United States District Court, D. South Dakota, Central Division
ROBERTO A. LANGE, District Judge.
Defendant Jason Long ("Long") has filed a Motion to Dismiss Count II and Count III of the Superseding Indictment, Doc. 75, arguing that the analog provision of the Controlled Substances Act ("the analog provision"), 21 U.S.C. § 813, and its accompanying definitional statute, 21 U.S.C. § 802(32), are unconstitutionally vague as applied. The Government opposes the motion. Doc. 84. For the reasons stated below, Long's Motion to Dismiss is denied.
Counts II and III of the Superseding Indictment allege that Long, on two separate occasions, possessed with the intent to distribute "XLR-11, a Schedule I controlled substance analog as defined in 21 U.S.C. § 802(32), knowing that the substance was intended for human consumption as provided in 21 U.S.C. § 813, in violation of 21 U.S.C. §§ 841 (a)(1) and 846." Doc. 50. Count III also alleges a violation of 18 U.S.C. § 2. Doc. 50. The Superseding Indictment does not allege to which controlled substance XLR-11 is allegedly analogous, but the parties agree that the Government's case hinges on whether XLR-11 is an analog of a controlled substance called JWH-018. See Doc. 76 at 2; Doc. 84 at 5-6. Long does not contend that the Superseding Indictment is insufficient or vague for not alleging that XLR-11 is an alleged analog of JWH-018.
On July 9, 2012, JWH-018 was added to the schedule of controlled substances as a Schedule I substance as a result of the enactment of the Synthetic Drug Abuse Prevention Act of 2012. United States v. Carlson No. 12-305(DSD/LIB), 2013 WL 5125434, at *13-14 (D. Minn. Sept. 12, 2013); see also 21 U.S.C. § 812(d)(2)(B)(iii). Both parties have filed notices of intent to use expert witnesses to address whether XLR-11. is an analog of JWH-018. See Doc. 81 (Government's notice of intent to use expert to testify that XLR-11 is substantially similar in structure and pharmacologic effect to JWH-018 such that it can be considered its analog); Doc. 95 (Long's notice of intent to use expert to testify that XLR-11 is not substantially similar and is not an analog to JWH-018).
Congress enacted the analog provision of the Controlled Substances Act to prohibit the distribution of newly created drugs fabricated by innovative drug manufacturers altering slightly the chemical structure of existing controlled substances while retaining the intoxicating effects of the precursor controlled substance. United States v. McKinney , 79 F.3d 105, 107 (8th Cir. 1996), vacated on other grounds 520 U.S. 1226 (1997); see also United States v. Klecke 348 F.3d 69 , 70 (4th Cir. 2003) ("Congress enacted the Analog Act to prevent underground chemists from altering illegal drugs in order to create new drugs that are similar to their precursors in effect but are not subject to the restrictions imposed on controlled substances."). The analog provision is necessarily elastic "because it is intended to capture within its scope drugs that are not specifically listed and even some that perhaps have not been discovered yet." McKinney , 79 F.3d at 108. The analog provision defines a "controlled substance analog" as:
(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). The statute is to be read in the conjunctive, such that a substance meets the statutory definition of a "controlled substance analog" if it satisfies part (i) and either part (ii) or part (iii). See e.g., United States v. Washam , 312 F.3d 926, 930 n.2 (8th Cir. 2002). [S]ubstances satisfying the definition of a controlled substance analog' may be regulated as controlled substances even though they are not formally classified as ...