Introduction
In 1980, designer drugs (e.g., amphetamines, fentanyl derivatives, phenethylamines related to MDMA) in the United States began to enter the marketplace. In response, Congress passed legislation seeking to ban these new designer drugs called the Federal Controlled Substance Analogue Enforcement Act (FCSAEA) of 1986. After initial litigation of a limited degree, this law laid largely dormant until a couple of years ago. It is expected that FCSAEA-based prosecution will increase exponentially in the next several years. This anticipated resurgence in FCSAEA-based prosecutions is traceable to the modern phenomenon of synthetic drugs. PiHKAL: A Chemical Love Story is a 978-page paperback published in September 1991, written by Dr. Alexander Shulgin and his wife Ann Shulgin, which launched the careers of many new, modern-day unlicensed pharmaceutical entrepreneurs.1 With the highly profitable endeavor of synthetic drug production flooding the marketplace, federal and state legislatures have had a difficult time keeping up with the illicit trade. They have tried to keep pace with the development of synthetic cannabinoids and synthetic cathinones such as the naphthoylindoles; naphthylmethylindoles; naphthoylpyrroles; naphthylideneindenes or naphthylmethylindenes; phenylacetylindoles; cyclohexylphenols; benzoylindoles; quinolone-based synthetic cannabinoids; HU-210; dexanabinol or HU-211; WIN 55,212-2; benzylpiperazines; phenethylamines; tryptamines; pyrrolidinophenones; and the like. But it is a daunting task. Regulation is difficult, because as soon as one compound becomes scheduled and therefore illegal to possess, the makers of these drugs quickly switch to another compound—one that has the same or similar pharmacological effect but is a different chemical structure and is therefore not a scheduled substance.
This article will examine the prosecution of controlled substance “analogs” by both the state and federal governments. At the end of this read, the reader will have appreciation for the controlling law, the scientific problem of defining an analogue, the current efforts in the forensic science community to define an analogue, and the new chemical defense as seen in the case of Ohio v. Silmi et al.2
The Current State of the Law
The traditional reaction of both federal and state legislatures has been to resort to “analogue acts.” The first of these analogue acts was passed in 1986 by the federal government. The current form can be found at 21 U.S.C. § 802(32).
The Federal Controlled Substance Analogue Enforcement Act (FCSAEA) of 1986 reads as follows:
(A) Except as provided in subparagraph (C), the term “controlled substance analogue” means 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.
(B) The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue.
(C) Such term does not include—
(i) a controlled substance;
(ii) any substance for which there is an approved new drug application;
(iii) with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or
(iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.
The developed law interpreting the FCSAEA reveals a hodge-podge of decisions. It includes:
Constitutional Challenges Based on the Void for Vagueness Doctrine
- Definition of “controlled substance analogue” in Comprehensive Drug Abuse Prevention and Control Act is specific enough to give constitutionally adequate notice of misconduct prohibited. United States v. Reichenbach, 29 M.J. 128 (CMA 1989).
- Controlled Substance Analogue Enforcement Act of 1986 was not unconstitutionally vague as applied, in light of sufficiently precise statutory language to enable ordinary person in position of defendants to know that listed precursor chemicals should not have been possessed for purpose of manufacturing for human consumption, substances similar to amphetamine, methamphetamine, and 4-methylaminorex; defendants had copy of government notice that methylaminorex was to be scheduled as controlled substance, and had used false names in ordering precursor chemicals. United States v. Hofstatter, 8 F.3d 316 (6th Cir. 1993), cert. denied, 510 U.S. 1131, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994).
- Although analogue statute, under which chemical can be considered a drug if it is an analogue to listed controlled substance, was “somewhat elastic,” it was not unconstitutionally vague as applied to defendant for trafficking in aminorex and phenethylamine as analogues to cis-4-methylaminorex and methamphetamine, respectively, since chemical charts would have put reasonable person on notice that substances were substantially similar within meaning of statute. United States v. McKinney, 79 F.3d 105 (8th Cir. 1996), vacated, 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997), on remand, 120 F.3d 132 (8th Cir. 1997).
- Analogue Act, under which a substance that is substantially similar to controlled substance analogue is itself treated as controlled substance analogue, was not unconstitutionally vague under Fifth Amendment as applied to controlled substance analogues 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” and alpha-methyltryptamine (AMT); defendant had actual notice of Analogue Act and researched and discussed its applicability, thus foreclosing a vagueness challenge, defendant showed witnesses at least one website warning that “Foxy” could be prosecuted under the Analogue Act, defendant attempted to conceal his activity from law enforcement, defendant attempted to obtain precursor chemicals from a supplier alleging that he was a research company conducting a study of their pharmacological effects. United States v. Klecker, 228 F.Supp.2d 720 (E.D.Va. 2002), aff’d, 348 F.3d 69 (4th Cir. 2003), cert. denied, 541 U.S. 981, 124 S.Ct. 1896, 158 L.Ed.2d 482 (2004).
