LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.
Defendant Natalie Barton ("Barton") has been charged with conspiracy to distribute and possess with the intent to distribute anabolic steroids, conspiracy to misbrand drugs, multiple counts of distribution of anabolic steroids, and multiple counts of misbranding of prescription drugs.
The seven-count indictment against Barton alleges that from sometime prior to December 18, 2014 until August 22, 2019, Barton and her late husband ("E.B.") marketed and sold anabolic steroids and prescription drugs online and in a physical store located in Metairie, Louisiana, and that they misbranded the drugs for sale, in violation of federal law.
Barton argues that these four counts should be dismissed on void-for-vagueness and nondelegation grounds. First, according to Barton, the federal statute prohibiting the distribution of anabolic steroids is unconstitutionally vague because it fails to provide an "ordinary person" with sufficient notice that certain unlisted substances may be considered to be unlawful anabolic steroids.
Anabolic steroids were first defined and added to schedule III of the Controlled Substances Act ("CSA") by the Anabolic Steroids Control Act of 1990.
In 2014, Congress enacted the Designer Anabolic Steroid Control Act ("DASCA"), which added additional substances to the list of anabolic steroids and included an "analogue provision" for substances that were not specifically listed.
21 U.S.C. § 802(41)(C)(i).
Under the void-for-vagueness doctrine, a criminal law is unconstitutionally
The Supreme Court has emphasized that courts, when responding to a vagueness challenge, should consider the "strong presumptive validity that attaches to an Act of Congress." Skilling v. United States, 561 U.S. 358, 403, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (quoting United States v. Nat'l Dairy Prod. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963)). Thus, "the threshold for declaring a law void for vagueness is high." Johnson, 135 S. Ct. at 2576. "`[S]tatutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.'" Id. (quoting Nat'l Dairy Prod. Corp., 372 U.S. at 32, 83 S.Ct. 594)).
In McFadden v. United States, the Supreme Court denied a vagueness challenge to 21 U.S.C. § 841(a)(1) as it applied to prosecutions for controlled substances defined under the Controlled Substance Analogue Enforcement Act of 1986 ("Analogue Act"), a provision of the CSA similar to DASCA as it pertains to Barton. ___ U.S. ___, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). The Analogue Act instructed courts to treat a category of substances—known as "analogues"—whose chemical structures are "substantially similar" to those of a controlled substance in schedule I or schedule II as schedule I controlled substances for purposes of federal law. See id. at 2302; 21 U.S.C. §§ 802(32)(A), 813. The Supreme Court concluded that the scienter requirement of Section 841(a)(1), which requires that a defendant knowingly engaged in the prohibited act—that is, manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance —"`alleviate[d] vagueness concerns'" as applied to substances that were analogues under the Analogue Act. Id. at 2307 (quoting Gonzales v. Carhart, 550 U.S. 124, 149, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007)).
The Supreme Court held in McFadden that Section 841(a)(1)'s knowledge requirement could be established either by evidence that the defendant: (1) knew she possessed a controlled substance listed on the federal schedules, even if she did not know the identity of the substance she possessed; or (2) knew the identity of the substance she possessed, even if she did not know that the substance was listed on the federal schedules. Id. at 2304-05. This requirement "`narrow[s] the scope of the [its] [sic] prohibition[,] and limit[s] prosecutorial discretion.'" Id. (quoting Gonzales, 550 U.S. at 149, 127 S.Ct. 1610) (alterations in original).
The Analogue Act examined in McFadden "defines a controlled substance analogue by its features, as a substance `the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II'; `which has a stimulant, depressant, or hallucinogenic
Like the Analogue Act upheld in McFadden, DASCA also defines an unlisted anabolic steroid by its features, as a substance whose chemical structure is "substantially similar" to an anabolic steroid that is listed in 21 U.S.C. § 802(41)(A) and that was created or manufactured with the intent of producing a substance that "promotes muscle growth" or "otherwise causes a pharmacological effect similar to that of testosterone," or that was marketed or promoted in any manner suggesting that its consumption would have such effects. See 21 U.S.C. § 802(41)(C)(i). In a parallel vein, a defendant who possesses a substance with knowledge of its features as an anabolic steroid, or who knows she possesses an anabolic steroid, would thereby "know[] all of the facts that make [her] conduct illegal." McFadden, 135 S. Ct. at 2305.
