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United States v. Gross

United States District Court, S.D. Alabama, Southern Division

November 20, 2014

UNITED STATES OF AMERICA,
v.
TRAVIS EDWARD GROSS, Defendant

For Travis Edward Gross, Defendant: Thomas M. Findley, LEAD ATTORNEY, Tallahassee, FL.

For James Boyd Vail, also known as Jim Vail, Defendant: William Edward Bubsey, LEAD ATTORNEY, Tallahassee, FL.

For USA, Plaintiff: Deborah A. Griffin, LEAD ATTORNEY, U.S. Attorney's Office, Mobile, AL; Christopher Bennett Brinson, Mobile, AL.

ORDER

WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE.

This matter is before the Court on the government's motion for pretrial ruling on

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scienter requirement. (Doc. 56). The defendant has filed a response and the government a reply, (Docs. 67, 72),[1] and the motion is ripe for resolution.[2]

Counts Two and Three of the indictment involve an alleged controlled substance analogue (" CSA" ), specifically, XLR11. The government's motion is limited to these two counts. The instant motion asks the Court to rule that, in order to obtain a conviction under Counts Two and Three, the government need not prove that the defendant knew XLR11 was a CSA. The answer to that question depends on an analysis of the relevant statutes.

" A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I." 21 U.S.C. § 813.[3] That is, to obtain a conviction based on a CSA, the government must prove the elements of a controlled substance crime. The Court therefore looks to the elements of the offenses with which the defendant is charged and, specifically, to whether they contain a requirement that the government prove the defendant knew the substance at issue was a controlled substance.

Count Two charges that the defendant violated 21 U.S.C. § 846 by conspiring to distribute, and to possess with intent to distribute, XLR11. (Doc. 1 at 12). " Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846. The underlying offense is found in Section 841(a): " [I]t shall be unlawful for any person knowingly or intentionally ... to ... distribute ... or ... possess with intent to ... distribute ... a controlled substance." Id. § 841(a)(1).

Count Three charges that the defendant violated 21 U.S.C. § 963 by conspiring to import XLR11 into the United States. (Doc. 1 at 13). " Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 963. The underlying offense is found in Section 952(a): " It shall be unlawful to import ... into the United States from any place outside thereof, any controlled

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substance in schedule I or II ...." Id. § 952(a).

" The § 841(a) offense is complete once the person commits the proscribed act and knows that the substance is a 'controlled substance.'" United States v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012); accord United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990) (" [I]t is well-settled that to sustain a conviction for possession with intent to distribute a controlled substance, it need not be proved that the defendant had knowledge of the particular drug involved, as long as he knew he was dealing with a controlled substance." ); United States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir. 1996) ( Gomez " held that, to sustain a defendant's conviction for possession with intent to ...


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