- Statutory definition of the term “controlled substance analogue” was unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance hydroxybutyric acid (GHB); there was no scientific consensus as to whether the two substances had substantially similar chemical structures, and it was not sufficient that 1,4-butanediol converted in the body into GHB, particularly in light of several naturally occurring substances that differed from GHB in the same manner as 1,4-butanediol, but which were not prosecuted. United States v. Roberts, 2002 U.S. Dist. Lexis 16778, (S.D.N.Y., September 9, 2002), vacated, 363 F.3d 118 (2d Cir. 2004), on remand, 2005 U.S. Dist. Lexis 9141 (S.D.N.Y., May 16, 2005).
- Statutory definition of the term “controlled substance analogue” was not unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance gamma hydroxybutyric acid (GHB), given that 1,4-butanediol differed from GHB by only two atoms and was converted into GHB upon ingestion. United States v. Roberts, supra, 363 F.3d 118, on remand, 2005 U.S. Dist. Lexis 9141 (S.D.N.Y., May 16, 2005).
Definitions and Explanation of the Elements of the Crime
- Drug may be controlled substance “analogue” only if it meets both chemical structure and pharmacological effects prongs of statutory definition. United States v. Forbes, 806 F.Supp. 232 (D.Colo. 1992).
- Based on legislative history, ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively—i.e., substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either second or third prong, respectively, requiring substantially similar effect on human nervous system or intent to have such an effect. United States v. Hodge, 321 F.3d 429 (3d Cir. 2003).
- Ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively—i.e., substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either have a substantially similar effect on the central nervous system or be purported or intended to have such an effect. United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005), cert. denied, 546 U.S. 1089, 126 S.Ct. 1022, 163 L.Ed.2d 853 (2006).
Interpretation of “Substantially Similar”
- Methylenedioxymethamphetamine (MDMA), or Ecstasy, could be treated as “controlled substance analogue” under the Analogue Act, even though it had previously been scheduled as Schedule I controlled substance, once Schedule I scheduling was held invalid. United States v. Franz, 818 F.Supp. 1478 (M.D.Fla.1993).
- Statutory definition of controlled substance “analogue” encompassed wax-and-flour mixture sold as crack cocaine to undercover agent, even though mixture was not chemically similar to controlled substance; mixture fell within third of three disjunctive definitions, “[substance] which [defendant] represents . . . to have a stimulant, depressant, or hallucinogenic effect . . . that is substantially similar to or greater than [that of] controlled substance in schedule I or II.” United States v. Greig, 144 F.Supp.2d 386 (D.V.I. 2001), aff’d in part, reversed in part, 321 F.3d 429 (3d Cir. 2003).
- Pills containing ginseng and vitamin B, which defendants represented to purchaser to contain schedule I controlled substance, did not constitute “controlled substance analogue” as required for conspiracy to possess and distribute controlled substance analogue conviction; there was no indication in legislative history that Controlled Substances Analogue Enforcement Act was meant to forbid individuals from passing off over-the-counter nutritional supplements or vitamins as controlled substances. United States v. Clifford, 197 F.Supp.2d 516 (E.D.Va. 2002).
- Chemical structure of 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” was substantially similar to that of DET, a controlled substance analogue, so as to support treatment of “Foxy” as a controlled substance analogue under Analogue Act; “Foxy” and DET shared same core arrangement of atoms, known as tryptamine, which was the core element of a number of hallucinogenic drugs; experts agreed that “Foxy,” which was lengthened by one methyl group, had a slightly higher lipophilicity rating than DET, which meant it had greater ability to penetrate the blood stream. United States v. Klecker, supra.
- Substance could be a “controlled substance analogue” for purpose of statute stating that a controlled substance analogue shall, to the extent intended for human consumption, be treated as a controlled substance in schedule I, only if it satisfied both the chemical structure prong of statutory definition, and either the second or third prong of statutory definition, requiring either a substantially similar effect on the human nervous system or the intent to have such an effect. United States v. Vickery, 199 F.Supp.2d 1363 (N.D.Ga. 2002).
- In United States v. Hodge, supra, held that a wax-and-flour mixture sold to undercover federal agent as “crack cocaine” did not constitute “controlled substance analogue” within meaning of Controlled Substance Analogue Enforcement Act as mixture did not satisfy Act’s definition requiring “substantially similar” chemical structure.
