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No. 05-336

In the Supreme Court of the United States

JAMES R. TURCOTTE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
WILLIAM C. BROWN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court omitted a necessary element of the offense in instructing the jury on scienter in a prosecution for possession with intent to distribute the controlled substance analogue Gamma Butyrolacetone (GBL), in violation of 21 U.S.C. 813 and 841(a)(1).

2. Whether the court of appeals erred in finding no reversible error in the jury instructions, where it is sufficient to convict a defendant of possession of GBL with intent to distribute that the defendant know the substance is GBL, and the jury instructions required a finding that petitioner knew the substance was GBL.

In the Supreme Court of the United States

No. 05-336

JAMES R. TURCOTTE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a- 36a) is reported at 405 F.3d 515. The opinion of the district court denying petitioner's motion for a new trial (Pet. App. 39a-45a) is reported at 286 F. Supp. 2d 947.

JURISDICTION

The judgment of the court of appeals was entered on April 19, 2004. A petition for rehearing was denied on June 14, 2005 (Pet. App. 37a-38a). The petition for a writ of certiorari was filed on September 12, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted of possessing a controlled substance ana log with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 813, and of conspiring to possess con trolled substances and controlled substance analogues with intent to distribute them, in violation of 21 U.S.C. 846. He was also convicted of conspiring, in violation of 18 U.S.C. 371, to sell misbranded drugs in violation of 21 U.S.C. 331(a) and 333(a)(2). The district court sen tenced petitioner to 54 months of imprisonment on each count. The court of appeals affirmed. Pet. App. 1a-36a.

1. Petitioner's convictions arose from his activities with co-defendant Brian Gore involving the sale of products containing the drug Gamma Butyrolacetone (GBL), a substance that converts in the human body to Gamma Hydroxybutyric Acid (GHB), a Schedule I con trolled substance.1 Pet. App. 2a-3a.

In March 2000, petitioner became the owner of Best Buy Supplements, an internet-based company through which he sold Verve 5.0, a purported vitamin supple ment that contained GBL. Best Buy Supplements ad vertised a variety of purported bodybuilding and fit ness products, including "Growth Hormone Products" such as Verve. A company website advertised Verve as the "absolute finest quality GHB precursor." Another of petitioner's websites acknowledged that ingredients in Verve are "illegal nationwide." Pet. App. 2a-3a; Gov't C.A. Br. 3-4.

To fulfill customer orders, petitioner purchased cases of Verve in which the contents were labeled "cleaning supplies." Pet. App. 3a; Gov't C.A. Br. 4 (ci tation omitted). One such label stated, "[d]ue to FDA regulations this product is sold as a solvent only." Id. at 4-5. A representative of the manufacturer of the GBL in Verve testified at trial that his firm marketed GBL as a chemical solvent to be used as a paint thinner, paint stripper, or for a similar use. Id. at 8.

A Drug Enforcmement Agency (DEA) informant arranged for a purchase of Verve from petitioner. Peti tioner was arrested after he took $10,000 in cash in a styrofoam cup from the informant in a gas station park ing lot and in turn gave the informant 20 cases (60 gal lons) of Verve. Pet. App. 3a; Gov't C.A. Br. 5-6.

2. Petitioner was charged in three counts of a five- count indictment. Count One charged petitioner with conspiring to sell misbranded drugs, in violation of 18 U.S.C. 371. Pet. App. 3a, 39a. Count Two charged peti tioner with conspiring to possess with intent to distrib ute mixtures containing GHB and GBL for human con sumption, in violation of 21 U.S.C. 846. Pet. App. 3a-4a, 39a. Count Five, arising from petitioner's $10,000 transaction with the DEA informant just preceding his arrest, charged him with possessing with intent to dis tribute 60 gallons of GHB and GBL for human con sumption, in violation of 21 U.S.C. 841(a)(1). Pet. App. 3a-4a, 39a-40a. The indictment identified GHB as a schedule I controlled substance, and GBL as a con trolled substance analogue.2 Gov't C.A. Br. 6-7. Under 21 U.S.C. 813, a "controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a con trolled substance in schedule I." 21 U.S.C. 813.

The term "controlled substance analogue," with ex ceptions not relevant here, is defined by statute to mean a substance-

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled sub stance in schedule I or II;

(ii) which has a stimulant, depressant, or hallucino genic effect on the central nervous system that is substantially similar to or greater than the stimu lant, depressant, or hallucinogenic effect on the cen tral 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 hallucino genic effect on the central nervous system of a con trolled substance in schedule I or II.

