United States v. Ticchiarelli ( 1997 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 96-2289

    UNITED STATES,

    Appellee,

    v.

    BRADLEY OLIVER BOWEN,

    Defendant - Appellant.

    ____________________

    No. 96-2290

    UNITED STATES,

    Appellee,

    v.

    RINALDO TICCHIARELLI,
    a/k/a RONALDO, a/k/a WHITNEY DOREY,

    Defendant - Appellant.

    ____________________

    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Gene Carter, U.S. District Judge] ___________________

    ____________________

    Before

    Torruella, Chief Judge, ___________

    Bownes and Cyr, Senior Circuit Judges. _____________________

    _____________________
















    J. Bradford Coffey, by appointment of the Court, with whom __________________
    Farrell, Rosenblatt & Russell was on brief for appellant Bradley _____________________________
    Oliver Bowen.
    G. Richard Strafer, with whom Qui on & Strafer, P.A. was on __________________ ______________________
    brief for appellant Rinaldo Ticchiarelli.
    Margaret D. McGaughey, Assistant United States Attorney, ______________________
    with whom Jay P. McCloskey, United States Attorney, James L. _________________ _________
    Moore, Assistant United States Attorney, and Timothy D. Wing, _____ ________________
    Assistant United States Attorney, were on brief for appellee.



    ____________________

    September 24, 1997
    ____________________





































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    TORRUELLA, Chief Judge. This appeal presents an issue TORRUELLA, Chief Judge. ___________

    of first impression, namely, whether the term "hashish oil" under

    18 U.S.C. 841(b)(1)(D) and U.S.S.G. 2D1.1 is

    unconstitutionally vague, or so ambiguous as to require the

    application of the rule of lenity, as applied to conduct

    occurring prior to a November 1995 amendment to the Sentencing

    Guidelines that provided, for the first time, a definition for

    the term.

    Appellants were convicted for importing and

    trafficking, prior to the Guideline amendment, in a controlled

    cannabis-derived substance the precise classification of which

    was left to be determined during sentencing. The sentencing

    court determined the substance to be "hashish oil," as opposed to

    "marihuana," and concluded that it was appropriate to apply a

    fifty to one quantity conversion ratio under the Drug Quantity

    Table of the Sentencing Guidelines. See U.S.S.G. 2D1.1(c). ___

    Finding that genuine ambiguity regarding the definition of

    "hashish oil" prior to 1995 mandates the application of the rule

    of lenity in this case, we reverse and remand for re-sentencing.

    BACKGROUND BACKGROUND

    Defendants-Appellants Bradley Oliver Bowen and Rinaldo

    Ticchiarelli participated in a scheme, along with three other co-

    conspirators, to smuggle controlled substances from Jamaica into

    the United States, to store the substances in Maine, and from

    there to eventually smuggle contraband drugs into Canada. With

    Bowen's assistance, Ticchiarelli organized two boat trips to


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    Jamaica to pick up marihuana and a marihuana-based substance and

    stored large quantities of these controlled substances in Maine,

    for later export into Canada.

    The illicit substances involved were marihuana and much

    greater quantities of a black, tar-like marihuana-based

    substance. In a consolidated appeal, Brown and Ticchiarelli

    challenge the district court's determination during sentencing

    that the tar-like substance in which they were trafficking was

    "hashish oil."1 Both seek to be sentenced as though the

    controlled substance were "marihuana." Prior to the sentencing

    stage, their cases travelled different procedural routes.

    Pursuant to a plea agreement, Ticchiarelli pled guilty

    on September 14, 1995 to Counts One, Eight and Ten of a ten-count

    indictment. Although these counts made specific reference to

    "hashish oil," as part of his plea agreement Ticchiarelli did not

    concede that the Schedule I controlled substance was "hashish

    oil." Count One alleged a conspiracy to commit and the

    commission of, with Bowen and three others, the following crimes

    occurring between August 1994 and March 1995: importing a

    Schedule I controlled substance ("hashish oil") derived from

    marihuana into the United States in violation of 21 U.S.C. 952;

    importing marihuana into the United States in violation of 21

    U.S.C. 952; distributing the "hashish oil" intending that it

    would be unlawfully imported, in violation of 21 U.S.C. 959(a)

    ____________________

    1 As discussed infra, Bowen asserts additional claims not put _____
    forward by Ticchiarelli.

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    (1); possessing with intent to distribute a Schedule I controlled

    substance ("hashish oil") derived from marihuana, as well as

    possessing with intent to distribute marihuana, in violation of

    21 U.S.C. 841(a)(1); exporting a Schedule I controlled

    substance ("hashish oil") as well as marihuana from the United

    States, in violation of 21 U.S.C. 953. Count Eight charged

    Ticchiarelli with making false representations to the Customs

    Service by presenting false identification, in violation of 18

    U.S.C. 1001, and Count Ten recited the other counts in invoking

    the criminal forfeiture provision of 21 U.S.C. 853.

