US v. Franz, 92-70-Cr-J-20.

• Citation: 818 F. Supp. 1478
• Decision Date: 18 March 1993
• Docket Number: No. 92-70-Cr-J-20.,92-70-Cr-J-20.
• Parties: UNITED STATES of America, v. Walter FRANZ, et al.
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida

818 F. Supp. 1478

UNITED STATES of America, v. Walter FRANZ, et al.

No. 92-70-Cr-J-20.

United States District Court, M.D. Florida, Jacksonville Division.

March 18, 1993.

James R. Klindt, Jacksonville, FL, for U.S.

William M. Kunstler, New York City, Thomas G. Fallis, Jacksonville, FL, for defendant.

ORDER

SCHLESINGER, District Judge.

Before the Court is Defendant Franz' Motion to Dismiss (Doc. No. 246, filed January 19, 1993). The government filed a response in opposition on February 9, 1993 (Doc. No. 304).

The superseding indictment charges Franz with violations of 21 U.S.C. §§ 963, 846, 841(a)(1) and 18 U.S.C. § 2. The indictment also includes forfeiture claims pursuant to 21 U.S.C. § 853. Specifically, Franz and Co-Defendants are alleged to have conspired in the Middle District of Florida and elsewhere to import, manufacture and distribute a substance known as 3,4 Methylenedioxymethamphetamine ("MDMA"), and to have distributed and caused to be distributed MDMA in the Middle District of Florida. MDMA is a drug which sells on the street by the name "Ecstasy" or by its phonetic abbreviation "Ex." Some of the alleged acts occurred when MDMA was a Schedule I controlled substance analogue of Methylenedioxyamphetamine ("MDA"), and others while MDMA itself was a Schedule I controlled substance.

Franz essentially makes five arguments in support of his Motion to Dismiss: (1) that the statute criminalizing the manufacture and distribution of controlled substance analogues, 21 U.S.C. § 813, is unconstitutionally vague; (2) that MDMA is not an "analogue" within the meaning of the statute; (3) that MDMA cannot be both an analogue and a Schedule I controlled substance; (4) that the Drug Enforcement Administration's (DEA) 1988 placement of MDMA into Schedule I violated a remand order of the First Circuit the previous year; and (5) that the DEA's findings were not based on substantial evidence, therefore making the scheduling unlawful. Franz also requests an evidentiary hearing to present additional evidence to support these arguments.

(1) Is 21 U.S.C. § 813 unconstitutionally vague?

A penal statute must define the criminal offense with sufficient definiteness so that people of ordinary intelligence 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, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The void-for-vagueness doctrine focuses not only on actual notice to citizens and arbitrary enforcement, but more importantly on the "requirement that a legislature establish minimal guidelines to govern law enforcement." Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974). Where such minimal guidelines are not provided, a criminal statute may permit "a standardless sweep that allows policemen, prosecutors, and juries to pursue their personal predilections." Id. at 575, 94 S.Ct. at 1248 (cited in Kolender, 461 U.S. at 358, 103 S.Ct. at 1858).

Whether the Analogue Act, 21 U.S.C. § 813, is unconstitutionally vague was an issue directly put before the Fifth Circuit in United States v. Granberry, 916 F.2d 1008 (5th Cir.1990). The court of appeals there found that the term "controlled substance analogue" in section 813 is "clearly and specifically defined, in terms readily comprehensible to the ordinary reader," and that the statute provides adequate notice of what conduct is prohibited. Id. at 1010. The statute "makes plain," the court stated, that while not listed themselves as Schedule I or II controlled substances, drugs that are chemically designed to be similar to Schedule I or II controlled substances will nonetheless be considered as such if (1) they are substantially similar chemically to drugs that are on those schedules; (2) they produce effects on the central nervous system similar to those produced by drugs on those schedules; or (3) they are represented or intended to produce effects similar to those produced by drugs on those schedules. Id. (citing 21 U.S.C. § 802(32)(A) (defining the term "controlled substance analogue")).

Notwithstanding Franz' contention that the "conclusionary and self-serving statements and opinions in Granberry cannot be seriously considered," the Court concurs with the finding of the Fifth Circuit that "there is nothing vague about the statute." Id. See also United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989) (finding no vagueness in Analogue Act itself, and noting also that the legislative history of the Act makes clear to defendants the crimes which the Act proscribes).