21 U.S.C. 802(32)(A).

3. At trial, the district court instructed the jury with respect to the Count Five substantive violation of Section 841(a)(1) that:

To sustain the charge in Count Five of possessing with intent to distribute mixtures containing a con trolled substance, the government must prove the following propositions: First, the defendant know ingly and intentionally possessed mixtures contain ing GBL; Second, the defendant possessed mixtures containing GBL with the intent to deliver it to an other person; and Third, that mixtures containing GBL are an analogue of GHB, a Schedule I Con trolled Substance. It does not matter whether the defendant knew the substance was a controlled sub stance, only that it was a mixture containing GBL.

Gov't Jury Instruction No. 25, at 29; see Pet. App. 13a. Petitioner's convictions on Counts 2 and 5 rested on the evidence and jury findings with respect to GBL as a controlled substance analogue, not GHB.

Petitioner was convicted on all three counts with which he was charged. In addition, the jury returned a special verdict finding that GBL was an analogue of the schedule I controlled substance GHB because all three criteria of the definition were satisfied, to wit: (1) GBL and GHB have substantially similar chemical structures; (2) GBL and GHB have substantially similar effects on the central nervous system; and (3) petitioner represented or intended that GBL and GHB had a sub stantially similar effect on the central nervous system. Special Verdict Form One. See Pet. App. 8a. The dis trict court sentenced petitioner to concurrent sentences of 54 months of imprisonment on each of the three counts on which he was convicted. Pet. App. 6a; Gov't C.A. Br. 12.

3. The court of appeals affirmed. Pet. App. 1a-36a. First, the court agreed with petitioner's argument that satisfying just one of the three criteria in the defi nition of a controlled substance analogue in 21 U.S.C. 802(32)(A) is not sufficient to satisfy the definition. Disagreeing with the district court, the court of appeals held instead that Section 802(32)(A) should be given a "conjunctive" reading so that, to qualify as a controlled substance analogue, (1) the substance in question must have a chemical structure substantially similar to a con trolled substance (criterion one in Section 802(32)(A)); and (2) it must have either a substantially similar effect on the central nervous system (criterion two in Section 802(32)(A)) or be purported or intended to have such an effect (criterion three in Section 802(32)(A)). Pet. App. 6a-10a. The court of appeals noted that its conjunctive reading of Section 802(32)(A) was in accord with the vast majority of federal court decisions. Id. at 8a-9a (citing, e.g., United States v. Hodge, 321 F.3d 429, 433 (3d Cir. 2003)). The court found that the conjunctive reading of Section 802(32)(A) did not benefit petitioner, however, in part because the jury had specifically found by special verdict that GBL met all three criteria in the definition of a controlled substance analogue.3 Pet. App. 11a.

The court of appeals next held that, whatever "shortcomings" might exist in the district court's scienter instructions, they did not amount to reversible error. Pet. App. 20a. The court of appeals stated that a conviction under Section 841(a)(1) based on a con trolled substance analogue ordinarily requires that "the defendant must know that the substance at issue meets the definition of a controlled substance analogue set forth in [Section] 802(32)(A)." Id. at 18a. In the court's view, that meant that "[a] defendant must know that the substance at issue has a chemical structure sub stantially similar to that of a controlled substance, and he or she must either know that it has similar physio logical effects or intend or represent that it has such effects." Ibid. The court recognized that "[t]he ques tion of similar chemical structure is particularly nettle some since, even if such chemical similarities exist, and even if the defendant is aware of these similarities, the intricacies of chemical science may render it extremely difficult to prove that a defendant had such knowledge." Ibid. But the court concluded that "[a]s a provisional remedy for this problem," a jury should be "permit ted-but not required-to infer that the defendant * * * had knowledge of the relevant chemical similarities," ibid., so long as the defendant had been shown to have scienter with respect to the other half of the definition, i.e., so long as the defendant had been shown either to be aware of the similarity between the analogue's phys iological/psychological effects and those of a controlled substance or to intend or represent that the analogue had such similar effects. See ibid.

