United States v. Reece

956 F. Supp. 2d 736, 2013 WL 3327913
CourtDistrict Court, W.D. Louisiana
DecidedJuly 1, 2013
DocketCriminal No. 12-00146
StatusPublished
Cited by2 cases

This text of 956 F. Supp. 2d 736 (United States v. Reece) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Reece, 956 F. Supp. 2d 736, 2013 WL 3327913 (W.D. La. 2013).

Opinion

ORDER

ELIZABETH E. FOOTE, District Judge.

Before the Court is the Report and Recommendation of the Magistrate Judge [Record Document 280], addressing Defendant Barry L. Domingue’s Motion to Dismiss the Superseding Indictment [Record Document 205].1 For the reasons that follow, the Court hereby adopts the findings of the Report and Recommendation, as clarified in this Order.

The Court finds that the Drug Enforcement Administration (DEA) followed the proper procedures specified under Title 20 U.S.C. § 811(h) to add JWH-018 to schedule I in March 2011. As explained in the Magistrate Judge’s Report, Congress explicitly enacted § 811(h) “to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is ‘necessary to avoid an imminent hazard to the public safetyf.]’ ”2 In meeting the requirements of § 811(h), the DEA was not required to further comply with the general notice requirements of Title 5 U.S.C. § 801. Despite the Administrator’s invocation 3 of the so-called “good cause” provision, codified at 5 U.S.C. § 808(2), the Court agrees with the Magistrate Judge that further discussion of that issue is pretermitted by our finding that the DEA complied with the procedural requirements of § 811(h). No further statutory compliance was required. Thus, JWH-018 was a controlled substance on and after March 1, 2011. Therefore, pursuant to 21 U.S.C. § 813, if AM-2201 is in fact a chemical analogue of JWH-018, it should also be treated as a controlled substance as of that date.

Accordingly, for the reasons stated in the Report and Recommendation and [738]*738clarified by this Order, and after an independent review of the record, including written objections filed by Defendant Domingue and adopted by Defendants Stanford, Buswell, Reece and Francis, and determining that the findings are correct under the applicable law;

IT IS HEREBY ORDERED that the Motion to Dismiss the Superseding Indictment [Record Document 205] be and is hereby DENIED.

REPORT AND RECOMMENDATION

PATRICK J. HANNA, United States Magistrate Judge.

Currently pending before this Court is the motion to dismiss the superceding indictment that was originally filed by defendant Barry L. Domingue (Rec. Doc. 205) and then adopted by defendants Alexander Derrick Reece (Rec. Doc. 218), Richard Joseph Buswell (Rec. Doc. 222), Daniel Paul Francis (Rec. Doc. 248) and Daniel James Stanford (Rec. Doc. 220). The motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. (Rec. Doc. 245). For the following reasons, the undersigned recommends that the motion be denied.

Factual Background

The superceding indictment (Rec. Doc. 57) charges the defendants with sixteen substantive counts and also contains a forfeiture allegation. Fourteen counts (Counts 3-16) include one count for money laundering conspiracy and thirteen counts of money laundering, one count is for conspiracy to introduce and cause to be introduced misbranded drugs into interstate commerce (Count 2), and one count (Count 1) is for conspiracy to distribute and possess with the intent to distribute a schedule I controlled substance through application of the analogue statute.

The superceding indictment alleges that, as of March, 2011, the synthetic cannabinoid JWH-018 was a schedule I controlled substance. The other synthetic cannabinoids identified in the indictment are analogues of JWH-018 and include AM-2201, JWH-081, JWH-250, and UR-144. After JWH-018 was added to schedule I, bulk quantities of synthetic cannabinoids were supplied by defendant Reece to a business known as NeutraGenomics which was owned and operated by Defendants Green and Malone. NeutraGenomics supplied the synthetic cannabinoids used to manufacture “Mr. Miyagi” to Pinnacle Products Group. Pinnacle was controlled by defendants Barrow and Espinoza. Pinnacle manufactured Mr. Miyagi and supplied it to Curious Goods. Curious Goods was controlled by defendant Buswell and sold Mr. Miyagi to the public. Mr. Miyagi contained the synthetic cannabinoid AM-2201.

The indictment also alleges that, through a corporation called Retail Compliance Association, defendants Stanford and Francis trained, advised, and instructed franchise owners of defendant Curious Goods LLC and their employees on how to store, display, and sell Mr. Miyagi products, how to detect and evade law enforcement, and how to respond to their customers’ questions about Mr. Miyagi.

A controlled substance analogue is a “designer drug” that resembles a controlled substance in molecular structure and actual or intended physiological effect. Schedule I analogues are treated as though they too are listed on the schedule. In Count 1 of the superceding indictment, the defendants are charged with conspiracy to violate 21 U.S.C. § 846, which prohibits the knowing or intentional manufacture, distribution, or dispensing of [739]*739a controlled substance as well as the possession with intent to manufacture, distribute, or dispense, a controlled substance. Through the application of 21 U.S.C. § 813, the prohibitions of § 846 are extended to the analogues of scheduled substances.

In the instant motion, the defendants seek to have the superceding indictment dismissed, arguing that AM-2201, the synthetic cannabinoid allegedly used in manufacturing Mr. Miyagi, was not an analogue of a scheduled substance at any relevant time because the Drug Enforcement Administration (“DEA”) did not comply with the necessary statutory requirements when five synthetic cannabinoids including JWH-018 were temporarily added to schedule I in March 2011.

The Contentions of the Parties

The defendants argue that JWH-018 was never listed as a schedule I controlled substance because the DEA failed to provide Congress and the Comptroller General with reports required by the Congressional Review Act (“CRA”), 5 U.S.C. § 801 et seq. Consequently, the defendants ar1 gue that they cannot be prosecuted for possessing, distributing, or conspiring to possess or distribute Mr. Miyagi, because the AM-2201 in Mr. Miyagi cannot be considered to be an analogue of a scheduled substance since JWH-018 was not properly scheduled. In support of these arguments, the defendants contend that, even though JWH-018 was added to schedule I by means of an order under 21 U.S.C. § 811

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Cite This Page — Counsel Stack

Bluebook (online)
956 F. Supp. 2d 736, 2013 WL 3327913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reece-lawd-2013.