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

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Case o' The Week: Interpreting Clarity - James and the Rule of Acerbity

Hon. Judge Alex Kozinski

“This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work.”

  United States v. James, 2016 WL 158559, *8 (9th Cir. Jan. 14, 2016), decision available here. (Kozinski, J., dissenting).

Players: Decision by Judge Tallman, joined by Sr. DJ Piersol. Dissent by Judge Kozinski.  Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.

Facts: Twenty-eight year old T.C. was severely disabled by cerebral palsy. Id. at *1. She was largely nonverbal, and communicated displeasure with grunts or nodding her head. Id. T.C.’s legal uncle, James, was discovered having sex with her (while inside the boundaries of a reservation). Id. at *2. 

James was charged with aggravated forcible sexual assault under 18 U.S.C. § 2242(2)(B) – which prohibits sex with a victim who has the mental capacity to consent, but is “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” Id. at *1. 

The jury returned a guilty verdict, and the district court then granted James’s Rule 29 motion. Id. at *2. The government appealed.

Issue(s): “This case turns on the breadth of the ‘physically incapable’ standard in § 2242(2)(B) for punishing a sexual act with an individual with the physical incapacity to decline participation in or communicate unwillingness to engage in the act.” Id. at *3.

Held: “We hold that the district court erred in granting that acquittal, although we acknowledge that determining what constitutes physical incapacity under § 2242(2)(B) is a difficult issue of first impression in our circuit. Applying the familiar standard under Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we hold, contrary to the district court's decision, that there was sufficient evidence to support the jury's determination by proof beyond a reasonable doubt that James violated the statute under which he was found guilty.” Id. at *1. 

“After surveying the dearth of case law, we find the cases more persuasive which punish conduct under the broader ‘physically incapable’ standard rather than the narrower ‘physically helpless’ standard because it will allow more cases to be submitted to the good judgment of a jury.” Id. at *5.

Of Note: Judge Kozinksi pens a doozy of a dissent. “I am puzzled and confused by Part III of the opinion . . .  The whole enterprise seems misguided because the statute is clear and thus not reasonably susceptible to conflicting interpretations.” Id. at *7 (Kozinski, J., dissenting). “I . . . disagree with the methodology employed by the majority in seeking to pump up the statute beyond its ordinary meaning . . . . This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work.” Id. at *8.

Judge Kozinski reviews the district court’s compelling recitation of facts showing that T.C. actually had the ability to communicate unwillingness – the gravamen of the statute charged. Id. at *8-*11. (District Judge Neil Wake, by the way, was the jurist who granted the Rule 29 motion). 

The dissent is well worth the read, with a dispassionate analysis of the statute’s language, and frank concern for the autonomy of the physically disabled.

How to Use: The majority chides the district court for considering state decisions while interpreting a federal statute. Id. at *4. Keep those James passages handy when the government tries to incorporate (bad) state law to interpret the meaning of federal criminal statutes.

                                               

For Further Reading: Whither thou goest, beloved Rule of Lenity? Judge Kozinski argues the majority flips the rule upside down – taking a clear statute, exploring interpretations, and then expanding the definition in the statute against the defense. 

For an equally candid assessment of the decline of the Rule of Lenity (with a frank contrast to the rise of qualified immunity), see Matt Kaiser, Another Reason It’s Better to be A Cop Than Accused of a Crime, available here.

Image of Honorable Judge Alex Kozinski from http://law.nd.edu/news/43561-chief-judge-alex-kozinski-comes-to-ndls/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Down for the Count(s) - Hertler and Max Time for Supervised Release Violations

  Time served on supervised release violations reduces exposure on future S/R terms.

  Except when it doesn’t.

United States v. Hertler, 2015 WL 178350 (9th Cir. Jan. 15, 2015), decision available here.

Players: Decision by Judge Paez, joined by Judges Pregerson and Watford. Hard-fought

Hon. Judge Richard Paez

appeal by D. Montana AFPD Andrew Nelson.

Facts: Hertler plead guilty to possession and distribution of child porn. Id. at *1. In addition to a custodial term, the district court imposed a thirty-six month concurrent term of supervised release. Id. Soon after release Hertler’s PO filed a Form 12 alleging several violations. Id. Hertler admitted the allegations, was revoked, and sentenced to “consecutive terms of nine months of imprisonment on Count 1 and three months on Count 2.” Id. The court also imposed concurrent terms of supervised release on each of the two counts. Id. Within two weeks from release on this violation, Hertler was charged with a new Form 12. Id. Hertler admitted to possessing sexually explicit movies, was revoked, and was sentenced to fifteen months of imprisonment on Count 1 and one month on Count 2, to run concurrently. The court also imposed a twenty month term of supervised release on Count 2. Id. at *2.

Issue(s): “[ ] Hertler appeals a postrevocation term of supervised release. He argues that the new term of twenty months exceeds the maximum period that can be imposed under 18 U.S.C. § 3583(h). That subsection authorizes a district court to impose a postrevocation term of supervised release up to the statutory maximum, but requires the court to reduce the length of supervised release by ‘any term of imprisonment that was imposed upon revocation of supervised release.’ Hertler contends that the phrase ‘any term of imprisonment’ in § 3583(h) refers to any term of imprisonment imposed for all offenses following the latest revocation of supervised release. He therefore argues that the district court erred when it construed this clause to refer only to all terms of imprisonment imposed for a single underlying offense. He further argues that, as a result of this error, the district court concluded that he was eligible for up to thirty-two months of additional supervised released when he should have been sentenced to no more than nine.” Id. at *1.

Held: “[W]e agree with the construction of ‘any term of imprisonment’ adopted by the district court, the Eighth Circuit . . . and the Fifth Circuit . . . . We therefore affirm.” Id.

Of Note: The rule of lenity takes a ding in this opinion. Id. at *6. Judge Paez concludes that there is no “grievous ambiguity” in the statute, and that § 3583’s “text and structure allow us to conclude that the most reasonable interpretation of § 3583(h) is the one advanced by the government.” Id. at *6. A disappointing discussion of our favorite rule of statutory construction.

How to Use: Grab a scratch pad and a calculator. 

  In a nutshell, the supervised release statute requires the district court to knock time served for violations off of the maximize term of supervised release. Id. at *3. It is established law that the court should aggregate all of the time served on various violations, to determine the maximum term of supervised release. Id. at *2. Hertler (compellingly) argued the court should aggregate all violation time served on various counts, and apply them against the sole concurrent supervised release max. Id. The Court doesn’t buy it, and ultimately agrees with the government that “any term of imprisonment” in Section 3583 (the supervised release statute) refers to “terms of imprisonment imposed with respect to the same underlying offense.” Id. at *4 (emphasis in original). 

  Add Hertler to your S/R research files – you’ll need it (and an abacas) to calculate your client’s Form 12 exposure when the original conviction had multiple counts.

                                               

For Further Reading: ND Cal CJA Attorney Mark Vermuelen was part of a team that recently secured a remarkable victory in the ED Cal. See Sacramento Bee article here. 

   The new deal for Eric McDavid came after staggering Brady / Giglio violations were revealed – violations never adequately explained to presiding Judge England. Id. Yet another outbreak, in Judge Kozinski’s “epidemic of Brady violations.” See blog here. 

Image of the Honorable Judge Richard Paez from http://www.eastvalleytribune.com/image_4346b866-e090-11df-83f3-001cc4c03286.html

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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