US v. McCullough

• Decision Date: 22 February 1995
• Docket Number: No. 4:94 CR 0202.,4:94 CR 0202.
• Citation: US v. McCullough, 891 F. Supp. 422 (N.D. Ohio 1995)
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence McCULLOUGH, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

891 F. Supp. 422

UNITED STATES of America, Plaintiff, v. Lawrence McCULLOUGH, et al., Defendants.

No. 4:94 CR 0202.

United States District Court, N.D. Ohio, E. Division.

February 22, 1995.

Robert E. Bulford, Jr., Office of the U.S. Atty., Akron, OH, for U.S.

Richard L. Stoper, Jr., Robert J. Rotatori, Sr., Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH, for Lawrence P. McCullough and Mitchell McCullough.

Lee I. Fisher, Thomas J. Grever, Noelle D'Allura, Office of the Atty. Gen., Environmental Enforcement Section, Columbus, OH, for State of Ohio.

Chris Gorman, Michael L. Harned, Office of the Atty. Gen., Criminal Appellate Div., Frankfort, KY, for Commonwealth of Kentucky.

A. Ann Berkebile, Office of the Atty. Gen., Richmond, VA, for Commonwealth of Virginia.

MEMORANDUM OPINION

DOWD, District Judge.

I. INTRODUCTION

Defendants, Lawrence McCullough and Mitchell McCullough, are charged in a 29-count indictment with violations of the Lacey Act, 16 U.S.C. § 3371, et seq. Lawrence McCullough is charged in nine counts and Mitchell McCullough is charged in twenty-five counts. The charges generally involve defendants' alleged purchase and export of ginseng without the certification and recordkeeping required by state law. Upon order of the Court, the government also filed a bill of particulars (Docket No. 15).

Defendants have filed a motion to dismiss the indictment (Docket No. 10). The motion has been fully briefed. (Docket Nos. 16, 17, 19 and 20). In addition, the Court allowed several states to intervene by filing briefs directed to the issue of the constitutionality of their respective state statutes which were implicated in the indictment and the bill of particulars. (Docket Nos. 25, 29 and 32).¹

For the reasons discussed below, the motion to dismiss the indictment is granted.

II. DISCUSSION

The defendants have attacked the indictment and bill of particulars on several grounds which may be summarized as follows:² (1) that O.R.C. § 1518.24(C), one of the state statutes upon which the Lacey Act violation is ostensibly predicated, is void for vagueness; (2) that O.R.C. §§ 1518.24(C) and 1518.24(F) unconstitutionally burden interstate commerce; (3) that the indictment is insufficient because it merely asserts a statutory citation for each count without setting forth specific supporting facts; (4) that the bill of particulars improperly amends the indictment; (5) that the Lacey Act, specifically, 16 U.S.C. § 3372(d)(2), is overbroad and unenforceable; and (6) that there is no Lacey Act violation alleged in the various counts of the indictment. In addition, defendants attack the indictment, practically count by count, on several substantive grounds.

The Court could expend a considerable amount of time analyzing and writing about each of defendants' arguments and the government's counter-arguments. However, upon careful review of the materials before it, the Court has concluded that one ground for dismissal raised by the defendants is dispositive, namely, that the indictment must be dismissed because there is no Lacey Act violation. The Court finds that this ground has merit and will, therefore, discuss only that issue.

A. The Relevant Lacey Act Provisions

Title 16, Section 3372(a)(2)(B) provides:

It is unlawful for any person to import, export, transport, sell receive, acquire, or purchase in interstate or foreign commerce any plant taken, possessed, transported, or sold in violation of any law or regulation of any State.

Title 16, Section 3372(d)(2) provides, in pertinent part:

It is unlawful for any person to make or submit any false record, account, or label for, or any false identification of any ... plant which has been, or is intended to be transported in interstate or foreign commerce.

The defendants are charged with violating these sections of the Lacey Act as regards their activities relating to ginseng. They argue, however, that ginseng is not a "plant" within the meaning of the Lacey Act.

In Section 3371(h), the Lacey Act defines "plant" or "plants" as:

any wild member of the plant kingdom, including roots, seeds, and other parts thereof (but excluding common food crops and cultivars) which is indigenous to any State and which is either (A) listed on an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora "CITES", or (B) listed pursuant to any State law that provides for the conservation of species threatened with extinction.

