United States v. Wright

515 F.Supp.3d 277

UNITED STATES of America,

v.Chay WRIGHT, Defendant.

3:16-CR-255

United States District Court, M.D. Pennsylvania.

Filed January 26, 2021

Todd K. Hinkley, Jenny P. Roberts, United States Attorney's Office, Scranton, PA, for United States of America.

Brandon R. Reish, Federal Public Defender's Office, Scranton, PA, for Defendant.

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. INTRODUCTION AND PROCEDURAL HISTORY

On September 6, 2016, a federal grand jury indicted Defendant Chay Wright on one count of possession with intent to distribute heroin, "bk-MDEA (ethylone), a derivative of 2-aminopropan-1-one", cocaine, and cocaine base ("crack") in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). (Doc. 1).

On August 24, 2020, Defendant filed a Motion to Suppress Seizure of Defendant (Doc. 76), Motion to Suppress Search of Residence (Doc. 78), and Motion to Dismiss Indictment for Vagueness (Doc. 82). The Court thereafter scheduled an evidentiary hearing and oral argument for November 17, 2020 which was continued at the parties' request to November 25, 2020 (Docs. 91, 93, 94). At the hearing, the parties presented witness testimony relating to both of Defendant's motions to suppress. Neither party offered witness testimony or oral argument on Defendant's motion to dismiss the indictment. (See e.g. , Hr'g Tr., at 123)(counsel for Defendant acknowledging that "the original order [scheduling the hearing] mentioned the motion to dismiss on vagueness, but I don't see any reason to provide additional argument. I think that was covered adequately in the brief by defendant."). At the close of the hearing, the parties requested the opportunity to file post-hearing briefs and they have now done so (see Docs. 99, 100).

On January 19, 2021, the Court scheduled this matter for trial to commence on March 22, 2021. (Doc. 101). On January 21, 2021, the Court issued a memorandum opinion (Doc. 102) and Order (Doc. 103) denying the Motion to Suppress Seizure of Defendant and denying in part and granting in part Defendant's Motion to Suppress Search of Residence (Doc. 78).

The Court thus addresses in this Memorandum Opinion Defendant's remaining motion, the Motion to Dismiss Indictment for Vagueness (Doc. 82). For the reasons set forth herein, the Court will deny the Motion.

II. ANALYSIS

Defendant asserts in the present motion that "[d]ue to vagueness in the law as applied to ethylone, Mr. Wright had no notice in October 2015 that possession of ethylone would be unlawful" and thus the "prosecution for possession of ethylone in this case violates Mr. Wright's Due Process Rights under the 5th Amendment". (Doc. 82, at ¶¶ 6-7). Defendant thus moves for the indictment to be dismissed with prejudice "on the grounds that 21 U.S.C. § 841 is unconstitutionally vague as applied to ethylone." (Doc. 83, at 2). In sum, Defendant argues that: "The schedule of controlled substances did not include ethylone in 2016. The DEA definition for positional isomer did not apply to temporarily listed substances. And a person of ordinary intelligence could not have known that possessing ethylone with intent to distribute would have been unlawful in 2016. The indictment is defective and must be dismissed." (Id. at 8).

Preliminarily, although Wright moves to have the entire indictment dismissed, his motion is limited to a void-for-vagueness challenge as to the bk-MDEA (ethylone). Because Wright is also charged with possession with intent to distribute heroin, cocaine, and cocaine base, as noted by the Government, "the instant motion to dismiss would at best, eliminate bk-MDEA from the indictment" (Doc. 87, at 3 n. 1; see also, id. at 12-13).

A void-for-vagueness argument implicates a defendant's due process and Fifth Amendment rights. As explained by the Supreme Court:

The Fifth Amendment provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." Our cases establish that the Government violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. The prohibition of vagueness in criminal statutes is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute that flouts it violates the first essential of due process.

Johnson v. United States , 576 U.S. 591, 595, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (internal citations and quotation marks omitted). In other words,

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine is not actual notice, but the other principal element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.

