US v. Forbes, Cr. A. No. 92-CR-105.

• Decision Date: 20 November 1992
• Docket Number: Cr. A. No. 92-CR-105.
• Parties: UNITED STATES of America, Plaintiff, v. Damon S. FORBES, et al., Defendants.
• Court: U.S. District Court — District of Colorado

806 F. Supp. 232

UNITED STATES of America, Plaintiff, v. Damon S. FORBES, et al., Defendants.

Cr. A. No. 92-CR-105.

United States District Court, D. Colorado.

November 20, 1992.

Charlotte Mapes and David M. Gaouette, Asst. U.S. Attys., Denver, Colo., for plaintiff.

Brian K. Holland, Holland, Seelen & Pagliuca, Denver, Colo., for Forbes.

Warren Williamson, Asst. Federal Public Defender, Denver, Colo., for Stone.

Dan Boyle, D.F. Boyle & Associates, Denver, Colo., for Etcheverry.

Michael L. Bender and Stephanie B. Boyer, Bender & Treece, P.C., Denver, Colo., for Halepaska.

Alexander DeSalvo, Denver, Colo., for Slovick.

Richard J. Banta, Denver, Colo., for Spagna.

Robert W. Cook, Boulder, Colo., for Souza.

Peter R. Bornstein, Berenbaum & Weinshienk, P.C., Denver, Colo., for Beal.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

Defendants move to dismiss this action contending that the definition of a controlled substance analogue as applied here is unconstitutionally vague. 21 U.S.C. § 802(32)(A). Hearing on the motion was held on November 19, 1992. Because the definition of "analogue" as applied here provides neither fair warning nor effective safeguards against arbitrary enforcement, it is void for vagueness. Defendants' motion is granted and this action is dismissed.

Defendants are charged in a four count indictment with distribution of alphaethyltryptamine (AET), in violation of 21 U.S.C. §§ 813, 841, and 846. AET is not a scheduled controlled substance. Rather, the indictment alleges that it is a "controlled substance analogue" having a substantially similar chemical structure to dimethyltryptamine (DMT) and diethyltryptamine (DET), both schedule I controlled substances. This is the first case where the government has prosecuted the distribution of AET under the controlled substance analogue statute.

Unless otherwise noted, the unique operative facts underlying this prosecution are undisputed. AET is an anti-depressant developed and marketed in 1960 by the Upjohn Chemical Company as "Monase." After several years it was discovered to have toxic side effects in some patients and it was taken off the market. However, to this day, the public can purchase AET without any restrictions directly from two chemical manufacturers. Defendants here allegedly purchased AET from Sigma Chemical Company and it was allegedly delivered to them through the U.S. mails.

There is great diversity of opinion whether AET's chemical structure is substantially similar to DMT or DET so as to constitute a controlled substance analogue. See, infra, Section I. Indeed, Robert K. Sanger, chief of DEA's western field laboratory, stated in a 1990 DEA memorandum "there is a great diversity of opinion whether this material is controlled as an analogue under the 1986 Act."

Defendants presented the affidavit of Drs. James Ruth and Charles Duncan, who are both Ph.D. neuropharmacologists at the University of Colorado School of Pharmacy. Dr. Ruth also testified at the hearing on the motion. These experts conclude that AET is not substantially similar to DMT or DET, and that AET may not be derived by minor manipulations or tinkering with the DMT or DET molecule. Further, they conclude that AET does not have a hallucinogenic or stimulant effect on the central nervous system that is substantially similar to DMT or DET. Ruth testified that the mechanism through which AET effects the central nervous system is different than the mechanism of hallucinogenics and stimulants. Finally, they believe that other scientists in their field would agree with their conclusions.

The government presented a contrary scientific opinion. Drug Enforcement Administration (DEA) chemist Frank Sapienza testified that AET is a controlled substance analogue that has a substantially similar chemical structure. Sapienza agrees that AET cannot be synthesized from either the DMT or the DET molecule. Rather, he concludes that AET is substantially similar to DMT and DET because they all share a structural family root, the tryptamine family, and they all produce some degree of hallucinogenic and stimulant activity. However, another DEA chemist, Roger Ely, testified at the hearing that AET's chemical structure is not substantially similar to DMT or DET. Ely focused on another part of the AET molecule, the amine group, and noted that AET is a primary amine while DMT and DET are tertiary amines. Sapienza concluded that reputable scientists in this field disagree even on the methodology applicable to determine structural similarity.

