USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2289
UNITED STATES,
Appellee,
v.
BRADLEY OLIVER BOWEN,
Defendant - Appellant.
____________________
No. 96-2290
UNITED STATES,
Appellee,
v.
RINALDO TICCHIARELLI,
a/k/a RONALDO, a/k/a WHITNEY DOREY,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Bownes and Cyr, Senior Circuit Judges.
_____________________
_____________________
J. Bradford Coffey, by appointment of the Court, with whom
__________________
Farrell, Rosenblatt & Russell was on brief for appellant Bradley
_____________________________
Oliver Bowen.
G. Richard Strafer, with whom Qui on & Strafer, P.A. was on
__________________ ______________________
brief for appellant Rinaldo Ticchiarelli.
Margaret D. McGaughey, Assistant United States Attorney,
______________________
with whom Jay P. McCloskey, United States Attorney, James L.
_________________ _________
Moore, Assistant United States Attorney, and Timothy D. Wing,
_____ ________________
Assistant United States Attorney, were on brief for appellee.
____________________
September 24, 1997
____________________
-2-
TORRUELLA, Chief Judge. This appeal presents an issue
TORRUELLA, Chief Judge.
___________
of first impression, namely, whether the term "hashish oil" under
18 U.S.C. 841(b)(1)(D) and U.S.S.G. 2D1.1 is
unconstitutionally vague, or so ambiguous as to require the
application of the rule of lenity, as applied to conduct
occurring prior to a November 1995 amendment to the Sentencing
Guidelines that provided, for the first time, a definition for
the term.
Appellants were convicted for importing and
trafficking, prior to the Guideline amendment, in a controlled
cannabis-derived substance the precise classification of which
was left to be determined during sentencing. The sentencing
court determined the substance to be "hashish oil," as opposed to
"marihuana," and concluded that it was appropriate to apply a
fifty to one quantity conversion ratio under the Drug Quantity
Table of the Sentencing Guidelines. See U.S.S.G. 2D1.1(c).
___
Finding that genuine ambiguity regarding the definition of
"hashish oil" prior to 1995 mandates the application of the rule
of lenity in this case, we reverse and remand for re-sentencing.
BACKGROUND
BACKGROUND
Defendants-Appellants Bradley Oliver Bowen and Rinaldo
Ticchiarelli participated in a scheme, along with three other co-
conspirators, to smuggle controlled substances from Jamaica into
the United States, to store the substances in Maine, and from
there to eventually smuggle contraband drugs into Canada. With
Bowen's assistance, Ticchiarelli organized two boat trips to
-3-
Jamaica to pick up marihuana and a marihuana-based substance and
stored large quantities of these controlled substances in Maine,
for later export into Canada.
The illicit substances involved were marihuana and much
greater quantities of a black, tar-like marihuana-based
substance. In a consolidated appeal, Brown and Ticchiarelli
challenge the district court's determination during sentencing
that the tar-like substance in which they were trafficking was
"hashish oil."1 Both seek to be sentenced as though the
controlled substance were "marihuana." Prior to the sentencing
stage, their cases travelled different procedural routes.
Pursuant to a plea agreement, Ticchiarelli pled guilty
on September 14, 1995 to Counts One, Eight and Ten of a ten-count
indictment. Although these counts made specific reference to
"hashish oil," as part of his plea agreement Ticchiarelli did not
concede that the Schedule I controlled substance was "hashish
oil." Count One alleged a conspiracy to commit and the
commission of, with Bowen and three others, the following crimes
occurring between August 1994 and March 1995: importing a
Schedule I controlled substance ("hashish oil") derived from
marihuana into the United States in violation of 21 U.S.C. 952;
importing marihuana into the United States in violation of 21
U.S.C. 952; distributing the "hashish oil" intending that it
would be unlawfully imported, in violation of 21 U.S.C. 959(a)
____________________
1 As discussed infra, Bowen asserts additional claims not put
_____
forward by Ticchiarelli.