    The plea agreement signed by Ticchiarelli stated that

    the Schedule I controlled substance of Count One was "hashish"

    when processed into liquid form, but Ticchiarelli nowhere

    conceded that the substance was "hashish oil," and the district

    court reserved the issue of the precise identity of the substance

    for determination at sentencing when it accepted the guilty plea.

    Bowen, unlike Ticchiarelli and the other conspirators

    named in Count One of the indictment, did not enter into a plea

    bargain. On February 6, 1996, Bowen was convicted after a jury

    trial on Counts One, Six and Seven. Counts Six and Seven charged

    a second instance, in March 1995, of possession with intent to

    distribute a Schedule I controlled substance ("hashish oil"), in

    violation of 21 U.S.C. 841(a) and 841(b)(1)(B)(vii), and

    possession with intent to distribute marihuana, in violation of

    21 U.S.C. 841(b)(1)(D). The Presentence Investigation Report

    (PSR) in Bowen's case states that the contested Schedule I


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    controlled substance was hashish oil. Bowen disputed that PSR

    determination and contended that the Guideline's use of the term

    "hashish oil" was unconstitutionally vague. Bowen sought to

    consolidate his case with those of his co-conspirators with

    respect to the issue of the nature of the controlled substance

    referred to as "hashish oil" in the indictment, and as to the

    legal validity of this allegedly ambiguous provision.

    The cases were consolidated and on August 9, 1996, the

    district court convened an evidentiary hearing to determine the

    proper characterization of the controlled Schedule I substance

    for the purposes of sentencing Bowen, Ticchiarelli, and another

    co-conspirator. At the hearing, experts on each side offered

    differing definitions of the term hashish oil. On October 2,

    1996, the district court ruled that based on undisputed facts

    regarding the physical appearance and chemical composition of the

    substance, the substance fit within the ambit of the "ordinary

    meaning" of hashish oil. See United States v. Ticchiarelli, 943 ___ _____________ ____________

    F. Supp. 77, 83 (D. Me. 1996) (Order Determining the Nature of

    the Controlled Substance for Purposes of Sentencing). The

    district court also stated, however, that after considering

    expert testimony proffered by the government and the defendants,

    and after consulting further materials in order to ascertain the

    meaning of the term "hashish oil," it had discovered that "there

    is no scientific nor any universally accepted precise definition

    of the term hashish oil." Id. at 82. ___

    Having found the controlled substance to be hashish


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    oil, the court established the base offense level for Bowen and

    Ticchiarelli by following section 2D1.1(c): it multiplied the

    quantity (measured by weight) of the "hashish oil" attributable

    to the defendants by a factor of fifty, added that figure to the

    amount of other marihuana attributable to them, and determined

    the base offense level corresponding to the resulting, marihuana-

    equivalent drug quantity figure.2 The base offense levels for

    Bowen and Ticchiarelli were 36 each, and, ultimately, their total

    offense levels were determined to be 38.

    On appeal, both Ticchiarelli and Bowen assert that

    Sentencing Guideline section 2D1.1's use of "hashish oil" without

    a definition (prior to November 1995) was unconstitutional, and,

    in the alternative, that the rule of lenity required that any

    ambiguity as to the definition of "hashish oil" be resolved in

    their favor -- that is, through a finding that the marihuana-

    based substance was not hashish oil for sentencing purposes.

    Bowen additionally claims error in the admission of certain

    evidence in his criminal trial and asserts that the fifty to one

    ratio between marihuana and hashish oil is arbitrary and

    irrational, thereby violating the Due Process clause of the Fifth

    ____________________

    2 The court determined that 393 kilograms of hashish oil and 48
    kilograms of marihuana were attributable to the defendants. This
    amounts, after the one to fifty conversion, to 19,698 kilograms
    of marihuana equivalent, corresponding to a base offense level of
    36. See U.S.S.G. 2D1.1(c). Had the substance been deemed ___
    marihuana instead, the corresponding base offense level for Bowen
    and Ticchiarelli would have been 28. Given the total offense
    levels of 38, this eight point increase translates into a minimum
    difference in incarceration periods of 114 months for Bowen and
    141 months for Ticchiarelli.

