United States v. Turcotte, James R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2988
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES R. TURCOTTE,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 CR 737-2—James B. Moran, Judge.
____________
ARGUED NOVEMBER 1, 2004—DECIDED APRIL 19, 2005
____________
Before CUDAHY, ROVNER and WOOD, Circuit Judges.
CUDAHY, Circuit Judge. Appellant James Turcotte was
convicted of three counts of violating the Controlled Sub-
stances Act, including a conviction for possession and
distribution of a controlled substance analogue as defined
by 21 U.S.C. § 802(32). Turcotte now appeals his conviction
before this Court, alleging that (1) the district court issued
at least two erroneous and prejudicial jury instructions
relating to the Analogue Provision of the Controlled Sub-
stances Act, (2) the prosecution improperly withheld Brady
material at trial, (3) his conviction was precluded by
existing federal law, (4) the Analogue Provision of the
2 No. 03-2988
Controlled Substances Act is unconstitutionally vague and
(5) the district court made several errors in trial manage-
ment. We now affirm.
I. BACKGROUND
In this case we confront Congress’s attempt to adapt the
nation’s controlled substances laws to the dizzying pace of
innovations in drug technology. This case also marks the
most recent chapter in one man’s ill-fated personal and pro-
fessional odyssey from bricklayer to bodybuilder to drug
merchant. James Turcotte worked as a bricklayer through-
out most of the 1990s. In late 1998 or early 1999, Turcotte
was contacted by Brian Gore and asked to do some con-
struction work at Max Muscle, a store selling vitamins,
supplements, sports apparel and weightlifting equipment in
a shopping mall in Downers Grove, Illinois. Max Muscle
had been recently opened by Gore’s friend Scott Wright. In
September, 1999, Turcotte participated in a bodybuilding
contest sponsored by Max Muscle, which required contes-
tants to use Max Muscle products while preparing for the
competition. In conjunction with this competition, Turcotte
purchased nutritional supplements from Max Muscle,
including “Verve 5.0,” a purported vitamin supplement that
contains the chemicals GHB, GBL and BD.1
Sometime in March 2000, Gore sold Best Buy Supplements,
an internet-based company through which Turcotte was to
sell Verve 5.0, to Turcotte. Best Buy Supplements conducted
its business through the websites bestbuysupplements.com
and growthhormoneshop.com, offering a variety of bodybuild-
1
“GHB” is Gamma Hydroxybutyric Acid, a Schedule I Controlled
Substance under federal regulations. Gamma Butyrolacetone
(“GBL”) and 1,4-butanediol (“BD”) are substances that convert to
GHB in the human body.
No. 03-2988 3
ing and fitness products including Verve 5.0 and other
“Growth Hormone Products.” The bestbuysupplements.com
website, which listed Turcotte as its “owner,” touted Verve
5.0 as the “absolute finest quality GHB precursor” and ac-
knowledged that both “furanone”—another name for GBL—
and “butanediol” (BD) are “illegal nationwide.” To fulfill
customer orders, Turcotte purchased cases of Verve labeled
“cleaning supplies.”
In August of 2000, the Drug Enforcement Administration
(DEA) began an undercover investigation of Turcotte’s sales
of Verve after arresting Kevin Masquida, who had purchased
Verve online from Best Buy Supplements. Masquida en-
tered into a plea agreement with the government under
which he agreed to help the DEA arrange an undercover pur-
chase of Verve from Turcotte. After a series of phone calls
from Masquida, the purchase was scheduled for 5:00 p.m.
on September 8, 2000, at a Shell gas station in Mokena,
Illinois. Masquida agreed to buy twenty cases of Verve for
$10,000.
On the day of the transaction, undercover DEA agent
Robert Coleman accompanied Masquida, posing as an indi-
vidual interested in purchasing Verve. The entire trans-
action was monitored by DEA surveillance. Turcotte and
Gore met Masquida and Coleman at the Shell station as
planned, and they drove to a nearby Wendy’s parking lot
where Turcotte had parked his van. Coleman handed
Turcotte a styrofoam cup containing $10,000 in cash, and
Turcotte directed the group to transfer 20 cases of Verve
from Turcotte’s van to Masquida’s van. When the transfer
began and Coleman was able to confirm that the cases did
contain Verve, DEA agents arrived to arrest Turcotte and
Gore.
Turcotte was charged in three counts of a five-count in-
dictment. Count One charged Turcotte with knowingly and
intentionally conspiring to defraud and mislead the govern-
4 No. 03-2988
ment by introducing misbranded drugs (GHB, GBL and BD)
into interstate commerce. Count Two charged Turcotte with
conspiring to possess and distribute GHB (a Schedule I
Controlled Substance), GBL (a schedule I controlled sub-
stance analogue under 21 U.S.C. § 802(32)), and BD (a
schedule I controlled substance analogue under § 802(32))
in violation of The Controlled Substances Act (CSA or “the
Act”), 21 U.S.C. §§ 841(a)(1) and 813. Count Five charged
Turcotte with knowingly and intentionally possessing with
intent to distribute 60 gallons of GHB and GBL in violation
of §§ 841(a)(1) and 813 of the CSA. As to GBL and BD,
these charges come under the Analogue Provision of the
Controlled Substances Act, 21 U.S.C. § 802(32), which pro-
vides that substances satisfying the definition of a “controlled
substance analogue” may be regulated as controlled sub-
stances even though they are not formally classified as such
under federal law.
On November 12, 2000, Turcotte proceeded to trial. Gov-
ernment witnesses included Agent Coleman, Masquida,
officials from the Food and Drug Administration (FDA), a
forensic drug chemist from the DEA, toxicology and medical
experts, registered distributors of GBL and other law
enforcement and fact witnesses who testified about the phy-
siological effects of GBL. During the trial, the government
claims it suddenly became aware of Investigational New
Drug Reports (INDs) which detailed research into potential
medical uses for GHB, including a treatment for narcolepsy
involving a new drug named Xyrem. Turcotte immediately
requested copies of the INDs. The district court, while
opining that the INDs would probably prove to be of little
use to the defense, provided that the government’s wit-
nesses would remain available for recall after presentation
of the government’s case-in-chief so that Turcotte could
cross-examine them further about the content of the new
INDs. In his defense, Turcotte testified personally and also
called his own forensic chemistry and medical experts to
No. 03-2988 5
testify. Turcotte admitted that he knew Verve was a chem-
ical solvent and that he had sold it for human consumption.
At the conclusion of the trial, the district court issued its
instructions to the jury. Two of them are at issue here. First,
with regard to the definition of a controlled substance an-
alogue, the district court instructed the jury that the three
clauses of the CSA’s Analogue Provision, 21 U.S.C. § 802(32),
should be read in the disjunctive rather than the conjunc-
tive. After acknowledging that the Seventh Circuit had not
yet endorsed either reading of the provision, the court gave
the jury special verdict forms on which they could rule spe-
cifically on each of the Analogue Provision’s three clauses.
The court explained that it would temporarily defer ruling
on the proper reading of the Act but would revisit the issue
if the special jury forms revealed that the different readings
of the provision—conjunctive versus disjunctive—would
have produced different results. Second, with regard to
Count Five, the district court instructed the jury on the
scienter requirement of the CSA’a analogue provision, telling
jury members they could convict Turcotte even if they did
not find that he knew GBL was a “controlled substance.”
On November 22, 2003, the jury convicted Turcotte on all
counts, returning special verdict forms finding that GBL
met all three criteria listed in the CSA’s Analogue Provision,
21 U.S.C. § 802(32), but that BD met only one of these cri-
teria. On January 22, 2004, Turcotte timely filed a motion
for a judgment of acquittal or a new trial. He claimed that
(1) the district court’s jury instruction mandating a disjunc-
tive reading of the CSA’a Analogue Provision was error, (2)
the court’s jury instructions regarding the Analogue Provi-
sion’s scienter requirement was erroneous, (3) the prosecu-
tion improperly withheld Brady materials (the new INDs)
and (4) the Analogue Provision of the CSA is unconstitu-
tionally vague. Turcotte later filed an untimely motion
further alleging (1) that GBL and BD are not controlled
substance analogues of GHB because GHB is no longer a
6 No. 03-2988
Schedule I Controlled Substance, and (2) that the Dietary
Supplements Health & Education Act (DSHEA) prevents
BD and GBL from being classified as controlled substance
analogues.
