United States District Court, W.D. Missouri, Southern Division
MATT J. WHITWORTH, Magistrate Judge.
Defendant Matthew Paul Browning has filed a motion to dismiss Counts One, Two, Four, Six, Seven, Ten and Eleven of the Superseding Indictment. (Doc. 68). Defendant alleges these Counts should be dismissed because the statutes the government relies on its Superseding Indictment, Title 21, U.S.C., §§ 802(32)(A) and 813, are unconstitutionally vague under the Due Process clause of the United States Constitution. The government has filed suggestions in opposition (doc. 69), asserting the statutes are not unconstitutionally vague and requesting the Court to deny defendant's motion.
Defendant has filed a motion to dismiss Counts One, Two, Four, Six, Seven, Ten and Eleven of the Superseding Indictment. Count One charges the defendant with conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 1349. Count Two charges the defendant with conspiracy to distribute a controlled substance analogue as defined in 21 U.S.C. § 802(32)(A), knowing that each substance was intended for human consumption as provided in 21 U.S.C. § 813, contrary to the provisions of 21 U.S.C. §§ 841(a)(l) and 841(b)(l)(C), all in violation of 21 U.S.C. § 846. Counts Four, Six and Seven each charge the defendant with possession with the intent to distribute a controlled substance analogue as defined in 21 U.S.C. § 802(32)(A), knowing that the substance was intended for human consumption as provided in 21 U.S.C. § 813, all in violation of 21 U.S.C. §§ 841(a)(l), and 841(b)(l)(C), and 18 U.S.C. § 2. Count Ten charges the defendant with conspiracy to commit money laundering in violation of 18 U.S.C. §§ 1957(a) and 1956(h). Finally, Count Eleven charges the defendant with conducting a financial transaction in excess of $10, 000 with criminally derived proceeds in violation of 18 U.S.C. § 1957(a). Defendant asserts that 21 U.S.C. §§ 802(32)(A) and 813 are void for vagueness under the Due Process Clause of the Fifth Amendment. Defendant argues the vagueness in the statutes arises out of the phrase "substantially similar", which appears in 21 U.S.C. § 802(32)(A). Defendant has specifically requested an evidentiary hearing on his motion to dismiss. Defendant seeks to offer expert testimony at the pretrial hearing to dispute the findings of the government experts on whether the substances-which are the subject of the Superseding Indictment-are, in fact, illegal analogues. The government opposes the request for an evidentiary hearing. Following a review of defendant's motion together with the relevant case law, and a teleconference with counsel for the parties, the Court agrees with the government that there is no need for an evidentiary hearing on the defendant's motion to dismiss. An evidentiary hearing would be contrary to law. Whether the substances charged in the indictment are controlled substance analogues are issues of fact to be determined at trial by a jury, not in a hearing on a pretrial motion to dismiss the indictment. The trial jury will presumably hear testimony from both government and defense expert chemists. The issue of whether the substances here are illegal analogues is an issue for jury determination. The issue of whether the statutes here are unconstitutionally vague is an issue of law for Court determination. Consequently, the Court denies defendant's request for an evidentiary hearing.
Finally, defendant alleges the analogue statute charged in this case is unconstitutional because it impermissibly delegates the authority to enact penal statutes to the Executive Branch in violation of the United States Constitution. The government disagrees and cites case authority upholding the constitutionality of the statute.
B. Standard of Review
The Eighth Circuit has set the following standard of review regarding a motion to dismiss based upon the sufficiency of an indictment:
An indictment adequately states an offense if "it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted."
United States v. Sewell , 513 F.3d 820, 821 (8th Cir. 2008) (quoting United States v. Hernandez , 299 F.3d 984, 992 (8th Cir. 2002)). An indictment is normally sufficient if its language tracks the statutory language. Hamling v. United States , 418 U.S. 87, 117 (1974).
C. Legal Analysis
The Analogue Act states that "[a] controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I." 21 U.S.C. § 813. The Analogue Act defines the term controlled substance analogue as follows:
Except as provided in subparagraph (C), 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 the stimulant, depressant, or hallucinogenic effect on the central nervous ...