Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Salamone

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

February 24, 2017

UNITED STATES OF AMERICA
v.
FRANK PETER SALAMONE and HEATHER TURNER ERWIN, Defendants.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.

         This 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 disposition.[1]

         I. The Indictment.

         On 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.

         II. Analysis.

         From a 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.

         A. Is Ritalin a Schedule II Controlled Substance?

         Salamone's 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.

         The 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: … Methylphenidate”).

         The 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 current schedules.

         Simply 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.

         B. Is Venue Proper in this Judicial District?

         Next, 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.)

         It is 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 ยง 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.