Defendant Forbes was arrested by Boulder, Colorado police in 1990 for the distribution of AET, among other drugs. Because Colorado did not have an analogue statute, the Boulder County district attorney referred the prosecution of the AET sale to the United States Attorney's office. Although subject to dispute, I find from the evidence that assistant U.S. attorney Ken Buck declined to prosecute because he determined that AET was not a controlled substance analogue. I further find from the evidence that, through discovery in his state case, Forbes obtained a copy of the DEA report stating that Buck declined to prosecute due to the conflict within the government as to AET's structural similarity to DMT and DET. He also obtained a copy of Ely's report on which Buck's decision was based.

Defendants now move to dismiss this prosecution as violating the due process clause of the Fifth Amendment to the United States Constitution. They argue that the statutory definition of a controlled substance analogue as applied to AET under the circumstances of this case is unconstitutionally vague. Because this argument is premised upon a disputed question of statutory construction, I will address that issue first and then turn to the vagueness question.

I.

Defendants are charged in this case with violations of 21 U.S.C. § 813 which provides that "A controlled substance analogue shall, to the extent intended for human consumption, be treated ... as a controlled substance in schedule I." The statute defines controlled substance analogue as:

(32)(A) Except as provided in subparagraph (B), the term "controlled substance analogue" means 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 such 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 such effect of a controlled substance in schedule I or II.

21 U.S.C. § 802(32), (emphasis added).

Defendants contend that this section requires a two-pronged definition. The first prong requires a substantially similar chemical structure. The second prong requires either a substantially similar effect on the human nervous system or the intent to have such an effect. The government argues that a substance may be an analogue if it satisfies any of the three clauses. I agree with defendants.

The goal of statutory construction is to effectuate the intent and purpose of Congress. Rocky Mountain Oil & Gas Assoc. v. Watt, 696 F.2d 734, 745 (10th Cir.1982). Where the language of the statute itself is unambiguous, it is presumed that it expresses congressional intent and the language is controlling. Id. If the statutory language is unclear after resort to traditional tools of statutory construction, courts look to the legislative history to glean the intent and purpose of Congress. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Rocky Mountain Oil, 696 F.2d at 745.

The government's reading of the analogue definition has superficial appeal. As a matter of simple grammar, when an "or" is placed before the last term in a series, each term in the series is usually intended to be disjunctive. Under this reading, AET would be an analogue if it satisfies any of the three clauses. However, this reading ignores other grammatical principles that apply in favor of defendants' construction. The operative segments of clauses (ii) and (iii) both begin with the word "which", signaling the start of a dependent relative clause modifying a precedent noun. In each case, the precedent noun is "chemical structure" found in clause (i). Because both clauses (ii) and (iii) can be read to modify clause (i), the statutory language can be fairly read as requiring the two-pronged definition asserted by defendants. See, First Charter Financial Corp. v. U.S., 669 F.2d 1342, 1350 (9th Cir.1982), (Modifying phrases generally refer to immediately preceding phrase). At best, the statute is ambiguous.

Defendants' reading is also bolstered by a deeply rooted rule of statutory construction. A statute must be construed to avoid unintended or absurd results. American Tobacco Co. v. Patterson, 456 U.S. 63, 71, 102 S.Ct. 1534, 1538, 71 L.Ed.2d 748 (1982); Ewing v. Rodgers, 826 F.2d 967, 970 (10th Cir.1987). If I adopt the government's construction and read clause (ii) independently, alcohol or caffeine would be controlled substance analogues because, in concentrated form, they can have depressant or stimulant effects substantially similar to a controlled substance. Likewise, if I read clause (iii) independently, powdered sugar would be an analogue if a defendant represented that it was cocaine, effectively converting this law into a counterfeit drug statute. In both cases, a defendant could be prosecuted for selling a controlled substance analogue even though the alleged analogue did not have chemical structure substantially similar to a schedule I or II controlled substance. Therefore, to prevent this unintended result, clause (i) must apply to any substance that the...