USA v. Beckley

• Decision Date: 06 March 2010
• Docket Number: Case No. 08-20621.
• Citation: 715 F.Supp.2d 743
• Parties: UNITED STATES of America, Plaintiff, v. Arthur BECKLEY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

715 F.Supp.2d 743

UNITED STATES of America, Plaintiff,

v.Arthur BECKLEY, Defendant.

Case No. 08-20621.

United States District Court,

E.D. Michigan,

Southern Division.

March 6, 2010.

Elizabeth A. Stafford, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

ORDER

JULIAN ABELE COOK, JR., District Judge.

On February 4, 2009, a federal grand jury returned a superseding indictment which charged the Defendant, Arthur Beckley, with conspiring with other persons to distribute a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On August 18, 2009, he filed a motion ¹ which sought to obtain a judicial determination that the guideline status of benzylpiperazine, ² also known as BZP, is most closely related to methylphenidate. The Government opposes such a conclusion, asserting that inasmuch as the challenged narcotic in this case is actually a combination of BZP and 1-(3-trifluoromethylphenyl)-piperazine (“TFMPP”), the Court should declare the most closely related controlled substance to be methylenedioxymethamphetamine (“MDMA),” more commonly known as ecstasy.

On November 10, 2009, Dr. Laureen Marinetti ³ was appointed by the Court to assist it in serving as an independent forensic science expert who would be able to assist it in resolving the contested issues in this case. On December 16, 2009, the Court convened an evidentiary hearing which was designed to address Beckley's motion of August 8th. ⁴ During this hearing, the Court (1) permitted the parties, through their counsel, to explore the veracity of Dr. Marinetti's testimony as well as the qualities of her opinions, and (2) authorized the admission of her December 8th report, as well as Bono's report into evidence. ⁵ At the conclusion of the December 16th hearing, the motion was taken under advisement, with a directive to the parties to file post-hearing briefs and address specific questions from the Court.

I.

According to the Government, Beckley recruited his cousin, Shantell Johnson, and her friend, Albany Cooper, ⁶ to travel to Canada where they were instructed to pick up approximately five thousand (5,000) ecstasy pills, and smuggle them into the United States. Johnson and Cooper were arrested by federal authorities when they attempted to cross the Ambassador Bridge from Canada into the United States. Thereafter, these two women-after agreeing to cooperate with the Government with the aid of recording devices-called Beckley and another Defendant, Craig Thomas ⁷ with whom they made arrangements for the delivery of the contraband. When Beckley joined the two women in their motor vehicle at a designated parking lot in the United States, he was arrested by the federal agents and immediately placed under custody. A field test of the pills by a border patrol officer produced a positive result for ecstasy. ⁸

On November 25, 2008, Beckley was officially accused by a grand jury of violating 21 U.S.C. §§ 846 and 841(a)(1); namely, conspiring with other persons to distribute MDMA. However, with an apparent recognition that a subsequent analysis of the confiscated “ecstasy” pills by the Drug Enforcement Administration (“DEA”) revealed that they actually contained a combination of other chemicals (i.e., BZP, TFMPP, and caffeine), the Government subsequently filed a superseding indictment in which Beckley was accused of having conspired with other persons to distribute BZP.

II.

In support of his motion, Beckley initially argues that, inasmuch as the superseding indictment charges him with conspiring to distribute BZP, the Court should be constrained to consider this drug only when attempting to identify the most closely related controlled substance. The Government counters by submitting that the Court is permitted to consider facts outside of the indictment when determining the appropriate punishment for a defendant as long as the sentence does not exceed the statutory maximum.

Nearly a decade ago, the Supreme Court reiterated-according to long-standing common law history-that a criminal defendant's constitutional rights to due process of law, a speedy and public trial, and an impartial jury of his peers were at stake when determining the charges in an indictment which must be determined beyond a reasonable doubt by a jury. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Nevertheless, the Court explained that “nothing in this history suggests that it is impermissible for judges to exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute.” Id. at 481, 120 S.Ct. 2348. Indeed, as stated recently by the Sixth Circuit Court of Appeals,

[a]djustments to the base-offense level routinely depend upon facts found by sentencing judges by a preponderance of the evidence. The Supreme Court has sanctioned judicial factfinding, even factfinding that enhances rather than reduces a defendant's sentence, so long as the factfinding does not result in a sentence beyond the statutory maximum.

