United States District Court, W.D. Missouri, Southern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
DAVID P. RUSH, United States
Pursuant to 28 U.S.C. § 636(b), the above-styled criminal action was referred to the undersigned for preliminary review. Defendant John Jouett Waddell, with assistance of counsel, filed a Motion to Dismiss the Indictment (Doc. 24), arguing that the analogue drug statute, under which he is charged, is unconstitutional because (1) it is void for vagueness, and (2) it impermissibly delegates authority to enact penal statutes to the Executive Branch in violation of separation-of-powers principles. For the reasons set forth below, IT IS HEREBY RECOMMENDED that the motion to dismiss the indictment be DENIED.
Waddell is charged with conspiracy to distribute XLR-11, a controlled substance analogue. Under the Analogue Act, a " controlled substance analogue" is 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 system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have 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 system of a controlled substance in schedule I or II.
21 U.S.C. § 802(32)(A).
Waddell argues that the term " substantially similar" as used in the statute is unconstitutionally vague. A vague statute can be found to violate due process, and therefore " void, " if it does not sufficiently describe or define the prohibited act or acts. The statute must provide " a person of ordinary intelligence a reasonable opportunity to know what is prohibited."
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). It is well-settled in the Eighth Circuit that the Analogue Act is not unconstitutionally vague. See United States v. McKinney, 79 F.3d 105, 108 (8th Cir. 1996). In United States v. Washam, 312 F.3d 926, 929 (8th Cir. 2002), the Eighth Circuit addressed a vagueness challenge to the " substantially similar" portion of the statute. The Court employed a two-part test in determining that the statute was not unconstitutionally vague. The Court first asked whether the statute provided " adequate notice of the proscribed conduct, " and second, whether the statute lent itself to " arbitrary enforcement."
The defendant argues that " adequate notice" requires a finding of a willful mindset, and a requirement that a defendant acted with only knowledge that a substance was substantially similar to a prohibited substance renders the statute unconstitutionally vague. The Eighth Circuit, adopting the Seventh Circuit's reasoning in United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005), specifically rejected this argument and found that a defendant's knowledge that a substance was an analogue for a prohibited controlled substance was not unconstitutionally vague. See United States v. Bamberg, 478 F.3d 934, 939-40 (8th Cir. 2007). From a purely legal standpoint, these precedents establish that the Analogue Act is not void for vagueness. The undersigned acknowledges, however, that the " substantially similar" analysis in a given case necessarily contains a fact-specific component. In other words, whether an alleged controlled substance analogue is " substantially similar" to a prohibited controlled substance requires evidence of the chemical makeup of the alleged analogue, which will generally be produced in the form of expert testimony at trial.
To meet their evidentiary burden at trial, the government is required to demonstrate that 1) the defendant possessed a controlled substance analogue; 2) the defendant knew he was in possession of a controlled substance analogue; and 3) the defendant intended to distribute the controlled substance analogue for human consumption. See United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013).
To the extent that the challenge raised by the defendant is a legal question for the Court, the undersigned recommends that, according to relevant precedent, the statute is not unconstitutionally vague. It cannot be ignored, however, that no evidence has been presented in the case, and no determinations of fact have yet been made. On this basis, the undersigned further recommends that the defendant's challenge is premature. The final determination whether the substance charged in the indictment is a controlled substance analogue will be an issue of fact for ...