The district court considered all of Turcotte’s claims—
timely and untimely alike—and denied his post-trial mo-
tions for an acquittal or a new trial in a memorandum
disposition dated July 7, 2003. United States v. Turcotte, 286
F. Supp. 2d 947 (N.D. Ill. 2003). Turcotte was sentenced to
54 months’ imprisonment for each of the three counts (to
run concurrently), three years’ supervised release and a
fine. Turcotte now appeals the district court’s denial of his
post-trial motions and asks that his conviction be reversed,
or, in the alternative, that the case be remanded for res-
entencing.
II. JURISDICTION
Since Turcotte was charged with a violation of the federal
Controlled Substances Act (21 U.S.C. §§ 841(a)(1) and 846),
the district court had jurisdiction pursuant to 18 U.S.C.
§ 3231, which provides for district court jurisdiction over “all
offenses against the laws of the United States.” The jury
returned a guilty verdict against Turcotte on November 22,
2002, and the district court entered judgment on July 22,
2003. Turcotte timely filed his Notice of Appeal on July 23,
2003, and this Court now has jurisdiction to review the final
order of the district court pursuant to 28 U.S.C. § 1291.
III. DISCUSSION
Turcotte advances six distinct claims in his challenge to
the district court’s ruling below. We address each of these
claims in turn.
No. 03-2988 7
A. Conjunctive Versus Disjunctive Readings of the
CSA’s Analogue Provision
The particular constructional issue raised here is one of
first impression for this Court. The CSA provides that cer-
tain substances, while not officially scheduled as controlled
substances themselves, may be regulated as such if they
meet the definition of a “controlled substance analogue.”
The CSA defines a “controlled substance analogue” as “a
substance—”
(i) the chemical structure of which is substantially sim-
ilar 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 substan-
tially similar to or greater than the stimulant, de-
pressant 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 per-
son represents or intends to have a stimulant, de-
pressant, 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) (2004).
As the old adage instructs, the devil is in the details— the
relevant detail here being the single word “or” between
clauses (ii) and (iii) of the definition. There are two possible
readings of this definition. Under a disjunctive reading, a
substance that satisfies any one of these three criteria qua-
lifies as a controlled substance analogue. Under a conjunc-
tive reading, the provision requires two things: (1) The sub-
stance in question must have a chemical structure sub-
stantially similar to a controlled substance (criterion one)
8 No. 03-2988
and (2) it must either have a substantially similar effect on
the central nervous system (criterion two) or be purported
or intended to have such an effect (criterion three).
Both parties and the district court agree that the Seventh
Circuit has yet to address this particular constructional issue.
See 286 F. Supp. 2d at 951. It is also undisputed that the
district court submitted a disjunctive instruction to the jury
with the intention of revisiting the issue if the special
verdict forms showed that the two interpretations would
lead to different results. In its disposition of Turcotte’s motion
for a post-trial acquittal or a new trial, the district court
stated that it was actually “inclined to agree” with
Turcotte’s arguments for a conjunctive reading of the Act,
but that “such a determination . . . does not affect defendant’s
conviction” since “[t]he jury’s special verdict forms establish
that the government proved all three elements of
Section 802(32)(A) beyond a reasonable doubt with respect
to GHB.” Id. On appeal, the parties differ on the correctness
of the district court’s disjunctive instruction and its effect
(or lack thereof) on Mr. Turcotte’s conviction and sentencing.
Turcotte contends that the district court’s instruction was
erroneous, and that it did indeed affect his ultimate sen-
tence. This Court reviews de novo a district court’s denial of
a requested jury instruction. United States v. Slater, 348
F.3d 666 (7th Cir. 2003).
Unfortunately, the text of the Controlled Substances Act
analogue provision is not a model of clarity. Common sense
and the practical implications of various interpretive op-
tions ultimately offer more guidance than the text and struc-
ture of § 802(32)(A) itself. As a matter of strict textual
analysis, § 802(32)(A) is susceptible to either a disjunctive
or a conjunctive reading. The word “which” in the beginning
of clauses (ii) and (iii) could be construed to refer either to
“substance” in the preface of the definition (favoring a dis-
junctive reading) or to “chemical structure” in clause (i)
(favoring a conjunctive reading). Yet the vast majority of
No. 03-2988 9
federal courts to confront this issue have adopted the con-
junctive reading. United States v. Hodge, 321 F.3d 429, 433
(3d Cir. 2003) (presenting in-depth analysis of the plain
meaning and legislative history of § 802(32)(A)); United States
v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003) (adopting the con-
junctive reading); United States v. Washam, 312 F.3d 926,
930 n.2 (8th Cir. 2002) (adopting the conjunctive reading);
United States v. McKinney, 79 F.3d 105, 107-08 (8th Cir.
1996), vacated on other grounds, 520 U.S. 1226 (1997) (pre-
senting the test in the conjunctive without further elabora-
tion); United States v. Brown, 279 F. Supp. 2d at 1240 (S.D.
Ala. 2003) (adopting the conjunctive reading); United States
v. Vickery, 199 F. Supp. 2d at 1371 (N.D. Ga. 2002) (same);
United States v. Clifford, 197 F. Supp. 2d at 519-20 (E.D. Va.
2002) (same); United States v. Forbes, 806 F. Supp. 232, 235
(D. Colo. 1992) (reviewing the Act’s legislative history and
asserting that the conjunctive reading is required to prevent
absurd results). See also United States v. Roberts, 363 F.3d
118, 121 (2d Cir. 2004) (briefly surveying the relevant
precedents and accepting the conjunctive reading). The only
arguable exceptions are United States v. Fisher, 289 F.3d
1329, 1338 (11th Cir. 2002), in which the Eleventh Circuit
expressly declined to decide the issue, and United States v.
Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990), in which
the Fifth Circuit recited the test in the disjunctive without
discussion or elaboration.
The majority of these courts base their rulings largely on
the absurd results that might obtain under a disjunctive
reading, noting that alcohol and caffeine could be criminal-
ized as controlled substance analogues based solely on the
fact that, in concentrated form, they might have depressant
or stimulant effects similar to illegal drugs. See, e.g., Forbes,
806 F. Supp. at 235. Similarly, the sale of everyday sub-
stances could be criminalized if the seller merely represents
that they are banned substances or have physiological
effects similar to illegal drugs. See id. (Noting that under a
10 No. 03-2988
disjunctive reading, the sale of powdered sugar could be
criminalized if the seller represents that it is cocaine);
Hodge, 321 F.3d 429 (rejecting a disjunctive approach and
holding that selling a mixture of wax and flour is not
criminalized merely because the seller represented it to be
“crack cocaine”).
Moreover, the legislative history of the Act suggests that
such bizarre consequences were not intended by Congress.
The Act was intended primarily to prevent scientists from
slightly modifying the chemical structure of banned drugs
to create new “designer drugs” that would have similar
physiological effects but would not be covered by the law’s
controlled substances schedules. See, e.g., Hodge, 321 F.3d
429 (conducting an extensive review of the Act’s legislative
history). According to one court, there is “not a scintilla of
evidence” that “Congress intended to cover and criminalize
sales of legal substances such as flour, salt, ginseng, vita-
min B, etc., merely because the seller represents that they
will yield a stimulant, depressant, or hallucinogenic effect
like that of a controlled substance.” Clifford, 197 F. Supp.
2d at 520-21. The court in Clifford also pointed out that
Congress is capable of indicating an unambiguous disjunc-
tive intent when it so desires: In at least one other provision
of this very Act (§ 802(9)), a number of subordinate causes
are listed in a fashion similar to § 802(32)(A), but each
subsection is separated by the word “or” to indicate a clear
disjunctive intent. Id. at 519-20.
