Ninth Demures on Isomer: Kelly and DEA Authority to Temporarily Schedule Controlled Substance Isomers

 Q: What do you get when the DEA temporarily criminalizes an isomer, without making any findings about its dangerousness or whether it is prone to abuse?

 A: 70 months.

United States v. Kelly, 2017 WL 4875214 (9th Cir. Oct. 30, 2017), decision available here.

Players: Decision by Judge Tallman, joined by Judges Gould and Watford.

  Hard fought appeal by AFPD Erica Choi, District of Nevada Office of the Federal Public Defender.

Facts: Kelly sold an undercover officer what was reported to be MDMA – but it was actually “ethylone.” Id. at *3. Ethylone is a “positional isomer” of “butylone.” Id. at *4.

  (“An isomer is a molecule with the same chemical formula as another molecule, but its atoms are arranged in a different sequence. For example, butylone and ethylone share the chemical formula C₁₂H₁₅NO₃, but they differ in the location of a functional group.”) Id.

  At the time, butylone was a “designer drug” listed as a Schedule I controlled substance under the DEA’s temporary scheduling authority. Id. at *3. The DEA made specific findings as to butylone (the “parent drug.”) Id. at *6. It did not make findings as to ethylone, an isomer of butylone, and it did not mention this isomer in the required letter to the Secretary of Health and Human Services. Id. at *3.

  After Kelly was charged with possession with intent to distribute ethylone, a Schedule I controlled substance, he moved to dismiss. Id. at *4. The district court denied his request for an evidentiary hearing, to present expert testimony that an isomer does not necessary have the same effects and properties as the substance (parent drug) itself. Id. at *4 & n.7. The court also denied the Fed. R. Crim. P. 12(b)(3)(B)(v) motion to dismiss. Id.

  Kelly entered a conditional plea and was sentenced to seventy months of custody. Id. at *5.

Issue(s): “Kelly argues that the DEA did not place ethylone into Schedule I as a matter of law because §§ 811(h) and 812(b) require that the DEA name and make findings for each individual isomer it intends to temporarily schedule. He contends that the DEA’s failure to do so violated the Constitution’s non-delegation doctrine.” Id. at *5.

Held: “Kelly’s argument is misreading the CSA. The plain language of the statute permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers. The DEA properly made findings for butylone and provided notice covering butylone and its isomers as required in §§ 811(h) and 812(b). In following the congressional mandate, we hold the DEA did not violate the non-delegation process.” Id. at *6.  

Of Note: This decision has no real relevance anymore to butylone and ethylone: that drug and isomer were permanently added as permanent Schedule I substances on March 1, 2017. See id. at *3 & n.5. The decision’s significance is its holding that the DEA’s findings on a parent drug for a temporary Schedule I designation covers isomers of that parent drug. Id. at*6.

  Curiously, the DEA’s permanent scheduling process (a process with far fewer protections, checks and balances than the temporary procedures) generally only covers optical isomers. Id. at *4.

  There is much angst over the dangers of designer drugs in Kelly, and touted deference to Congressional intent, but the holding itself is a worrisome take on DEA’s power to criminalize drugs on an expedited schedule, with comparatively little review or notice.   

How to Use: What happens when two established policies for reading a statute or regulation come into conflict: the rule of lenity, and Chevron deference? The magistrate judge in Kelly gave the nod to Chevron, holding that the rule of lenity did not apply to an administrative regulation. Id. at *4.

  Judge Tallman avoids this knotty problem, finding the reg was plain so the rule of lenity didn’t come into play. Id. at *8 & n.8.  

  An issue that lives on to be fought another day (not yet resolved by the Supreme Court, reports Kelly).

                                        

For Further Reading: What could be worse than the FBI using a snitch that was an undocumented alien, who lied about his identity?

  Loaning him out to another law enforcement agency – without telling them. See L.A. Times article, here. 

Image of ethylone from https://www.rechemco.to/media/catalog/product/cache/16/image/650x/040ec09b1e35df139433887a97daa66f/e/t/ethylone-eu.jpg .

Steven Kalar, Senior Litigator N.D. Cal. Website at www.ndcalfpd.org

.