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United States v. Palmer

United States Court of Appeals, Eighth Circuit

March 6, 2019

United States of America Plaintiff- Appellee
v.
Mark Palmer Defendant-Appellant United States of America Plaintiff- Appellee
v.
Samuel Leinicke Defendant-Appellant

          Submitted: January 15, 2019

          Appeals from United States District Court for the Eastern District of Missouri - St. Louis

          Before GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.

          WOLLMAN, CIRCUIT JUDGE.

         Mark Palmer and Samuel Leinicke were convicted of several conspiracy crimes, including conspiracy to distribute and possess with intent to distribute controlled substance analogues in violation of 21 U.S.C. §§ 813, 841, and 846. They were sentenced to 168 and 48 months' imprisonment, respectively. They appeal the district court's[1] denial of their motion to dismiss the indictment, arguing that the Controlled Substance Analogue Enforcement Act (Analogue Act or Act) is unconstitutionally vague. In addition, Palmer asserts that the indictment failed to set forth facts sufficient to show his knowledge that the chemicals involved were covered by the Act. We affirm.

         Palmer and Leinicke were indicted in June 2015 for their participation in a conspiracy to distribute synthetic narcotics. The scheme involved importing chemicals from China in falsely labeled containers to evade detection. Once the chemicals arrived in the United States, they were transformed into a usable form, packaged in small amounts, and distributed with a label reading "not for human consumption." The products were given names such as "Black Arts" and "Devil's Dank." Employees of the operation were told that the product was potpourri, but several workers at the bagging facility discovered otherwise when they observed coworkers smoking the product during breaks. The co-conspirators used chemicals that mimicked the effects of controlled substances but were not yet listed on federal controlled substance schedules in their attempt to foil law enforcement efforts.

         The indictment charged Palmer and Leinicke with "knowingly and unlawfully combin[ing], conspir[ing], agree[ing], and confederat[ing] together with each other and other persons . . . to distribute and to possess with the intent to distribute Schedule I controlled substances and Schedule I controlled substance analogues intended for human consumption." It contained the following pertinent factual allegations: "P[almer] . . . would import synthetic drug chemicals from other countries including China, to various locations in the United States"; "the defendants . . . would periodically change chemicals in an attempt to avoid federal drug scheduling regulations while still producing synthetic drugs which had the same physiological effect creating a 'high' that mimics the effects of a controlled substance"; and "[the] drugs would be intended for human consumption although they carried [a ']not for human consumption' label in an attempt to thwart drug-trafficking laws." The indictment also listed six controlled substance analogues contained in the synthetic narcotics distributed by Palmer and Leinicke.

         An expert for the government testified at trial that he had performed a comparative analysis on each of the alleged analogues. He used structural charts and three-dimensional presentations to show the jury how each compound named in the indictment is an analogue of a particular controlled substance based on its chemical structure. Another expert for the government testified that he had analyzed the pharmacological effects of the compounds and found each to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that was substantially similar to the effect of a particular controlled substance. An expert for the defense testified that none of the substances are substantially similar to controlled substances.

         We review de novo the district court's denial of a motion to dismiss an indictment. United States v. Askia, 893 F.3d 1110, 1116 (8th Cir. 2018). "To defeat a vagueness challenge, a penal statute must pass a two-part test: The statute must first provide adequate notice of the proscribed conduct, and second, not lend itself to arbitrary enforcement." United States v. Berger, 553 F.3d 1107, 1110 (8th Cir. 2008).

         A "controlled substance analogue" for purposes of the Analogue Act is defined as a substance:

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to . . . the . . . effect . . . of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect . . . that is substantially similar to . . . the . . . effect . . . ...

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