-4-
(1); possessing with intent to distribute a Schedule I controlled
substance ("hashish oil") derived from marihuana, as well as
possessing with intent to distribute marihuana, in violation of
21 U.S.C. 841(a)(1); exporting a Schedule I controlled
substance ("hashish oil") as well as marihuana from the United
States, in violation of 21 U.S.C. 953. Count Eight charged
Ticchiarelli with making false representations to the Customs
Service by presenting false identification, in violation of 18
U.S.C. 1001, and Count Ten recited the other counts in invoking
the criminal forfeiture provision of 21 U.S.C. 853.
The plea agreement signed by Ticchiarelli stated that
the Schedule I controlled substance of Count One was "hashish"
when processed into liquid form, but Ticchiarelli nowhere
conceded that the substance was "hashish oil," and the district
court reserved the issue of the precise identity of the substance
for determination at sentencing when it accepted the guilty plea.
Bowen, unlike Ticchiarelli and the other conspirators
named in Count One of the indictment, did not enter into a plea
bargain. On February 6, 1996, Bowen was convicted after a jury
trial on Counts One, Six and Seven. Counts Six and Seven charged
a second instance, in March 1995, of possession with intent to
distribute a Schedule I controlled substance ("hashish oil"), in
violation of 21 U.S.C. 841(a) and 841(b)(1)(B)(vii), and
possession with intent to distribute marihuana, in violation of
21 U.S.C. 841(b)(1)(D). The Presentence Investigation Report
(PSR) in Bowen's case states that the contested Schedule I
-5-
controlled substance was hashish oil. Bowen disputed that PSR
determination and contended that the Guideline's use of the term
"hashish oil" was unconstitutionally vague. Bowen sought to
consolidate his case with those of his co-conspirators with
respect to the issue of the nature of the controlled substance
referred to as "hashish oil" in the indictment, and as to the
legal validity of this allegedly ambiguous provision.
The cases were consolidated and on August 9, 1996, the
district court convened an evidentiary hearing to determine the
proper characterization of the controlled Schedule I substance
for the purposes of sentencing Bowen, Ticchiarelli, and another
co-conspirator. At the hearing, experts on each side offered
differing definitions of the term hashish oil. On October 2,
1996, the district court ruled that based on undisputed facts
regarding the physical appearance and chemical composition of the
substance, the substance fit within the ambit of the "ordinary
meaning" of hashish oil. See United States v. Ticchiarelli, 943
___ _____________ ____________
F. Supp. 77, 83 (D. Me. 1996) (Order Determining the Nature of
the Controlled Substance for Purposes of Sentencing). The
district court also stated, however, that after considering
expert testimony proffered by the government and the defendants,
and after consulting further materials in order to ascertain the
meaning of the term "hashish oil," it had discovered that "there
is no scientific nor any universally accepted precise definition
of the term hashish oil." Id. at 82.
___
Having found the controlled substance to be hashish
-6-
oil, the court established the base offense level for Bowen and
Ticchiarelli by following section 2D1.1(c): it multiplied the
quantity (measured by weight) of the "hashish oil" attributable
to the defendants by a factor of fifty, added that figure to the
amount of other marihuana attributable to them, and determined
the base offense level corresponding to the resulting, marihuana-
equivalent drug quantity figure.2 The base offense levels for
Bowen and Ticchiarelli were 36 each, and, ultimately, their total
offense levels were determined to be 38.
On appeal, both Ticchiarelli and Bowen assert that
Sentencing Guideline section 2D1.1's use of "hashish oil" without
a definition (prior to November 1995) was unconstitutional, and,
in the alternative, that the rule of lenity required that any
ambiguity as to the definition of "hashish oil" be resolved in
their favor -- that is, through a finding that the marihuana-
based substance was not hashish oil for sentencing purposes.
Bowen additionally claims error in the admission of certain
evidence in his criminal trial and asserts that the fifty to one
ratio between marihuana and hashish oil is arbitrary and
irrational, thereby violating the Due Process clause of the Fifth
____________________
2 The court determined that 393 kilograms of hashish oil and 48
kilograms of marihuana were attributable to the defendants. This
amounts, after the one to fifty conversion, to 19,698 kilograms
of marihuana equivalent, corresponding to a base offense level of
36. See U.S.S.G. 2D1.1(c). Had the substance been deemed
___
marihuana instead, the corresponding base offense level for Bowen
and Ticchiarelli would have been 28. Given the total offense
levels of 38, this eight point increase translates into a minimum
difference in incarceration periods of 114 months for Bowen and
141 months for Ticchiarelli.
