GOVERNMENT'S MEMORANDUM ON SECTION 851 SENTENCE ENHANCEMENT ISSUES

Transcription

1 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA Case No. 3:06cr151 (MRK) v. CHARLES LAMONT JACKSON JUNE 29, 2009 GOVERNMENT'S MEMORANDUM ON SECTION 851 SENTENCE ENHANCEMENT ISSUES The Government files this memorandum to address whether a mandatory sentencing enhancement pursuant to 21 U.S.C. 851 and 841(b)(l)(B) should apply in this case. The Government respectfully submits that the basis for the enhancement cannot be established. As a result of an accident of history caused ironically by Connecticut's efforts to track federal law a discrepancy has existed since 1986 between Connecticut's Controlled Substance Schedules and the federal schedules with respect to two obscure, pharmacologically inactive substances, thenylfentanyl and benzylfentanyl. In 1985, the federal Drug Enforcement Administration ("DEA") added those two chemicals (and others) on a temporary, emergency basis to the federal Schedule of Controlled Substances and those additions were published in the Federal Register. In May 1986, the Connecticut legislature added all of the newly scheduled chemicals to its own list, to ensure that state and federal law tracked each other. Based on later federal testing, however, it was determined that the two drugs were not pharmacologically active, and so on November 29, 1986, their emergency listing was allowed to expire. That expiration was not flagged in the Federal Register or the Code of Federal Regulations, and so Connecticut never removed those two chemicals from their own listings. Consequently, despite a pronounced overall trend in Connecticut's regulation of controlled substances toward conformance with

2 federal scheduling, and notwithstanding that these obscure substances have in all likelihood never served as the basis of a single prosecution or conviction, categorical reliance on defendant's 1994 conviction under Conn. Gen. Stat. 21a-277(a) is precluded because of the abstract theoretical possibility that he might have been convicted of conduct relating to thenylfentanyl and benzylfentanyl. Nor can defendant's prior conviction be established as a felony drug offense through a modified categorical analysis. The charging document does not specify the drug involved in defendant's 1994 drug offense. Moreover, even though the state prosecutor explicitly specified that the charge was based on defendant's sale of cocaine, given defendant's invocation of the Alford doctrine in entering his plea, the transcript of defendant's plea proceeding is also of no avail, in light of the recent ruling of the Second Circuit in United States v. Savage, 543 F.3d 959, 966 (2d Cir. 2008). Because of this confluence of ironic circumstances, which are explained further below, defendant is able to avoid the significantly longer term of imprisonment that Congress, in enacting the second offense provisions at 21 U.S.C. 841 (b)(1)(b), deemed appropriate for defendants with a proven track record of recidivism. I. BACKGROUND On May 31, 2006, a grand jury in Hartford returned an indictment charging defendant with certain narcotics offenses, including conspiracy to possess with intent to distribute and distribution of 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine ("PCP"), in violation of21 U.S.C. 846, 841(a)(1) and 841(b)(l)(B). On July 27,2007, the Government filed an Information pursuant to 21 U.S.C. 851, which provided 2

3 notice that defendant would be subject to an enhanced penalty at the time of sentencing pursuant to 21 U.S.C. 841 (b)(l)(b) because of his prior conviction for an offense identified as a felony drug offense, specifically his April 27, 1994, conviction in Connecticut Superior Court, Judicial District of Hartford, for Sale of Narcotics in violation of Conn. Gen. Stat. 21a-277(a).1 On November 6,2007, the defendant pleaded guilty to the PCP trafficking conspiracy charge for which he is now due to be sentenced. Defendant has denied that the second offender sentencing enhancement pursuant to 21 U.S.C. 851 and 841(b)(l)(B) should apply to him. See, e.g., Def. 7/27/07 Resp. to Second Offender Information, Docket No. 41. At the sentencing hearing on March 20, 2009, the Court, after hearing initial arguments on second offender issues, ordered further briefing on this issue. II. DISCUSSION The question before the Court is whether defendant's April 27, 1994, conviction for Sale of Narcotics in violation of Conn. Gen. Stat. 21a-277(a) constitutes a prior felony narcotics conviction under 21 U.S.C. 841(b)(l)(B) and 802(44). The Government concedes that it cannot be so established. A. The Legal Framework Pursuant to the penalty provisions set forth in 21 U.S.C. 841 (b)( 1), enhanced penalties - including increased mandatory minimum and maximum terms of imprisonment - apply if the 1 The 851 Information also cited two additional convictions in Connecticut Superior Court, Judicial District of Hartford: a November 9, 1995, conviction for Sale ofa Controlled Substance in violation of Conn. Gen. Stat. 21a-277(a); and a November 9,1995, conviction for Possession of Narcotics in violation of Conn. Gen. Stat. 21a-279(a). The Connecticut Judicial Records Center has been unable to locate the records concerning these convictions. On that basis, the Government conceded at the March 20, 2009, sentencing hearing that these convictions could not serve as the basis for a second offender enhancement. 3