- In United States v. Brown, 415 F.3d 1257 (11th Cir. 2005), cert. denied, 547 U.S. 1023, 126 S.Ct. 1570, 164 L.Ed.2d 305 (2006), the defense called an expert to testify as to what constitutes “substantially similar” in chemistry, and to refute the prosecution’s theory of the case, but the expert was precluded from testifying. That court held that even if this expert witness proffered by defendants in prosecution for conspiracy to distribute a controlled substance analogue to testify concerning the similarity between gamma-hydroxybutyric acid (GHB), a controlled substance, and 1,4 butanediol, an alleged controlled substance analogue, was qualified to testify as an expert, witness’ testimony was based on unreliable methodology unreasonably applied. In that court’s opinion, the proffered expert witness overemphasized the differences between the two chemicals by unnecessarily double-counting a substructure present in GHB but not in 1,4-butanediol, and witness did not know and could not explain how the computer programs he used defined similarity.
Cases that Comment on Knowledge of What the Substance Is as a Requirement
- A mens rea (scienter) element of the crime exists. This means that to be convicted of possessing with intent to distribute mixtures containing a controlled substance, the prosecution must show that the defendant knew that the substance at issue had a chemical structure substantially similar to that of a controlled substance, and he or she must either have known that it had similar physiological effects or intended or represented that it had such effects. United States v. Turcotte, supra.
The Source of the Disparate Results
The interpretation of a statute can either be amazingly simple or downright complicated. These guidelines are generally referred to as the cannons of construction.
What is happening here, from strictly the legal viewpoint, is the intersection of three powerful principles that interrelate but do not easily work together to produce a meaningful and just interpretation of the law. These separate and distinct principles are (1) in pari material; (2) the strict construction of penal statutes; and (3) the rule of lenity.
1. All statutes should be read as a harmonious whole, with its separate parts (such as subparts) being interpreted within their broader statutory context in a manner that furthers statutory purpose. This is called in pari materia. Justice Scalia of the United States Supreme Court once wrote: “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear . . . or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Savings Ass’n of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (citations omitted).
2. The strict construction of the penal statutes means that all statutes that are penal in nature must be strictly applied (they are to be applied as they are written and nothing “extra” interpreted into them).
3. If statutory language is ambiguous, then the rule of lenity applies. If statutory language is unambiguous, the rule of lenity does not apply. Beecham v. United States, 511 U.S. 368, 374, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994), citing Chapman v. United States, 500 U.S. 453, 463–464, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); see also National Org. for Women v. Scheidler, 510 U.S. 249, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The rule of lenity requires that “before a man can be punished as a criminal . . . his case must be ‘plainly and unmistakably’ within the provisions of some statute . . .” United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). Lenity principles “demand resolution of ambiguities in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (citations omitted); see also United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (“In these circumstances—where text, structure, and [legislative] history fail to establish that the Government’s position is unambiguously correct—we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.”); Cleveland v. United States, 531 U.S. 12, 25 (2000) (before choosing a “harsher alternative” interpretation of the mail fraud statute, “it is appropriate . . . to require that Congress should have spoken in language that is clear and definite”) (citation omitted). Two reasons for the rule are that “fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,” and that “legislatures and not courts should define criminal activity.” Ratzlaf v. United States, 510 U.S. 135, 148–49 (1994), citing McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931).
Condition Precedent for Prosecution: Is the Substance Intended for Human Consumption?
Under the FCSAEA, there is a prerequisite of proof that the government must show prior to getting into the pharmacology of the drug or determining the seller’s intent. The government has to affirmatively prove that this substance was intended for human consumption. The government can do this by direct evidence. For example, if the seller said the substance will get the buyer high, or the government can prove this by circumstantial evidence if it meets the burden of proof beyond a reasonable doubt. Circumstantial evidence does not give the fact-finder permission to lower the burden of proof; instead it merely allows the person to make reasonable inferences based upon other admitted evidence. This is why the producers of these substances cannot avoid criminal responsibility by simply printing “not for human consumption” on the packaging.
The government can use a context to try to meet their burden of proof by showing that the items were being sold in a head shop right next to the smoking devices that promote a sale if you bundle the two together. The government will also frequently attempt to employ a “negative corpus” or “burden shifting” tactic that is framed as “there are no non-human consumption uses for these chemicals so that is direct proof of intended use for human consumption.” (There is no logic in a negative corpus argument. In fact it is illogical.) Another familiar government argument in courthouses is that, “They didn’t come in here and offer any proof that it wasn’t used for human consumption.” This is impermissible burden shifting. At a very threshold issue, if the government cannot prove that it was used for human consumption, then the prosecution must fail.
Essential Elements
Under the FCSAEA, there are two essential elements associated with the second essential element, and they can be proven in the alternative. As is the case with all essential elements, the government has the burden of production to put forth competent evidence as well as the burden of persuasion beyond a reasonable doubt. If the government fails to produce any evidence as to an essential element, then the prosecution must fail, as there is no legal sufficiency for a conviction. The burden of persuasion focuses on the “weight of the evidence.”