Given that the text of the Act does not clearly demand
either reading, we find the practical policy considerations
identified by our sister courts compelling, especially when
coupled with the Act’s overall structure and legislative his-
tory . We therefore elect to heed the call of both accumulated
precedent and common sense, joining the vast majority of
federal courts in adopting the conjunctive reading of
§ 802(32)(A). Accordingly, the district court’s disjunctive
No. 03-2988 11
jury instruction was error. However, as will be discussed
presently, this error was not ultimately prejudicial to
Turcotte.
The parties’ dispute over the import of the district court’s
disjunctive jury instruction seems to reflect fundamentally
different readings of the jury’s special verdict forms and the
Presentence Investigation Report. Turcotte alleges that the
jury found BD to be an analogue of GHB based on the fact
that it satisfied only clause two of § 802(32)(A) (similar
effect on the nervous system), and that therefore, since his
conviction and sentence as to possession and distribution of
BD was based on an erroneous disjunctive reading of the
Act, he is entitled to relief in this Court.
The government responds by arguing that, since the jury
found BD to satisfy only clause two of § 802(32)(A) (similar
physiological effect), Mr. Turcotte was NOT convicted or
sentenced for possession or distribution of BD at all. In ef-
fect, the government alleges that the jury and the probation
officer preparing the Presentence Investigation Report
(Appellant’s Reply Br., Exh. 2.) read § 802(32)(A) conjunc-
tively, notwithstanding the district court’s disjunctive in-
struction. The government claims that Mr. Turcotte’s sen-
tence was based purely on his possession and distribution
of GBL, which the jury found satisfied all three clauses of
§ 802(32)(A) (and thus would have qualified as an analogue
of GHB under either a disjunctive or conjunctive reading of
the Act).
The written record favors the government on this point.
Turcotte’s claims here seem to be moot. First, it is impor-
tant to note that, by their own terms, Turcotte’s arguments
on this issue relate only to BD; both parties agree that the
jury found GBL to meet all three clauses of § 802(32)(A),
and thus that Mr. Turcotte would have been convicted for
possession and distribution of GBL under either reading of
the statute. As such, Turcotte’s claims here only have trac-
12 No. 03-2988
tion if he was indeed convicted of possession with intent to
distribute BD (as an analogue of GHB) and separately
sentenced for this offense. The Presentencing Investigation
Report reveals that Turcotte’s conviction did not rest on his
possession or distribution of BD, and it unequivocally states
that his possession and distribution of BD did not affect
calculation of his sentence. While the Report initially states
that Mr. Turcotte was convicted of “conspiring with Brian
Gore to possess with the intent to distribute, and possessing
with the intent to distribute, GHB, GBL, and BD,” it later
makes clear that the jury did not find BD to be a controlled
substance analogue and, accordingly, that Mr. Turcotte’s
possession of BD did not play any role in his conviction or
sentencing:
With specific regard to BD (1,4 Butanediol), the jury
has returned a special verdict which states that BD is
not a Schedule I Narcotic Drug Controlled Substance
analogue, because BD’s chemical structure is not signi-
ficantly similar to the chemical structure of GHB. Thus
the amounts of Flower Power (BD) and any other sub-
stances which contained BD are not included in the
amounts of controlled substances for which the defendant
is accountable, notwithstanding his possession and dis-
tribution of said substances.
Presentencing Investigation Report, Appellant’s Reply Br.,
Exh. 2 at 20-21 (emphasis added). The Report then went on
to state that even “[i]f the Court were to rule that BD is a
controlled substance analogue of GBL, a Schedule I depres-
sant, in contravention of the jury’s special verdict, the
number of units of BD involved in this case . . . would not
increase the base offense level applicable to this offense.” Id.
(emphasis added).
No matter how one looks at it, BD simply does not appear
to have been factored into Mr. Turcotte’s sentencing. Thus
the district court’s disjunctive jury instruction, while
No. 03-2988 13
erroneous, cannot be said to have prejudiced Turcotte. In
fact, the district court seems to presage this ruling in its
order denying Turcotte’s post-trial motion for a judgment of
acquittal or a new trial, stating that it was actually “in-
clined to agree” with Turcotte’s arguments for a conjunctive
reading of the Act, but that “such a determination . . . does
not affect defendant’s conviction.” 286 F. Supp. 2d at 951.
Given the prior absence of a clear ruling on the issue in this
circuit, the district court’s decision to have the jury rule
separately on each element of the Analogue Provision
appears an appropriate jurisprudential precaution. As such,
we have no occasion to reverse the district court’s ruling on
this narrow constructional issue, though we hereby serve
notice that courts in this circuit should henceforth apply a
conjunctive reading of the CSA’s Analogue Provision.
B. The District Court’s Instructions on Scienter
Mr. Turcotte next alleges that the district court improp-
erly instructed the jury that they could convict him under
§ 841(a) even if he did not know that GBL was an illegal
controlled substance analogue. In proceedings below, the
district court gave the following instruction:
To sustain the charge in Court Five of possessing with
intent to distribute mixtures containing a controlled
substance, the government must prove the following
propositions: First, the defendant knowingly and in-
tentionally possessed mixtures containing GBL; Second,
the defendant possessed mixtures containing GBL with
the intent to deliver it to another person; and Third,
that mixtures containing GBL are an analogue of GHB,
a Schedule I Controlled Substance. It does not matter
whether the defendant knew the substance was a con-
trolled substance, only that it was a mixture containing
GBL.
14 No. 03-2988
(District Court Jury Instruction, ER 105 (emphasis added).)
We review de novo a district court’s denial of a requested
jury instruction. See Slater, 348 F.3d 666.
The district court and the government argue for applica-
tion of the time honored maxim that “ignorance of the law
is no excuse.” They contend that § 841(a) does not require
knowledge that the substance in question is a controlled
substance—a defendant must merely know the identity of
the substance being possessed and distributed. See 286 F.
Supp. 2d at 951. The district court expresses some doubt
about this conclusion however, conceding “[p]erhaps that
goes too far, as it might, possibly, in other circumstances,
ensnare individuals engaged in apparently innocent con-
duct.” Id. Nonetheless, the government and the district court
stand firm, maintaining that even if knowledge of a sub-
stance’s illegality is required under the Act, the special jury
forms used in this case resolve the issue, as they indicate
the jury found that Turcotte “represented or intended” that
GBL had physiological effects “substantially similar to or
greater than” GHB, a controlled substance in Schedule I.
Such a position is extremely problematic, however, since
the Analogue Provision imposes criminal liability through
the more general provisions of the CSA, 18 U.S.C. § 841(a),
which implicate a well-established scienter requirement.
This Court has previously held—on multiple occasions—that
as a prerequisite to liability for possessing a controlled sub-
stance with intent to distribute under § 841(a), defendants
must know that the substance in question is a controlled
substance. United States v. Barlow, 310 F.3d 1007, 1012 (7th
Cir. 2002) (“Section 841(a) requires only that defendant
know that he possesses a controlled substance; it does not
require that he know the type of controlled substance he
possesses.”); Lanier v. United States, 220 F.3d 833, 840 (7th
Cir. 2000) (requiring “knowledge that [the drug] is a
controlled substance”); U.S. v. Jones, 248 F.3d 671, 675 (7th
Cir. 2001) (citing Lanier for the same rule). In fact the
No. 03-2988 15
Seventh Circuit Pattern Jury Instructions articulate the
same standard: “It is sufficient that the defendant knew
that the substance was some kind of prohibited drug. It
does not matter whether the defendant knew the substance
was [a specific drug].” STAR Modern Federal Jury Instruc-
tions—Criminal, § 7-202-03, 21 U.S.C. § 841(a)(1) (2004).
