United States v. Reece
United States v. Reece
Opinion of the Court
ORDER
Before the Court is the Report and Recommendation of the Magistrate Judge [Record Document 280], addressing Defendant Barry L. Domingue’s Motion to Dismiss the Superseding Indictment [Record Document 205].
The Court finds that the Drug Enforcement Administration (DEA) followed the proper procedures specified under Title 20 U.S.C. § 811(h) to add JWH-018 to schedule I in March 2011. As explained in the Magistrate Judge’s Report, Congress explicitly enacted § 811(h) “to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is ‘necessary to avoid an imminent hazard to the public safetyf.]’ ”
Accordingly, for the reasons stated in the Report and Recommendation and
IT IS HEREBY ORDERED that the Motion to Dismiss the Superseding Indictment [Record Document 205] be and is hereby DENIED.
REPORT AND RECOMMENDATION
Currently pending before this Court is the motion to dismiss the superceding indictment that was originally filed by defendant Barry L. Domingue (Rec. Doc. 205) and then adopted by defendants Alexander Derrick Reece (Rec. Doc. 218), Richard Joseph Buswell (Rec. Doc. 222), Daniel Paul Francis (Rec. Doc. 248) and Daniel James Stanford (Rec. Doc. 220). The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. (Rec. Doc. 245). For the following reasons, the undersigned recommends that the motion be denied.
Factual Background
The superceding indictment (Rec. Doc. 57) charges the defendants with sixteen substantive counts and also contains a forfeiture allegation. Fourteen counts (Counts 3-16) include one count for money laundering conspiracy and thirteen counts of money laundering, one count is for conspiracy to introduce and cause to be introduced misbranded drugs into interstate commerce (Count 2), and one count (Count 1) is for conspiracy to distribute and possess with the intent to distribute a schedule I controlled substance through application of the analogue statute.
The superceding indictment alleges that, as of March, 2011, the synthetic cannabinoid JWH-018 was a schedule I controlled substance. The other synthetic cannabinoids identified in the indictment are analogues of JWH-018 and include AM-2201, JWH-081, JWH-250, and UR-144. After JWH-018 was added to schedule I, bulk quantities of synthetic cannabinoids were supplied by defendant Reece to a business known as NeutraGenomics which was owned and operated by Defendants Green and Malone. NeutraGenomics supplied the synthetic cannabinoids used to manufacture “Mr. Miyagi” to Pinnacle Products Group. Pinnacle was controlled by defendants Barrow and Espinoza. Pinnacle manufactured Mr. Miyagi and supplied it to Curious Goods. Curious Goods was controlled by defendant Buswell and sold Mr. Miyagi to the public. Mr. Miyagi contained the synthetic cannabinoid AM-2201.
The indictment also alleges that, through a corporation called Retail Compliance Association, defendants Stanford and Francis trained, advised, and instructed franchise owners of defendant Curious Goods LLC and their employees on how to store, display, and sell Mr. Miyagi products, how to detect and evade law enforcement, and how to respond to their customers’ questions about Mr. Miyagi.
A controlled substance analogue is a “designer drug” that resembles a controlled substance in molecular structure and actual or intended physiological effect. Schedule I analogues are treated as though they too are listed on the schedule. In Count 1 of the superceding indictment, the defendants are charged with conspiracy to violate 21 U.S.C. § 846, which prohibits the knowing or intentional manufacture, distribution, or dispensing of
In the instant motion, the defendants seek to have the superceding indictment dismissed, arguing that AM-2201, the synthetic cannabinoid allegedly used in manufacturing Mr. Miyagi, was not an analogue of a scheduled substance at any relevant time because the Drug Enforcement Administration (“DEA”) did not comply with the necessary statutory requirements when five synthetic cannabinoids including JWH-018 were temporarily added to schedule I in March 2011.
The Contentions of the Parties
The defendants argue that JWH-018 was never listed as a schedule I controlled substance because the DEA failed to provide Congress and the Comptroller General with reports required by the Congressional Review Act (“CRA”), 5 U.S.C. § 801 et seq. Consequently, the defendants ar
In response to the defendants’ motion, the government argues that the good cause provision of the CRA applies and that the DEA’s implication of the good cause exception is not subject to judicial reviéw. The government also argues that the five synthetic cannabinoids, including JWH-018, were properly added to schedule I under the procedure set forth in 21 U.S.C. § 811(h).
