United States v. Requena
| Decision Date | 04 November 2020 |
| Docket Number | August Term 2019,18-1923-cr,Nos. 18-1906-cr,s. 18-1906-cr |
| Citation | 980 F.3d 30 |
| Parties | UNITED STATES of America Appellee v. Brian REQUENA, Andrew Raymond, Defendants-Appellants |
| Court | U.S. Court of Appeals — Second Circuit |
For Appellee: Steven D. Clymer, Assistant United States Attorney (Carla B. Freedman, Michael F. Perry, Assistant United States Attorneys, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY, for the United States of America.
For Defendants-Appellants: James E. Felman (Brandon K. Breslow, on the brief), Kynes Markman & Felman, PA, Tampa, FL, for Brian Requena and Andrew Raymond.
Before: Livingston, Chief Judge, Kearse and Walker, Circuit Judges.
Defendants-Appellants Brian Requena and Andrew Raymond (together, "Defendants") appeal from June 22, 2018 judgments of conviction and sentence in the United States District Court for the Northern District of New York (Mordue, J. ), entered after a jury convicted Defendants of conspiracy to possess with intent to distribute and to distribute a controlled substance analogue in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C) ; and of conspiracy to commit money laundering pursuant to 18 U.S.C. § 1956(a)(1)(A)(i), (a)(2)(A), and (h). Defendants’ convictions arose from their management of a business directed at the production and sale of synthetic marijuana, which Defendants and their employees manufactured using at least six distinct synthetic cannabinoids.
At the time Defendants conspired to distribute them, these synthetic cannabinoids were not listed on the federal controlled substance schedules. Instead, the government charged that these substances were "controlled substance analogues" under the Controlled Substance Analogue Enforcement Act of 1986 ("Analogue Act"). The Analogue Act identifies a controlled substance analogue as a substance with chemical and pharmacological properties "substantially similar" to those of a substance listed on schedule I or II, 21 U.S.C. § 802(32), and directs, in part, that these substances—if "intended for human consumption"—"be treated[ ] for the purposes of any Federal law as a controlled substance in schedule I," id. § 813(a).2 In turn, 21 U.S.C. § 841(a)(1) and (b)(1)(C) prohibit the distribution of schedule I controlled substances and subject violators to up to twenty years imprisonment.
Defendants’ appeal challenges, in several respects, the determination that the Analogue Act subjects them to conviction and sentence for a violation of the federal drug laws. Principally, they argue (1) that the Analogue Act's "substantial similarity" requirement is unconstitutionally vague on its face; (2) that the trial evidence was insufficient to prove Defendants’ knowledge that they were dealing in a "controlled substance"; (3) that the district court erroneously permitted the government's experts to opine that the six synthetic cannabinoids at issue had features "substantially similar" to those of a scheduled substance; and (4) that the district court erroneously permitted the jury to convict Defendants without unanimous agreement on which of the six synthetic cannabinoids at issue qualified as a controlled substance analogue. Alternatively, they urge us to remand for resentencing because the district court calculated their base offense levels—based in part on the total quantity of controlled substances involved in the conspiracy—without expressly determining which of the six synthetic cannabinoids qualified as controlled substance analogues.
We reject each of Defendants’ arguments and AFFIRM the judgment of the district court.
Sometime in early 2013, Defendant-Appellant Andrew Raymond called Roger Upchurch with a business proposition. In 2011 and 2012, Raymond had worked for a company called Airtime Distribution selling, among other things, a selection of synthetic marijuana that he marketed as "herbal incense." He reached out to Upchurch—who owned an Arizona-based synthetic marijuana manufacturing and distribution company called Driftwood Enterprises—in an effort to "get back into the business." Trial Tr. 348. As it turned out, Upchurch was nearing retirement and very receptive to Raymond's offer to join forces.
After a few weeks of discussions, Raymond and Upchurch formed a company called Real Feel Products and moved all of Upchurch's synthetic marijuana production operations from Phoenix to a warehouse in Los Angeles, where Raymond lived. Upchurch, who lived in Indianapolis and visited Real Feel's California warehouse only infrequently, soon ceded nearly all operational control of the new venture to Raymond, along with an equal 50% stake in the company. Real Feel proved quite lucrative for both Raymond and Upchurch, netting each partner profits of up to $20,000 a week in 2013 and early 2014. Between 90 and 95% of these profits came from the sale of synthetic marijuana.
As Upchurch's involvement in Real Feel waned during the late summer and early fall of 2013, Raymond hired Defendant-Appellant Brian Requena to be the company's general manager. In that role, Requena served as Raymond's "right-hand man," Trial Tr. 967, supervising Real Feel's sales team and aiding in the company's overall administration. Shortly after Upchurch left Real Feel entirely in February 2014, Raymond made Requena an equal partner. From that point until at least December of 2014, each man drew weekly profits of between $50,000 and $100,000. As before, around 90% of these profits came from the sale of synthetic marijuana.
From its establishment in 2013 to the time of Defendants’ arrests in 2015, Real Feel's core operations remained relatively consistent. The company obtained—first through Upchurch and then through Raymond—multi-kilogram quantities of raw synthetic cannabinoids in powder form from chemical suppliers based in China. A division of Real Feel's approximately 25 employees dissolved the raw chemicals in acetone and treated leafy plant matter with the resulting solution. Once the leaves were dry, employees added flavoring and placed the finished product—which they called "herbal incense" or "potpourri"—into small bags for sale. Despite this nomenclature, and the fact that each bag bore the label "not for human consumption," Trial Tr. 765, Defendants admit that everyone involved "knew the product was sold with the intention that the consumer would ingest it for the purpose of getting high," Appellants’ Br. 4.
