United States v. Williams
| Decision Date | 07 July 2020 |
| Docket Number | No. 18-cr-149,18-cr-149 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MILLARD WILLIAMS, MICHELLE JAMISON, and ROLAND BLACK, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Defendants Millard Williams, Michelle Jamison, and Roland Black were charged with drug-related offenses in a March 2018 indictment. These defendants have moved to dismiss counts one, two, and four of that indictment, pursuant to the Due Process Clause of the Fifth Amendment, Federal Rule of Criminal Procedure 12, and the Court's inherent supervisory powers. For the reasons discussed below, the motion is denied.
On March 7, 2018, a grand jury returned an eight-count indictment charging four defendants, including Williams, Jamison, and Black, with drug-related offenses. Williams and Jamison were named in Count One, which charged them with conspiracy to possess with intent to distribute and distribution of "100 grams or more of a mixture and substance containing a detectable amount of furanyl fentanyl, an analogue of fentanyl [], a Schedule II Controlled Substance," in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Dkt. 1 at 1.) Count Two charged Williams with possession with intent to distribute "100 grams or more of a mixture and substance containing a detectable amount of furanyl fentanyl, an analogue of fentanyl [], a Schedule II Controlled Substance," in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Dkt. 1 at 2.) Count Four charged Black with possession with intent to distribute "100 grams or more of a mixture and substance containing a detectable amount of furanyl fentanyl, an analogue of fentanyl [], a Schedule II Controlled Substance," in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Dkt. 1 at 4.) Each defendant faces a mandatory minimum 10-year prison term if convicted on these counts. See 21 U.S.C. § 841(b)(1)(A)(vi) ().
Black's trial was set for December 3, 2019. In late November, the parties argued motions in limine, and the Court issued rulings on the motions. At the final pretrial conference on December 2, a disagreement arose between the parties concerning a stipulation about whether furanyl fentanyl is an analogue of fentanyl. Black advised the Court that he was withdrawing his motion to bifurcate the trial and that he would be moving to dismiss the indictment. Williams and Black thereafter filed a Motion to Dismiss Counts One, Two, and Four of the Indictment. Jamison has joined her co-defendants' motion. The Government opposes the motion.
Federal Rule of Criminal Procedure 12(b)(3)(B) provides that a criminal defendant may, prior to trial, move to dismiss an indictment as defective. To address this motion, the Court first looks to the Sixth Amendment to the Constitution, which sets out that criminal defendants "shall enjoy. . .the right to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. In addition, federal criminal procedure rules provide that an indictment must include "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "An indictment is constitutionally sufficient and satisfies [Rule 7(c)(1)] if it states the elements of the crime charged, informs the defendant of the nature of the charge so he may prepare a defense, and enables the defendant to plead the judgment as a bar against futureprosecutions for the same offense." United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41 L.Ed. 590 (1974)).
The Supreme Court has long held that "[a]n indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 100 L.Ed. 397 (1956); see also Kaley v. United States, 571 U.S. 320, 328, 134 S. Ct. 1090, 188 L.Ed. 2d 46 (2014). A motion to dismiss an indictment does not challenge the strength of the Government's case or the sufficiency of the evidence. United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009). Rather, when ruling on a motion to dismiss, the Court must determine "whether it's possible to view the conduct alleged" as constituting the crime charged. Id. "Indictments are reviewed on a practical basis and in their entirety, rather than in a hypertechnical manner." United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (citation omitted) (internal quotation marks omitted).
The term "controlled substance analogue" is statutorily defined, as relevant here, as a substance that is not a controlled substance but is a substance that has a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II. See 21 U.S.C. § 802(32)(A)(i), (C)(i). The CSA provides that "a controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I." 21 U.S.C. § 813(a). Thus, under the CSA, the term "controlled substance analogue" is distinguishable from and expressly excludes controlled substances.
In February 2018, the DEA issued a two-year temporary scheduling order, which categorized fentanyl-related substances into Schedule I. See 83 FR 5188-01. The order further stated that ". . .criminal sanctions applicable to schedule I controlled substances will be imposed onpersons who handle (manufacture, distribute, reverse distribute, import, export, engage in research, conduct instructional activities or chemical analysis, or possess), or propose to handle fentanyl-related substances." Id. In November 2018, the DEA issued a final order that maintained the placement of furanyl fentanyl as a Schedule I controlled substance, noting that public health officials had been encountering furanyl fentanyl since 2015 and that the adverse health effects and outcomes were demonstrated by an increase of fatal overdose cases. See 21 CFR Part 1308, Docket No. DEA-490. Defendants who are convicted for drug-trafficking offenses that involve analogues of fentanyl face increased penalties under section 841(b)(1)(A)(vi). This matter is before the Court because section 802(32) does not define the term "analogue of fentanyl," while defining "controlled substance analogue."
The Government's grand jury presentation
Defendants contend that the Government purposefully charged furanyl fentanyl as an analogue of fentanyl to trigger the 10-year minimum prison term mandated in section 841(b)(1)(A)(vi) and, in doing so, presented misleading evidence to the grand jury that furanyl fentanyl is an analogue of fentanyl. At the grand jury proceedings, a Government attorney asked the witness, a Department of Homeland Security special agent, whether furanyl fentanyl is "an analogue Fentanyl, which is a Schedule II controlled substance," to which the witness responded "Yes, it is." Defendants argue that furanyl fentanyl cannot be an analogue of fentanyl under section 841(b) because furanyl fentanyl has been scheduled as a controlled substance. They further argue that the definition of a controlled substance analogue in section 802(32)does not include any substance already scheduled as a controlled substance.
After careful consideration of the parties' arguments, the Court largely adopts the legislative analysis employed by the district court in United States v. McCray in reaching its conclusion that section 841(b)(1) permitted the government to proceed to trial to prove in that case that butyrylfentanyl is an analogue of fentanyl. See 346 F.Supp.3d 363, 370 (W.D.N.Y. 2018). Based on that analysis and for the additional matter-specific reasons herein, the Court concludes that the Government did not...
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