4 , ' offense of conviction was committed after defendant sustained a conviction for a "felony drug offense.,,2 Under the applicable definitions section of the Controlled Substances Act ("CSA"), the term "felony drug offense" has the following meaning: The term "felony drug offense" means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances. 21 U.S.C. 802(44). Each category of substance included in the definition is itself a defined category of substance under the CSA. For example, the term "narcotic drug" is defined as follows: The term "narcotic drug" means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; (A) Opium, opiates, derivatives of opium and opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation... (B) Poppy straw and concentrate of poppy straw. (C) Coca leaves.... (D) Cocaine.... (E) Ecgonine... (F) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subparagraphs (A) through (E). 21 U.S.C. 802(17); see also 21 U.S.C. 802(16) (defining marihuana), 802(41) (defining anabolic steroid), 802(9) (defining depressant or stimulant substance (which includes substances 2 Such an enhancement is commonly called a "Section 851 enhancement," in reference to the section that prescribes certain notice and other procedural requirements in regard to such enhancements. 4

5 with a potential for abuse due to their hallucinogenic effect)).3 These categories of substance are controlled in various places within the federal Schedules of Controlled Substances. See, e.g., 21 C.F.R (listing as Schedule II controlled substances "opium" and "opiate," substances specifically identified in the definition of "narcotic drug" in the CSA). The Government agrees that, in light of the Sixth Amendment concerns discussed in United States v. Shepard, 544 U.S. 13,24-26 (2005), the categorical and modified categorical approaches developed by courts for analyzing sentencing enhancements under the Armed Career Criminal Act and the Sentencing Guidelines should be employed in detennining whether a prior 3The tenn "marihuana" is defined as "all parts of the plant Cannabis Sativa L.," with certain specified exclusions. 21 U.S.C. 802(16). This substance is controlled in Schedule I of the federal Schedules of Controlled Substances, set forth at 21 C.F.R "Anabolic steroid" is defined as "any drug or honnonal substance, chemically and phannacologically related to testosterone." 21 U.S. C. 802(41)( A). These substances are controlled in Schedule III of the federal Schedules of Controlled Substances, 21 C.F.R The tenn "depressant or stimulant substance" is defined as: (A) a drug which contains any quantity of barbituric acid... (B) a drug which contains any quantity of (i) amphetamine or any of its optical isomers; (ii) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (iii) any substance which the Attorney General, after investigation, has found to be and by regulation designated as, habit fonning because of its stimulant effect on the central nervous system; or (C) lysergic acid diethylamide; or (D) any drug which contains any quantity ofa substance which the Attorney General, after investigation, has found to have, and by regulation designated as having, a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect. 21 U.S.C. 802(9). Such substances are controlled in various of the federal Schedules of Controlled Substances, 21 C.F.R