United States v. Thompson, 515 F.3d 556, 568 (6th Cir.2008); see also United States v. White, 551 F.3d 381, 385 (6th Cir.2008) (“So long as the defendant receives a sentence at or below the statutory ceiling set by the jury's verdict, the district court does not abridge the defendant's right to a jury trial by looking to other facts, including acquitted conduct, when selecting a sentence within that statutory range.”); United States v. Sexton, 512 F.3d 326, 330 (6th Cir.2008) (“the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings.”) Furthermore, such a judicial fact-finding effort should be conducted pursuant to a preponderance of the evidence standard. Sexton, 512 F.3d at 330.

The laws of the United States succinctly state that a person who conspires to commit an offense under Section 846 of Title 21, United States Code, is subject to the same penalties as the individual who actually commits the criminal offense. Under Section 841(a)(1) of the same title, Congress has legislated that it is unlawful for a person to knowingly or intentionally distribute a controlled substance. The penalties for an offense under this Section of the Code are set forth in subsection (b), which state, in relevant part, that “[i]n the case of a controlled substance in schedule I or II, ... such person shall be sentenced to a term of imprisonment of not more than 20 years[.]”

It should also be noted that Beckley has inadvertently given the Court several reasons as to why those traces of TFMPP, which were found in the pills by the Government during its post-arrest analysis phase of this case, should be given further exploration. Beckley states in his post-hearing brief:

[i]t is only when BZP is boosted with another compound, [TFMPP] does it take on the hallucinogenic effect. Dr. Marinetti stated that, ‘the combination of BZP and TFMPP produces a stimulant and hallucinogenic effect as opposed to just a stimulant effect when BZP is administered alone.’ In Dr. Marinetti's opinion, it is only when you mix BZP with TFMPP does it rise to the level of MDMA.

He also asserts that BZP alone is a “comparatively mild stimulant” when compared to the effects of MDMA. The Government submits that the DEA has published its conclusion on two occasions that the BZP-TFMPP combination is being increasingly sold and used as an alternative to MDMA. On July 18, 2002, the DEA published a notice of its intent to place BZP-TFMPP in the Schedule I listing of the Controlled Substances Act. In its notice, the DEA stated:

Over the past few years, in the United States, BZP and TFMPP have increasingly been found in similar venues as the popular club drug ... (MDMA, also known as Ecstasy). BZP and TFMPP are also sold as MDMA and are targeted to the youth population.

67 F.R. 47341. A more recent DEA report (2007) also states that “BZP is often taken in combination with [TFMPP], a noncontrolled substance, in order to enhance its spectrum of effects and has been promoted to youth population as substitute for MDMA at raves (all-night dance parties).” Dr. Marinetti theorized during the December 2009 hearing that the combination of BZP-TFMPP was “instituted in order to find a legal alternative to MDMA[.]” (Evid. Hr'g Tr. 24, Dec. 16, 2009.)

Accordingly and in an effort to resolve the now pending issues which have been raised in the pending motion, the Court will not ignore any admissible evidence which shows or tends to show that TFMPP enhances the deleterious effects of BZP to its users. See U.S. Sentencing Guidelines Manual § 1B1.3, note 1 (“The principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability.”)

III.

In those situations in which a controlled substance is not specifically referenced in the United States Sentencing Guidelines, courts must find the “most closely related controlled substance” in order to determine the base offense level of the controlled substance. U.S. Sentencing Guidelines Manual § 2D1.1 cmt. n. 5. The Guidelines provide that

[T]he court shall, to the extent practicable, consider the following:

(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled substance referenced in this guideline.

(B) Whether the controlled substance not referenced in this guideline has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance referenced in this guideline.

(C) Whether a lesser or greater quantity of the controlled substance not referenced in this guideline is needed to produce a substantially similar effect on the

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