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Dear Platinum Members,
Please find the full text article for this weeks Elite Fitness News -- regular members just get excerpts.
In this issue of Elite Fitness News, I would like to share with you some of the latest news on the hundreds of Internet dealers, bodybuilders, and other athletes that have been busted in the recent anabolic steroid and GHB crackdowns known as Operation Webslinger. I'll also share with you the story of Todd Roberts and Michael Toback, who got caught in the GHB stings, then went head to head with the DEA in the courts and won - making the Feds look like fools. And I'll tell you about three tools you can use to stay beyond the reach of the long arm of the law and why you must start using them right now.
Operation Webslinger
"Our campuses, our neighborhoods and our communities are safer places for young women today because cyberspace just got more dangerous for drug traffickers," said Attorney General John Ashcroft.
Dubbed Operation Webslinger, the two-year investigation targeted leaders and midlevel brokers of Internet drug-trafficking rings who operated Web sites that advertised GHB and its derivatives as industrial cleaning products. Online orders were delivered by mail. This was the first federal investigation of Internet traffickers of GHB.
GHB is Gamma hydroxybutyrate. GHB has been around for years, but in 1999, it took Rohypnol's place when it became known as the date rape drug. Bodybuilders have long been interested in GHB for promoting restorative sleep and for its possible growth hormone (GH) release connection. In the last year a great deal of new research has been done on GHB that indicates that at controlled dosages, its side effects are practically non-existent and that there is definitely a connection between GHB and GH release.
Under federal law, people can be prosecuted if they sell GHB-related drugs for human consumption. However, you may remember that a few months ago in Elite Fitness News, I told you about the new pharmaceutical GHB from Orphan Medical that is now sold under the brand name Xyrem. See http://boards.elitefitness.com/forum/showthread.php?s=&threadid=104076
Although GHB is very easily and cheaply manufactured, for better or worse, the FDA gave the drug companies permission to study GHB for sale as a pharmaceutical and the DEA is arresting anyone selling it as a supplement. In essence, GHB went from being an inexpensive and effective sleep aid that had been available as an OTC or as a gray market supplement and re-regulated it for the benefit of the drug companies.
In May of 1999, our friends at the FDA recommended that GHB become a Schedule I Controlled Substance. In September of that year, the House of Representatives voted 423 to 1, and the Senate voted unanimously in favor of the FDA's recommendations. And by November, the Drug Enforcement Agency was treating GHB just like heroin and other Schedule I drugs. In early 2000, President Clinton signed the legislation.
Around this time, Orphan Medical, a drug company in Minneapolis, began research into using GHB for the treatment of narcolepsy. They developed a medically formulated GHB product and given it the brand name Xyrem. Although certainly motivated by profit, Orphan Medical has conducted several studies that indicate that GHB or Xyrem should not be a demonized Schedule I drug. Their research further indicates that GHB is relatively safe and can be an effective treatment for sleep disorders. Please click here to read all about pharmaceutical GHB - Xyrem and how it can help you recover faster from a muscle-building workout. See http://boards.elitefitness.com/forum/showthread.php?s=&threadid=104076
Please forgive the digression... Back to Todd Roberts and Michael Toback.
Roberts and Toback ran a health food store. In the case The United States of America against Todd Roberts and Michael Toback, both defendants, Roberts and Toback, were indicted for conspiracy to distribute and to possess with the intent to distribute 1,4-butanediol, which the government alleged was an analogue of the Schedule I controlled substance gamma hydroxybutyric acid (GHB). The defendants moved to dismiss the indictment - and against enormous odds, they succeeded, and the indictment was dismissed.
My friend, attorney Rick Collins, represented Roberts, and the Judge's decision (Judge Sweet) mirrors Collins' briefs on the issues. It is extremely rare when a judge dismisses a federal criminal indictment, but it is even more unheard of when he does it by declaring a law unconstitutional. But that's what just happened.