The first part of subsection A calls for a structural analysis and an opinion that the molecule is “substantially similar” to a Schedule I or II substance. It is not sufficient to be merely “substantially similar” to any controlled substance whatsoever. So the government must allege and prove the structural similarity to a particular Schedule I or Schedule II substance. If this particular Schedule I or II substance is not revealed in the indictment or information, it would be wise for a criminal defense attorney to apply for a bill of particulars or file a motion seeking that the indictment or information be quashed for lack of sufficient particularity. Without sufficient proof of this first element, there can be no successful prosecution.
If the government does not prove this first element, the verdict must be “not guilty.” To satisfy the first essential element, the government must produce an expert. It is quite clear that what is and is not an analogue is not “within the ken of a lay person.” Even more so, valid structural analysis and comparison of an unknown seized substance to a Schedule I and Schedule II substance is certainly also “beyond the ken of a lay person.” Therefore, expert testimony is required. Usually this is a chemist. This witness must explain the structure and offer an opinion that this particular substance is “substantially similar” to a specific and particular Schedule I or Schedule II drug and not just simply to a controlled substance. The government must prove this opinion beyond a reasonable doubt.
Defense counsel must be very careful to examine closely the qualifications of any proffered expert who testifies in these cases. Meaningful structural examination is not within the scope of the expertise of all chemists. It is infrequently taught in undergraduate chemistry or is typically only covered in cursory fashion. Valid explanation of chemical structures in the typical analogue context requires more than simply two-dimensional simplistic ball-and-stick drawings. In fact, an expert who engages in such a simplistic method as justification for his or her opinion should set off an alarm for defense counsel. If the government is able to produce competent evidence in sufficient weight to satisfy this first essential element, the prosecution is only part way to a conviction, as it must also prove the second essential element.
The second essential element can be proven in one of two ways. Much like the first essential element, if the government does not prove this element in either of the alternative forms, the verdict must be “not guilty.”
The first alternative requires certain sub-issues of proof that: (1) to a human being (2) there is a pharmacodynamic effect similar to or greater than a particular Schedule I or Schedule II substance that produces a stimulant, depressant, or hallucinogenic effect on the central nervous system. At present, there is a wholesale lack of meaningful controlled scientific studies as to the pharmacodynamic effect of these substances. What studies exist are not performed on humans and are instead pharmacokinetic studies on pigs or rats. There is a lack of information on basic pharmacological issues with these substances such as human binding affinities, bioavailability in humans after particular methods of introduction, and the like. Other dubious sources used as references include self or community anecdotal reporting through emergency rooms or poison control centers. Finally, as is known in organic chemistry and pharmacology, a seemingly small change in structure can grossly change the pharmacodynamic affect (e.g., tetrahydrocannabinol versus cannabidiol, buprenorphine versus diprenorphine). As one can see, satisfying the burden to prove this prong could be very difficult for the prosecution.
The second alternative way to prove the second essential element simply requires proof that the person represents or intends that the seized substance will have a pharmacodynamic effect similar to or greater than a particular Schedule I or Schedule II substance that produces a stimulant, depressant, or hallucinogenic effect on the central nervous system. Again, much like the “human consumption” aspect of this prosecution, direct or circumstantial evidence can be used to prove this element. This is usually much easier to prove than the first alternative of the second essential element.
Alternative Forms of Laws to Deal with Synthetic Drugs
As of November 2012, 41 states and Puerto Rico have passed legislation that seeks to ban some form of synthetic cannabinoids.3 When it comes to synthetic cannabinoids, some acts passed by state legislatures seek to simply specifically name certain substances that they want to ban.4 This approach provides certainty in terms of the scope of potential prosecution. However, it cannot adapt quickly to changes in the synthetic drug world. For every time one substance is placed on a list, the manufacturers change their synthesis to something different. Only two state legislative (MN and CO) actions mirror the sweeping federal analogue approach as discussed above.5 Some state legislatures have passed statutes that refer to the banning of homologues.6 It is important to note and distinguish between homologues and analogues. A homologue is a specific type of analogue wherein the homologue is a compound belonging to a series of compounds differing from each other by a repeating unit. For example, methanol, ethanol, isopropanol, and butanol are homologues by just adding a CH2 group through that progression of chemicals. This homologue approach is not nearly as sweeping as the federal analogue approach. Other state legislatures have passed class-based legislation to ban certain types of synthetic cannabinoids.7 The difficulty with a class-based system is that the testifying expert must wholly understand structure and be able to articulate well to a lay jury what these classes are and how the substance clearly falls into the proposed task. Another drawback comes from public notice of what is or is not legal. For example, a layperson will find written in such a statute the banning of all naphthoylindoles and will search in vain for JWH-018. Therefore, there can be understandable confusion for the layperson who wants to comply with the law but cannot because of hyper-technical definitions that he or she cannot fairly be expected to know. In a class-based strategy, the average layperson will not find a listing of specific substances. As such, the actual notice of prohibited substances is at best lacking and at worst misleading.
