17.
Sample Charges for GHB Felony Cases
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NOTE: GHB misdemeanor cases are identical, except that the
element of
"intent to defraud and mislead" is not present, so that language
would
be deleted from the charging document, and, for a misdemeanor, the
citation would be to 21 U.S.C. § 333(a)(1) rather than to §
333(a)(2).
INTRODUCTORY ALLEGATIONS
At times relevant to this Indictment:
x. The United States Food and Drug Administration ("FDA") was
the
federal agency charged with the responsibility of protecting the
health
and safety of the American public under the Federal Food, Drug, and
Cosmetic Act.
x. Articles known under the names gamma hydroxybutyrate,
4-hydroxybutyric acid monosodium salt, gamma hydroxybutyric acid
sodium
salt, and sodium oxybate (hereinafter referred to collectively as
"GHB"), were drugs within the meaning of Title 21, United States
Code,
Section 321(g)(1)(C), in that they were intended to affect the
structure
and any function of the body of man, and within the meaning of
Title 21,
United States Code, Section 321(g)(1)(D), in that they were
intended for
use as a component of any article intended to affect the structure
and
any function of the body of man.
COUNT 1
INTERSTATE DISTRIBUTION OF GHB WITH INTENT TO DEFRAUD AND
MISLEAD
(appropriate when unlabeled GHB is distributed in interstate
commerce --
and actions are taken to hide the activity or there is evidence
that the
distributor knew that ghb was dangerous and did not warn consumers
of
those dangers)
x. On or about February 4, 1993, within the xxxxxxx District of
xxxxx, and elsewhere, defendant xxxxx did, with the intent to
defraud
and mislead, cause to be introduced into interstate commerce from
xxxxxx, to xxxxxx, fifty bottles each containing approximately 100
grams
of the drug GHB which, when introduced and delivered for
introduction
into interstate commerce, were misbranded as follows:
(a) within the meaning of Title 21, United States Code,
Section
352(b) in that they were in package form and did not bear labels
containing the name and place of business of the manufacturer,
packer,
or distributor and an accurate statement of the quantity of the
contents
in terms of weight, measure, and numerical count;
(b) within the meaning of Title 21, United States Code,
Section
352(e)(1)(A) in that they did not bear labels containing the
established
name of the drug, as the term "established" is defined in Title 21,
United States Code, Section 352(e)(3);
(c) within the meaning of Title 21, United States Code,
Section
352(f)(1) in that its labeling did not bear adequate directions for
use;
and,
(d) within the meaning of Title 21, United States Code, Section
352(f)(2), in that its labeling did not bear such adequate warnings
against use in those pathological conditions, and by children where
its
use may be dangerous to health, and against unsafe dosage and
methods
and duration of administration and application, in such manner and
form,
as are necessary for the protection of users.
In violation of Title 21, United States Code, Sections 331(a) and
333(a)(2), and Title 18, United States Code, Section 2.
COUNT 2
INTRASTATE DISTRIBUTION OF GHB AFTER RECEIPT FROM INTERSTATE
COMMERCE --
DONE WITH THE INTENT TO DEFRAUD AND MISLEAD
(appropriate when GHB or one if its components is received from
interstate commerce and subsequently sold within state -- done with
intent to defraud and mislead)
x. On or about xxxx, within the District of xxx and
elsewhere,
defendant xxxx did, with the intent to defraud and mislead and
while
held for sale after one or more of its components had been shipped
in
interstate commerce, cause the manufacture, processing, packing,
selling, and failing to adequately label (include appropriate
verb) of a drug product containing GHB, which acts resulted in
such
drug product to be misbranded as follows:
(a) within the meaning of Title 21, United States Code,
Section
352(b) in that they were in package form and did not bear labels
containing the name and place of business of the manufacturer,
packer,
or distributor and an accurate statement of the quantity of the
contents
in terms of weight, measure, and numerical count;
(b) within the meaning of Title 21, United States Code,
Section
352(e)(1)(A) in that they did not bear labels containing the
established
name of the drug, as the term "established" is defined in Title 21,
United States Code, Section 352(e)(3);
(c) within the meaning of Title 21, United States Code,
Section
352(f)(1) in that its labeling did not bear adequate directions for
use;
and
(d) within the meaning of Title 21, United States Code, Section
352(f)(2), in that its labeling did not bear such adequate warnings
against use in those pathological conditions, and by children where
its
use may be dangerous to health, and against unsafe dosage and
methods
and duration of administration and application, in such manner and
form,
as are necessary for the protection of users.
In violation of Title 21, United States Code, Sections 331(k) and
333(a)(2), and Title 18, United States Code, Section 2.
COUNT 3
OPERATING AN UNREGISTERED DRUG FACILITY
(appropriate when there is evidence that target manufactured GHB
for
commercial distribution and took actions to hide the activity)
x. Beginning on or before xxxxx, and ending on or about
xxxxx, at
or near xxxx, in the District of Arizona, defendant xxxxx, with the
intent to defraud and mislead, did operate and cause to be operated
an
establishment at xxxxxx, at which establishment defendant xxxxx
manufactured, prepared, propagated, compounded, and processed GHB,
a
drug within the meaning of Title 21, United States Code, Section
321(g),
without having registered such establishment as required under
Title 21,
United States Code, Section 360(b) and (c).
All in violation of Title 21, United States Code, Sections 331(p)
and
333(a)(2), and Title 18, United States Code, Section 2.
COUNT 4
RECEIPT OF MISBRANDED GHB FROM INTERSTATE COMMERCE AND PROFFER FOR
SALE
(appropriate when there is evidence defendant received packaged GHB
from
interstate commerce and sold the GHB)
x. On or about xxxxxx, within the Northern District of
Alabama and
elsewhere, the defendant xxxx, with the intent to defraud and
mislead,
received the drug GHB in interstate commerce. When received, the
drug
was misbranded in the following ways:
(a) within the meaning of Title 21, United States Code, Section
352(f)(1) in that its labeling did not bear adequate directions for
use;
and
(b) within the meaning of Title 21, United States Code, Section
352(f)(2) in that its labeling did not bear such adequate warnings
against use in those pathological conditions, and by children where
its
use may be dangerous to health, and against unsafe dosage and
methods
and duration of administration and application, in such manner and
form,
as are necessary for the protection of users.
Thereafter, the defendant xxxxx delivered such misbranded drug and
proffered delivery thereof for pay and otherwise.
All in violation of Title 21, United States Code, Sections 331(c)
and
333(a)(2) and Title 18, United States Code, Section 2.
COUNT 5
INTERSTATE DISTRIBUTION OF "UNAPPROVED NEW DRUG"
(appropriate when there is evidence that defendant distributed GHB
with
a label or other "labeling" that contained conditions prescribed,
recommended, or suggested - and evidence of intent to defraud and
mislead)
x. On or about xxxxx, within the District of xxxxx and
elsewhere,
defendant xxxxx did, with the intent to defraud and mislead,
introduce
and cause to be introduced into interstate commerce xxxxxx
(quantity) of
the drug GHB, which drug was a new drug within the meaning of Title
21,
United States Code, Section 321(p), and for which an approved
application pursuant to Title 21, United States Code, Section 355,
was
not in effect with respect to such drug.
All in violation of Title 21, United States Code, Sections 331(d)
and
333(a)(2), and Title 18, United States Code, Section 2.
[cited in USAM 4-8.255;
Civil Resource Manual 15]
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