Applying that standard to this case, the court noted that the fact that "the jury specifically determined that [petitioner] represented or intended that GBL had physiological effects similar to GHB * * * suffices to demonstrate scienter with respect to the second prong of the analogue definition (actual or intended similar physiological effect)," but "it is not equivalent to find ing knowledge of actual chemical similarity." Pet. App. 19a. On that point, the court commented that the evi dence at trial was sufficient to support a finding of such knowledge, but that such a finding was not compelled. Id. at 20a. The court held, however, that petitioner's conviction nonetheless should not be reversed because "Congress has specifically identified GBL as an ana logue of GHB" and "DEA regulations * * * specify that '[GBL] and [GHB] are structurally and pharmacologi cally similar to GHB.'" Id. at 20a-21a (quoting 65 Fed. Reg. 21,645 (2000) and citing United States v. Ansaldi, 372 F.3d 118, 123 (2d Cir. 2004) ("GBL is one of the substances that the statute actually identifies as a po tential controlled substance analogue."), cert. denied, 125 S. Ct. 364 and 430 (2004), and United States v. Fisher, 289 F.3d 1329, 1336 (11th Cir. 2002), cert. de nied, 537 U.S. 1112 (2003) (legislative statements and DEA regulations identify GBL as an analogue of GHB)). The court of appeals concluded that those con gressional and regulatory pronouncements were "suffi cient to put any drug merchant on notice that GBL qualifies as a controlled substance analogue." Pet. App. 21a. In those circumstances, the court held, petitioner, "having acknowledged that he knew he was selling sub stances containing GBL, * * * cannot then turn around and claim that he had no knowledge of GBL's status as an analogue of GHB." Id. at 21a-22a. The court ex plained that "[a]s with other known controlled sub stances * * *, knowledge of the substance's specific identity implies knowledge of the substance's legal sta tus," and "[i]gnorance of the relevant legal provisions is no defense." Id. at 22a. Accordingly, the court stated, "any error in the district court's scienter in structions [was] harmless." Ibid.

ARGUMENT

Petitioner contends that this Court's review is war ranted because the court of appeals applied a mistaken harmless-error analysis to the omission of what he con tends was a necessary scienter element in the instruc tions given to the jury. Further review is unwarranted. Although the court of appeals articulated a harmless- error rationale in finding no reversible error, its judg ment is correct quite apart from harmless-error princi ples because it is sufficient to convict a defendant of a controlled substance analogue violation involving GBL that the jury found that the defendant "knew he was selling substances containing GBL." Pet. App. 21a. There is no need for this Court to review any purport edly mistaken articulation of harmless-error standards in the opinion. The Seventh Circuit has, on many occa sions, demonstrated that it correctly understands the harmless-error test laid down in Neder v. United States, 527 U.S. 1 (1999), when the jury instructions omit an element of an offense. For the same reason, there is no conflict between the law on harmless error in the Seventh Circuit and the law on harmless error in this and other courts. And because the court's ratio nale does not appear to turn on a conclusive presump tion of knowledge, this Court's mandatory presumption precedents are not implicated.

1. The court of appeals correctly noted that defen dants charged with a controlled substance violation or dinarily must be shown to have known that the sub stance involved is a controlled substance. Pet. App. 14a. Generally, the defendant's knowledge of the iden tity of the substance-heroin, cocaine, marijuana, etc. -is sufficient to make that showing. Id. at 14a-15a. Thus, in ordinary prosecutions for possessing a con trolled substance with intent to distribute it under 21 U.S.C. 841(a)(1), the government need not prove the defendant's knowledge of the precise chemical composi tion of the substance he possessed.

Under the Controlled Substance Analogue Enforce ment Act of 1986, 21 U.S.C. 813, a "controlled substance analogue shall, to the extent intended for human con sumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I." Accord ingly, when a defendant is charged with possessing GBL-a controlled substance analogue-with intent to distribute it, the ordinary scienter requirement under Section 841(a)(1) applies. Just as a defendant charged with possessing heroin, cocaine, or marijuana need be shown only to have known the identity of the substance he possessed and need not be shown to have known anything about the chemical composition of that sub stance, a defendant charged with possessing GBL need be shown only to know that he possessed GBL with the intent that it be used for human consumption and need not be shown to have known anything further about its chemical composition.

Based on that analysis, the jury's verdict contained all of the findings necessary to support petitioner's con victions on Counts 2 and 5. The court of appeals noted that "[t]he jury specifically found that [petitioner] knew the substance he possessed contained GBL." Pet. App. 20a.4 The jury was instructed that it must find that petitioner "knowingly and intentionally possessed mix tures containing GBL," and that "[i]t does not matter whether the defendant knew the substance was a con trolled substance, only that it was a mixture contain ing GBL." Gov't Instruction No. 25, at 29 (emphasis added). In those circumstances, as is the case with her oin, cocaine, marijuana, or other controlled substances, "knowledge of the substance's specific identity implies knowledge of the substance's legal status." Pet. App. 22a. The jury's findings were sufficient to satisfy the statutory scienter requirement.