Kolender v. Lawson , 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (internal citations and quotation marks omitted). Thus, "[t]o satisfy due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.’ " Skilling v. United States , 561 U.S. 358, 402-403, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (quoting Kolender , 461 U.S. at 357, 103 S.Ct. 1855 ). However, even where a statute or regulation is ambiguous, "a scienter requirement in a statute ‘alleviate[s] vagueness concerns,’ ‘narrow[s] the scope of the [its] prohibition[,] and limit[s] prosecutorial discretion.’ " McFadden v. United States , 576 U.S. 186, 197, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015) (quoting Gonzales v. Carhart , 550 U.S. 124, 149, 150, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) ). In evaluating a vagueness challenge, a Court should attempt to "construe, not condemn" Congress' enactments." Skilling , 561 U.S. 358, 403, 130 S.Ct. 2896.

Here, Defendant's brief in support of his motion to dismiss relies almost exclusively on the Eleventh Circuit's decision in United States v. Phifer , 909 F.3d 372 (11th Cir. 2018). (See Doc. 83, at 3-5, 6-7).

In Phifer .

[Defendant] Phifer was indicted for, on May 20, 2015, possessing with intent to distribute "a substance and mixture containing a detectable amount of a positional isomer of [b]utylone, also known as [e]thylone ...." He pled not guilty and went to trial.

At trial, Phifer did not dispute that he possessed ethylone. Rather, his entire defense rested on the contention that, at the time of his arrest, ethylone was not a controlled substance under the CSA because it was not a "positional isomer" of butylone as the term "positional isomer" is used in 21 C.F.R. § 1308.11(h). Specifically, Phifer contended that the DEA's definition of "positional isomer" as set forth at 21 C.F.R. § 1300.01(b) does not govern the meaning of the term "positional isomer" in § 1308.11(h) – which identifies only temporarily scheduled substances – because, by its language, the DEA's definition applies to only those substances listed at § 1308.11(d) – which are permanently scheduled hallucinogens. And since, in Phifer's view, the DEA supplied no definition for the term "positional isomer" as it appears in § 1308.11(h) (temporarily scheduled drugs), Phifer argued at trial that the "literal definition" of "positional isomer" applied to that term. According to Phifer, the "literal definition" of the term is the "scientific ... meaning that is known commonly in the science world, what is taught to the chemists." And, Phifer contended, under the common science definition of "positional isomer," ethylone is not a positional isomer of butylone.

909 F.3d at 379.¹

In support of his position, Phifer presented an expert witness in organic chemistry. The expert testified that under one definition of "positional isomer" (the "McMurry" definition), "positional isomers have the same carbon skeleton" and "butylone and ethylone are not positional isomers because they do not have the same carbon skeletons", but rather are "skeletal isomers" (defined as "isomers with different carbon skeletons"). Phifer , 909 F.3d at 380-381. As explained by the Eleventh Circuit:

"Whether isomers are positional or skeletal under the McMurry and DEA definitions differs because the DEA definition of ‘positional isomer’ does not require two different substances to have the same carbon skeleton; in essence, it allows at least some skeletal isomers (under the McMurry definition) to count as positional isomers." Phifer , 909 F.3d at 381.

In light of Defendant Phifer's expert testimony, he requested that the Court use the "McMurry definition" to define "positional isomer" in the jury instructions. The District Court denied this request and used only the DEA definition of "positional isomer" when instructing the jury. Phifer , 909 F.3d at 381. The jury thereafter convicted Phifer.

The Eleventh Circuit summarized the issue before it in Phifer as "concern[ing] whether the definition of ‘positional isomer’ in 21 C.F.R. § 1300.01(b) encompasses the term ‘positional isomer’ as used in 21 C.F.R. § 1308.11(h)." Phifer , 909 F.3d at 381. The Court found that "the language of the regulation is fairly susceptible of being read to answer our precise question – whether the definition of "positional isomer" found in § 1300.01(b) governs the meaning of that term as...