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    Amendment.




















































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    DISCUSSION DISCUSSION

    I. The Meaning of "Hashish Oil" I. The Meaning of "Hashish Oil"

    The district court's interpretation of the meaning of

    "hashish oil" under the Sentencing Guidelines presents a legal

    question over which we assume de novo review, as does the legal __ ____

    issue of whether the term was vague or ambiguous prior to the

    1995 amendment. United States v. Camilo, 71 F.3d 984, 986 (1st _____________ ______

    Cir. 1996); United States v. Bohai Trading Co., Inc., 45 F.3d _____________ ________________________

    577, 580 (1st Cir. 1995). The sentencing court's findings of

    fact regarding the properties of the controlled substance itself

    are subject to review for clear error. Camilo, 71 F.3d at 986. ______

    The following factual findings regarding the controlled

    substance are undisputed: (1) it is derived from marihuana plant

    matter (cannabis sativa), and not from marihuana resin or

    hashish; (2) it is a black or near-black substance resembling

    road tar; (3) it is not pourable at room temperature; (4) it

    contains tetrahydrocannabinol (THC) in the 13 to 16 percent

    range; (5) it contains cannabinol and cannabidiol; (6) it

    contains no fragments of vegetation perceptible to the naked eye;

    (7) it contains chlorophyll and magnesium; (8) it originates in

    Jamaica. See 943 F. Supp. at 78. The appeal turns on whether ___

    this substance can be said to be "hashish oil."

    Under the amendments to the Sentencing Guidelines

    effective November 1, 1995, the following definition of hashish

    oil was provided:

    Hashish oil, for the purposes of this
    guideline, means a preparation of the

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    soluble cannabinoids derived from
    cannabis that includes: (i) one or more
    of the tetrahydrocannabinols (as listed
    in 21 C.F.R. 1308.11(d)(25)), (ii) at
    least two of the following: cannabinol,
    cannabidiol, or cannabichromene, and
    (iii) is essentially free of plant
    material (e.g. plant fragments). ____
    Typically, hashish oil is a viscous, dark
    colored oil, but it can vary from a dry
    resin to a colorless liquid.

    U.S.S.G. 2D1.1(c), Drug Quantity Table, Note (J) (Nov. 1995).

    Prior to November 1995, the term "hashish oil" was

    undefined in both the Code, see 21 U.S.C. 841(b)(1)(D), and in ___

    the Guidelines. Moreover, the legislative history of the

    Comprehensive Crime Control Act of 1984, which first enacted the

    fifty to one ratio and introduced the term "hashish oil" to the

    Code, is silent as to the meaning of the term. See Pub. L. No. ___

    98-473, 98 Stat. 2030, 2070, 2086; S. Rep. No. 98-634 (1984);

    H.R. Rep. No. 98-1030 (1984). Although the undisputed facts

    regarding the substance at issue would appear to place it within

    the current definition, this definition, constituting a

    significant and substantive addition to the guidelines, cannot be

    retroactively applied to these defendants. See United States v. ___ _____________

    S nchez, 81 F.3d 9, 12 (1st Cir. 1996) (Guideline amendment that _______

    is not a mere clarification, and that is not covered by the

    policy statement of section 1B1.10, is not to be applied

    retroactively). For example, this definition includes a "dry

    resin" within the scope of the term "hashish oil," a matter






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    which, as discussed below,3 could not be considered part of the

    core meaning of "hashish oil" prior to the amendment.

    It is clear, however, that whether or not the substance

    at issue is "hashish oil," it certainly qualifies as "marihuana"

    under the Code:

    The term "marihuana" means all parts of
    the plant Cannabis sativa L., whether
    growing or not; the seeds thereof; the
    resin extracted from any part of such
    plant; and every compound, manufacture,
    salt, derivative, mixture or preparation
    of such plant, its seeds or resin. Such
    term does not include the mature stalks
    of such plant, fiber produced from such
    stalks, oil or cake made from the seeds
    of such plant, or . . . [any preparations
    thereof].