The Court notes that one District Court, in dismissing a prosecution for distribution of the drug alphaethyltryptamine (AET), recently held that the Analogue Act is unconstitutionally vague as applied to that drug. See United States v. Forbes, 806 F.Supp. 232, 239 (D.Colo.1992). The indictment there alleged that AET was a "controlled substance analogue" having a substantially similar chemical structure to dimethyltryptamine (DMT) and diethyltryptamine (DET), both Schedule I controlled substances. However, the court there distinguished both Granberry and Desurra because "neither decision addressed the precise question presented" in Forbes, which was "whether the Analogue Act is unconstitutionally vague as applied to AET." Id. at 238 (emphasis supplied).

The court found that AET, which was developed in 1960 as a prescription anti-depresant, was not "chemically designed to be similar to controlled substances." Id. While Congress declared that the purpose of the Analogue Act was to "attack underground chemists who tinker with the molecules of controlled substances to create new drugs that are not yet illegal," none of the Forbes defendants had engaged in such conduct, because the substance (AET) they were alleged to have purchased and distributed pre-existed the drugs to which AET is a purported analogue. Id.

(2) Is MDMA an "analogue" within the meaning of the statute?

Prior to the DEA's finding of February 22, 1988 that MDMA should be placed into Schedule I (the actual scheduling becoming effective one month later), MDMA had been a controlled substance analogue since October 27, 1986, the date the provisions of the Controlled Substance Analogue Enforcement Act (codified at 21 U.S.C. § 813) became effective. Some of the acts imputed to Franz in the indictment are alleged to have occurred while MDMA was a controlled substance analogue. Franz contends that MDMA is not an "analogue" because its chemical composition and effects on the central nervous system are not "substantially similar," 21 U.S.C. 802(32)(A), to that of MDA. Several courts have found that MDMA qualified as a controlled substance analogue, e.g. United States v. Raymer, 941 F.2d 1031, 1045-46 (10th Cir.1991); Desurra, 865 F.2d at 653, and the Court rejects Franz' argument that MDMA cannot be considered as such. If the government, as it contends, will present testimony at trial as to the similarity between MDMA and MDA, then Franz will, of course, have a full opportunity for cross-examination on this issue.

(3) Can MDMA now be punished as an "analogue"?

It is certainly true that, as noted by the Raymer court, the scheduling of MDMA has had a "checkered history." 941 F.2d at 1045. The DEA's first attempt to temporarily schedule MDMA as a Schedule I controlled substance was invalidated on procedural grounds. See United States v. Caudle, 828 F.2d 1111, 1113 (5th Cir.1987); United States v. Spain, 825 F.2d 1426, 1429 (10th Cir.1987). The final rule placing MDMA in Schedule I was vacated for further agency consideration. See Grinspoon v. Drug Enforcement Admin., 828 F.2d 881, 898 (1st Cir.1987), discussed infra.

The above cases addressed the DEA's attempts to label MDMA as a Schedule I controlled substance. As of October 27, 1986, however, MDMA was a controlled substance analogue. While the Analogue Act provides that an analogue shall be "treated" as a controlled substance in Schedule I, the Act makes clear that a controlled substance analogue "does not include ... a controlled substance." 21 U.S.C. § 802(32)(B)(i). Accordingly, the invalidation of the DEA's initial attempts to place MDMA on Schedule I does not similarly render as invalid a prosecution — now or then — under the Analogue Act for alleged acts involving MDMA during the period when MDMA was properly classified as an analogue. Raymer thus correctly rejected the proposition, akin to that asserted by Franz, that MDMA could not be a controlled substance analogue during the time when the government failed to classify MDMA as a Schedule I controlled substance.

Although Franz implores the Court to reject the analysis in Raymer, the Court instead would reiterate the conclusion reached therein, that once the Schedule I scheduling was held invalid, "MDMA was not a controlled substance and quite correctly could be considered an analogue within the definition contained in the Analogue Act." Raymer, 941 F.2d at 1046 (citing Desurra, 865 F.2d at 653). Therefore, the portion of the instant indictment (parts of Counts I and II) charging Franz with having violated the Analogue Act, is not infirm.

(4) Did the DEA's placement of MDMA onto Schedule I in 1988 violate the First Circuit's remand order in Grinspoon?

No drug or other substance may be placed into Schedule I unless each of the following findings are made by the Attorney General/DEA:

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

21 U.S.C. § 812(b)(1). Finding that MDMA met all three of these statutory requirements, the DEA on November 13, 1986 issued a final rule placing MDMA into Schedule I. 51 Fed.Reg....