Analysis
The issue currently before this Court is whether the DEA’s failure to notify Congress and the Comptroller General before issuing the March 1, 2011 order adding JWH-018 to schedule I pursuant to 21 U.S.C. § 811(h) precludes prosecution of the defendants with regard to their alleged conspiracy to distribute AM-2201, an analogue of JWH-018.
A. Statutory Construction
The issue presented is one of statutory construction, the defendants contending that the DEA failed to follow certain notice procedures set forth in the Congressional Review Act at 5 U.S.C. § 801(a)(1)(A), resulting in the five synthetic cannabinoids addressed in the March 2011 order not actually being added to schedule I.
We are rescued from immersion in the sea of legislative history by the general principle that we must not refer to legislative history if the statutory language is clear. This salutary doctrine is predicated upon the notion that since Congress is presumed to have meant what it said, we must look first to the literal meaning of the words of the statute in order to determine how best to effectuate the Congressional intent. Of course, we must not allow such literalmindedness to lead us to absurd or unreasonable conclusions at war with the very policy that Congress intended to implement in the statute in' question.5
Avoiding reliance on legislative history when a statute is clear and unambiguous is important because “Congress adopted and the President signed only the act itself. The reports of committees and the congressional debates did not become law. A court should depart from the official text of the statute and seek extrinsic aids to its meaning only if the language is not clear or if apparent clarity of language leads to absurdity of result when applied.”
Furthermore, “[t]he canons of statutory construction dictate that when construing a statute, the court should give words their ordinary meaning and should not render as meaningless the language of the statute.”
Another “fundamental principle of statutory construction (and, indeed, of language itself) [is] that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.”
Finally, “[b]ne basic principle of statutory construction is that where two statutes appear to conflict, the statute addressing the relevant matter in more specific terms governs.”
B. The Relevant Statutes
In 1970, Congress enacted the Controlled Substances Act.
The Act authorizes the Attorney General to add substances to a schedule, to remove substances from a schedule, and to move a substance from one schedule to another.
The Act also addresses controlled substance analogues, which are defined in the Act as substances with a chemical structure substantially similar to that of a con
In this case, the defendants are charged with conspiring to distribute and possess with the intent to distribute a product containing AM-2201. Although AM-2201 was not listed on schedule I at any relevant time, it is alleged in the superseding indictment that this substance is an analogue of JWH-018, which is a synthetic cannabinoid that was temporarily added to schedule I by the DEA in March 2011. Reading §§ 841 and 846 together, distribution of AM-2201, possession of AM-2201 with the intent to distribute it, and conspiring to do either is unlawful under the Act.
Because analogues are “drugs which have been chemically designed to be similar to controlled substances, but which are not themselves listed on the controlled substance schedules,”
[t]emporary scheduling [under 21 U.S.C. § 811(h) ] ... allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. The Attorney General need consider only three of the eight factors required for permanent scheduling. Rather than comply with the APA [Administrative Procedures Act] notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of the proposed scheduling in the Federal Register. Notice also must be transmitted to the Secretary of HHS, but the Secretary’s prior approval of a proposed scheduling order is not required.”25
The Court went on to explain that
[b]ecause it has fewer procedural requirements, temporary scheduling enables the Government to respond more quickly to the threat posed by dangerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process, in which case the temporary scheduling order remains valid for an additional six months.”26
The defendants argue, instead, that the DEA should have followed a different or additional procedure in adding the five synthetic cannabinoids to schedule I and that its failure to do so makes it impossible to enforce § 846 or § 813 with regard to these substances or their analogues. More specifically, the defendants argue that JWH-018 was not actually added to schedule I in March 2011 because the DEA did not comply with the notice requirements of the Congressional Review Act set forth in 5 U.S.C. § 801(a)(1)(A).
C. Judicial Review is Available
The defendants argue that they are entitled to seek judicial review of the scheduling of JWH-018 under 21 U.S.C. § 811(h) even though 21 U.S.C. § 811(h)(6) states that “[a]n order issued under paragraph (1) is not subject to judicial review” and even though 5 U.S.C. § 805 states that “[n]o determination, finding, action, or omission under this chapter shall be subject to judicial review.” The government counters that the plain language of these statutes bars judicial review. The undersigned finds that the defendants are correct.
The essence of the defendants’ argument is their contention that the substance that they possessed (or its chemical analogue) was never properly added to
Since the defendants are facing criminal charges, the United States Supreme Court has recognized their right to challenge the temporary scheduling of JWH-018. The undersigned therefore finds that this Court has the power and authority to resolve the motion now before it.