    21 U.S.C. 802(16) (Supp. 1997). It is not disputed that the

    substance at issue in this appeal falls within this broad, catch-

    all definition of "marihuana." The question is whether it can

    also be found to be "hashish oil" under the pre-amendment

    Guidelines. Appellants raise several grounds for concluding that

    it cannot. We need not address their contention that the term

    "hashish oil" is void for vagueness, however, because our

    conclusion that the application of the rule of lenity is

    appropriate in this case provides the appellants the relief they

    seek.

    II. The Rule of Lenity II. The Rule of Lenity

    Appellants contend that in the face of ambiguity

    regarding the scope of the term "hashish oil," the district court
    ____________________

    3 See infra discussion of applicability of rule of lenity for ___ _____
    core meaning of hashish oil.

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    should have followed the rule of lenity by accepting the more

    restricted definition of hashish oil offered by the defendants

    and by sentencing the defendants as though the substance were

    "marihuana" under the Guidelines.

    As the Supreme Court has consistently held, the rule of

    lenity commands that genuine ambiguities affecting a criminal

    statute's scope be resolved in the defendant's favor. See, e.g., ___ ____

    United States v. Lanier, 117 S. Ct. 1219, 1225 (1997); United _____________ ______ ______

    States v. Nippon Paper Indus. Co., 109 F.3d 1, 7-8 (1st Cir. ______ _________________________

    1997)(collecting cases). The important purposes served by the

    rule of lenity include the following: "to promote fair notice to

    those subject to the criminal laws, to minimize the risk of

    selective or arbitrary enforcement, and to maintain the proper

    balance between Congress, prosecutors, and courts." United ______

    States v. Kozminski, 487 U.S. 931, 952 (1988). However, the rule ______ _________

    only "properly comes into play when, at the end of a thorough

    inquiry, the meaning of a criminal statute remains obscure."

    United States v. O'Neil, 11 F.3d 292, 301 n.10 (1st Cir. 1993). ______________ ______

    Put another way, the rule of lenity means that "the Court will

    not interpret a federal criminal statute so as to increase the

    penalty that it places on an individual when such an

    interpretation can be based on no more than a guess as to what

    Congress intended." Ladner v. United States, 359 U.S. 169, 178 ______ _____________

    (1958).

    We find that experts for both the government and the

    defendants offered reasonable constructions of the term "hashish


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    oil" at the August 9, 1996 evidentiary hearing, and further find

    that the legislative history provides no guidance as to the

    term's meaning. Presented with a variety of educated guesses as

    to the meaning of "hashish oil" -- that is, presented with a

    genuine ambiguity -- we hold that the rule of lenity applies.

    The defense expert, James Woodford, testified on the basis of his

    experience as a chemist and as a drug testing expert that hashish

    oil is a transparent, honey-colored oil produced in the process

    of compressing hashish into bricks. Part. Tr. of August 9, 1996

    Hearing, at 38-40. Woodford testified that hashish oil is a

    liquid with high THC levels (around 40%) and that it is not a

    tarry, thick substance. Id. On the other hand, a government ___

    expert, a forensic chemist with the Drug Enforcement Agency,

    testified that the substance appeared to be hashish oil, for

    hashish oil is a marihuana-derived substance that is chiefly

    distinguished from marihuana by its lack of plant material and

    cystolithic hairs, and that the controlled substance lacked

    cystolithic hairs. Id. at 6-7. According to the government ___

    experts, "hashish oil" need not resemble other familiar oils that

    are liquid at room temperature. The record indicates that the

    substance, although undoubtedly a controlled substance, did not

    have the slippery, viscous, or liquid properties of an "oil," at

    least as that term is commonly used. This fact is, in our

    opinion, critical to our conclusion that the rule of lenity

    applies in this case.

    Although no other circuit court has addressed this


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    issue, appellants draw our attention to two district court

    decisions involving a similar tar-like marihuana-based substance

    in which the courts, in the face of conflicting definitions of

    hashish oil from experts, applied the rule of lenity. See United ___ ______

    States v. Gravelle, 819 F. Supp. 1076, 1078-79 (S.D. Fla. 1993) ______ ________

    (pursuant to rule of lenity, finding substance to be marihuana

    rather than hashish oil); United States v. Schultz, 810 F. Supp. ______________ _______

    230, 234 (S.D. Ohio 1992) (pursuant to rule of lenity finding

    substance to be hashish rather than hashish oil). Both cases

    dealt with a thick, tarry, black substance that did not pour at

    room temperature.