Specifically, Judge Sweet held that the Analogue Statute is unconstitutionally VOID for vagueness as applied to butanediol, both on grounds of notice and as to arbitrary enforcement - I'll explain what that means in a minute. Needless to say, the ruling jeopardizes prior convictions and pending cases. And throws a monkey wrench into the DEA's recent Operation Webslinger. Federal prosecutors are beside themselves, and will no doubt marshal all their might to gang up on Collins at the appellate level.
Aside from the fact that hiring a lawyer like Collins can cost thousands, his recent victory will likely mean that athletes and bodybuilders will face even more scrutiny given that the Federal Prosecutors were made to look like fools. There are three things that you must start doing now to safeguard your privacy. Please read the gray sidebar and begin doing them today.
Rick Collins specializes in criminal law and frequently defends bodybuilders. You may remember that we retained Rick Collins when we were subpoenaed in the Eric Perrin DNP ordeal. Working with Rick, we prevented the FDA from accessing our entire forum database and then sifting through our member information with forensic software. When you post on non Elite Fitness discussion boards, ask yourself if you think the owners would go to the time and expense of hiring an attorney to protect member data like IP addresses, PM's, and passwords. Or, would they just turn the database over. Just some food for thought.
Here's how Todd Roberts and Michael Toback beat the system with the help of attorney Rick Collins. Remember, an ounce of prevention is worth a pound of cure, so be sure to take advantage of the resources in the gray sidebar. It's much better to keep out of court in the first place than to have to go - even if you win.
On April 26, 2001, Roberts and Toback were indicted for conspiracy to distribute and to possess with the intent to distribute butanediol, which the Government alleges is, an analogue of the Schedule I controlled substance gamma hydroxybutyric acid ("GHB"). As explained in the Court's December 14, 2001 opinion, DEA agents had originally investigated a store operated by Toback for the sale of a product believed to be containing GHB. The product, called "Rejoov," was sold openly and was purchased by body builders to rejuvenate muscles. After DEA testing, "Rejoov" was found not to contain GHB, but rather 1,4-butanediol, the substance now claimed by the Government to be an analogue of GHB.
If the Government could prove that butanediol was an analogue of GHB, then Roberts and Toback were up the creek without a paddle.
On December 14, 2001, it was ordered that, based on the Court's interpretation of the analogue statute, a hearing must be held to determine whether the statutory definition of the term "controlled substance analogue" as applied to 1,4-butanediol is unconstitutionally vague. The hearing was held on June 17, 2001, at which both parties presented expert testimony on the chemical structures of 1,4-butanediol and GHB.
At the June 17, 2001 hearing, the two defendants and the Government presented expert witnesses who testified about the chemical structures of butanediol and GHB. The Defense called two witnesses, both credible and qualified academics with extensive credentials in organic chemistry. Toback called Dr. Boyd Haley, Chairman and Professor of the chemistry department at the University of Kentucky, with a joint appointment in the College of Pharmacy. Roberts called Dr. David Schuster, Director of Graduate Studies in Chemistry at New York University and former visiting professor at Yale University. Schuster is the author of over 200 publications and holder of two patents. The Government called Dr. Tom DiBerardino, an employee of the DEA's Drug and Chemical Evaluation Section (a branch of the Office of Diversion Control) with a PhD in polymer chemistry.
A controlled substance analogue, to the extent that it is "intended for human consumption," is treated for purposes of the federal narcotics law as a Schedule I controlled substance. Both defendants filed a pre-trial motion to dismiss the indictment on grounds that the Analogue Statute is unconstitutionally vague.
The attorneys for Roberts and Toback, argued that the Analogue Statute was unconstitutionally vague. Looking to the particular facts of the case, the court agreed. When applied to 1,4-butanediol, the Analogue Statute provided neither adequate notice nor the requisite safeguards against arbitrary enforcement that were required of the Constitution. So what does that mean?
A lack of scientific consensus as to the definition of an analogue and the government's own contradictory positions on the subject demonstrated that no ordinary person could have fair warning that GHB and 1,4-butanediol were structurally similar. And the prosecution of 1,4-butanediol, as opposed to other substances with equal or greater similarity to GHB - like GABA, which are still available for sale over-the-counter, showed that Congress has delegated basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. That's a bad thing because of the arbitrary and discriminatory application of those laws that could result.
