Submitted: January 15, 2019
Appeals from United States District Court for the Eastern
District of Missouri - St. Louis
GRUENDER, WOLLMAN, and SHEPHERD, Circuit Judges.
WOLLMAN, CIRCUIT JUDGE.
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 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.
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.
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
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.
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).
"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 . . . ...