    In United States v. Camilo, we held that the rule of ______________ ______

    lenity was not applicable where a defendant challenged an

    enhanced sentence for trafficking in "crack" (as opposed to

    "powder") cocaine. See 71 F.3d at 990 (rule of lenity not ___

    applicable because "crack in reality does differ from cocaine

    powder," notwithstanding similar medical effects and identical

    scientific composition). That case is distinguishable from the

    instant appeal, because in Camilo we emphasized that one can ______

    clearly distinguish, as a practical matter, between crack and

    powder cocaine. The meaning of the term "crack" was thus not

    ambiguous. Here, "hashish oil," prior to the 1995 amendment,

    presents a problem of definitional ambiguity, a problem to which

    the rule of lenity clearly is addressed.

    For lenity to be appropriate, genuine and

    insurmountable doubt must exist as to whether Congress, in


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    enacting a higher penalty for "hashish oil," intended to include

    this particular, tarry substance within its scope. The district

    court, finding that "[t]he three experts presented by the parties

    were as deficient on the subject of definition as Congress and

    the Sentencing Commission," 943 F. Supp. at 79, surveyed a

    variety of publications for assistance. See 943 F. Supp. at 80- ___

    82. The "ordinary meaning" of hashish oil that the district

    court ultimately applied, however, did not represent a kind of

    least common denominator among the various definitions it had

    culled. Indeed, the publications the court cited include both

    narrow and broad definitions of hashish oil, and the court opted

    for a broader definition rather than a narrower one. Id. Even ___

    on the basis of the publications cited and quoted by the district

    court in its order, we find that, at the very least, there exists

    ambiguity as to whether "hashish oil": (a) must be a liquid (or

    readily pourable, or capable of being administered in drops) at

    room temperature; and (b) must have a THC level in a range

    significantly higher than that of marihuana. We therefore

    conclude that the rule of lenity should have been applied in this

    case, requiring a narrower construction of "hashish oil." Had

    the substance been a potent liquid, derived from cannabis, and

    lacking plant material, then the rule of lenity would not have

    been appropriate. Although, as the district court pointed out,

    Bowen and Ticchiarelli should have known that they were

    trafficking in a substance that could result in serious

    penalties, as we have indicated, fair notice is not the sole


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    consideration motivating the rule of lenity.

    II. Bowen's Other Claims II. Bowen's Other Claims

    We need not dwell at length on Bowen's additional

    claims. First, his request for a downward departure due to the

    low THC levels of the substance is rendered irrelevant in light

    of our holding that the rule of lenity applies. Second, he

    challenges the constitutionality of the fifty to one conversion

    ratio between hashish oil and marihuana under U.S.S.G. 2D1.1

    and 21 U.S.C 841(b)(1) (D). In declining Bowen's invitation to

    deem Congress' enactment of this ratio patently irrational, we

    need only direct his attention to United States v. Singleterry, _____________ ___________

    29 F.3d 733, 739 (1st Cir. 1994), which upheld a challenge to the

    Guideline provision equating one gram of cocaine base with 100

    grams of cocaine. Indeed, the fifty to one hashish oil ratio

    presents a much more straightforward case for after-the-fact

    rationalization: hashish oil can be expected to be more potent

    and more easily transported than marihuana.

    Finally, Bowen challenges the admission of a drug

    ledger during his criminal trial. Even assuming, as Bowen

    alleges, that the drug ledger confiscated at the time of his

    arrest was not related to the conduct charged in the indictment,

    and therefore should have been excluded as irrelevant, on

    reviewing the record we find that any error was plainly harmless

    and did not implicate a constitutional right. Given the varied

    and strong proof, based on direct evidence, of Bowen's

    participation in the conspiracy, we find the "weight of the


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    additional evidence overwhelming," and conclude that the same

    verdict would almost certainly result from a new trial. United ______

    States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). Although ______ ____

    the drug ledger was used by the prosecution to corroborate the

    testimony of Bowen's co-conspirators, significantly, the

    accomplice testimony was forcefully corroborated by other real

    evidence and by the testimony of customs agents.








































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    CONCLUSION CONCLUSION

    For the foregoing reasons the sentences applied to the

    appellants are vacated and the case is remanded for sentencing vacated remanded _______ ________

    pursuant to this opinion.














































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