Yet these precedents read awkwardly in the context of the
present case, since they assume the paradigmatic drug case
in which the substances involved are per se illegal—
substances such as cocaine, heroin and the like. All of the
aforecited Seventh Circuit cases involve prosecutions for per
se illegal drugs like cocaine base (Barlow), marijuana
(Lanier) and crack cocaine (Jones). In such cases, knowledge
of the specific substance involved will usually automatically
imply knowledge that the substance is controlled.2 Or, even
2
The government cites United States v. Hussein, 351 F.3d 9, 17
(1st Cir. 2003), United States v. Cain, 130 F.3d 381, 384 (9th Cir.
1997), United States v. Barbosa, 271 F.3d 438, 457-58 (3d Cir. 2001)
and United States v. Fuller, 162 F.3d 256, 260 (4th Cir. 1998), for
the proposition that convictions under the CSA do not require
defendants to know that the substances in question are controlled
substances. These citations are quite misleading. Despite the
government’s contrary contentions (or insinuations), all of these
cases affirm the baseline principle that defendants must know
that the substances in their possession are controlled substances
to be convicted under the CSA, even if they do not know the exact
identity of the substance they possess. In other words, the lan-
guage cited by the government deals with defendants’ legal rather
than factual knowledge. Defendants need not know that posses-
sion of a controlled substance is illegal, but they still must know
that they possess a controlled substance.
All of these cases also involve traditional, well-known narcotics
that are illegal per se, such as cocaine (Cain), heroin and cocaine
base (Barbosa) and crack (Fuller). Thus, once again, knowledge of
the drug’s identity would be sufficient to establish knowledge of
(continued...)
16 No. 03-2988
if the distributor of the substance does not know its specific
identity, he or she is at least aware that it is a controlled
substance. See, e.g., Barlow, 310 F.3d at 1012. Here, and in
other analogue cases under § 802(32)(A), the opposite is
true—many newly engineered and relatively unknown
substances may be involved such that knowledge of the
substance’s identity does not automatically imply knowl-
edge of its status as a controlled substance. Indeed new
“designer drugs” are often created as alternatives to known
illegal drugs precisely because they may be sold with an
appearance of legality. Unable to keep its controlled
substance schedules current in the face of accelerating in-
novations in drug technology, Congress enacted the Analogue
Provision to target distribution of just such substances.
And therein lies the rub. The CSA requires a showing of
scienter, but the exact contours of this requirement are not
obvious in the context of the Analogue Provision. At least
one court has ruled that “the definition of controlled sub-
stance analogue does not require any scienter—a defendant
does not have to ‘know’ that a substance has a substantially
similar chemical structure to an illegal drug.” Forbes, 806
F. Supp. at 238. See also United States v. Carlson, 87 F.3d
440, 443 n.3 (11th Cir. 1996) (citing Forbes and noting “the
absence of a scienter requirement in the Analogue Act”).
Other courts have applied the more general scienter re-
quirement of the CSA, 18 U.S.C. § 841(a), holding that the
Analogue Provision “requires the Government to show that
the defendants knew that they possessed a controlled sub-
2
(...continued)
the drug’s status as controlled. The Hussein case involves a non-
traditional drug called khat, and the Hussein court accordingly
recognized the traditional/nontraditional distinction (though not
in those terms), requiring the defendant to know both that he
possessed khat and that khat in turn contained the controlled
substance cathinone. 351 F.3d at 17.
No. 03-2988 17
stance.” Roberts, 363 F.3d at 123 n.1. Under this construc-
tion, defendants “need not know the exact nature of the drug;
it is sufficient that they be aware that they possessed ‘some
controlled substance.’ ” Id. (citing United States v. Morales,
577 F.2d 769, 776 (2d Cir. 1978)). Neither of these ap-
proaches seems especially satisfying.
In this particular context, applying the standard require-
ment that a defendant must know the substance in question
is a “controlled substance” is nonsensical since controlled
substance analogues are, by definition, not “controlled sub-
stances”—their distribution is criminalized, despite their
omission from the government’s controlled substances sched-
ules, because they have similar chemical structures and
either actually or purportedly similar physiological effects
to controlled substances. A substance’s legal status as a
controlled substance analogue is not a fact that a defendant
can know conclusively ex ante; it is a fact that the jury must
find at trial (applying the three clauses of the Analogue
Provision).3 Direct and literal application of the scienter
3
Such a situation might appear to raise vagueness concerns, and
the Second Circuit’s recent decision in United States v. Ansaldi is
instructive on this point. The court begins by noting that “[i]t is an
interesting question under what circumstances a statute that
depends on the resolution of a factual question about which
reasonable juries can disagree is specific enough to withstand a
vagueness challenge.” 372 F.3d 118, 123 (2d Cir. 2004). The court
then notes that “[j]uries are often required to determine not only
whether certain conduct occurred but also whether the conduct
falls within the definition of a statute,” citing the Supreme Court’s
ruling, in considering an obscenity law, that “the possibility that
different juries might reach different conclusions as to the same
material does not render the statute unconstitutional.” Id. at 123
n.2 (citing Smith v. United States, 431 U.S. 291, 309 (1977)). Statutes
only encounter vagueness difficulties if their terms are “so vague
that a jury’s determination is likely to be arbitrary, and, conse-
(continued...)
18 No. 03-2988
requirement applicable to § 841(a), in other words, would
threaten to eviscerate the Analogue Provisions of
§ 802(32)(A) at one stroke.
On the other hand, doing away with the scienter require-
ment altogether could, as the district court realized, “en-
snare individuals engaged in apparently innocent conduct.”
See 286 F. Supp. 2d at 951. Such a construction also would
make the Analogue Provision more vulnerable to vagueness
challenges. See Village of Hoffman Estates v. Flipside
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (“[A] scienter
requirement [in a criminal statute] may mitigate a law’s
vagueness, especially with respect to the adequacy of notice
to the complainant that his conduct was proscribed.”);
Roberts, 363 F.3d at 123 (“Because the statute at issue here
contains a scienter requirement . . . the defendants’ vague-
ness challenge must be met with some measure of skepti-
cism”). Discarding the scienter requirement would essen-
tially mean that individuals deal in narcotics substitutes at
their own risk, removing a primary mens rea element of
possession and distribution offenses.
In light of all these considerations, we feel that our pre-
cedents demand a showing that the defendant knew the
substance in question was a controlled substance analogue.
That is, the defendant must know that the substance at issue
meets the definition of a controlled substance analogue set
forth in § 802(32)(A): A defendant must know that the
substance at issue has a chemical structure substantially
similar to that of a controlled substance, and he or she must
either know that it has similar physiological effects or intend
or represent that it has such effects. We recognize that
3
(...continued)
quently, those terms would not allow an ordinary person to
understand what conduct is prohibited.” Id. For more discussion
of such issues, see our discussion of the vagueness question, infra.
No. 03-2988 19
requiring the government to prove scienter as to these
criteria may impose a significant prosecutorial burden in
some cases. The question of similar chemical structure is
particularly nettlesome since, even if such chemical simi-
larities exist, and even if the defendant is aware of these
similarities, the intricacies of chemical science may render
it extremely difficult to prove that a defendant had such
knowledge. As a provisional remedy for this problem, we
prescribe that, in such cases, if the scienter requirement is
met with regard to the second part of the analogue defini-
tion (knowledge or representation of similar physiological
effects), the jury is permitted—but not required—to infer
that the defendant also had knowledge of the relevant
chemical similarities.4
4
As both the Supreme Court and this Court have made clear, this
kind of non-mandatory inference does not place any improper evi-
dentiary burden on the defendant as long as “there is a ‘rational
connection’ between the basic facts that the prosecution proved
and the ultimate fact presumed, and the latter is ‘more likely than
not to flow from’ the former.” County Court of Ulster County, New
York v. Allen, 442 U.S. 140, 165 (1979). The jury is always free to
accept or reject any such permissible inference, and it remains the
government’s burden to prove all the elements of the offense
beyond a reasonable doubt. Such carefully circumscribed inferences
and presumptions are thus a “staple of our adversary system of
factfinding.” Id. at 156. This is especially so where questions of
knowledge or intent are at issue since, as a practical matter, a
defendant’s state of mind always “must be determined circum-
stantially, by inference.” Pigee v. Israel, 670 F.2d 690, 692 (7th
Cir. 1982). By contrast, mandatory or conclusive presumptions,
which require the jury to infer some “ultimate” or “elemental” fact
from the existence of “evidentiary” or “basic” facts, present much
stickier constitutional problems. For definitive discussions of
inferences, presumptions and the issues surrounding them, see
Allen, 442 U.S. at 156-67; Sandstrom v. Montana, 442 U.S. 510,
514-27 (1979); Pigee, 670 F.2d at 692-97.
