Brown v. Aud

868 F. Supp. 2d 608, 2012 WL 2236636, 2012 U.S. Dist. LEXIS 83957
CourtDistrict Court, E.D. Michigan
DecidedJune 18, 2012
DocketCase No. 2:09-CV-10735
StatusPublished
Cited by1 cases

This text of 868 F. Supp. 2d 608 (Brown v. Aud) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Aud, 868 F. Supp. 2d 608, 2012 WL 2236636, 2012 U.S. Dist. LEXIS 83957 (E.D. Mich. 2012).

Opinion

[610]*610 OPINION AND ORDER GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS

ARTHUR J. TARNOW, Senior District Judge.

Craig G. Brown, (“Petitioner”), currently-residing in Pontiac, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for possession with intent to deliver trenbolone, M.C.L.A. 333.7401(2)(b)(ii); and possession of trenbolone, M.C.L.A. 333.7403(2)(a)(ii). This Court concludes that Michigan law is unconstitutionally vague as to whether Trenbolone, the drug contained in the FinaplixH that petitioner had in his possession, is a controlled substance classified in schedule 1, 2, or 3 under Michigan’s controlled substance laws. Accordingly, the petition for writ of habeas corpus is GRANTED.

I. Background

Petitioner was convicted following a jury trial in the Oakland County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.2009):

Defendant was a police officer with the Almont Police Department and the Brown City Police Department. Lieutenant Timothy Donnellon of the St. Clair County Sheriffs Department testified that in February 2003, he was investigating Brown City Police Officer Albert Geoit for anabolic-steroid use. Donnellon testified that the Geoit investigation led him to investigate defendant. The search warrants issued in this case indicate that Geoit told the police that defendant supplied him anabolic steroids.
Donnellon asked Michael Winters, an inspector with the Postal Inspection Service, to intercept any suspicious parcels addressed to P.O. Box 364, Lakeville, Michigan, which is within Oakland County. The post office box was registered to defendant, and only defendant had access to the post office box. On February 28, 2003, a parcel arrived for defendant’s post office box. Winters requested a federal search warrant to inspect the parcel. After obtaining the warrant, Winters executed the search himself. The parcel contained 10 packages of Finaplix-H, which the Michigan State Police laboratory confirmed contained Trenbolone. The package did not contain an applicator for animal injection. At trial, Winters admitted that defendant did not arrive to pick up the parcel. Winters also admitted that he had previously testified that, in regard to Trenbolone, “[i]f it’s for veterinary use, its legal.”
On March 1, 2003, Donnellon executed a warrant to search defendant’s residence. The owner of the building, Gladys Graves, lived on the second story and defendant rented the first floor. The police found evidence linking defendant to the first floor, including a filled-out employment application and credit cards. In the only first-floor bedroom that appeared to be lived in, the police found a magazine, “Anabolics 2000,” laying on the bed. In the first-floor kitchen, the police found a topical anabolic steroid, Testosterone Androgel, which is available by prescription. The police discovered additional anabolic-steroid-related magazines. The police also found defendant’s credit-card statements reflecting purchases from Websa Co., the source of the Finaplix-H in the parcel, and Finafarm, a company that sells a kit that makes possible the human consumption of anabolic steroids (kit). La-peer County Sheriff Detective Nancy Stimson recovered such a kit in a garbage bag from defendant’s house. Don[611]*611nellon ordered a kit from Finafarm, and Stimson testified regarding the similarities between the kit found at defendant’s residence and the kit ordered by Donnellon. Donnellon also testified that the kit he received was very similar to the kit found in defendant’s residence.
At trial, Stimson also testified that Graves had a computer upstairs that Graves allowed the police to search. Stimson brought the computer to Robert Gottschalk, an expert in electronic-data retrieval, for investigation. Gottschalk removed the hard drive and used EnCase forensic software to make a copy of the hard drive. Gottschalk testified that EnCase software allows reproduction of all files that have not been overwritten, including Internet files. In particular, he testified that
it created — it created the image, which is a — refer to as a mirror image, is an exact copy of everything that’s on the hard drive; not only the data but everything else that’s there. Maybe a file that was deleted at one time. It copies all of the data off of it.
Gottschalk searched the copied hard drive for anabolic-steroid-related terms, and found numerous e-mails relating to defendant’s purchases of anabolic steroids.
Donnellon also obtained a warrant to search defendant’s urine for anabolic steroids. Defendant refused to provide a urine sample several times, but he eventually did so. The sample was sent to American Institute of Toxicology (AIT). Defendant’s urine sample first was tested generally for steroids, but not specifically for Trenbolone. The test was negative, but Michael Evans, founder and director of AIT, later retested defendant’s urine specifically for Trenbolone, and it was positive.
Evans, an expert in toxicology, testified that Trenbolone is used in veterinary practices to increase muscle mass in cattle. A special syringe injects a pencil-like Trenbolone pellet into cattle to be slowly released. He testified that Trenbolone can be extracted from the pellets with a kit; specifically, a conversion kit like that received by Donnellon, which is similar to the one found at defendant’s residence. Evans testified that each Finaplix — H package in defendant’s post office box contained 20,000 milligrams of Trenbolone, which is between 200 and 400 dosages. He testified that this amount is more than one human would require. Evans testified that Trenbolone is inappropriate for use in smaller animals, such as cats and dogs.
Michael Henry, defendant’s friend, testified for the defense. Henry testified that he asked defendant to order Finaplix — H for Henry’s dog.
People v. Brown, 279 Mich.App. 116, 119-22, 755 N.W.2d 664 (2008).

A majority of the Michigan Court of Appeals affirmed petitioner’s conviction Id., with Helene White dissenting. She concluded that Mich. Admin. Code, R. 338.3122(2), did not plainly and unambiguously provide that the possession of Trenbolone in a form that is “expressly intended for administration through implants to cattle or other nonhuman species and which has been approved by the United States Drug Enforcement Administration (DEA) for such administration” is illegal if the possessor intended the Trenbolone for human consumption. Id., at 146-49, 755 N.W.2d 664 (White, J., dissenting).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Craig G Brown v. Police Officers Labor Council
Michigan Court of Appeals, 2015

Cite This Page — Counsel Stack

Bluebook (online)
868 F. Supp. 2d 608, 2012 WL 2236636, 2012 U.S. Dist. LEXIS 83957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-aud-mied-2012.