-7-
Amendment.
-8-
DISCUSSION
DISCUSSION
I. The Meaning of "Hashish Oil"
I. The Meaning of "Hashish Oil"
The district court's interpretation of the meaning of
"hashish oil" under the Sentencing Guidelines presents a legal
question over which we assume de novo review, as does the legal
__ ____
issue of whether the term was vague or ambiguous prior to the
1995 amendment. United States v. Camilo, 71 F.3d 984, 986 (1st
_____________ ______
Cir. 1996); United States v. Bohai Trading Co., Inc., 45 F.3d
_____________ ________________________
577, 580 (1st Cir. 1995). The sentencing court's findings of
fact regarding the properties of the controlled substance itself
are subject to review for clear error. Camilo, 71 F.3d at 986.
______
The following factual findings regarding the controlled
substance are undisputed: (1) it is derived from marihuana plant
matter (cannabis sativa), and not from marihuana resin or
hashish; (2) it is a black or near-black substance resembling
road tar; (3) it is not pourable at room temperature; (4) it
contains tetrahydrocannabinol (THC) in the 13 to 16 percent
range; (5) it contains cannabinol and cannabidiol; (6) it
contains no fragments of vegetation perceptible to the naked eye;
(7) it contains chlorophyll and magnesium; (8) it originates in
Jamaica. See 943 F. Supp. at 78. The appeal turns on whether
___
this substance can be said to be "hashish oil."
Under the amendments to the Sentencing Guidelines
effective November 1, 1995, the following definition of hashish
oil was provided:
Hashish oil, for the purposes of this
guideline, means a preparation of the
-9-
soluble cannabinoids derived from
cannabis that includes: (i) one or more
of the tetrahydrocannabinols (as listed
in 21 C.F.R. 1308.11(d)(25)), (ii) at
least two of the following: cannabinol,
cannabidiol, or cannabichromene, and
(iii) is essentially free of plant
material (e.g. plant fragments).
____
Typically, hashish oil is a viscous, dark
colored oil, but it can vary from a dry
resin to a colorless liquid.
U.S.S.G. 2D1.1(c), Drug Quantity Table, Note (J) (Nov. 1995).
Prior to November 1995, the term "hashish oil" was
undefined in both the Code, see 21 U.S.C. 841(b)(1)(D), and in
___
the Guidelines. Moreover, the legislative history of the
Comprehensive Crime Control Act of 1984, which first enacted the
fifty to one ratio and introduced the term "hashish oil" to the
Code, is silent as to the meaning of the term. See Pub. L. No.
___
98-473, 98 Stat. 2030, 2070, 2086; S. Rep. No. 98-634 (1984);
H.R. Rep. No. 98-1030 (1984). Although the undisputed facts
regarding the substance at issue would appear to place it within
the current definition, this definition, constituting a
significant and substantive addition to the guidelines, cannot be
retroactively applied to these defendants. See United States v.
___ _____________
S nchez, 81 F.3d 9, 12 (1st Cir. 1996) (Guideline amendment that
_______
is not a mere clarification, and that is not covered by the
policy statement of section 1B1.10, is not to be applied
retroactively). For example, this definition includes a "dry
resin" within the scope of the term "hashish oil," a matter
-10-
which, as discussed below,3 could not be considered part of the
core meaning of "hashish oil" prior to the amendment.
It is clear, however, that whether or not the substance
at issue is "hashish oil," it certainly qualifies as "marihuana"
under the Code:
The term "marihuana" means all parts of
the plant Cannabis sativa L., whether
growing or not; the seeds thereof; the
resin extracted from any part of such
plant; and every compound, manufacture,
salt, derivative, mixture or preparation
of such plant, its seeds or resin. Such
term does not include the mature stalks
of such plant, fiber produced from such
stalks, oil or cake made from the seeds
of such plant, or . . . [any preparations
thereof].