A minority of state legislatures (CO and OK) have taken a receptor-based approach.8 The receptor-based approach makes a substance illegal if there is “binding activity at one or more cannabinoid receptors” or “is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring substances.”9 This receptor-based approach can be difficult because it can be argued that it is very broad in its effect and leads to ostensibly irrational results. For example, there is some research that shows acetaminophen indirectly affects CB1 receptors. Acetaminophen’s metabolite N-arachidonoylphenolamine (AM404) increases endogenous cannabinoids like anandamide and 2-Arachidonoylglycerol by inhibiting FAAH (fatty acid amide hydrolase). FAAH metabolizes anandamide (an endogenous cannabinoid) and 2-Arachidonoylglycerol.10
As of November 2012, nine state legislatures (MD, MA, NV, NH, NJ, NY, OR, VT, and WA) have not passed any form of synthetic cannabinoid laws.11 However, as of November 2012, of those states NY, OR, and WA have elected to use departmental rules to ban some forms of synthetic cannabinoids. This leaves MD, MA, NV, NH, NJ, and VT with either a legislative enactment or a department-based ban for synthetic cannabinoids.
As of November 2012, 43 states and Puerto Rico have passed legislation that seeks to ban some form of synthetic cathinones.12 The banning of these types of substances has proven to be more difficult to define for state legislatures. Most states have opted to simply list specific compounds to ban.13 A minority of states simply have a class-ban system in place. The difficulty in this approach is that defining a class or classes proves to be more difficult than in the cases of synthetic cannabinoids.
As of November 2012, eight state legislatures (CA, MT, NE, NH, OR, VT, and WA) have not passed any form of synthetic cathinone laws.14
As of November 2012, three state legislatures (OR, VT and NH) have taken no action on either synthetic cannabinoids or synthetic cathinones.15 Vermont and New Hampshire have taken neither state legislative action nor departmental regulation action.
Yet another possible way of regulating these synthetic drugs has recently emerged. It is a pharmacology-driven definition. In this case, the law says that the government must prove pharmacological effect similar to or greater than a Schedule I or Schedule II drug AND chemical structural class (in that order). If they cannot prove the pharmacological effect similar to or greater than a Schedule I or Schedule II drug, structural class never even comes into consideration. In such a statutory scheme, a chemist (alone) could not testify to a drug being a substance under that type of law even if that specific drug was listed as an example under a listed structural class. Because of this interpretation, it is misleading to the court to produce a chemistry report that says anything that could be interpreted as “Drug X is a controlled substance or its analogue.” Instead, a pharmacologist would need to testify as to the substance’s effect on a human being and then a chemist as to its structure. This approach proves difficult for the government, as it might require two experts as opposed to one, but this method is very appealing for constitutional reasons.
When the DEA, Congress, or some other legislative or rule-making body makes something illegal, it is a taking of property, plain and simple. It is depriving an individual of a property right. As such, it is subject to Due Process review (good old fashioned Fifth Amendment or Fourteenth Amendment). As this Due Process claim does not involve a suspect or quasi-suspect class or a fundamental right, it defaults to the rational basis test. The rational basis test simply means that the government has to have a legitimate reason for a law or regulation that is rationally linked to it (in other words, the connection is not a non sequitur). In order to survive a true constitutionally based challenge, one must word any statute seeking to ban these synthetics in the pharmacology-driven model so that the pharmacodynamic effect must be proven first before it can be criminalized. Otherwise, we have no rational relation to the harm trying to be prevented. In other words, we are banning things (which is a form of taking of property rights) without linking them to a demonstrated harm. Banning things for the sake of banning them and depriving people of a property interest without reason is unconstitutional and cannot be tolerated.
The Conflagration of Science and the Law
We could start this section with the concept that lawyers and legislators make laws and infrequently consult with the scientists who are the experts on this subject matter. This is how we come up with the term of “analogue” and in particular the idea of “substantially similar” that we see in the statutes. This is the root cause of all of the difficulty in the courtroom.
According to the dictionary, an analogue is “a chemical compound that has a similar structure and similar chemical properties to those of another compound, but differs from it by a single element or group. The antibiotic amoxicillin, for example, is an analogue of penicillin, differing from the latter by the addition of an amino group. Compare homologue.”
This is not totally clear. What is “substantially similar”? A number of tests have been devised by courts in the area of intellectual property to determine “substantial similarity.” None of these tests are particularly useful. Sometimes they border on circular logic, such as one appellate court that defined a “substantially identical” claim as one that is “without substantive change.” Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1346 (Fed. Cir. 1998). The tests used in the intellectual property world may rely on expert or lay observation and may subjectively judge the essence or critically analyze its elements. Again, this is not much help.
Ultimately, no matter what scientific consensus may or may not develop, the question of substantial similarity is a question of fact to be determined by a jury, just like in the area of patent or copyright law.