It is defendants' position that ginseng is excluded from the coverage of the Lacey Act because it is a "common food crop." The government argues that ginseng, although ingested like a food, is actually a medicine, and that even if it is a food, its infrequent use throughout society would not qualify it as "common."

B. Rules Governing Statutory Construction

The Lacey Act, although completely exempting from its coverage all "common food crops," even those listed on a CITES appendix or considered under State law to be endangered, nonetheless does not define "common food crop." Therefore, the Court must construe the meaning of that phrase to decide whether ginseng, obviously a "plant" in the ordinary sense of the word, is also a "plant" in the Lacey Act sense.

First, the Court observes that "it is an elementary rule of statutory construction that we initially look to the plain language of the statute to determine the meaning of the legislation." McBarron v. S & T Indus., Inc., 771 F.2d 94, 97 (6th Cir.1985). "Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them." Caminetti v. United States, 242 U.S. 470, 485-86, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). Further, the Court must remember the maxim that "where there is an ambiguity in a criminal statute, doubts are resolved in favor of the defendant." United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).³

The rule of lenity, however, is not applicable unless there is a "grievous ambiguity or uncertainty in the language and structure of the Act," Huddleston v. United States, 415 U.S. 814, 831, 94 S.Ct. 1262, 1272, 39 L.Ed.2d 782 (1974), such that even after a court has "`seized every thing from which aid can be derived'" it is still "left with an ambiguous statute." United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (quoting United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805)). "The rule of lenity comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 326, 5 L.Ed.2d 312 (1961).

Chapman v. U.S., 500 U.S. 453, 463, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991).

C. Application of the Rules of Construction to This Case

The simple fact is that, if ginseng is a "common food" within the meaning of the Lacey Act, Congress has exempted it from the coverage of the Act. The analysis is twofold: (1) whether ginseng is a "food" and, (2) whether it is "common."

As noted above, defendants assert that ginseng is a common food and the government argues that it is a medicine or, if it is a food, it is not common.

The starting point is the language of the statute. However, the "plain meaning" of "common food crop" is not as plain as one might think.

It is frequently difficult to draw a line between food and medicine because, obviously, food has a great deal to do with one's overall health and, in that sense, is "medicinal." It is true that every possible substance that is ingested is not necessarily a "food." For example, an aspirin, though ingested, is clearly a medicine and not a food. Also, although some small children enjoy eating their school paste, no one seriously considers paste a food. On the other hand, just because an ingested substance may have medicinal value, does not mean that it is not a food. For example, a person might occasionally drink prune juice, undoubtedly a food, for reasons other than nutrition. Similarly, although some people eat chicken soup when they have a bad cold because it makes them feel better, this does not convert chicken soup from a food into a medicine.

At first blush one would think, as Congress obviously did when it enacted the Lacey Act, that everybody would know the plain meaning of "food." However, it cannot be disputed that different peoples and different cultures (and even sub-cultures) eat different things. So, what is the plain meaning of "food"?

1. Is Ginseng a Food?

Webster's Third New International Dictionary ("TNID") serves as an ideal starting point for answering the question.

TNID defines the following words:

food—a material consisting of carbohydrates, fats, proteins, and supplementary substances (as minerals, vitamins) that is taken or absorbed into the body of an animal in order to sustain growth, repair, and all vital processes and to furnish energy for all activity of the organism.

medicine—a substance or preparation used in treating disease.

These definitions suggest what the Court believes to be the average person's understanding of these two words: food is a substance ingested for purposes of carrying on daily activities, staying healthy and avoiding or preventing illness,⁴ whereas medicine is a substance ingested to cure or control illness. Even a medicine that appears to be preventive (for example, medication for hypertension) is actually being used to treat an existing condition; all that is prevented by the medicine are the condition's recurring symptoms. Generally speaking, in order to be useful to the body, foods have to be digested, that is, converted into an absorbable form. Medicine on the other hand is generally immediately absorbable, perhaps needing only to be dissolved (as when taken with water).

TNID defines "ginseng" as "a North American woodland...