20 No. 03-2988
This approach is justified since, as a practical matter,
defendants who know or represent to others that the sub-
stance in question has physiological effects similar to a con-
trolled substance are likely to be aware of basic chemical
similarities as well, even if that fact is difficult to prove con-
clusively. This approach also dovetails with the common-
sense recognition that, in selling or purchasing such
substances, all parties to the transaction are primarily
interested (perhaps solely interested) in the substance’s
physiological effects. Yet at the same time, if the defendant
truly had no knowledge of the substance’s chemical char-
acter, or if, under the circumstances, chemical complexities
make such knowledge extremely unlikely, an avenue should
be left open for defendants to refute such an inference. In
any case, our well-established jurisprudence regarding the
scienter requirements of controlled substances violations
require that juries confront these questions of knowledge
squarely.
The district court, while acknowledging that the scienter
requirement implied by its own jury instruction “[p]erhaps
goes too far,” maintains that its jury instructions were non-
prejudicial since the jury specifically determined that
Turcotte represented or intended that GBL had physiologi-
cal effects similar to GHB. 286 F. Supp. 2d at 951. However,
as just discussed, while such a determination suffices to
demonstrate scienter with respect to the second prong of the
analogue definition (actual or intended similar physiological
effect), it is not equivalent to finding knowledge of actual
chemical similarity. One could represent to others (earnestly
or not) that a substance has physiological effects similar to
a controlled substance despite being totally ignorant of its
actual chemical properties. Turcotte’s representations as to
the physiological effects of GBL do create a presumption
that such knowledge existed, but the jury did not confront
this question directly below. Given the evidence adduced at
trial, it appears a jury certainly could have determined that
No. 03-2988 21
Turcotte had the requisite knowledge to trigger liability
under § 802(32)(A) (though the evidence does not compel
such a conclusion).5 However, the jury was specifically in-
structed to forego this determination. The district court’s
instructions as to scienter were thus, at best, incomplete
and, at worst, highly misleading as to the prerequisites for
liability under the Analogue Provision.
Ordinarily such shortcomings might amount to reversible
error, but in the present case we find any deficiencies in the
district court’s scienter instructions harmless. The jury
specifically found that Turcotte knew the substance he
possessed contained GBL, and unlike many other potential
controlled substance analogues, Congress has specifically
identified GBL as an analogue of GHB. See United States v.
Ansaldi, 372 F.3d 118, 123 (2d Cir. 2004) (“GBL is one of
the substances that the statute actually identifies as a
potential controlled substance analogue.”); United States v.
Fisher, 289 F.3d at 1336 (noting that “statements found in
Public Law 106-172 and the DEA’s Final Rules indicate
that both Congress and the DEA considered GBL to be an
analogue of GHB.”).
In amending the Controlled Substances Act to include
GHB, Congress declared that “[i]f taken for human consump-
5
There is evidence that the website through which Turcotte sold
Verve 5.0 (GBL) contained assertions that Verve is the “absolute
finest quality GHB precursor” and that its ingredients are “illegal
nationwide.” (See Trial Tr. 844-47).) For his part, Turcotte at-
tempts to blunt the import of this evidence, claiming that he played
no part in building the website and had no knowledge of GBL’s
chemical similarities to GHB. While Turcotte’s testimony on this
score perhaps seems dubious, we recognize that weighing contra-
dictory evidence and making credibility determinations are func-
tions generally reserved for the jury. Accordingly, on appeal we
may not impute the requisite knowledge to Turcotte based on these
website assertions, however much they may affect the equities of
the situation.
22 No. 03-2988
tion, common industrial chemicals such as gamma butyro-
lactone [GBL] and 1,4-butanediol [BD] are swiftly converted
by the body into GHB. Illicit use of these and other GHB an-
alogues and precursor chemicals is a significant and grow-
ing law enforcement problem.” Pub. Law No. 106-172, § 2(4)
(2000) (emphasis added). DEA regulations also specify that
“GBL and 1,4-butanediol are structurally and pharmacolog-
ically similar to GHB and are often substituted for GHB.
Under certain circumstances they may satisfy the definition
of a controlled substance analogue.” Placement of Gamma-
Butyrolactone in List I of the Controlled Substances Act, 65
Fed. Reg. 21,645-47 (April 24, 2000) (emphasis added). As
the Second Circuit asserted in Ansaldi, “[r]egardless of any
other ways in which the laws governing controlled
substance[s] might be vague, there is one thing they make
perfectly clear—the sale of GBL for human consumption is
illegal.” 372 F.3d at 122. Cf. United States v. Washam, 312
F.3d 926, 931 (8th Cir. 2002) (holding that these Congres-
sional pronouncements also confirm BD’s status as a
controlled substance analogue).
In our view such pronouncements are sufficient to put any
drug merchant on notice that GBL qualifies as a controlled
substance analogue.6 Thus having acknowledged that he
knew he was selling substances containing GBL, Turcotte
cannot then turn around and claim that he had no knowl-
edge of GBL’s status as an analogue of GHB.7 As with other
known controlled substances (including GHB), knowledge of
the substance’s specific identity implies knowledge of the
6
See also our discussion of Turcotte’s vagueness claims, infra at
section III-D.
7
We pause to note that the jury also found that Turcotte in-
tended or represented that GBL has similar physiological effects
to GHB. Thus, as a matter of common sense, it would seem strange
to allow Turcotte to claim he did not know GBL is an analogue of
GHB.
No. 03-2988 23
substance’s legal status. Ignorance of the relevant legal
provisions is no defense. See Ansaldi, 372 F.3d at 128(holding that defendants’ belief that “they were breaking no
law by selling GBL” does not constitute a defense); United
States v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989) (similar
holding).
Applied to any other controlled substance analogue, an
instruction such as the one given here might well warrant
reversal of a conviction. However, given the clear
Congressional and regulatory pronouncements of the status
of GBL, any error in the district court’s scienter instructions
were harmless. Accordingly, we affirm the ruling of the
district court on this issue.
C. The Brady Claim
Turcotte next claims that the prosecution violated his
rights under Brady v. Maryland, 373 U.S. 83 (1963), by
improperly withholding FDA Investigational New Drug
Applications (INDs) during the trial. Brady instructs that
the prosecution has an affirmative duty to disclose all in-
formation that is (1) in the government’s possession, (2)
material and (3) exculpatory. United States v. Bhutani, 175
F.3d 572, 576 (7th Cir. 1999); United States v. Hartbarger,
148 F.3d 777, 786 (7th Cir. 1998). Under our precedents, any
evidence whose “suppression undermines confidence in the
outcome of the trial is considered material.” United States
v. Gonzalez, 93 F.3d 311, 316 (7th Cir. 1996) (quotations
omitted). Crucially, district courts have broad discretion in
determining Brady violations, and so this Court reviews the
decision below only for abuse of discretion. United States v.
Knight, 342 F.3d 697, 705 (7th Cir. 2003) (“The district
court maintains broad discretion to determine Brady vio-
lations; we will review the exercise of that discretion for
abuse only.”); United States v. Wilson, 287 F.3d 827 (7th
Cir. 2001) (same rule).
24 No. 03-2988
In the decision below, the district court ruled that the
government disclosed the INDs “promptly after learning of
their existence” such that “[d]efense attorneys were . . . able
to review the material and use it during the trial.” 286 F.