All of the three experts agreed that the two substances in question contain a different "functional group": 1,4-butanediol has an alcohol major functional group while GHB has a carboxylic acid major functional group. That means that one is commonly classified as an alcohol or diol, and one is an acid. Those functional groups impart physical properties to the chemicals, such as acidity levels, melting and boiling points, and odors. All three also agreed that 1,4- butanediol can be converted into GHB within the human body upon ingestion.
Both of the defendants' experts concluded that 1,4-butanediol and GHB are not substantially similar in chemical structure, and that the majority of experts in their field would agree with them. Both based their conclusions upon a number of criteria, including the fact that GHB is an acid and 1,4-butanediol is generally classified as an alcohol. They testified that the two substances would be classified in different parts of an organic chemistry book, which is organized by functional group, and that a student who stated on a college exam that GHB and 1,4-butanediol were similar in chemical structure would indeed fail such an exam.
Dr. Haley related that GHB has a negative charge at one end of its structure, and a positive charge at the other, so that the ends necessarily attract, thereby effectively rendering GHB an unstable molecule. In contrast, 1,4- butanediol does not have such properties and would remain linear. Likewise, Dr. Schuster stated that when illustrated three dimensionally, GHB folded over upon itself, and would not appear static because of its instability. Both experts testified that results from a nuclear magnetic resonance spectrometer, routinely used by chemists to analyze the nature of the functional groups, documents the structural dissimilarity of 1,4-butanediol and GHB.
The Government's witness, a DEA employee with a degree in polymer (rather than organic) chemistry, disputed the conclusions drawn by Dr. Haley and Dr. Schuster that the two chemicals were not structurally similar. Dr. DiBernardino's principal disagreement was the importance placed on the functional group in assessing chemical structure. He testified that while comparing functional groups might illustrate different properties and reactivity of the chemical substances, such comparisons were not relevant in determining structural differences.
It is apparent from the June 17, 2002 hearing that there is no scientific consensus whether 1,4- butanediol has a chemical structure substantially similar to GHB. Both of the defendants' experts testified that in fact the substances were dissimilar in chemical structure, as evidenced by their functional groups, the instability of GHB as opposed to 1,4- butanediol, and a comparison of spectrograms. The government's expert, of course, disagreed, indicating that an ordinary person would have no legitimate, reasonable opportunity to know whether 1,4-butanediol meets the analogue definition.
The Government, based on its expert's testimony, contends that "chemical structure" is a very narrow term which exists apart from a substance's functional group and which should not be confused with a chemical's "properties." However, this argument demonstrates that the scientific community cannot even agree on the proper methodology used to determine structural similarity. The DEA employee emphasized the atomic composition of the two substances as illustrated in their molecular chains, relying primarily on two-dimensional charts. But this approach was deemed insufficient by the organic chemists, who stressed that, when illustrated three-dimensionally, GHB would fold over upon itself with little stability and thus manifest a completely different chemical structure than 1,4-butanediol.
So, if the diagrams of 1,4-butanediol and GHB were made available to a layperson, the lack of consensus by experts in the field as to the interpretation of those diagrams demonstrates that they could not provide such a person with sufficient information to know whether the Analogue Statute would prohibit them.
Perhaps more importantly, the Analogue Act's definition as applied to 1,4- butanediol fails the second prong of the Supreme Court's void-for-vagueness test by encouraging arbitrary enforcement. At the hearing, it was established that there exist ten naturally occurring substances that are related to GHB. Several of these substances differ from GHB in the same manner as 1,4-butanediol, differing by one functional group, yet they are readily available as food ingredients and even as health food supplements.
When presented with this evidence, the Government's expert agreed that under the Government's interpretation of "substantially similar to the chemical structure of a controlled substance," products such as Gamma Aminobutyric Acid (GABA) (commonly sold in health food stores) and succinic acid (a common food additive) would qualify as Schedule I drugs. The Government's failure to prosecute such similar substances, particularly given its position on the proper reading of the Analogue Statute, demonstrates the failure of Congress to "establish minimal guidelines to govern law enforcement."