6 conviction constitutes a predicate offense for second offender enhancements under 21 U.S.C. 841(b)(1) and 851. See, e.g., id. at 26. Courts start with a "categorical approach" in determining whether a prior conviction qualifies as a predicate offense, looking first to the "fact of conviction" and "the statutory definition of the prior offense rather than to the underlying facts of a particular offense." United States v. Jackson, 301 F.3d 59, 61 (2d Cir. 2002). However, when the state statute criminalizes both conduct included in the relevant federal statute and conduct not covered by the federal statute, courts conduct a second inquiry, using a "modified" categorical approach to examine certain sources beyond the nlere fact of conviction. Taylor v. United States, 495 U.S. 575, 602 (1990) (where trial has taken place, court may look to documents such as indictment, information and jury instructions); see also Savage, 542 F.3d at 964. In cases that are resolved short of trial, to prove that the prior conviction qualifies as a predicate offense, the Government may rely upon court documents such as "the terms of the charging document, the ternls of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or... some comparable judicial record of this information." Shepard, 544 U.S. at 26; see also Savage, 542 F.3d at 966. Defendant's 1994 conviction was for violation of Conn. Gen. Stat. 21a-277(a). That statute provides as follows: Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance... for a first offense, shall be imprisoned not more than fifteen years 6

7 Conn. Gen. Stat. 21a-277(a). By its terms, this statute makes it a felony offense to engage in conduct with respect to two categories of substance on Connecticut's Controlled Substances Schedules, "hallucinogenic substance[sj other than marijuana" and "narcotic substance[sj." ld. The primary question with respect to the categorical analysis in this matter is whether these two categories at the time of defendant's conviction included substances not covered by the categories of federally controlled substances enumerated in the definition of felony drug offense at 21 U.S.C. 802(44). The answer, in short, is that at the time in question, Conn. Gen. Stat. 21a-277(a) was over-inclusive in relation to 21 U.S.C. 802(44). This was so because in May 1986, in an effort to conform its controlled substance schedules to federal law, the State of Connecticut listed on its Controlled Substance Schedule I two obscure chemicals, thenylfentanyl and benzylfentanyl, which it categorized as "narcotic substances," but these substances have not been controlled as narcotics under federal law since November 29, 1986, when DEA's temporary, emergency scheduling of them expired as a matter of law. The reasons for this overinclusiveness are explained further in the next section. B. Categorical Analysis - The Ironic Discrepancy Between State and Federal Narcotics Regulation as to Thenylfentanyl and Benzylfentanyl Effective November 29, 1985, the DEA promulgated regulations scheduling eight substances chemically related to fentanyl on Schedule I under the federal Controlled Substances Act, on a temporary, emergency basis, pursuant to 21 U.S.C. 811(h). 50 Fed. Reg (Oct. 29, 1985). The scheduled substances included thenylfentanyl and benzylfentanyl. ld. (An additional fentanyl analog had also been scheduled on an emergency basis earlier in See 50 Fed. Reg (March 25, 1985)). They were listed in the regulatory drug schedule in the 7

8 Code of Federal Regulations. See 50 Fed. Reg (Oct. 29, 1985) (thenylfentanyl and benzylfentanyl to be controlled at 21 C.F.R (g)(7), (11) effective Nov. 29,1985). In response, in May 1986, the Connecticut legislature amended its then-statutory listings of controlled substances to conform to the federal action, adding each of the emergency-listed fentanyl analogs to Connecticut's Schedule 1. Conn. Public Acts 1986, No. 96, 1 (amending Connecticut's Controlled Substances Schedules, then codified at Conn. Gen. Stat. 21a-242(a)). The controlled substances scheduling system had been added to the state's controlled substances scheme in deliberate imitation of federal law as part of the landmark 1972 amendments, Conn. Public Acts 1972, No. 278, 30. The express purpose of the 1972 amendments was to "conform the language [of the state statutes] relative to definitions, drugs, etc. to the" federal Controlled Substances Act. See State v. Wassil, 233 Conn. 174,194 (1995) (quoting 15 H.R. Proc., Pt. 7, 1972 Sess., p. 2591, remarks of Representative John A. Carrozzella (April 18, 1972)). This purpose was backed up a few years later with a statutory provision requiring conformity of the contents of the state schedules with the contents of the federal schedules. Conn. Public Acts 1975, No ("In the event of any inconsistencies between the contents of schedules I, II, III, IV and V of the Federal Controlled Substances Act, as amended, the provisions of the federal act shall prevail"). This conforming provision was modified slightly in 1984, to allow the state to place certain substances (specifically, glutethimide and methaqualone) on schedules higher than the DEA's placement of them. Conn. Public Acts 1984, No. 498 (rescheduling glutethimide to Schedule II, a higher schedule, and adding to the conforming provision the phrase, "except when the provisions of subsections (a) to (e), inclusive, place a controlled substance in a schedule with a higher numerical designation"); see 56 Fed. Reg

