United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant Frank Peter
Salamone's Motion to Dismiss / Quash the Indictment (doc.
26). The Motion has been briefed and is ripe for
December 28, 2016, a four-count Indictment (doc. 1) filed in
open court charged Frank Peter Salamone and two co-defendants
(Heather Turner Erwin and Marangele Conde) with committing
certain controlled substances offenses “in the Southern
District of Alabama, Southern Division, and elsewhere.”
Specifically, Count One charged that, beginning on or about
September 1, 2015, defendants conspired “to distribute
a Schedule II controlled substance, to-wit: Methylphenidate
Hydrochloride (Ritalin), contrary to Title 21 United States
Code, Section 841(a)(1), ” in violation of 21 U.S.C.
§ 846. Count Two charged defendants with conspiring
during the same date range to import Ritalin into the United
States, contrary to 21 U.S.C. § 952, all in violation of
§ 846. Count Three charged that, on or about October 14,
2015, defendants possessed with intent to distribute
approximately 536 Ritalin pills, in violation of 21 U.S.C.
§ 841(a)(1). And Count Four charged that, on or about
the same date, defendants imported 536 Ritalin pills into the
United States, in violation of § 952.
plain reading of the Motion to Dismiss / Quash, Salamone
seeks dismissal of the Indictment on three grounds, to-wit:
(i) his contention that the Indictment improperly describes
the subject drug as a Schedule II controlled substance, when
it is not; (ii) his assertion that venue / jurisdiction are
improper in the Southern District of Alabama; and (iii)
various attacks on the sufficiency of the Government's
evidence to support a conviction. Each of these categories of
arguments will be addressed in turn.
Is Ritalin a Schedule II Controlled Substance?
first ground for relief is that the Indictment erroneously
lists Methylphenidate Hydrochloride (Ritalin) as a Schedule
II controlled substance when it is actually found in Schedule
III. This argument is demonstrably incorrect.
crux of Salamone's assertion is that the schedules of
controlled substances set forth in 21 U.S.C. § 812 do
not list this drug in Schedule II; rather, the only place
that Methylphenidate is listed is in Schedule III(a)(4).
See 21 U.S.C. § 812(c). Defendant insists that
“the most recent updates of the United States Code
providing that Methylphenidate is a Schedule III
control.” (Doc. 40, at 3.) Such a contention
fundamentally misapprehends the relevant statutory scheme.
Section 812(c) does not purport to recite the most current,
up-to-date iterations of the schedules of controlled
substances; to the contrary, the caption of that subsection
confirms that it contains only the “Initial schedules
of controlled substances, ” as of October 27, 1970,
when the statute took effect. By its terms, § 812(c)
provides that “Schedules I, II, III, IV, and V shall,
unless and until amended1
pursuant to section 811 of this
title, consist of the following drugs or other
substances.” 21 U.S.C. § 812(c) (emphasis added).
The footnote after the word “amended” reads as
follows: “Revised schedules are published in the Code
of Federal Regulations, Part 1308 of Title 21, Food and
Drugs.” Id. Review of that regulation
unambiguously confirms that Methylphenidate is now a Schedule
II controlled substance. See 21 C.F.R. §
1308.12(d)(4) (listing as part of Schedule II “any
material, compound, mixture, or preparation which contains
any quantity of the following substances having a stimulant
effect on the central nervous system: …
apparent incongruity between Methylphenidate's treatment
in § 812(c) and its listing in § 1308.12(d)(4) may
be readily explained. Again, § 812(c) did not purport to
be setting forth current, updated schedules of controlled
substances; rather, on its face the statute listed only the
initial schedules as of October 1970, and
specifically cross-referenced the regulations found at Part
1308 as the location of revised schedules. How are
the schedules revised? Congress expressly delegated to the
Attorney General in 1970 the authority to transfer drugs
between schedules as appropriate, subject to certain
criteria. See 21 U.S.C. § 811(a)(1)(A)
(“the Attorney General may by rule … add to such
a schedule or transfer between such schedules any drug or
other substance if he … finds that such drug or other
substance has a potential for abuse”). The Attorney
General exercised that authority to transfer Methylphenidate
from Schedule III to Schedule II way back on October 28,
1971. (See doc. 38, Exh. B, at 8.) Why didn't
that transfer show up in the United States Code? Because,
again, Congress established a statutory framework under which
it listed only the initial schedules as of October 1970, and
empowered the Attorney General to revise those schedules via
regulation as appropriate. Rather than amending the statute
each time the Attorney General exercised that authority (as
it has done literally hundreds of times in the last 46
years), Congress chose to refer in § 812(c) to those
regulations at 21 C.F.R. Part 1308 as the repository of
put, if Salamone is looking for Methylphenidate's
classification in § 812(c), then he is looking in the
wrong place. Section 812(c) tells us only what the schedules
of controlled substances looked like in October 1970. It says
nothing about what they look like today, or in fall 2015 when
the alleged criminal activity in this case took place. For
that information, one must look to 21 C.F.R. Part 1308, which
is precisely what the Government did in preparing the subject
Indictment. The Indictment accurately describes
Methylphenidate Hydrochloride as a Schedule II controlled
substance. Defendant's argument to the contrary is
grounded in a patent misinterpretation of the statutory
framework. The Motion to Dismiss/Quash the Indictment on this
ground is, therefore, denied.
Is Venue Proper in this Judicial District?
Salamone asserts that venue is lacking in the Southern
District of Alabama, and that the Indictment must therefore
be dismissed for lack of jurisdiction. Defendant's
position is that (i) neither he nor any co-conspirator took
an overt act in this district, and (ii) “the government
cannot prosecute and allege jurisdiction for a case based on
an item allegedly being found during transit.” (Doc.
26, ¶ 7.)
well-settled, of course, that both the Constitution and the
Federal Rules of Criminal Procedure “guarantee the
right of a defendant to be tried in the district in which the
offense was committed.” United States v.
Roberts, 308 F.3d 1147, 1151 (11th Cir.
2002). The question is where the offenses charged in this
Indictment were committed. Pursuant to 18 U.S.C. §
3237(a), “[a]ny offense involving the use of the mails,
transportation in interstate or foreign
commerce, or the importation of an
object or person into the United States is a
continuing offense and … may be inquired of and
prosecuted in any district from, through, or into
which such commerce, mail matter, or
imported object or person
moves.” Id. (emphasis added).
Salamone is charged with, inter alia, unlawfully
importing 536 Ritalin pills into the United States from
Mexico. By the plain language of § 3237(a), prosecution
of that offense is proper in any district from, through, or
into which that imported object moves. The Government's
evidence is ...