Supp. 2d at 951. The district court further determined that
the INDs contained no real exculpatory information and
that any government delay in producing the materials did
not undermine confidence in the outcome of the trial. Id.Turcotte, on the other hand, claims that the government
was 18 months late in disclosing the INDs, and that the
INDs were exculpatory since they contained information
that contradicted the testimony of government expert
witnesses regarding the harmful effects of GHB, including
FDA approval of Xyrem, a drug used for treating narcolepsy
that contains GHB. (Appellant’s Br. at 26-27.) Turcotte
claims that because of the government’s tardy disclosure,
his own expert witnesses did not have sufficient time to
review these INDs and thus that he was not able to present
this exculpatory evidence at trial. (Appellant’s Br. at 26-28,
Exh. 1.)
If only Turcotte had bought and distributed Xyrem to
treat narcolepsy, he might have a colorable claim. As it is,
his Brady claim fails. It is undisputed that the government
did disclose the material in question, albeit somewhat later
than it ought, and the district court determined that Turcotte
had sufficient time to review the materials and use them in
his defense. The district court also allowed Turcotte to
recall government expert witnesses after presentation of the
prosecution’s case in chief and cross-examine them as to
information contained in the INDs, though Mr. Turcotte
apparently declined to do so. (See Appellee’s Br. at 25-26.)
Lastly, even if the INDs contain the information that
Turcotte alleges, they do not change the fact that GHB was
a Schedule I controlled substance at the time of Turcotte’s
alleged conduct, that GBL was found by the jury to be an
analogue of GHB and that Turcotte sold GBL for impermis-
No. 03-2988 25
sible purposes. The other medical uses of GHB allegedly de-
scribed in the INDs are not particularly relevant to Turcotte’s
conduct or to the facts of this case. That GHB may have been
approved for another use as a component of some other drug
does not alter the fundamental basis of Turcotte’s liability.
The district court has broad discretion in identifying Brady
violations, and nothing in the record suggests that the dis-
trict court abused this discretion. We therefore affirm the
ruling of the district court rejecting Turcotte’s Brady claim.
D. The Vagueness Claim
Turcotte’s final major claim is that the Analogue Provision
of the CSA is unconstitutionally vague in that “it fails to
provide fair notice to the public regarding what substances
are ‘analogues’ and therefore prohibited.” (Appellant’s Br.
at 34.) Under Kolender v. Lawson, a penal statute is void for
vagueness if it does not define an offense with sufficient
clarity to allow people of ordinary intelligence to understand
what conduct is prohibited or if it is so vague as to allow for
arbitrary or discriminatory enforcement. 461 U.S. 352, 357
(1983). Turcotte claims that the term “substantially similar”
in § 802(32)(A) is too vague to advise people of ordinary
intelligence as to which substances qualify as control
substance analogues. (Appellant’s Br. at 34-40.) The district
court disagreed, ruling that “a person of ordinary intelli-
gence should recognize the similarity between GBL and
GHB, and that Section 802(32)(A) is not unconstitutionally
vague.” 286 F. Supp. 2d at 951-52 (citing Fisher, 289 F.3d
at 1338-39). We review de novo a challenge to the constitu-
tionality of a federal statute. United States v. Vallejo, 373
F.3d 855, 859 (7th Cir. 2004).
In support of his contention, Turcotte claims there is no
scientific consensus on the chemical similarity of GBL to
GHB (while it is undisputed that the two compounds differ
only by a few atoms, they are classified as different types of
26 No. 03-2988
compounds and have different physical shapes) nor any
established scientific definition of the term “substantially
similar” as applied to questions of molecular chemistry.
(Appellant’s Br. at 35-38.) Turcotte also points out that sev-
eral common substances either contain GHB or convert to
GHB at some point in the human metabolic process, which
makes the targeting of GBL and GHB essentially arbitrary.
(Appellant’s Br. at 38-40.)
These points are well-taken, but the relevant case law
suggests that Turcotte faces an uphill battle. As an initial
matter, we note that our ruling here confirming that the
Analogue Provision carries a robust scienter requirement
casts doubt on Turcotte’s vagueness challenge from the out-
set. Cf. Roberts, 363 F.3d at 123 (“Because the statute at
issue here [§ 802(32)(A)] contains a scienter requirement . . .
the defendants’ vagueness challenge must be met with some
measure of skepticism, at least with regard to the ‘fair
notice’ prong of Kolender.”) Under Supreme Court precedent,
the constitutionality of an allegedly vague statutory stand-
ard “is closely related to whether that standard incorpo-
rates a requirement of mens rea.” Colautti v. Franklin, 439
U.S. 379, 395 (1979). Specifically, due process concerns
about notice are “ameliorated” when a statute contains a
scienter requirement. Hill v. Colorado, 530 U.S. 703, 732,
120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).
Yet even leaving aside the implications of our scienter
ruling, the Analogue Provision seems to us sufficiently clear
by its own terms. The circuit courts considering this issue
have unanimously held that the CSA’s Analogue Provision
is not unconstitutionally vague. See, e.g., United States v.
Granberry, 916 F.2d 1008, 1010 (5th Cir. 1990) (ruling that
the CSA’a Analogue Provision is “clearly and specifically
defined, in terms readily comprehensible to the ordinary
reader”); United States v. Klecker, 348 F.3d 69, 72 (4th Cir.
2003); United States v. Orchard, 332 F.3d 1133, 1137-38 (8th
Cir. 2003); United States v. Washam, 312 F.3d 926, 930-32
No. 03-2988 27
(8th Cir. 2002); Carlson, 87 F.3d at 443-44; United States v.
Hofstatter, 8 F.3d 316, 321-22 (6th Cir. 1993); United States
v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989) (per curiam).
The one contrary precedent, which Turcotte cites in support
of his own arguments, is United States v. Forbes, 806 F.
Supp. 232 (D. Colo. 1992), in which a district court held the
Analogue Provision to be unconstitutionally vague as
applied to the drug AET. The court in Forbes found the Act
lacking with respect to AET because “there is no scientific
consensus whether AET has a chemical structure that is
substantially similar to DMT or DET. The government’s
own chemists cannot agree on this point . . . . [t]he scientific
community cannot even agree on a methodology to use to
determine structural similarity.” Id. at 237.
Again, Forbes is instructive so far as it goes, but, it can be
distinguished from the instant case since it involved AET
rather than GBL. This distinction is crucial because no
fewer than three courts of appeals have held the Analogue
Provision to be sufficiently clear with respect to GBL and/or
BD. In United States v. Roberts, the Second Circuit held
that the Analogue Provision was not unconstitutionally
vague in identifying BD as an analogue of GHB, stating
that the acknowledged similarity in the chemical structures
of the two compounds, combined with the fact that BD turns
into GHB when ingested, are collectively sufficient to put an
ordinary person on notice that BD is an analogue of GHB
for purposes of the CSA. 363 F.3d at 125. The Roberts court
insists that these two factors, when considered together,
make the legal implications of the Analogue Provision clear
with respect to BD, notwithstanding the fine-grained
scientific distinctions of expert chemists. 363 F.3d at 127.8
8
The exact language of the Roberts court’s analysis reads as
follows:
(continued...)
28 No. 03-2988
Another Second Circuit panel, convened not three months
later, used this same analytical approach to conclude that
“the definition of ‘controlled substance analogue’ is not un-
constitutionally vague as applied to GBL.” Ansaldi, 372 F.3d
at 124 (citing Roberts and pointing to “uncontroverted
testimony that GBL’s chemical structure differed from that
of GHB by only three atoms” and that “GBL converted into
GHB after ingestion”) (emphasis added). The Ansaldi court
also points out forcefully that “GBL is one of the substances
that the statute actually identifies as a potential controlled
substance analogue.” 372 F.3d at 123.9 These same points
8
(...continued)
Given the combination of GHB’s cognizable similarity to 1,4-
butanediol prior to ingestion and its metabolization into that
controlled substance after ingestion, the classification of 1,4-
butanedyol as a controlled substance analogue is clearly man-
dated by the Act’s language, and remains so regardless of the
differences of view among the experts. In short, given the
circumstances of this case, an evaluation of the the statute’s
vagueness as-applied does not call for the fine distinctions
drawn by the experts.