9 (March 21, 1991) (glutethimide had been federally scheduled in Schedule III until that time); and see, e.g., Opinion Letter from Attorney General Lieberman to Deputy Commissioner, Department of Consumer Protection, October 28, 1983 (pointing out the statutory, constitutional and other difficulties of discrepant scheduling of methaqualone, which the state had placed in Schedule I while the DEA had placed in Schedule II), in legislative history materials for P.A at Connecticut State Library, Ex. 1 hereto. 4 4 At the time that this revision was adopted, the Department of Consumer Protection had sought a broader change in the statutory language. The Department sought to eliminate entirely the requirement that "the provisions of the federal act shall prevail," and, instead, to replace it with a requirement that, in the event of a scheduling inconsistency, "the provisions of the more restrictive schedule shall prevail." See Interdepartmental Message from the Consumer Protection Department to the Legislative Commissioner's Office, dated April 3, 1984, in legislative history file for PA , Connecticut State Library, Ex. 1 hereto, p. 29. The amendment sought by the Department was as follows: In the event of any inconsistencies between the contents of Schedules I, II, III, IV and V [of Connecticut's controlled substances schedules] and Schedules I, II, III, IV and V of the Federal Controlled Substances Act, as amended, the pro~i~ion~ of the federal act ~hall prevail the provisions of the more restrictive schedule shall prevail. ld. (markings to show proposed statutory change appear in original memorandum). This broad revision was not adopted by the Legislature. The language that it adopted instead maintained the broad mandate of conformity to federal scheduling, with an exception allowed, "when the provisions of [Connecticut's Controlled Substances Schedules], place a controlled substance in a schedule with a higher numerical designation" which is essentially the same as the language in the provision today. See Conn. Gen. Stat. 21a-242(f) (1985) (today codified at Conn. Gen. Stat. 21a-243(f)) ("In the event of any inconsistencies between the contents of Schedules I, II, III, IV and V [in Connecticut's Controlled Substance Schedules] and Schedules I, II, III, IV and V of the Federal Controlled Substances Act, as amended, the provisions of the federal act shall prevail, except when the provisions of [Connecticut's Controlled Substances Schedules j, place a controlled substance in a schedule with a higher numerical designation" (emphasis shows added text)). In earlier proceedings involving analysis of potential predicate offenses under the Armed Career Criminal Act, 18 U.S.C. 924(e), the Government has argued that, as modified in 1984, Conn. Gen. Stat. 21a-243(f), requires overall conformance with federal scheduling of controlled substances, subject only to the limited exception that more restrictive state scheduling of substances already scheduled on some federal schedule was allowed. See, e.g., Gov. Mem. 12/7/07 in United 9

10 Since adopting the controlled substance schedules in the confonning legislation in 1972, the state had regularly passed confonning legislation, to update the state schedules relative to federal listings. See 1973, 1974, 1975, 1977, 1978, 1979, 1981, 1982, 1984, and 1985 Public Acts (listed in the notes of the annotated version of the General Statutes under the now-repealed Section 21a-242). The 1986 amendment adding the new fentanyl analogs was a recurrence of this "annual event at the legislature, where the state of Connecticut amends their statutory list of controlled drugs to conf{o]nn with the Federal Statute." 29 H.R. Proc., Pt. 5, 1986 Sess., p. 1626, remarks of Rep. Kusnitz (April 9, 1986), attached as Ex. 2 hereto. In the meantime, federal authorities were examining the substances that had been listed on an emergency, temporary basis in November 1985, to detennine whether it was appropriate to schedule them pennanently pursuant to 21 U.S.C. 811(a)(1). See 51 Fed. Reg (Nov. 28, 1986). Based on the results of the studies of the substances sponsored by DEA, in conjunction with the Department of Health and Human Services, on November 28, 1986, the DEA proposed pennanent scheduling in Schedule I of all of the substances but two: thenylfentanyl and benzylfentanyl. ld. Thenylfentanyl and benzylfentanyl were omitted from the pennanent listing because the phannacological and biological testing of the substances - which included assessment of morphine-like activity, addiction liability and analgesic effect indicated that the compounds were both essentially inactive, with no evidence of abuse potential. See, e.g., id.; States v. Lopez, 06CR283(JBA). The Government no longer pursues this position, however, in light of the holdings of the judges in this District that the effect of Conn. Gen. Stat. 21 a-243(f) is to ensure that in the event of a conflict between the state and federal scheduling systems, the more restrictive schedule prevails. See United States v. Lopez, 536 F. Supp. 2d 218 (D. Conn. 2008) (Arterton, J.); United States v. Cohens, 2008 WL (D. Conn. Aug. 13, 2008) (Bums, J.); United States v. Madera, 521 F. Supp. 2d 149 (D. Conn. 2007) (Droney, J.). 10