21 U.S.C. 802(16) (Supp. 1997). It is not disputed that the
substance at issue in this appeal falls within this broad, catch-
all definition of "marihuana." The question is whether it can
also be found to be "hashish oil" under the pre-amendment
Guidelines. Appellants raise several grounds for concluding that
it cannot. We need not address their contention that the term
"hashish oil" is void for vagueness, however, because our
conclusion that the application of the rule of lenity is
appropriate in this case provides the appellants the relief they
seek.
II. The Rule of Lenity
II. The Rule of Lenity
Appellants contend that in the face of ambiguity
regarding the scope of the term "hashish oil," the district court
____________________
3 See infra discussion of applicability of rule of lenity for
___ _____
core meaning of hashish oil.
-11-
should have followed the rule of lenity by accepting the more
restricted definition of hashish oil offered by the defendants
and by sentencing the defendants as though the substance were
"marihuana" under the Guidelines.
As the Supreme Court has consistently held, the rule of
lenity commands that genuine ambiguities affecting a criminal
statute's scope be resolved in the defendant's favor. See, e.g.,
___ ____
United States v. Lanier, 117 S. Ct. 1219, 1225 (1997); United
_____________ ______ ______
States v. Nippon Paper Indus. Co., 109 F.3d 1, 7-8 (1st Cir.
______ _________________________
1997)(collecting cases). The important purposes served by the
rule of lenity include the following: "to promote fair notice to
those subject to the criminal laws, to minimize the risk of
selective or arbitrary enforcement, and to maintain the proper
balance between Congress, prosecutors, and courts." United
______
States v. Kozminski, 487 U.S. 931, 952 (1988). However, the rule
______ _________
only "properly comes into play when, at the end of a thorough
inquiry, the meaning of a criminal statute remains obscure."
United States v. O'Neil, 11 F.3d 292, 301 n.10 (1st Cir. 1993).
______________ ______
Put another way, the rule of lenity means that "the Court will
not interpret a federal criminal statute so as to increase the
penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to what
Congress intended." Ladner v. United States, 359 U.S. 169, 178
______ _____________
(1958).
We find that experts for both the government and the
defendants offered reasonable constructions of the term "hashish
-12-
oil" at the August 9, 1996 evidentiary hearing, and further find
that the legislative history provides no guidance as to the
term's meaning. Presented with a variety of educated guesses as
to the meaning of "hashish oil" -- that is, presented with a
genuine ambiguity -- we hold that the rule of lenity applies.
The defense expert, James Woodford, testified on the basis of his
experience as a chemist and as a drug testing expert that hashish
oil is a transparent, honey-colored oil produced in the process
of compressing hashish into bricks. Part. Tr. of August 9, 1996
Hearing, at 38-40. Woodford testified that hashish oil is a
liquid with high THC levels (around 40%) and that it is not a
tarry, thick substance. Id. On the other hand, a government
___
expert, a forensic chemist with the Drug Enforcement Agency,
testified that the substance appeared to be hashish oil, for
hashish oil is a marihuana-derived substance that is chiefly
distinguished from marihuana by its lack of plant material and
cystolithic hairs, and that the controlled substance lacked
cystolithic hairs. Id. at 6-7. According to the government
___
experts, "hashish oil" need not resemble other familiar oils that
are liquid at room temperature. The record indicates that the
substance, although undoubtedly a controlled substance, did not
have the slippery, viscous, or liquid properties of an "oil," at
least as that term is commonly used. This fact is, in our
opinion, critical to our conclusion that the rule of lenity
applies in this case.
Although no other circuit court has addressed this
-13-
issue, appellants draw our attention to two district court
decisions involving a similar tar-like marihuana-based substance
in which the courts, in the face of conflicting definitions of
hashish oil from experts, applied the rule of lenity. See United
___ ______
States v. Gravelle, 819 F. Supp. 1076, 1078-79 (S.D. Fla. 1993)
______ ________
(pursuant to rule of lenity, finding substance to be marihuana
rather than hashish oil); United States v. Schultz, 810 F. Supp.
______________ _______
230, 234 (S.D. Ohio 1992) (pursuant to rule of lenity finding
substance to be hashish rather than hashish oil). Both cases
dealt with a thick, tarry, black substance that did not pour at
room temperature.
