United States v. Tablack

• Decision Date: 11 September 2020
• Docket Number: Criminal No. 19-374 (MAS)
• Parties: UNITED STATES OF AMERICA v. ANDREW TABLACK
• Court: U.S. District Court — District of New Jersey

UNITED STATES OF AMERICA v. ANDREW TABLACK

Criminal No. 19-374 (MAS)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

September 11, 2020

NOT FOR PUBLICATION

MEMORANDUM OPINION

SHIPP, District Judge

This matter comes before the Court upon Defendant Andrew Tablack's ("Defendant") Motion to Dismiss the Indictment. (ECF No. 102.) The Government opposed (ECF No. 103), and Defendant replied (ECF No. 104). The Court has carefully considered the parties' submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1, which is applicable to criminal cases under Local Criminal Rule 1.1. For reasons set forth below, the Court denies Defendant's Motion.

I. BACKGROUND

On May 20, 2018, a federal grand jury charged Defendant in a two-count Indictment. (Indictment, ECF No. 33.) Count One charges Defendant with conspiracy to manufacture and distribute a fentanyl analogue, in violation of 21 U.S.C. § 846. (Id. at 1.) Count Two charges Defendant with the manufacture and distribution of a fentanyl analogue, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 813 and 18 U.S.C. § 2. (Id. at 2.)

Defendant moves to dismiss the Indictment. (ECF No. 102.) Defendant argues that the Indictment "fails to both allege facts and contain the elements of the offense intended to be charged." (Def.'s Moving Br. 1, ECF No. 102-2.) He also asserts the Controlled Substance Analogue Enforcement Act of 1986 (the "Analogue Act"), 21 U.S.C. § 813, is void for vagueness and inapplicable to his conduct. (Id. at 1-2.)

II. LEGAL STANDARD

Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may move to dismiss an indictment for "lack of specificity" or "failure to state an offense." "[S]uch dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment's charges." United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000). "In considering a defense motion to dismiss an indictment, the district court accepts as true the factual allegations set forth in the indictment." United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990).

III. DISCUSSION

A. The Indictment is Sufficient.

"An indictment must contain 'a plain, concise and definite written statement of the essential facts constituting the offense charged.'" United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005) (citing Fed. R. Crim. P. 7(c)(1)). An indictment is facially sufficient to warrant a trial on the merits if it "(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution." United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012). "[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy . . . ." United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989).

Defendant does not assert the factual allegations in the Indictment are so sparse that he cannot prepare a defense or invoke double jeopardy. Instead, Defendant asserts that allegations inthe Indictment are insufficient for the "mental state" and "controlled substance" elements of 21 U.S.C. §841(a)(1).¹

Here, the Indictment tracks the language of 21 U.S.C. § 841(a)(1) and § 813.² Count One of the Indictment alleges:

[Defendant] did knowingly and intentionally conspire to agree with others to manufacture, distribute, and posses with intent to manufacture and distribute a quantity of a mixture and substance containing a detectable amount of a Schedule I controlled substance analogue, . . . namely [cyclopropyl fentanyl,] knowing that the substance was intended for human consumption . . . .

(Indictment 1 (emphasis added).) Count Two similarly alleges:

[Defendant] did knowingly and intentionally manufacture, distribute, and possess with intent to manufacture and distribute a quantity of a mixture and substance containing a detectable amount of a Schedule I controlled substance analogue, . . . namely [cyclopropyl fentanyl,] knowing that the substance was intended for human consumption.

(Id. at 2 (emphasis added).) The Indictment alleges that Defendant possessed cyclopropyl fentanyl, which he knew was intended for human consumption. This tracks the language of § 813 and brings cyclopropyl fentanyl within the definition of a controlled substance under § 841(a)(1). The Indictment also alleges that Defendant both "knowingly and intentionally" manufactured, distributed, and possessed cyclopropyl fentanyl, meeting the mental state requirement for § 813 and § 841(a)(1). Because the Indictment tracks the language of the statutes, and Defendant does not argue he is provided so little factual orientation that he cannot invoke double jeopardy, theCourt shall not dismiss the Indictment for lack of specificity or failure to state an offense. See United States v. Mosberg, 866 F. Supp. 2d 275, 303 (D.N.J. 2011) ("[A]n indictment need not allege facts to provide evidentiary support for a violation of a criminal statute. Rather, the [i]ndictment may simply track the language of the statute while providing sufficient factual orientation to the defendant for double jeopardy purposes.").

