Defendants Brian Racine and Andrew Raymond ran a business producing and selling synthetic marijuana between 2013 and 2015. At the time, “synthetic” cannabinoids weren’t listed on the federal controlled substances schedules. Instead, the government charged that these substances were “controlled substance analogues” under the Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”), 21 U.S.C. § 813. See 980 F.3d at 35-36.
“The Analogue Act identifies a controlled substance analogue as a substance with chemical and pharmacological properties substantially similar to those of a substance listed on schedule I or II, 21 U.S.C. § 802(32), and directs, in part, that these substances—if intended for human consumption—be treated[ ] for the purposes of any Federal law as a controlled substance in schedule I[.]” Requena, 980 F.3d at 35 (citing id. § 813(a)). “In turn, 21 U.S.C. § 841(a)(1) and (b) (1)(C) prohibit the distribution of schedule I controlled substances and subject violators to up to twenty years imprisonment.” 980 F.3d at 35 (citation and quotation marks omitted) (emphasis added).
The vagueness challenge: After being convicted by a jury, the Defendants on appeal claimed that “the Analogue Act’s’ substantial similarity’ requirement is unconstitutionally vague on its face.” Id. at 35.
Ordinarily, challenging a statute on its face presents the high burden of showing that “no set of circumstances exists under which the Act would be valid.” But “[t]he Supreme Court has recognized three circumstances in which a statute that is not necessarily vague in all applications may nonetheless be void for vagueness on its face.” Id. at 39. These are: (1) when a statute implicates rights protected by the First Amendment; (2) when a criminal law lacks a mens rea requirement; and (3) the trilogy of cases, starting with Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551 (2015), followed by Sessions v. Dimaya and U.S.. v. Davis, in which “ the Supreme Court struck down three statutes that required courts to evaluate whether the ‘idealized ordinary case’ of a criminal offense constitutes a ‘violent felony,’ or a ‘crime of violence[.]’” 980 F.3d at 39. “Johnson held, and Dimaya reaffirmed, that such a statute may be void for vagueness even though ‘some conduct … clearly falls within the provision’s grasp.’” Id. at 40 (quoting Johnson, 576 U.S. at 602; Dimaya, 138 S. Ct. at 1214 n.3.
Here, the Defendants claimed that, because no objective standard governs a juror’s determination of whether a substance has a chemical structure and pharmacological effects that are “substantially similar” to those of a scheduled substance, the Act’s definition of a “controlled substance analogue” invites impermissibly arbitrary enforcement, is inherently vague, and provides potential defendants with no warning about what conduct is prohibited. Id. at 38-39.
The Circuit rejected the Defendant’s vagueness challenge to the Analogue Act, specifically rejecting their argument that the Act was analogous to the statutes at issue in Johnson, Dimaya, and Davis. Id. at 40-43.
Sufficiency: The Circuit also held that the evidence was sufficient to prove the Defendants’ knowledge that they possessed or distributed “a controlled substance analogue.” Id. at 43.
“In prosecutions involving controlled substance analogues, the government may satisfy 21 U.S.C. § 841(a)(1)’s knowledge requirement in either of two ways: First, it can show that the defendant knew that the substance is “one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance.”
Second, “it can present evidence that the defendant knew that the substance has a chemical structure and pharmacological effects substantially similar to or greater than, those of a controlled substance in schedule I or II.” Id. at 43.
The Circuit holds that there was sufficient direct and circumstantial evidence to prove that the Defendants knew their product “was both similar to other controlled substances” and was a controlled substance in its own right. Id. at 44, 45-46.
Expert testimony: The district court didn’t abuse its discretion, under Fed. R. Evid. 702, in admitting expert testimony on whether synthetic cannabinoids were “substantially similar” in structure and pharmacological effect to controlled substances. Id. at 46-48.
Jury instruction on unanimity: The district court’s instruction that the jury could convict the Defendants without agreeing unanimously on which of the six synthetic cannabinoids at issue qualified as a controlled substance analogue wasn’t plain error or error at all. Id. at 48-52.
The sentencing challenge: The Circuit also rejects the Defendants’ sentencing challenges, finding that the district court made sufficient factual findings on which of the six synthetic cannabinoids qualified as controlled substances by adopting the PSR’s factual findings on the subject and by its statements in an order it issued “following a pre-sentencing evidentiary hearing.” Id. at 53.