In United States v. Camilo, we held that the rule of
______________ ______
lenity was not applicable where a defendant challenged an
enhanced sentence for trafficking in "crack" (as opposed to
"powder") cocaine. See 71 F.3d at 990 (rule of lenity not
___
applicable because "crack in reality does differ from cocaine
powder," notwithstanding similar medical effects and identical
scientific composition). That case is distinguishable from the
instant appeal, because in Camilo we emphasized that one can
______
clearly distinguish, as a practical matter, between crack and
powder cocaine. The meaning of the term "crack" was thus not
ambiguous. Here, "hashish oil," prior to the 1995 amendment,
presents a problem of definitional ambiguity, a problem to which
the rule of lenity clearly is addressed.
For lenity to be appropriate, genuine and
insurmountable doubt must exist as to whether Congress, in
-14-
enacting a higher penalty for "hashish oil," intended to include
this particular, tarry substance within its scope. The district
court, finding that "[t]he three experts presented by the parties
were as deficient on the subject of definition as Congress and
the Sentencing Commission," 943 F. Supp. at 79, surveyed a
variety of publications for assistance. See 943 F. Supp. at 80-
___
82. The "ordinary meaning" of hashish oil that the district
court ultimately applied, however, did not represent a kind of
least common denominator among the various definitions it had
culled. Indeed, the publications the court cited include both
narrow and broad definitions of hashish oil, and the court opted
for a broader definition rather than a narrower one. Id. Even
___
on the basis of the publications cited and quoted by the district
court in its order, we find that, at the very least, there exists
ambiguity as to whether "hashish oil": (a) must be a liquid (or
readily pourable, or capable of being administered in drops) at
room temperature; and (b) must have a THC level in a range
significantly higher than that of marihuana. We therefore
conclude that the rule of lenity should have been applied in this
case, requiring a narrower construction of "hashish oil." Had
the substance been a potent liquid, derived from cannabis, and
lacking plant material, then the rule of lenity would not have
been appropriate. Although, as the district court pointed out,
Bowen and Ticchiarelli should have known that they were
trafficking in a substance that could result in serious
penalties, as we have indicated, fair notice is not the sole
-15-
consideration motivating the rule of lenity.
II. Bowen's Other Claims
II. Bowen's Other Claims
We need not dwell at length on Bowen's additional
claims. First, his request for a downward departure due to the
low THC levels of the substance is rendered irrelevant in light
of our holding that the rule of lenity applies. Second, he
challenges the constitutionality of the fifty to one conversion
ratio between hashish oil and marihuana under U.S.S.G. 2D1.1
and 21 U.S.C 841(b)(1) (D). In declining Bowen's invitation to
deem Congress' enactment of this ratio patently irrational, we
need only direct his attention to United States v. Singleterry,
_____________ ___________
29 F.3d 733, 739 (1st Cir. 1994), which upheld a challenge to the
Guideline provision equating one gram of cocaine base with 100
grams of cocaine. Indeed, the fifty to one hashish oil ratio
presents a much more straightforward case for after-the-fact
rationalization: hashish oil can be expected to be more potent
and more easily transported than marihuana.
Finally, Bowen challenges the admission of a drug
ledger during his criminal trial. Even assuming, as Bowen
alleges, that the drug ledger confiscated at the time of his
arrest was not related to the conduct charged in the indictment,
and therefore should have been excluded as irrelevant, on
reviewing the record we find that any error was plainly harmless
and did not implicate a constitutional right. Given the varied
and strong proof, based on direct evidence, of Bowen's
participation in the conspiracy, we find the "weight of the
-16-
additional evidence overwhelming," and conclude that the same
verdict would almost certainly result from a new trial. United
______
States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). Although
______ ____
the drug ledger was used by the prosecution to corroborate the
testimony of Bowen's co-conspirators, significantly, the
accomplice testimony was forcefully corroborated by other real
evidence and by the testimony of customs agents.
-17-
CONCLUSION
CONCLUSION
For the foregoing reasons the sentences applied to the
appellants are vacated and the case is remanded for sentencing
vacated remanded
_______ ________
pursuant to this opinion.
-18-