material or in e-cigarettes. To create a smokeable product, Nahmani mixed the powder with liquid acetone and coated plant material with the mixture, which he packaged into small bags. Nahmani also mixed the powder with tobacco gel to create a product to be smoked in e-cigarettes.

Nahmani marketed his products under a variety of names. Some names, such as Scooby Snax and Mary Joy, conveyed that the products were related or similar to marijuana. Nahmani labeled some of the products as "potpourri" or "not for human consumption," but the government presented testimony that the products were intended to be consumed and that these labels were included to avoid detection by the Food and Drug Administration.

Nahmani distributed the products with assistance from his brother, Israel. Sometimes Nahmani or others would deliver the products in person. Other times Nahmani or Israel would ship the products through UPS, using aliases to make it more difficult to tie the packages to them.

At trial, the government presented testimony from Kyle Hurley, who purchased large quantities of AB-Fubinaca in powder form from Nahmani for approximately a one-year period.⁸ In February 2014, Hurley asked Nahmani if AB-Fubinaca was banned,...