Nothing has prevented Congress from either scheduling or listing 1,4- butanediol as a controlled substance. Congress had the opportunity to address the substance when it scheduled GHB and when it listed GBL, but it took no action. 1,4-butanediol has been around for decades, and has a long history as an industrial solvent, yet no law has been passed making the manufacture or sale of 1,4-butanediol a crime.
The statute the defendants are alleged to have violated sets no parameters to define the scope of that which may be considered as an analogue of GHB - making the statute vague. The only apparent limitation in the statute aside from the vague language used is its focus on "designer drugs" and substances that are specifically designed to mimic controlled substances. In this regard, the Government argued that flexibility is necessary and appropriate to permit the Analogue Statute to address designer drugs that can be made available before being formally prohibited. However, 1,4-butanediol, which existed and was openly sold long before the problematic use of GHB was even contemplated, does not fall within this category. Therefore, any protections against the arbitrary prosecution of those in possession of the substance would have to originate not from the statute, but from retroactive judicial decision-making. As the Supreme Court has admonished, " legislatures may not . . . abdicate their responsibilities for setting the standards of the criminal law."
The enormous consequence of criminal penalties should require serious deliberation and care before adoption. "It would be dangerous if the legislature could cast a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government." Kolender, 461 U.S. at 358 n.7 (quoting United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563 (1875)).
In summary, when applied to 1,4-butanediol, the Analogue Statute provides neither adequate notice nor the requisite safeguards against arbitrary enforcement that are required of the Constitution. The lack of scientific consensus as to the definition of an analogue and the Government's own contradictory positions on the subject demonstrate that no ordinary person could have fair warning that GHB and 1,4-butanediol are structurally similar. And the prosecution of 1,4-butanediol, as opposed to other substances with equal or greater similarity to GHB, shows that Congress has impermissibly delegated basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
This article includes excerpts from (2002 U.S. Dist. LEXIS 16778)
Please find the full text article for this weeks Elite Fitness News -- regular members just get excerpts.
In this issue of Elite Fitness News, I would like to share with you some of the latest news on the hundreds of Internet dealers, bodybuilders, and other athletes that have been busted in the recent anabolic steroid and GHB crackdowns known as Operation Webslinger. I'll also share with you the story of Todd Roberts and Michael Toback, who got caught in the GHB stings, then went head to head with the DEA in the courts and won - making the Feds look like fools. And I'll tell you about three tools you can use to stay beyond the reach of the long arm of the law and why you must start using them right now.
Operation Webslinger
"Our campuses, our neighborhoods and our communities are safer places for young women today because cyberspace just got more dangerous for drug traffickers," said Attorney General John Ashcroft.
Dubbed Operation Webslinger, the two-year investigation targeted leaders and midlevel brokers of Internet drug-trafficking rings who operated Web sites that advertised GHB and its derivatives as industrial cleaning products. Online orders were delivered by mail. This was the first federal investigation of Internet traffickers of GHB.
GHB is Gamma hydroxybutyrate. GHB has been around for years, but in 1999, it took Rohypnol's place when it became known as the date rape drug. Bodybuilders have long been interested in GHB for promoting restorative sleep and for its possible growth hormone (GH) release connection. In the last year a great deal of new research has been done on GHB that indicates that at controlled dosages, its side effects are practically non-existent and that there is definitely a connection between GHB and GH release.
Under federal law, people can be prosecuted if they sell GHB-related drugs for human consumption. However, you may remember that a few months ago in Elite Fitness News, I told you about the new pharmaceutical GHB from Orphan Medical that is now sold under the brand name Xyrem. See http://boards.elitefitness.com/forum/showthread.php?s=&threadid=104076
Although GHB is very easily and cheaply manufactured, for better or worse, the FDA gave the drug companies permission to study GHB for sale as a pharmaceutical and the DEA is arresting anyone selling it as a supplement. In essence, GHB went from being an inexpensive and effective sleep aid that had been available as an OTC or as a gray market supplement and re-regulated it for the benefit of the drug companies.