D. The Temporary Scheduling Order was Properly Obtained
In general terms, federal agencies must, in making rules and carrying out their functions, comply with the Administrative Procedures Act (“APA”), which is codified in Subchapters I and II of Title 5 of the United States Code. Chapter 8 of that title addresses congressional review of agency rulemaking and is sometimes referred to as the Congressional Review Act (“CRA.”) As stated by the defendants in their brief, the CRA “requires federal agencies to submit all of their final rules to both houses of Congress and the Comptroller General before they can take effect.”
“It is long settled that words in statutes should be given their ordinary, popular meaning unless Congress clearly meant the words in some more technical sense.”
Therefore, it is clear from the plain language of the CRA that rules and orders are two different things. It is also clear from the plain language of the CRA that the notice requirements set forth in 5 U.S.C. § 801, which the defendants rely upon in arguing that the five synthetic cannabinoids were not properly added to schedule I, apply only with regard to rules and do not apply to orders. As quoted by the defendants in their brief, the statute says “[bjefore a rule can take effect, the Federal agency promulgating such rule shall submit to each House of the Congress and to the Comptroller General a report....” [Emphasis added.] Therefore, if the DEA had added the five synthetic cannabinoids to schedule I by rule, the DEA would have been required to comply with the notice requirement of 5 U.S.C. § 801. That, however, is not what was done.
When Congress enacted 21 U.S.C. § 811(h), it created a procedure that is, in essence, an exception to the general procedural requirements of the Administrative Procedures Act and the Congressional Review Act. Section 811(h) permits temporary addition of a substance to schedule I by order instead of by rule. The statute clearly states: “If the Attorney General finds that the scheduling of a substance in schedule I on a temporary basis is necessary to avoid an imminent hazard to the public health, he may, by order ... schedule such substance in schedule I.... ” [Emphasis added.] When Congress uses particular words in a statute, especially when the words are defined as having particular meanings, it must be presumed that the lawmakers deliberately intended to use the chosen words, and those words must be given their intended meanings.
The procedure outlined in Section 811(h) is a specific procedure that can be used only for the temporary, emergency addition of substances to schedule I. As such, it is a more specific statute that operates as an exception to the general rules of agency functioning set forth in the APA and the general rules of Congressional review that are set forth in the CRA. “One basic principle of statutory construction is that where two statutes appear to conflict, the statute addressing the relevant matter in more specific terms governs.”
In this case, the government has established, as described above, that the DEA complied with the procedural requirements of Section 811(h) in adding the five synthetic cannabinoids to schedule I in March 2011. The undersigned therefore finds that, because the DEA complied with the requirements of the more specific statute creating a procedure for the temporary emergency addition of substances to schedule I, there was no need for the DEA to also comply with the more general requirements of Section 801. The undersigned also finds that the DEA would have been obligated to comply with the notice requirements of Section 801 had it added the five synthetic cannabinoids to schedule I by rule; having added them by order, however, the DEA was not required to provide the notices addressed in Section 801. The undersigned also finds that the plain language of the statutes is sufficiently clear that resort to the legislative history is unnecessary.
Having found that the DEA was not obligated to first report to Congress and the Comptroller General before issuing the order of March 1, 2011 adding JWH-018 and four other synthetic cannabinoids to schedule I, the undersigned also finds that the defendants’ motion lacks merit.
E. The Defendants’ Remaining Arguments Need Not be Considered
Having already found that the defendants’ motion lacks merit because the DEA complied with the necessary procedural requirements in adding JWH-018 to schedule I in March 2011, it is unnecessary to address the defendants’ arguments concerning the good cause provision of 5 U.S.C. § 808 or the procedures used by the DEA in scheduling other substances. Further discussion of those topics is accordingly pretermitted.
Conclusion
For the foregoing reasons, the undersigned finds that the DEA complied with the procedural requirements of 21 U.S.C. § 811(h) in adding JWH-018 to schedule I in March 2011 and further finds that the DEA’s failure to comply with the notice requirement of 5 U.S.C. § 801(a)(1)(A) did not preclude the addition of JWH-018 to schedule I. Therefore, the undersigned further finds that JWH-018 was a controlled substance on and after March 1, 2011 and that its chemical analogue AM-2201 should also be treated as such pursuant to 21 U.S.C. § 818. Accordingly, the undersigned recommends that the defendants’ motion (Rec. Docs. 205, 217, 219, 221) should be denied.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party’s objections within fourteen days after being served with of a copy of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglass v. United
. Domingue's Motion was adopted by Defendants Reece [Record Document 218], Stanford [Record Document 220], Buswell [Record Document 222], and Francis [Record Document 248].