Employees shipped the finished and bagged product to customers from various UPS shipping locations surrounding Real Feel's warehouse. Defendants sold the bulk of Real Feel's synthetic marijuana to wholesalers, including Raymond's former employer Airtime Distribution and another distribution company called Eagle Eye Products. Sales to these wholesalers were significant: Between April 2013 and February 2014, revenues just from Eagle Eye and another distributor with overlapping ownership ran to nearly $2 million. Real Feel's sales team also sold synthetic marijuana directly to smoke shops throughout the United States.
It was not always easy for Real Feel to obtain the raw synthetic cannabinoids that formed the heart of its manufacturing enterprise.
From time to time, a shipment of raw chemical would be seized at customs. And periodically, Defendants learned that the United States Drug Enforcement Administration ("DEA") had decided to list the active chemical in their synthetic marijuana on the federal controlled substance schedules. When this happened, Defendants sold all remaining product incorporating that chemical at a discount and arranged for Real Feel's suppliers to ship an alternative chemical intended to produce the same high. As a result, over the course of Real Feel's existence, Defendants’ synthetic marijuana incorporated a number of different synthetic cannabinoids.
Unbeknownst to Defendants, Real Feel was under investigation from nearly the time of its establishment. In early 2013, the New York State Police discovered synthetic marijuana during a search of a smoke shop in DeWitt, New York. The DEA adopted the investigation and traced the contraband to Eagle Eye. Further inquiry revealed that Eagle Eye, in turn, bought its synthetic marijuana from Real Feel. A few months after the seizure in DeWitt, DEA agents linked both Eagle Eye and Real Feel to synthetic marijuana found in another smoke shop in Auburn, New York. Around the same time, DEA agents in Los Angeles recovered artificial cannabinoid residue from trash bags that Defendants’ employees had discarded in a dumpster outside Real Feel's warehouse. The same agents also observed Raymond and other Real Feel personnel delivering boxes to Eagle Eye's offices in California.
On February 12, 2014, federal agents executed search warrants on multiple locations including Real Feel's warehouses in Los Angeles.4 Their searches recovered, inter alia , several varieties of raw synthetic cannabinoids, a substantial quantity of finished synthetic marijuana, and sales records. The records connected Real Feel to numerous sales of synthetic marijuana to various smoke shops in the Northern District of New York, where Defendants were ultimately tried. Following the searches on February 12, 2014, Upchurch terminated his involvement with Real Feel, began cooperating with the DEA's investigation, and ultimately pleaded guilty in the Southern District of Indiana to charges mirroring those brought against Defendants in the Northern District of New York.
After the February seizures, Raymond suspended Real Feel's operations, but did not dissolve the company. Instead, about two months later, Defendants revived Real Feel and resumed production of synthetic marijuana in a larger warehouse in a different part of Los Angeles. Requena, who became Raymond's partner shortly after reopening, opened several new bank accounts and postal boxes on Real Feel's...
To continue reading
Request your trial
-
Colindres v. U.S. Dep't of State
...considerations." United States v. Kanchanalak , 192 F.3d 1037, 1041 n.6 (D.C. Cir. 1999) ; see also, e.g. , United States v. Requena , 980 F.3d 30, 39 (2d Cir. 2020) ("[A] challenger may raise a facial challenge if the statute implicates rights protected by the First Amendment[.]"). Plainti......
-
United States v. Hasson
......Consequently, we cannot read footnote three of Dimaya , which relied on Johnson , as quietly abandoning that rule. Indeed, no court of appeals to consider the question has concluded that Johnson or Dimaya worked such a change. See United States v. Requena , 980 F.3d 30, 40–43 (2d Cir. 2020) ; United States v. Westbrooks , 858 F.3d 317, 325 (5th Cir. 2017), cert. granted & judgment vacated on other grounds , ––– U.S. ––––, 138 S. Ct. 1323, 200 L.Ed.2d 510 (2018) ; United States v. Cook , 970 F.3d 866, 877–878 (7th Cir. 2020) ......
-
Planned Parenthood of Ind. & Ky., Inc. v. Marion Cnty. Prosecutor
...(noting the "general rule" that facial vagueness challenges outside of the First Amendment context are disfavored); United States v. Requena , 980 F.3d 30, 40 (2d Cir. 2020). Indeed, principles of federalism require us to tread especially carefully when reviewing a state law where the state......
-
Bowling v. McDonough
...103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ; Parker v. Levy , 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ; United States v. Requena , 980 F.3d 30, 39 (2d Cir. 2020). On these premises, we see at least two decisive deficiencies in appellants' case. First, with no help from the extra-......
-
Trials
...must unanimously find each element of crime but unanimity not required for “facts that constitute those elements”); U.S. v. Requena, 980 F.3d 30, 48 (2d Cir. 2020) (same); U.S. v. Wise, 515 F.3d 207, 214 (3d Cir. 2008) (same); U.S. v. Burfoot, 899 F.3d 326, 337 (4th Cir. 2018) (same); U.S.......