In May of 1999, our friends at the FDA recommended that GHB become a Schedule I Controlled Substance. In September of that year, the House of Representatives voted 423 to 1, and the Senate voted unanimously in favor of the FDA's recommendations. And by November, the Drug Enforcement Agency was treating GHB just like heroin and other Schedule I drugs. In early 2000, President Clinton signed the legislation.
Around this time, Orphan Medical, a drug company in Minneapolis, began research into using GHB for the treatment of narcolepsy. They developed a medically formulated GHB product and given it the brand name Xyrem. Although certainly motivated by profit, Orphan Medical has conducted several studies that indicate that GHB or Xyrem should not be a demonized Schedule I drug. Their research further indicates that GHB is relatively safe and can be an effective treatment for sleep disorders. Please click here to read all about pharmaceutical GHB - Xyrem and how it can help you recover faster from a muscle-building workout. See http://boards.elitefitness.com/forum/showthread.php?s=&threadid=104076
Please forgive the digression... Back to Todd Roberts and Michael Toback.
Roberts and Toback ran a health food store. In the case The United States of America against Todd Roberts and Michael Toback, both defendants, Roberts and Toback, were indicted for conspiracy to distribute and to possess with the intent to distribute 1,4-butanediol, which the government alleged was an analogue of the Schedule I controlled substance gamma hydroxybutyric acid (GHB). The defendants moved to dismiss the indictment - and against enormous odds, they succeeded, and the indictment was dismissed.
My friend, attorney Rick Collins, represented Roberts, and the Judge's decision (Judge Sweet) mirrors Collins' briefs on the issues. It is extremely rare when a judge dismisses a federal criminal indictment, but it is even more unheard of when he does it by declaring a law unconstitutional. But that's what just happened.
Specifically, Judge Sweet held that the Analogue Statute is unconstitutionally VOID for vagueness as applied to butanediol, both on grounds of notice and as to arbitrary enforcement - I'll explain what that means in a minute. Needless to say, the ruling jeopardizes prior convictions and pending cases. And throws a monkey wrench into the DEA's recent Operation Webslinger. Federal prosecutors are beside themselves, and will no doubt marshal all their might to gang up on Collins at the appellate level.
Aside from the fact that hiring a lawyer like Collins can cost thousands, his recent victory will likely mean that athletes and bodybuilders will face even more scrutiny given that the Federal Prosecutors were made to look like fools. There are three things that you must start doing now to safeguard your privacy. Please read the gray sidebar and begin doing them today.
Rick Collins specializes in criminal law and frequently defends bodybuilders. You may remember that we retained Rick Collins when we were subpoenaed in the Eric Perrin DNP ordeal. Working with Rick, we prevented the FDA from accessing our entire forum database and then sifting through our member information with forensic software. When you post on non Elite Fitness discussion boards, ask yourself if you think the owners would go to the time and expense of hiring an attorney to protect member data like IP addresses, PM's, and passwords. Or, would they just turn the database over. Just some food for thought.
Here's how Todd Roberts and Michael Toback beat the system with the help of attorney Rick Collins. Remember, an ounce of prevention is worth a pound of cure, so be sure to take advantage of the resources in the gray sidebar. It's much better to keep out of court in the first place than to have to go - even if you win.
On April 26, 2001, Roberts and Toback were indicted for conspiracy to distribute and to possess with the intent to distribute butanediol, which the Government alleges is, an analogue of the Schedule I controlled substance gamma hydroxybutyric acid ("GHB"). As explained in the Court's December 14, 2001 opinion, DEA agents had originally investigated a store operated by Toback for the sale of a product believed to be containing GHB. The product, called "Rejoov," was sold openly and was purchased by body builders to rejuvenate muscles. After DEA testing, "Rejoov" was found not to contain GHB, but rather 1,4-butanediol, the substance now claimed by the Government to be an analogue of GHB.
If the Government could prove that butanediol was an analogue of GHB, then Roberts and Toback were up the creek without a paddle.