2. The court of appeals did purport to announce a more general rule that to be convicted of an offense involving a controlled substances analogue, the defen dant "must know that the substance at issue has a chemical structure substantially similar to that of a con trolled substance." Pet. App. 18a. Although the court spoke generally about that questionable knowledge-of- chemical-similarity requirement in controlled substance analogue cases, the court also recognized-as have other courts-that "Congress has specifically identified GBL as an analogue of GHB," and that "DEA regula tions also specify" that GBL and GHB are "pharmaco logically similar." Pet. App. 20a-21 (quoting 65 Fed. Reg. at 21,645).5 See United States v. Ansaldi, 372 F.3d 118, 123 (2d Cir. 2004), cert. denied, 125 S. Ct. 364 and 430 (2004); United States v. Fisher, 289 F.3d 1329, 1336 (11th Cir. 2002). In those circumstances, the court agreed with the Second Circuit that "there is one thing [the laws governing controlled substances] make per fectly clear-the sale of GBL for human consumption is illegal." Pet. App. 21a (quoting Ansaldi, 372 F.3d at 122). The court concluded that "such pronouncements [from Congress and the DEA] are sufficient to put any drug merchant on notice that GBL qualifies as a con trolled substance analogue," ibid., and the court ac cepted that, at least in GBL cases, the scienter re quired is the same as the scienter required for any other violation of Section 841. See id. at 22a ("As with other known controlled substances * * *, knowledge of the substance's specific identity implies knowledge of the substance's legal status.").6

In light of its discussion, the precise breadth of the court of appeals' knowledge-of-chemical-similarity rule is unclear, and the correctness of that rule is not at is sue in any event. The court concluded in this case that proof of such knowledge is not necessary in a GBL case. At the very least, the drug 1,4 butanediol-which was also originally charged in this case under the name "BD," see note 2, supra-would appear to be on a par with GBL. See United States v. Roberts, 363 F.3d 118, 123-124 (2d Cir. 2004). While the court stated that the instructions in this case might constitute reversible error in unspecified other controlled substance ana logue prosecutions, this case does not present any ques tion about whether a more stringent scienter require ment or a knowledge-of-chemical-similarity require ment should be applied in cases not involving GBL.

3. Petitioner's primary contention is that the "[t]he Seventh Circuit found that the omission from jury in structions of a contested element of the offense consti tuted harmless error," and that that finding "contra dicts opinions of this Court and the law of at least three sister circuits." Pet. 6 (citing, inter alia, Neder v. United States, 527 U.S. 1 (1999)). There is no reason for this Court to review the Seventh Circuit's under standing of Neder in this case.

While the court of appeals criticized the jury in structions in this case and purported to rest its decision on the conclusion that "any error" in the instructions was "harmless," see Pet. App. 22a; see also id. at 20a ("any deficiencies * * * harmless"), the court ultimately found no reversible error because it concluded that Congress and the DEA had clearly identified GBL as a controlled substance analogue and thus that a defen dant's knowledge that a substance is GBL is sufficient to prove scienter. See, e.g., id. at 21a-22a ("Thus hav ing acknowledged that he knew he was selling sub stances containing GBL, [petitioner] cannot then turn around and claim that he had no knowledge of GBL's status as an analogue of GHB."); id. at 22a ("knowledge of the substance's specific identity implies knowledge of the substance's legal status"). The court's opinion thus cannot be understood, as petitioner claims, as a general holding that the omission of a seriously con tested element from jury instructions can be harmless error. Rather, the court's holding turned on its specific conclusion that, where Congress itself has identified a particular substance as a controlled substance ana logue, any deficiencies that existed in the jury instruc tions on scienter did not amount to reversible error.

If a defendant were required to have actual knowl edge that a particular substance had a chemical struc ture substantially similar to that of a controlled sub stance in every prosecution for a controlled substance analogue, then the fact that Congress had specifically identified GBL as a controlled substance analogue would not constitute conclusive proof that a defendant had actual knowledge of chemical similarity. While there is some ambiguous language in the court's opin ion, see Pet. App. 21a, the thrust of the court's analysis appears to be that in a GBL case, no further finding on scienter is required as a matter of law once the defen dant is shown to have known that a substance is GBL. Id. at 22a. That conclusion does not rest so much on analysis under Neder (which the court did not cite) or on the application of a conclusive presumption (which the court did not articulate)7 as it does on an under standing of the statutory status of GBL in the con trolled substance analogues law.

