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United States v. Memon

United States District Court, S.D. Texas, Corpus Christi Division

September 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SHAKIR MODUL MEMON, Defendant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY, SENIOR U.S. DISTRICT JUDGE.

         Pending before the Court are Defendant Shakir Modul Memon's Motion to Dismiss Superseding Indictment (D.E. 44), Supplemental Motion to Dismiss Superseding Indictment (D.E. 45), Motion to Dismiss for Violation of the Double Jeopardy Clause (D.E. 46), and Second Motion to Dismiss (D.E. 62), to which the United States of America (the "Government") has responded (D.E. 69), and Defendant has replied (D.E. 71).

         I. Background

         The original Indictment alleged that, between December 8, 2015, and June 30, 2016, Defendant and his codefendant, Catalina Ceballos, knowingly conspired to possess with intent to distribute "a synthetic cannabinoid mixture and substance containing a detectable amount of 5F-MDMB-PINACA and FUB-AMB, Schedule I controlled substance analogues as defined in Title 21, United States Code, Section 802 (32), knowing that the substance was intended for human consumption . . . ." D.E. 1.

         Defendant previously moved to dismiss the Indictment pursuant to Federal Rule of Criminal Procedure 12(b) on the grounds that 5F-MDMB-PINACA and FUB-AMB did not become controlled substances until 2017, and because the Government cannot retroactively apply the controlled substance designation, he cannot be charged with conspiracy with intent to distribute these substances between 2015 and 2016. After the Government responded that 5F-MDMB- PINACA and FUB-AMB were analogs of the controlled substance ADB-PINACA pursuant to the Controlled Substance Analogue Enforcement Act (CSAEA or "Analogue Act"), Defendant countered that ADB-PINACA wasn't permanently placed in Schedule I until September 6, 2016- over two months after the alleged conspiracy.

         In denying Defendant's motion to dismiss, the Court found that ADB-PINACA became a controlled substance on February 20, 2014, when it was temporarily placed in Schedule I by the Attorney General prior to the formal rulemaking process. D.E. 32, p. 3. Because "ADB-PINACA was a Schedule I controlled substance at all times between December 8, 2015, and June 30, 2016 . . ., Defendant's claim that 'the indictment fails to allege a federal penal offense' because 'the alleged conspiracy predates the effective date of the controlled substance the government relies upon to allege a violation under the CSAEA' [was] without merit." Id.

         The Government thereafter filed a Superseding Indictment replacing "FUB-AMB" with "5F-AMB." D.E. 35.

         II. Motions to Dismiss Superseding Indictment

         A. Analogue Act is Unconstitutionally Vague

         Defendant now moves to dismiss the Superseding Indictment on the grounds that the Analogue Act is unconstitutionally vague as applied. According to Defendant, during the timeframe of the alleged conspiracy, a person of ordinary intelligence would have no way to reasonably learn that 5F-MDMB-PINACA and 5F-AMB are unlawful and thus have an opportunity to conform their conduct to the requirements of law. In support of this claim, Defendant cites a Notice of Intent from the Drug Enforcement Administration (DEA) dated January 9, 2017, stating that 5F-MDMB-PINACA and 5F-AMB would be temporarily placed in Schedule I, effective February 8, 2017. Notice of Intent, Vol. 82, No. 5 Fed. Reg. [Docket No. DEA-446] (Jan. 9, 2017). Citing Lopez Ventura v. Sessions, 907 F.3d 306 (5th Cir. 2018), Defendant maintains that he cannot be charged with conspiracy with intent to distribute 5F-MDMB-PINACA and 5F-AMB between 2015 and 2016 because the Government cannot retroactively apply the controlled substance designation.[1]

         In response, the Government points out that the Superseding Indictment alleges 5F-MDMB-PINACA and 5F-AMB are "controlled substance analogues" as defined by 21 U.S.C. § 802(32), which are "slightly modified drugs" that "have the same effects and dangers as scheduled controlled substances." United States v. Hodge, 321 F.3d 429, 432 (3d Cir. 2003). Under the Analogue Act, controlled substance analogues are treated as Schedule I controlled substances "to the extent intended for human consumption." 21 U.S.C. § 813. Thus, the offense of conspiracy to possess with intent to distribute controlled substances includes all controlled substance analogues intended for human consumption. See id.; 21 U.S.C. §§ 846, 841. It is the opinion of the Government's DEA expert that 5F-MDMB-PINACA and 5F-AMB are analogues of the synthetic cannabinoid ADB-PINACA. As set forth supra, ADB-PINACA was a Schedule I controlled substance at all times between December 8, 2015, and June 30, 2016. Thus, Defendant's claim that the Government is attempting to retroactively apply the Analogue Act is without merit.

         Defendant's claim that the Analogue Act is void for vagueness as applied also fails. In McFadden v. United States, the Supreme Court rejected a vagueness challenge to the Analogue Act, characterizing the statute as "unambiguous."___U.S.___, 135 S.Ct. 2298, 2307 (2015). The Northern District of Texas recently rejected a similar claim that the Analogue Act was unconstitutionally vague as applied, explaining:

Defendants' vagueness argument contends that the phrase "substantially similar" is vague and, therefore, the Act's application to the substances at issue is constitutionally improper because of scientific disagreement as to whether the substances are, in fact, "substantially similar" to controlled substances. This argument fails for several reasons.
First, courts across the country have held that the Analogue Act is not unconstitutionally vague.[2] The Fifth Circuit has reviewed vagueness arguments regarding the Analogue Act on two occasions. United States v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989); United States v. Cranberry,916 F.2d 1008, 1010 (5th Cir. 1990). Both times, it found that the Act was not unconstitutionally vague. Id. The Fifth Circuit has stated that "the term 'controlled substance analogue' in ยง 813 is clearly and specifically defined, in terms readily comprehendible to the ordinary reader" ...

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