On December 14, 2001, it was ordered that, based on the Court's interpretation of the analogue statute, a hearing must be held to determine whether the statutory definition of the term "controlled substance analogue" as applied to 1,4-butanediol is unconstitutionally vague. The hearing was held on June 17, 2001, at which both parties presented expert testimony on the chemical structures of 1,4-butanediol and GHB.
At the June 17, 2001 hearing, the two defendants and the Government presented expert witnesses who testified about the chemical structures of butanediol and GHB. The Defense called two witnesses, both credible and qualified academics with extensive credentials in organic chemistry. Toback called Dr. Boyd Haley, Chairman and Professor of the chemistry department at the University of Kentucky, with a joint appointment in the College of Pharmacy. Roberts called Dr. David Schuster, Director of Graduate Studies in Chemistry at New York University and former visiting professor at Yale University. Schuster is the author of over 200 publications and holder of two patents. The Government called Dr. Tom DiBerardino, an employee of the DEA's Drug and Chemical Evaluation Section (a branch of the Office of Diversion Control) with a PhD in polymer chemistry.
A controlled substance analogue, to the extent that it is "intended for human consumption," is treated for purposes of the federal narcotics law as a Schedule I controlled substance. Both defendants filed a pre-trial motion to dismiss the indictment on grounds that the Analogue Statute is unconstitutionally vague.
The attorneys for Roberts and Toback, argued that the Analogue Statute was unconstitutionally vague. Looking to the particular facts of the case, the court agreed. When applied to 1,4-butanediol, the Analogue Statute provided neither adequate notice nor the requisite safeguards against arbitrary enforcement that were required of the Constitution. So what does that mean?
A lack of scientific consensus as to the definition of an analogue and the government's own contradictory positions on the subject demonstrated that no ordinary person could have fair warning that GHB and 1,4-butanediol were structurally similar. And the prosecution of 1,4-butanediol, as opposed to other substances with equal or greater similarity to GHB - like GABA, which are still available for sale over-the-counter, showed that Congress has delegated basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. That's a bad thing because of the arbitrary and discriminatory application of those laws that could result.
All of the three experts agreed that the two substances in question contain a different "functional group": 1,4-butanediol has an alcohol major functional group while GHB has a carboxylic acid major functional group. That means that one is commonly classified as an alcohol or diol, and one is an acid. Those functional groups impart physical properties to the chemicals, such as acidity levels, melting and boiling points, and odors. All three also agreed that 1,4- butanediol can be converted into GHB within the human body upon ingestion.
Both of the defendants' experts concluded that 1,4-butanediol and GHB are not substantially similar in chemical structure, and that the majority of experts in their field would agree with them. Both based their conclusions upon a number of criteria, including the fact that GHB is an acid and 1,4-butanediol is generally classified as an alcohol. They testified that the two substances would be classified in different parts of an organic chemistry book, which is organized by functional group, and that a student who stated on a college exam that GHB and 1,4-butanediol were similar in chemical structure would indeed fail such an exam.
Dr. Haley related that GHB has a negative charge at one end of its structure, and a positive charge at the other, so that the ends necessarily attract, thereby effectively rendering GHB an unstable molecule. In contrast, 1,4- butanediol does not have such properties and would remain linear. Likewise, Dr. Schuster stated that when illustrated three dimensionally, GHB folded over upon itself, and would not appear static because of its instability. Both experts testified that results from a nuclear magnetic resonance spectrometer, routinely used by chemists to analyze the nature of the functional groups, documents the structural dissimilarity of 1,4-butanediol and GHB.
The Government's witness, a DEA employee with a degree in polymer (rather than organic) chemistry, disputed the conclusions drawn by Dr. Haley and Dr. Schuster that the two chemicals were not structurally similar. Dr. DiBernardino's principal disagreement was the importance placed on the functional group in assessing chemical structure. He testified that while comparing functional groups might illustrate different properties and reactivity of the chemical substances, such comparisons were not relevant in determining structural differences.