363 F.3d at 127.
9
The Ansaldi court speaks in no uncertain terms on the vague-
ness issue:
Regardless of any other ways in which the laws governing
controlled substance[s] might be vague, there is one thing
they make perfectly clear—the sale of GBL for human con-
sumption is illegal.
....
The subsection defining “controlled substance analogue” spe-
cifically states that “[t]he designation of gamma butyrolac-
tone . . . as a listed chemical . . . does not preclude a find-
ing . . . that the chemical is a controlled substance analogue.”
(continued...)
No. 03-2988 29
are echoed in United States v. Fisher, where the Eleventh
Circuit also held that the Analogue Provision is sufficiently
clear with respect to the status of GBL. The Fisher court
likewise notes that GBL converts into GHB when ingested,
289 F.3d at 1338-39, and observes that “statements found
in Public Law 106-172 and the DEA’s Final Rules indicate
that both Congress and the DEA considered GBL to be an
analogue of GHB.” 289 F.3d at 1336.
Among these Congressional “statements” is the following
declaration: “If taken for human consumption, common in-
dustrial chemicals such as gamma butyrolactone [GBL] and
1,4-butanediol [BD] are swiftly converted by the body into
GHB. Illicit use of these and other GHB analogues and pre-
cursor chemicals is a significant and growing law enforce-
ment problem.” Pub. Law No. 106-172, § 2(4) (2000) (emphasis
added). DEA regulations contain similar statements: “GBL
and 1,4-butanediol are structurally and pharmacologically
similar to GHB and are often substituted for GHB. Under
certain circumstances they may satisfy the definition of a
controlled substance analogue.” Placement of Gamma-
Butyrolactone in List I of the Controlled Substances Act, 65
Fed. Reg. 21,645-47 (April 24, 2000) (emphasis added).10
Admittedly, these provisions may not be using the terms
“analogue” or “similar” in their technical statutory sense
under the CSA, but nonetheless it is difficult indeed to claim
that Turcotte lacked notice as to the chemical similarities
9
(...continued)
21 U.S.C. § 802(32)(B) (emphasis supplied). Thus, GBL is one
of the substances that the statute actually identifies as a
potential controlled substance analogue.
372 F.3d at 122-23.
10
See also our discussion of these provisions in relation to
Turcotte’s scienter claim, supra at section III-B.
30 No. 03-2988
of GBL and GHB, or as to the likelihood of being prosecuted
for distribution of GBL. Indeed, Turcotte advertised Verve
5.0 as a GHB substitute on his website, which actually
stated that Verve is illegal.11 As the Second Circuit asserted
in Ansaldi, “[r]egardless of any other ways in which the
laws governing controlled substance[s] might be vague,
there is one thing they make perfectly clear—the sale of
GBL for human consumption is illegal.” 372 F.3d at 122.
This level of clarity also speaks to the second prong of the
Kolender test, which concerns arbitrary or discriminatory
law enforcement. Law enforcement officials, no less than
potential drug distributors, are on notice that GBL is
considered an illegal analogue of GHB when sold for human
consumption, and they are directed to aggressively prose-
cute its possession and sale. In short, it is not left to the
police to arbitrarily determine the legal status of GHB, GBL
or BD—Congress has spoken clearly with respect to these
substances.
Given the foregoing, we affirm the district court’s ruling
that the CSA is not unconstitutionally vague as applied to
GBL as an analogue of GHB.
E. The Status of GBL and BD as Controlled Sub-
stance Analogues
Having assailed the district court’s jury instructions, the
government’s conduct during discovery and the constitu-
tionality of the Analogue Provision itself, Turcotte next
challenges the applicability of the Analogue Provision to the
substances at issue in this case. His claims on this score are
essentially twofold: (1) that federal law prevents BD and
GBL from being regulated, and, even if GBL and BD are
subject to regulation, their status is confusing and the rule
11
See footnote 5, supra.
No. 03-2988 31
of lenity should be applied in Turcotte’s favor, and (2) that
GHB was not properly scheduled as a controlled substance
since its scheduling (allegedly done at the behest of the
Attorney General) has expired and therefore Turcotte
cannot be punished for trafficking in its chemical ana-
logues. Both claims are frivolous and fail on their own
terms.12
1. The Regulation of BD and GBL as Controlled
Substance Analogues Under Federal Law
Turcotte first claims that the Dietary Supplements Health
and Education Act of 1994 (DSHEA), 21 U.S.C. § 321, pre-
cludes regulation of GBL and BD since both substances are
dietary supplements and thus must be treated as “food”
under the DSHEA. (Appellant’s Br. at 29.) Turcotte also as-
serts that because GBL is a “List I chemical” under 21
U.S.C. §§ 802(33) and 802(34), pursuant to an April 2000
DEA Final Rule, GBL is not subject to regulation. These ar-
guments are, at best, unpersuasive and, at worst, disingen-
uous. The district court noted below that the DSHEA “does
not prevent the classification of GBL as a controlled sub-
stance analogue,” 286 F. Supp. 2d at 952, and the government
points out that GBL meets the DSHEA’s definition of a “drug”
and is known as a common industrial chemical. (Appellee’s
Br. at 30-31.) In fact Turcotte himself labeled his shipments
of Verve to Internet customers as “cleaning supplies” or
12
The government argues for a deferential standard of review as
to these claims, noting that they were either raised in an untimely
filed post-trial motion, United States v. Withers, 972 F.2d 837, 844
(7th Cir. 1992) (reviewing such claims for clear error), or raised
for the first time on appeal. United States v. Noble, 246 F.3d 946,
955 (7th Cir. 2001) (reviewing such claims for clear error). The
exact standard of review applicable here is of no consequence,
since Turcotte’s claims are doomed even under de novo review.
32 No. 03-2988
“supplies,” not dietary supplements. Id. The DSHEA does not
address GBL or BD specifically, so both parties are essen-
tially attempting to shoehorn these substances into the
DSHEA’s general definitions. This is a dubious enterprise
considering that the CSA addresses the status of GBL
explicitly, stating that it is a “List I chemical” under
21 U.S.C. §§ 802(33) and 802(34). This appears the more
relevant provision for our purposes.
Perhaps realizing this, Turcotte next claims that GBL’s
status as a “Listed chemical” under the CSA precludes its
regulation as a controlled substance. To support this con-
tention, Turcotte points to a DEA regulation which states,
in part, that “[c]hemical mixtures containing GBL . . . are
not subject to regulation.” 65 Fed. Reg. 21,645 (Apr. 24,
2000). But this line of argument is patently without merit.
The very regulation cited by Turcotte also explicitly states
that the CSA, at 21 U.S.C. § 802(32), expressly provides that
“the designation of GBL or any other chemical as a Listed
chemical does not preclude a finding that the chemical is a
controlled substance analogue and subject to the provisions
of 21 U.S.C. 813.” 65 Fed. Reg. 21,645 (Apr. 24, 2000) (citing
21 U.S.C. § 802(32)) (emphasis added). See also Ansaldi,
372 F.3d at 128 n.6 (also ruling that GBL’s status as a
listed chemical under DEA regulations does not preclude its
regulation as a controlled substance analogue under the
CSA). In fact Turcotte himself concedes that the clear
provisions of the CSA (at 21 U.S.C. § 802(32)(B)) doom his
argument, though he tries to blunt the impact of this point
by hiding it in a footnote. See Appellant’s Br. at 30 n.11
(conceding that “GBL’s designation as a listed chemical does
not preclude a finding that the chemical is a controlled
substance analogue. 21 U.S.C. § 802(32)(B).”).
Having obliterated his own argument regarding GBL’s
susceptibility to regulation, Turcotte next argues in the al-
ternative that, even if GBL can be regulated as a controlled
substance analogue (as he concedes), the various laws and
No. 03-2988 33
regulations cited here render GBL’s status confusing, and
the rule of lenity should be applied to reverse his conviction.