Defendant also appears to assert that he may not be charged under the Controlled Substances Act as well as the Analogue Act for conduct involving a controlled substance analogue. (Def.'s Moving Br. 2-3, 18.) Because "the Analogue Act extends the framework of the [Controlled Substances Act] to analogous substances," United States v. McFadden, 576 U.S. 186, 193 (2015), courts have held charging a defendant under both statutes for conduct involving a controlled substance analogue is appropriate. See, e.g., Indictment, United States v. Charif, No. 15-598, (D.N.J. Nov. 19, 2015), ECF No. 21; J., Charif, (D.N.J. May 22, 2017), ECF No. 35. Accordingly, the Indictment is not insufficient or improper for charging Defendant under both the Controlled Substances Act and Analogue Act where the Indictment alleges the Defendant's conduct involved a controlled substance analogue.

Finally, Defendant also appears to argue that the Indictment fails to state an offense because cyclopropyl fentanyl was only scheduled as a controlled substance after his relevant conduct. (Def.'s Moving Br. 3-4, 13-14, 17-25.) Defendant is correct that cyclopropyl fentanyl was placed into Schedule 1 of the Controlled Substances Act after his arrest. See Schedules of Controlled Substances: Temporary Placement of Cyclopropyl Fentanyl in Schedule I, 83 Fed. Reg. 469-72 (Jan. 4, 2018). But this is irrelevant. Because Defendant was charged under the Analogue Act, all that matters is whether cyclopropyl fentanyl was substantially similar to a Schedule I or II controlled substance. The Indictment alleges that cyclopropyl fentanyl is an analogue of fentanyland that fentanyl is a Schedule I controlled substance.³ (Indictment 1-2.) Defendant does not dispute that fentanyl is a controlled substance under Schedule I or II. Defendant's argument, therefore, is simply misplaced.⁴ Accordingly, the Court denies Defendant's Motion to Dismiss the Indictment based on any lack of specificity or failure to state an offense.

B. The Analogue Act is Not Void for Vagueness.

The Analogue Act states that a "controlled substance analogue" intended for human consumption shall be treated as a controlled substance. 21 U.S.C. § 813(a). 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 to or greater than the . . . effect . . . 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 . . . effect . . . of a controlled substance in schedule I or II.

21 U.S.C. § 802(32) (emphasis added). Defendant argues that the analogue provision is void for vagueness because the "substantially similar standard . . . does not . . . afford citizens fair notice" of which substances are substantially similar to controlled substances. (Def.'s Moving Br. 20.)

Defendant also argues the scienter requirements of the Analogue Act and Controlled Substances Act renders the statute void for vagueness. (See id. at 21-22, 31-32.)

"[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). Numerous courts have considered whether the Controlled Substances Act is void for vagueness since the Act was passed in 1986. Although the Court must acknowledge that "making criminality depend on the 'substantial similarity' of a substance to an expressly prohibited substance inevitably involves a degree of uncertainty," United States v. Demott, 906 F.3d 231, 237 (2d Cir. 2018), the Court agrees with the numerous courts that have found the Controlled Substances Act not void for vagueness based on the "substantial similarity" language. E.g., Demott, 906 F.3d at 237-38; United States v. Larson, 747 F. App'x 927, 930 (4th Cir. 2018) (declining to overturn United States v. Klecker, 348 F.3d 69, 71-73 (4th Cir. 2003), which found "substantially similar" language not vague); United States v. Turcotte, 405 F.3d 515, 531-32 (7th Cir. 2005), abrogated on other grounds by United States v. Novak, 841 F.3d 721 (7th Cir. 2016); United States v. Granberry, 916...