United States District Court, D. Vermont
For Brett Lawton, Defendant: David L. McColgin, AFPD, Office of the Federal Public Defender, District of Vermont, Burlington, VT.
For Devin Messier, Defendant: Nancy J. Waples, Esq., Hoff Curtis, Burlington, VT.
For Tom Arbuckle, also known as Thomas Arbuckle, Defendant: Douglas G. Kallen, Esq., Bergeron, Paradis & Fitzpatrick, LLP, Burlington, VT.
For USA, Plaintiff: Michael P. Drescher, Wendy L. Fuller, United States Attorney's Office, District of Vermont, Burlington, VT.
OPINION AND ORDER
William K. Sessions III, United States District Judge.
Defendants Brett Lawton, Devin Messier, and Tom Arbuckle are charged with distributing alpha-PVP (" a-PVP" ), a schedule I controlled substance analogue, in violation of 21 U.S.C. § § 813, 841(a)(1), and 846 (" the Analogue Act" ). Defendants have filed a joint motion to dismiss the indictment, arguing that the cited portions of the Analogue Act are unconstitutionally vague as applied to the facts of this case. Specifically, defendants contend that the law did not provide them fair warning of potential prosecution for distributing a-PVP as an analogue of MDPV. Defendants have also moved in limine to exclude expert testimony with respect to the alleged similarities between a-PVP and MDPV.
For the reasons set forth below, defendants' motions are denied.
I. Defendants' Joint Motion to Dismiss
A. The Analogue Act
Defendants are charged with conspiring to distribute a-PVP (alpha-Pyrrolidinovalerophenone), which is allegedly an analogue to MDVP (3,4-methylenedioxyprovalerone). MDVP is a schedule I controlled substance. Federal drug law defines an analogue as 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.
21 U.S.C. § 802(32)(A). The Second Circuit has determined that these provisions should be read in the conjunctive:
According to the conjunctive reading, the definition requires two things: first, (i) that the substance be chemically similar and, second, (ii) that it have a similar or greater psychopharmacological effect or (iii) that it be ...