(Appellant’s Br. at 31-32.) While the rule of lenity instructs
that ambiguity in the meaning of a statutory provision
should be resolved in favor of the defendant, this principle
is only applicable where there is a “grievous ambiguity or
uncertainty in the language and structure of the Act.” U.S.
v. Ranum, 96 F.3d 1020, 1030 (7th Cir. 1996) (quoting
United States v. Neal, 46 F.3d 1405, 1410 (7th Cir. 1995))
(internal quotations omitted). In other words, the rule of
lenity “only serves as an aide for resolving an ambiguity; it
is not to be used to beget one.” Callanan v. United States,
364 U.S. 587, 596 (1961).
As just discussed, the law is perfectly clear on this point:
As per both the CSA itself and the DEA regulation cited by
Turcotte, GBL is not exempt from regulation under the CSA
as a controlled substance analogue. Turcotte himself ac-
knowledges this fact in his brief. See Appellant’s Br. at 30,
n.11. See also Ansaldi, 372 F.3d at 128 n.6 (observing that
the DEA “regulation [concerning GBL] does not even pur-
port to remove any substance from the realm of criminal
conduct.”). The rule of lenity is not applicable here. This is
especially so given our rejection of Turcotte’s vagueness
claims13—it would be passing strange for us to rule that a
statute, while not unconstitutionally vague, is sufficiently
ambiguous to trigger the rule of lenity.
For all of these reasons, Turcotte’s claim that federal law
precludes the regulation of GBL as an analogue of GHB are
patently without merit.
2. GHB’s Status as a Controlled Substance
Having attempted to question GBL’s susceptibility to reg-
ulation in its own right, Turcotte’s next claims that GHB
13
See discussion of Turcotte’s vagueness claim, supra.
34 No. 03-2988
was not properly scheduled as a controlled substance, and
therefore that GBL cannot be regulated as a controlled sub-
stance analogue of GHB. Turcotte asserts that GHB was put
on Schedule I at the behest of the Attorney General in
March of 2000 as a temporary or emergency scheduling
under 21 U.S.C. § 811(h), which expires if not made perma-
nent within one year. Turcotte then claims that since GHB’s
status as a Schedule I controlled substance allegedly expired
in March of 2001, he cannot be convicted for possession or
distribution of its analogues, including GBL. The govern-
ment responds by asserting that Congress directed the
Attorney General to place GHB on Schedule I in Public Law
106-172, and thus that the aforementioned time limit
applicable to emergency schedulings should not apply.
We need not attempt to navigate this legislative thicket
because Turcotte’s expiration claim fails for a more basic
reason: Even if the scheduling of GHB expired in March of
2001 as Turcotte claims, it is undisputed that GHB was still
a Schedule I controlled substance at the time of the conduct
leading to Turcotte’s arrest and conviction (the summer of
2000).14 Matters of timing similarly thwart Turcotte’s claim
that FDA approval of Xyrem—a drug for treating
narcolepsy that contains GHB—in July of 2002 converted
GHB to a Schedule III substance not subject to the CSA’s
Analogue Provision. (Appellant’s Br. at 33-34.) Aside from
the fact that FDA approval of a specific drug for certain
medical uses need not have any bearing on the status of its
component chemicals in non-medical contexts, the FDA’s
approval of Xyrem came after Turcotte’s misconduct and
subsequent arrest in September of 2000. Thus, even if the
14
The district court makes precisely this point in its ruling below,
noting that “even if we were to accept defendant’s argument that
the scheduling had expired, GHB was clearly listed in Schedule I
during the period of time in which defendant was found to have
possessed and distributed the substances.” 286 F. Supp. 2d at 952.
No. 03-2988 35
FDA approval of Xyrem has some effect on the status of GHB
as a controlled substance—a proposition which appears
extremely dubious to begin with—that approval still would
not have any bearing on Turcotte’s conviction.
Turcotte’s claims as to the status and/or scheduling of
GHB under the Controlled Substances Act are thus unper-
suasive, and we affirm the ruling of the district court on
this point.
F. Turcotte’s Sundry Procedural Claims
Finally, in addition to the more fully developed claims
examined above, Turcotte tacks on five allegations of trial
errors and procedural infirmities. These claims are not
discussed in the decision below and presumably were not
raised before the district court. They are presented in such
a cursory and unelaborated fashion that we feel justified in
dismissing them outright. In this circuit, unsupported and
undeveloped arguments are waived. See United States v.
Toney, 27 F.3d 1245, 1249 (7th Cir. 1994); United States v.
Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991); Pelfresne v.
Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.
1990); United States v. Williams, 877 F.2d 516, 519 (7th Cir.
1989).
Yet even were we to indulge Turcotte and take these claims
seriously, they still fail on their own terms. Turcotte’s claim
that “the use of expert testimony regarding GHB was irrel-
evant to testimony concerning GBL and BD,” (Appellant’s
Br. at 40), is false. Testimony concerning the health effects
of GHB was directly relevant to the second and third
clauses of § 802(32)(A), which require controlled substance
analogues to have similar actual or purported physiological
effects to controlled substances. Thus consideration of GHB’s
physiological effects was crucial to the jury’s determination
that GBL, in light of its own physiological effects, is an
analogue of GHB. (See Appellee’s Br. at 43-44.)
36 No. 03-2988
Turcotte’s second claim, that his “sentence was necessar-
ily based upon the sale of all three substances [GHB, BD
and GBL],” (Appellant’s Br. at 41.), is little more than a weak
reprise of assertions made earlier in the brief concerning
disjunctive versus conjunctive readings of § 802(32)(A). For
the reasons discussed in that portion of our opinion, supra,
this claim is directly contradicted by the record and is thus
unsupportable.
Turcotte’s third claim alleges that the district court
improperly allowed two unqualified witnesses to testify as
experts regarding the similarity of effects between GHB,
GBL and BD. (Appellant’s Br. at 41.) Even if Turcotte had
raised this claim previously—which apparently he did not—
we still review for abuse of discretion only. United States v.
Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998). Given that
both witnesses had advanced scientific degrees (one had a
Ph.D. in medical anthropology and one was a medical doctor)
and both had published extensively on the effects of GHB
and GBL, there is no evidence that the district court abused
its discretion in certifying them as expert witnesses.
The fourth claim concerns an episode in which a juror in
the case encountered a prosecution witness during a court
recess and asked the witness for a mint. Turcotte alleges
that the court should have made a more extensive inquiry
into the incident or granted Turcotte a mistrial. (Appellant’s
Br. at 41-42.) Turcotte presents absolutely no evidence of
any wrongdoing or resulting prejudice connected with this
ostensibly chance encounter, and thus he has not even be-
gun to carry his burden of demonstrating an abuse of dis-
cretion by the district court. See United States v. Cassano,
372 F.3d 868 (7th Cir. 2004) (district court’s decision not to
grant a mistrial is reviewed for abuse of discretion).
Finally, Turcotte’s allegation of ineffective assistance of
counsel is likewise too sparse and unsupported to gain any
traction. Turcotte’s unsubstantiated and largely conclusory
No. 03-2988 37
statements fall far short of carrying his burden of persuasion
as to the two elements of the test outlined in Strickland v.
Washington, 466 U.S. 668, 689 (1984). See United States v.
Davenport, 986 F.2d 1047, 1049 (7th Cir. 1993) (defendant
bears burden of proof and persuasion to establish ineffective
assistance of counsel). We also note that, should Turcotte
wish to pursue his ineffective assistance claim in earnest,
such a claim is best brought in a collateral proceeding under
28 U.S.C. § 2255. See Massaro v. United States, 538 U.S.
500, 504 (2003) (Observing that “in most cases a motion
brought under § 2255 is preferable to direct appeal for de-
ciding claims of ineffective-assistance”).
Accordingly, we reject four of these five claims, which seem
to be added as afterthoughts to Turcotte’s main arguments,
and we decline to rule on the fifth (ineffective assistance) at
this juncture.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-19-05