United States District Court, W.D. Virginia, Big Stone Gap Division
Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States.
Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, Gregory M. Kallen, Big Stone Gap, Virginia, William E. Bradshaw, William E. Bradshaw, P.C., Big Stone Gap, Virginia, J. Thadieu Harris, III, St. Paul, Virginia, Charles L. Bledsoe, Bledsoe Law Office P.C., Big Stone Gap, Virginia, Michael A. Bragg, Bragg Law, Abingdon, Virginia, A. Benton Chafin, Jr., Chafin Law Firm, P.C., Lebanon, Virginia, Gregory M. Stewart, Stewart Law Office, P.C., Norton, Virginia, and Karen K. Bishop, Wise, Virginia, for Defendants.
OPINION AND ORDER
JAMES P. JONES, District Judge.
The defendants and the government have filed various pretrial motions in this case, in which nine defendants have been charged by indictment with crimes related to their alleged violation of the Controlled Substances Analogue Enforcement Act ("CSAEA"), 21 U.S.C. § 802(32). For the following reasons, I will deny the defendants' motions and grant the government's motions.
This case arises out of the defendants' alleged conspiracy to distribute certain synthetic cannabinoids - designated as UR-144, XLR-11, 5F-PB-22, and PB-22 - from retail stores in or near Pound, Virginia. In September 2013, various search warrants were executed at these stores and at several of the defendants' residences, which resulted in the seizure of cash, merchandise, and other property.
On February 25, 2014, the defendants were indicted by the grand jury on twenty-two counts, including conspiracy to possess with the intent to distribute and to distribute controlled substance analogues, 21 U.S.C. § 846 (Count One), possession of a Schedule I controlled substance analogue with intent to distribute, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts Two through Six), maintaining a place for the purpose of distributing a controlled substance, 21 U.S.C. § 856 (Counts Seven through Ten), use of a communication facility to further controlled substance offenses, 21 U.S.C. § 843 (Counts Eleven and Twelve), conspiracy to commit money laundering and money laundering, 18 U.S.C. §§ 1956(h) & 1956(a)(1) (Counts Thirteen through Fifteen), introducing a misbranded drug into commerce, 21 U.S.C. § 352 (Count Sixteen), witness tampering, 18 U.S.C. § 1512(b)(1) (Counts Seventeen and Eighteen), and selling drug paraphernalia, 21 U.S.C. § 863 (Counts Nineteen through Twenty-Two).
These charges stem from the defendants' alleged distribution of controlled substance analogues. A controlled substance analogue 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 or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system 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 on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.
21 U.S.C. § 802(32)(A).
The defendants have moved for this court to conduct a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), and to exclude the testimony of the government's expert witnesses as not meeting the gatekeeping standards for scientific opinion. Further, the defendants have moved to dismiss the conspiracy and distribution charges on the grounds that the indictment is unduly vague in failing to name the controlled substances for which the defendants are alleged to have distributed analogues, and because the CSAEA is unconstitutionally vague as applied to the substances at issue. For its part, the government has moved to preclude the defendants from arguing that they did not know that it was illegal to distribute these substances, to exclude any evidence showing ...