Both the Analogue Act and DASCA use the identical definitional term "substantially similar," as well as a reference to the substance's effects, to proscribe their respective category of controlled substances.
916 F.2d 1008, 1010 (5th Cir. 1990); see United States v. Palmer, 917 F.3d 1035, 1038 (8th Cir. 2019) (holding that the Analogue Act is not unconstitutionally vague); United States v. Klecker, 348 F.3d 69, 72 (4th Cir. 2003) ("[C]ourts of appeals have unanimously rejected vagueness challenges to Analogue Act prosecutions.").
Barton attempts to distinguish the Analogue Act and DASCA by arguing that a controlled substance analogue and anabolic steroid analogue are "fundamentally different" because of their respective chemical formulations.
Furthermore, DASCA is not unconstitutionally vague as applied to Barton, as evidence in the record indicates that she knew that the substances she possessed and distributed were anabolic steroids, and that she knew she was engaging in illegal conduct.
Barton has admitted that she and E.B. sold "bodybuilding enhancements,"
Barton does not allege that she did not know the identity of the substances she sold with her late husband or that she was unaware that her late husband chemically modified specific anabolic steroids listed on the federal schedules. Nor has she alleged that the government engaged in "arbitrary enforcement" under a "standardless" law. See Johnson, 135 S. Ct. at 2556. Moreover, based on evidence presented by the government, it appears that Barton and E.B. attempted to create a false display of legitimacy by labeling their products with provisos stating that they were only for "research purposes" and "not for human consumption," when in fact, the products were marketed to consumers as ingestible substances to promote muscle growth.
"A law can be unconstitutionally vague if it `fails to provide those targeted by the statute a reasonable opportunity to know what conduct is prohibited.'" Doe I v. Landry, 909 F.3d 99, 116 (5th Cir. 2018) (quoting Kucinich v. Tex. Democratic Party, 563 F.3d 161, 166 n.4 (5th Cir. 2009)). However, at this stage of the proceedings, the record before the Court indicates that Barton was aware that she and E.B. were
The nondelegation doctrine, rooted in the principle of separation of powers, provides that "Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). However, Congress may "`obtain[] the assistance of its coordinate Branches'—and in particular, may confer substantial discretion on executive agencies to implement and enforce the laws." Gundy v. United States, ___ U.S. ___, 139 S.Ct. 2116, 2123, 204 L.Ed.2d 522 (2019) (quoting Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)). "A statutory delegation is constitutional as long as Congress `lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform." Id. (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 S.Ct. 624 (1928)).
The Supreme Court has held that the CSA provides an "intelligible principle" to constrain the Attorney General's discretion to schedule controlled substances and that "these restrictions satisfy the constitutional requirements of the nondelegation doctrine." Touby, 500 U.S. at 165-67, 111 S.Ct. 1752;
Barton summarily asserts that the United States Attorney "implicated the nondelegation doctrine" and appears to argue that the United States Attorney is an improper delegee of the Attorney General's authority under 21 U.S.C. § 871(a).
Accordingly,
To illustrate the apparent difficulty that an "ordinary person" would face in determining whether a particular substance is unlawful under DASCA, Barton includes a diagram of the chemical compositions of butylone and ethylone. See R. Doc. No. 41-1, at 11. However, neither of these substances is an anabolic steroid. Butylone is a schedule I controlled substance, and ethylone (also known as "Molly") is a positional isomer of butylone. See 21 C.F.R. §§ 1308.11(d)(62); 1308.11(b)-(h); see also United States v. Phifer, 909 F.3d 372, 385 (11th Cir. 2018) (remanding to the district court for the jury to determine whether ethylone "satisfie[d] all of the generally accepted definitions of a `positional isomer' of butylone). The diagram is therefore inapposite to Barton's vagueness challenge to DASCA. Notwithstanding, whether the substances that Barton distributed were, in fact, anabolic steroids, is a determination for the jury to make.