The real world issue is that having no written standard or guidance document in the scientific community that provides support or instructions to testifying experts is akin to living in the wild, wild west. There is no law. Everyone is allowed to opine as they wish with no real consequences for being either too broad (such as saying anything with a carbon in it is an analogue to a Schedule I or II) or too narrow (such as requiring nearly identical copying of the Schedule I or II drug).
Efforts to Define Analogues by Organizations
The Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) has posted the DRAFT document “SWGDRUG Recommendations on Analogues and Structural Class Determinations.”16 It is a very short document and really does little to solve the scientific issue in the courtroom. It reads as follows:
SWGDRUG Recommendations on Analogues and Structural Class Determinations
■ 1 Introduction
1.1 This section provides general recommendations regarding analogues and structural class determinations.
1.2 Jurisdictional requirements for such determinations may include structural or pharmacological (real or purported) similarity to known controlled substances or structural class definitions.
1.3 SWGDRUG considers it fundamental for analysts to fully understand how analogues and structural classes are legally defined in a particular jurisdiction prior to developing or reporting opinions.
1.4 Such opinions should only be rendered by those with proper training and experience.
■ 2 Analogues
2.1 The requirements for legal consideration as a controlled substance analogue are defined in jurisdictional legislation.
2.2 Classification as a controlled substance analogue generally involves the evaluation of the similarity of structure or pharmacological properties of a chemical compound to a known controlled substance.
2.3 The scientific evaluation of similarity may be made using a variety of techniques and approaches depending on the specific question being addressed. These specific comparisons can be broadly classified by structure, chemical properties, biochemical or pharmacological activity.
2.4 Evaluation of similarity shall include comparisons of an appropriate nature sufficient to meet jurisdictional requirements.
2.5 The evaluation of similarities between chemical compounds should be documented. This should include a discussion of how the compounds are similar and how they are different.
2.5.1 Evaluation of similarity is a subjective matter and opinions may differ.
2.5.2 Structural comparisons in a forensic laboratory are likely to be limited to the structural class and functional group, ring or chain substitutions. As examples, isomers, homologues, salt forms, esters, and ethers may be considered. The scope of comparison conducted should be made clear in the report.
2.6 Structural similarity between two chemical compounds is not an adequate basis to infer similar pharmacological activity.
2.7 Likewise a lack of structural similarity is not an adequate basis to infer a lack of analogous pharmacological activity.
2.8 If pharmacological activity is a requirement of particular legislation, the drug analyst should limit his inference and considerations to the citation of peer-reviewed literature, or relevant sworn statements in legal proceedings in absence of specific training and experience in pharmacology (or related fields).
■ 3 Structural Class Determinations
3.1 In many jurisdictions, chemical compounds are controlled based upon structural class definitions (e.g., 3-(1-naphthoyl) indole with substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl ring to any extent).
3.2 A structural class determination may be made by identifying a specific compound and assigning the compound as a member of a legal structural class.
3.3 A structural class determination may also be made using an analytical scheme designed to identify sufficient features of a compound to assign it as a member of a legal structural class without making a conclusive identification of that compound (e.g., ortho, meta, or para position of a halogen on an aromatic ring).
3.4 Any relevant limitations of the analytical scheme and resulting classification shall be clear in reporting.
■ 4 Reporting
4.1 All conclusions and opinions expressed in written or oral form shall be based on sufficient supporting evidence, data, or information.
4.2 The basis of any conclusion should be completely documented in the case notes and summarized in the written report and subject to the laboratory’s review policy.
4.3 Conclusions and opinions reported shall be accurate, clear, objective, and meet the jurisdictional requirements. The report must also include any assumptions or limitations (e.g., potentially exculpatory information), to allow the court to make the final decision.
4.4 The report should clearly indicate what elements of the legal requirements were evaluated and what elements were not evaluated.
4.5 The scope of opinions and conclusions reported shall not go beyond the knowledge, training, and experience of the analyst.
A much more promising and robust effort that is, by the group’s mission statement apolitical, is being made by the members of the Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA). According to their website, “The mission of the Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA) is to recommend minimum standards for the evaluation of non-controlled substances being considered as analogs of controlled substances.”17 They have different subcommittees that are based upon a logical exploration of what should be examined when we try to better understand what is or is not an analogue and what is or is not “substantially similar.” The subcommittees include:
- Structure (chemical backbone, functional groups, core structure, 3-D structure, presence and location of double bonds and rotatable bonds)
- Physicochemical Properties (chemical reactivity, ex vivo, in vivo, computation/empirical data, physical properties)
- Computation Chemistry and Cheminformatics (Molecule similarity algorithms, QSAR, maximum common substructures, Tanimoto value)
- Literature Support (published, unpublished, dissertations, research, meeting abstracts)
- Synthetic Pathway (distinct routes separately patentability and publishability, impurity analysis)
- Pharmacology/Toxicology (pharmacodynamic impact)
Modern Problems to Old Statutes: A Case Study of Ohio v. Silmi et al., U.S. v. Fedida, and Hammel v. U.S.