. See Touby v. United States, 500 U.S. 160, 163, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991).
. See Record Document 205-3, p. 19.
. Russell v. Choicepoint Services, Inc., 302 F.Supp.2d 654, 664 (E.D.La. 2004), citing INS v. Phinpathya, 464 U.S. 183, 189, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984).
. United States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008), citing Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).
. Russell v. Choicepoint Services, Inc., 302 F.Supp.2d at 664, quoting Blue Cross & Blue Shield v. Shalala, 995 F.2d 70, 73 (5th Cir. 1993).
. United States v. Pruett, 681 F.3d 232, 242 (5th Cir. 2012), citing Hartford Underwriters v. Union Planters Bank, 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000).
. Globe Seaways, Inc. v. Panama Canal Co., 509 F.2d 969, 971 (5th Cir. 1975) (internal citations omitted).
. American Trucking Associations, Inc. v. I.C.C., 659 F.2d 452, 459 (5th Cir. 1981) (internal citations omitted).
. White v. Black, 190 F.3d 366, 368 (5th Cir. 1999). See, also, e.g., United States v. Hubbard, 480 F.3d 341, 347-48 (5th Cir. 2007).
. In re Barfknecht, 378 B.R. 154, 159 n. 6 (Bkrtcy.W.D.Tex. 2007). See, also, Perrone v. General Motors Acceptance Corp., 232 F.3d 433, 435 (5th Cir. 2000), quoting Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ("Courts give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress Intended them to bear some different import.”
. Amberg v. Federal Deposit Ins. Corp., 934 F.2d 681, 688 (5th Cir. 1991).
. Emtel, Inc. v. Lipidlabs, Inc., 583 F.Supp.2d 811, 820 (S.D.Tex. 2008), quoting Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993).
. In re Armstrong,. 206 F.3d 465, 470 (5th Cir. 2000). See, also, In the Matter of Prescription Home Health Care, Inc., 316 F.3d 542, 548 (5th Cir. 2002); Mennor v. Fort Hood National Bank, 829 F.2d 553, 557 (5th Cir. 1987).
. Touby v. United States, 500 U.S. 160, 162, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991).
. Touby v. United States, 500 U.S. at 162, 111 S.Ct. 1752.
. 21 U.S.C. § 841.
. 21 U.S.C. § 846.
. Touby v. United States, 500 U.S. at 162, 111 S.Ct. 1752, citing 21 U.S.C. § 811(a). See, also, United States v. Kinder, 946 F.2d 362, 368 (5th Cir. 1991).
. United States v. Caudle, 828 F.2d 1111, 1112 n. 1 (5th Cir. 1987).
. United States v. Gordon, 580 F.2d 827, 840-41 (5th Cir. 1978).
. Touby v. United States, 500 U.S. at 169, 111 S.Ct. 1752.
. United States v. Caudle, 828 F.2d at 1112.
. 21 U.S.C. § 802(32)(A).
. 21 U.S.C. § 813.
. United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990).
. Touby v. United States, 500 U.S. at 163, 111 S.Ct. 1752.
. Touby v. United States, 500 U.S. at 163, 111 S.Ct. 1752 (internal citations omitted).
. Touby v. United States, 500 U.S. at 164, 111 S.Ct. 1752.
. Rec. Doc. 228-1.
. Rec. Doc. 205-3 at 7-11.
. Rec. Doc. 205-3 at 9.
. Rec. Doc. 205-3 at 9-10.
. Rec. Doc. 205-3 at 12-14.
. Rec. Doc. 205-3 at 15-19.
. Touby v. United States, 500 U.S. at 168, 111 S.Ct. 1752.
. Rec. Doc. 205-2 at 6 (emphasis added).
. United States v. Nat'l Broiler Marketing Assn, 550 F.2d 1380, 1386 (5th Cir. 1977).
. In re Thalheim, 853 F.2d 383, 387 (5th Cir. 1988), citing Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir. 1987).
. In re Armstrong, 206 F.3d at 470.
. Prescription Home Health, 316 F.3d at 548.
Reference
- Full Case Name
- United States v. Alexander Derrick REECE
- Cited By
- 2 cases
- Status
- Published