Petitioner is mistaken in claiming (Pet. 9) that the instant case conflicts with Powell v. Galaza, 328 F.3d 558 (9th Cir. 2003), United States v. Prigmore, 243 F.3d 1 (1st Cir. 2001), or United States v. Brown, 202 F.3d 691 (4th Cir. 2000). In each of those cases, the court found that there was an instructional error omitting or materially misstating an element of the offense charged and that the error was not harmless in light of the evi dence in the case. None of those cases involved the scienter requirements applicable to GBL-based con trolled substance analogue prosecutions, and, there fore, they did not involve the unique statutory context involved in this case. Moreover, the Seventh Circuit has elsewhere consistently applied a correct under standing of harmless-error principles.8 It is thus clear that there is no genuine conflict in the circuits on the meaning of Neder.

4. CONCLUSION

The petition for a writ of certiorari should be de nied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
WILLIAM C. BROWN
Attorney

DECEMBER 2005

1 GHB, a Schedule I controlled substance that is known as the "date- rape" drug, is most commonly used as a party drug for its intoxicating or euphoric effects, although some use it believing it to be effective in stimulating muscle growth, promoting sleep, or enhancing libido. United States v. Ellis, 326 F.3d 550, 552 (4th Cir. 2003); United States v. Fisher, 289 F.3d 1329, 1331 (11th Cir. 2002), cert. denied, 537 U.S. 1112 (2003). While it causes a feeling of euphoria, it can also result in dizziness, vomiting, urinary incontinence, seizures, coma, and even death. Id. at 1331 & n.2.

2 The indictment also contained allegations relating to 1, 4 Butane diol (BD), but the court of appeals found that BD was not the basis for petitioner's controlled substance convictions and that it was not a factor in petitioner's sentencing. Pet. App. 11a-12a (noting both the govern ment's position that petitioner "was [not] convicted or sentenced for possession or distribution of BD at all," and the statement in the Pre sentencing Investigation Report that the amounts of substances con taining BD were not included in the drug quantity calculation). Peti tioner does not raise any claims relating to BD in this Court.

3 The jury did not find that the substance BD met all the criteria in Section 802(32)(A), but the court of appeals determined that the allegations on BD had no impact on petitioner's sentence. See note 2, supra.

4 The court noted that "the jury also found that [petitioner] intended or represented that GBL has similar physiological effects to GHB." Pet. App. 22a n.7.

5 Petitioner argues (Pet. 16 n.3) that the DEA regulation cited by the court of appeals does not compel the conclusion that GBL is a con trolled substance analogue, but only provides that GBL "may satisfy" the definition of a controlled substance analogue "under certain circum stances." Ibid. (quoting Pet. App. 21a and 65 Fed. Reg. at 21,645). Those "circumstances" are surely present here, where the drug was being distributed for human consumption and the jury found that peti tioner represented or intended that GBL has similar physiological/ psychological effects as GHB. With respect to the issue of the simi larity of chemical structure between GLB and GHB, the regulation states unequivocally that GBL is "structurally and pharmacologically similar to GHB." Pet. App. 21a (quoting 65 Fed. Reg. at 21,645).

6 Although the court of appeals later stated that it found any deficiencies in the instructions harmless, see Pet. App. 22a, the court did not explain how, in light of its conclusion that the scienter require ment is the same for GBL offenses as for offenses involving other controlled substances, there was error in the scienter instructions in this case at all.

7 Petitioner's attribution (Pet. 15-19) to the court of appeals of having applied such a conclusive presumption is particularly unwarranted because the court elsewhere (Pet. App. 18a-19a n.4) recognized that such presumptions are constitutionally problematic.

8 See, e.g., United States v. Ramsey, 406 F.3d 426, 432 (7th Cir. 2005) (finding omission from jury instructions of element that the defendant must act "knowingly and intentionally" in a prosecution for maintaining a drug house to be harmless under Neder; "if the evidence is so strong that a jury would have reached the same verdict absent the erroneous jury instruction, then the error is harmless"), cert. denied, 540 U.S. 1227 (2004); United States v. Knight, 342 F.3d 697, 712 (7th Cir. 2003) (citing Neder, 527 U.S. at 10-11, and finding any alleged error in jury's failure to find foreseeable drug quantity for each defendant harmless under test that asks "whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error") (internal quotation marks omitted); United States v. Souffront, 338 F.3d 809, 836 (7th Cir. 2003) (finding omission of unanimity instruction on predicate acts in CCE prosecution harmless; "[w]here a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless") (quoting Neder, 527 U.S. at 17), cert. denied, 540 U.S. 1201 (2004); United States v. Swan, 250 F.3d 495, 499 (7th Cir. 2001) (finding omission of operation-or- management instruction in RICO prosecution not harmless "[b]ecause the record does not contain overwhelming evidence that Swan managed or operated the enterprise," such that it is not "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error") (quoting Neder, 527 US. at 18).