In 2012, Judge John J. Russo of the Cuyahoga County Common Pleas Court held a Daubert hearing on the issue of the definition of “what is an Analogue” and what is “substantially similar.” The case was The State of Ohio v. Mahir Silmi at al.18
In Silmi the defendants were charged with felony counts of Trafficking and Possession of Controlled Substance Analogs. The defendants filed a motion to exclude the laboratory reports and testimony from the state’s expert witness regarding the alleged controlled substance analogs based upon the premise that the testimony would be purely subjective opinions and therefore should not be admissible.
In December 2012, the court held a Daubert hearing to evaluate the admissibility of the state’s lab report as well as the proposed testimony regarding the testing. Two members of the Cuyahoga County Regional Forensic Science Laboratory (CCRFSL) drug chemistry section testified at the hearing: Paul Boggs, the supervisor of the lab’s chemistry drug section, and Gagandeep Sran, the chemist who analyzed the potential analogues in this case.
Boggs testified that when a substance arrives at the lab, the CCRFSL analyzes not only for controlled substances, but also to see if the substance has a chemical structure “substantially similar” to a controlled substance. If one chemist at the CCRFSL believes the substance to be “substantially similar,” then it would be staffed by lab personnel and looked at by the other six chemists of the CCRFSL. Only if all of them agree that the drug is “substantially similar” would the lab issue its scientific opinion that the standard of substantial similarity has been met and report the substance out as an illegal analog.
There were no specific guidelines set by the laboratory to perform this method when it first began. However, over time, two guidelines were developed. First, with regards to synthetic cannabinoids, the chemists determined that an alleged analog drug “had to be within the same chemical family” as the controlled substance. Second, the original backbone of the scheduled substance had to be unchanged for it to be an analogue. This second step was performed by a side-by-side comparison of the stick and letter chemical structures of the suspect drug and the scheduled drug. The testimony also disclosed there was “no statewide database, protocols, or any formal organization or mechanism of standardization regarding the testing of potential analogs.”
The lab used this exact process to test the substances at issue in Simli. Ultimately, the lab concluded that the substances were analogs of JWH-018 (with an additional fluorine atom) and methcathinone (differences in the nitrogen rings).
The court relied upon Ohio Evidence Rule 70219 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),20 in deciding whether or not to allow the testing and opinion testimony in at trial.
The court ultimately concluded that the testing and proposed testimony were not sufficiently reliable enough to be allowed into evidence.
In reaching its decision, the court focused heavily on “evaluating the theory [of the testing], not the conclusion [drawn by the lab].”21 The court’s finding was that the testing implemented by CCRFSL was not objective or reliable, and that the term “substantially similar” was vague and undefined, leading to an “unguided subjective testing procedure.” The state’s own witnesses even admitted that the test is a subjective one, explaining: “It is based on something. It is just not based on something the way we would like it to be based on.” Id. This is clearly a problem for the testing procedure when Daubert and the rules of evidence require the theory of the test to be “objectively verifiable or derived from widely accepted knowledge, facts, or principles.”22
The bottom line for the court was that the term “substantially similar” was too vague for anyone to be able to properly implement it. Without better guidance the lab would be “left guessing if it is doing the right thing” and forced to “develop a test they hoped met this vague standard.” Id. This means there was no way to determine if the procedure actually produced an accurate result.
United States v. Fedida, 942 F.Supp.2d 1270 (M.D.Fla. 2013), and Hummel v. United States, Cause No. 8:12-mj-1457-T-37 (M.D.Fla., April 30, 2013),23 were both heard in the United States District Court in the Middle District of Florida–Tampa Division in December 2012. There was a consolidated hearing involving the same drug. The court examined whether UR-144 and XLR-11 are analogs of the specifically banned drug JWH-018. The court held that 2-D structures are appropriate models for comparison of these drugs, and that three-dimensional models add nothing to the discussion to change the planar examination of the structure. The court also held that the substances at issue in the case shared the same core structure and therefore met the definition of analogue. The court was referring to the indole core structure (which would include clearly ridiculous outcomes like making tryptamine found in turkey and Cialis analogues of JWH-018) and contained two substitutions at the 1 and 3 positions. The court held that the only meaningful difference with these drugs was the replacement of the cyclopropyl ring for the naphthalene ring structure. The court rejected the six defense experts and accepted the DEA chemist assertion that the substitution was of minor significance.