It is apparent from the June 17, 2002 hearing that there is no scientific consensus whether 1,4- butanediol has a chemical structure substantially similar to GHB. Both of the defendants' experts testified that in fact the substances were dissimilar in chemical structure, as evidenced by their functional groups, the instability of GHB as opposed to 1,4- butanediol, and a comparison of spectrograms. The government's expert, of course, disagreed, indicating that an ordinary person would have no legitimate, reasonable opportunity to know whether 1,4-butanediol meets the analogue definition.
The Government, based on its expert's testimony, contends that "chemical structure" is a very narrow term which exists apart from a substance's functional group and which should not be confused with a chemical's "properties." However, this argument demonstrates that the scientific community cannot even agree on the proper methodology used to determine structural similarity. The DEA employee emphasized the atomic composition of the two substances as illustrated in their molecular chains, relying primarily on two-dimensional charts. But this approach was deemed insufficient by the organic chemists, who stressed that, when illustrated three-dimensionally, GHB would fold over upon itself with little stability and thus manifest a completely different chemical structure than 1,4-butanediol.
So, if the diagrams of 1,4-butanediol and GHB were made available to a layperson, the lack of consensus by experts in the field as to the interpretation of those diagrams demonstrates that they could not provide such a person with sufficient information to know whether the Analogue Statute would prohibit them.
Perhaps more importantly, the Analogue Act's definition as applied to 1,4- butanediol fails the second prong of the Supreme Court's void-for-vagueness test by encouraging arbitrary enforcement. At the hearing, it was established that there exist ten naturally occurring substances that are related to GHB. Several of these substances differ from GHB in the same manner as 1,4-butanediol, differing by one functional group, yet they are readily available as food ingredients and even as health food supplements.
When presented with this evidence, the Government's expert agreed that under the Government's interpretation of "substantially similar to the chemical structure of a controlled substance," products such as Gamma Aminobutyric Acid (GABA) (commonly sold in health food stores) and succinic acid (a common food additive) would qualify as Schedule I drugs. The Government's failure to prosecute such similar substances, particularly given its position on the proper reading of the Analogue Statute, demonstrates the failure of Congress to "establish minimal guidelines to govern law enforcement."
Nothing has prevented Congress from either scheduling or listing 1,4- butanediol as a controlled substance. Congress had the opportunity to address the substance when it scheduled GHB and when it listed GBL, but it took no action. 1,4-butanediol has been around for decades, and has a long history as an industrial solvent, yet no law has been passed making the manufacture or sale of 1,4-butanediol a crime.
The statute the defendants are alleged to have violated sets no parameters to define the scope of that which may be considered as an analogue of GHB - making the statute vague. The only apparent limitation in the statute aside from the vague language used is its focus on "designer drugs" and substances that are specifically designed to mimic controlled substances. In this regard, the Government argued that flexibility is necessary and appropriate to permit the Analogue Statute to address designer drugs that can be made available before being formally prohibited. However, 1,4-butanediol, which existed and was openly sold long before the problematic use of GHB was even contemplated, does not fall within this category. Therefore, any protections against the arbitrary prosecution of those in possession of the substance would have to originate not from the statute, but from retroactive judicial decision-making. As the Supreme Court has admonished, " legislatures may not . . . abdicate their responsibilities for setting the standards of the criminal law."
The enormous consequence of criminal penalties should require serious deliberation and care before adoption. "It would be dangerous if the legislature could cast a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government." Kolender, 461 U.S. at 358 n.7 (quoting United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563 (1875)).
In summary, when applied to 1,4-butanediol, the Analogue Statute provides neither adequate notice nor the requisite safeguards against arbitrary enforcement that are required of the Constitution. The lack of scientific consensus as to the definition of an analogue and the Government's own contradictory positions on the subject demonstrate that no ordinary person could have fair warning that GHB and 1,4-butanediol are structurally similar. And the prosecution of 1,4-butanediol, as opposed to other substances with equal or greater similarity to GHB, shows that Congress has impermissibly delegated basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
This article includes excerpts from (2002 U.S. Dist. LEXIS 16778)