Conclusion
We hope that the reader now has a better understanding of how the controlled drug analogue statutes are interpreted and enforced. The reasons for passing laws targeted at so-called drug analogues is understandable, but the reality of enforcing the laws proves to be very difficult. Like other areas of forensic science, it is imperative for the defense attorney to have a solid understanding of the science and how it is applied. With appropriate knowledge, the defense can be effective at fighting these cases and exposing the very subjective nature by which the testing is performed. Justice should be a function of empiricism and should not differ based upon geography or simply on a whim. These analogue acts certainly raise a question as to whether or not this is so.
Most importantly, when jurors and judges are shown the true and complete way that analysis is performed and how laboratory analysts reach conclusions, confidence in the ultimate conclusion is undermined. The scientific truth must be told, and it is up to the defense lawyer to tell it. Rest assured, no one else will.
Endnotes
1. Alexander Shulgin (Author) and Ann Shulgin, PiHKAL: A Chemical Love Story (1991).
2. Ohio v. Silmi, Cause No. CR 561754, Judge John J. Russo of the Cuyahoga County Common Pleas Court.
3. Synthetic Drug Threats, National Conference of State Legislatures (2012), http://www.ncsl.org/issues-research/justice/synthetic-drug-threats.aspx.
4. Synthetic Cannabinoids (a.k.a. “K2,” “Spice”) Enactments, National Conference of State Legislatures (2012), http://www.ncsl.org/issues-research/justice/synthetic-cannabinoids-enactments.aspx.
5. Id.
6. Id.
7. Id.
8. Id.
9. CO SB 134 (2011) and Ok SB 919.
10. See generally, Bertolini A., Ferrari A., Ottani A., Guerzoni S., Tacchi R., Leone S., “Paracetamol: new vistas of an old drug,” CNS Drug Rev. 2006 Fall–Winter 12(3–4): 250–75; Anderson B. J. “Paracetamol (Acetaminophen): mechanisms of action,” Paediatr Anaesth. 2008 Oct 18(10): 915–21; Prescott L. F., “Paracetamol: past, present, and future,” Am J Ther. 2000 Mar 7(2): 143–7; Graham G. G., Scott K. F., “Mechanism of action of paracetamol” Am J Ther. 2005 Jan–Feb 12(1): 46–55; and Högestätt E. D., Jönsson B. A., Ermund A., Andersson D. A., Björk H., Alexander J. P., Cravatt B. F., Basbaum A. I., Zygmunt P. M., “Conversion of acetaminophen to the bioactive N-acylphenolamine AM404 via fatty acid amide hydrolase-dependent arachidonic acid conjugation in the nervous system,” J Biol Chem. 2005 Sep 9 280(36): 31405-12.
11. Synthetic Drug Threats, supra, n. 3.
12. Id.
13. Substituted Cathinones (a.k.a. “Bath Salts”) Enactments, National Conference of State Legislatures (2012), http://www.ncsl.org/issues-research/justice/substituted-cathinones-enactments.aspx.
14. Id.
15. Id.
16. SWGDRUG Recommendations on Analogues and Structural Class Determinations, http://www.swgdrug.org/Documents/Analogue%20Public%20Comment.pdf.
17. “Mission,” http://www.druganalogs.org/mission.html (last accessed April 20, 2013).
18. The State of Ohio v. Mahir Silmi et al., CR-12-561754-A, http://www.thetruthaboutforensicscience.com/wp-content/uploads/2013/03/AnalogDaubertHearingOrderFeb7%252c2013.pdf.
19. Ohio Evid. R. 702(C) requires that when testimony is based upon scientific information and is reporting the result of a procedure, test, or experiment, that testimony must meet certain reliability requirements. First, the theory upon which it is based is “objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles.” Second, the design of the procedure, test, or experiment must reliably implement the theory. Last, the procedure, test, or experiment must have been conducted in a way that it will “yield an accurate result.”
20. “To determine reliability, the Daubert court stated that a court must assess whether the reasoning or methodology underlying the testimony is scientifically valid []. In evaluating the reliability of scientific evidence, several factors are to be considered: (l) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance[]. Although these factors may aid in determining reliability, the inquiry is flexible[]. The focus is ‘solely on principles and methodology, not on the conclusions that they generate[].’” Ohio v. Mahir Silmi, CR-12-561754-A, supra at n.18 (citations omitted).
21. Id.
22. The court also had concerns with the fact that the testing procedure had never been formally peer-reviewed and no error rate had been determined. The court noted that the test was developed merely through practice in one laboratory with no formal studies or established methodology upon which to rely.
23. In re Seizure of funds on deposit at Ameriprise Group in accounts 072372469001, 16791187001, and 167911890001, at Pershing Investment in account 3FB300824, at Morgan Keegan/Raymond James in account 32772063, and at Capital One Bank in account 8077989170 (Timothy Hummel v. US) http://www.TheTruthAboutForensicScience.com/wp-content/uploads/2013/05/Hummel-v-US.pdf (last accessed May 19, 2013).