11 Howard McClain, Jr., Chief, Drug Control Section, DEA, and Frank Sapienza, Drug Control Section, DEA, The Role of Abuse Liability Testing in Drug Control Procedures, National Institute on Drug Abuse Research Monograph Series, No. 92 (1989), p. 38; Drug Control Section, Office of Diversion Control, Drug Enforcement Administration, Scheduling Recommendation for Acetyl-Alpha-methylfentanyl, Alpha-methylthiofentanyl, Betahydroxyfentanyl, Beta-hydroxyfentanyl, Beta-hydroxy-3methylfentanyl, 3-Methyl-thiofentanyl, Para-flourofentanyl and Thiofentanyl (Oct. 1986) (excerpt of unpublished report), and Letter from James Tolliver, Ph.D., Chief, Drug and Chemical Control Unit, DEA, dated November 30, 2007, Ex. 3 hereto. Without further regulatory action, the temporary, emergency scheduling of thenylfentanyl and benzylfentanyl in the federal controlled substances schedules expired, as a matter of law, at the end of 12 months, on November 29, 1986, while the other substances underwent permanent scheduling. See 21 U.S.C. 811(a)(1), (h); 51 Fed. Reg (Nov. 28, 1986); 52 Fed. Reg (May 29, 1987); 21 C.F.R DEA has not sought to re-schedule these substances because the state of the pharmacological data has not changed. The available evidence continues to indicate that thenylfentanyl and benzylfentanyl are essentially inactive as opioids. Letter from James Tolliver, Ph.D., Chief, Drug and Chemical Control Unit, DEA, dated November 30,2007, Ex. 3 hereto. Yet, with no notice in the Federal Register regarding the expiration of the scheduling of thenylfentanyl and benzylfentanyl, those substances remained physically listed in part (g) of federal Schedule I. 21 C.F.R (g). In fact, they remain listed there today under the heading of temporarily listed substances, with no notation about the date of their expiration. Id. 11

12 The State of Connecticut, in the meantime, had begun the process of switching from a statutory system of schedules to a regulatory system, in an effort to respond with greater flexibility and less legislative burden to changes in federal listings of controlled substances. See, e.g., Conn. Public Acts 1986, No. 96, 6 (authorizing commissioner of consumer protection to designate substances as controlled substances in Schedules I to V, and to change schedule designations under then Section 21a-242 of the Connecticut General Statutes (the statutory schedules of controlled substances)); see, e.g., 29 S. Proc., Pt. 2, 1986 Sess., pp , Remarks of Sen. Gunther (April 3, 1986) (concerning the legislation that became Public Acts 1986, No. 96, describing its purpose "to conform the State classification of the scheduled drugs and controlled substances to the federal classifications," and stating that "we do this every year and, thank God, that this year we've got this bill which is going to allow the Department of Consumer Protection in the future to do this by regulation"), Ex. 2 hereto. Pursuant to the authority conferred on it by Conn. Public Acts 1986, No. 96, the Department of Consumer Protection promulgated regulatory schedules, "to transfer [the] controlled substance schedules from legislation to administration regulation." Conn. Regs. 21a through 11 (1987 Rev.) (on file at the Office of the Conn. Sec. of State). The Department of Consumer Protection thereafter amended the regulatory schedules from time to time to bring about conformity with federal scheduling actions. See, e.g., Conn. Regs. 21a through 11 (1991 Rev.), p. 3 ("Statement of Purpose: To conform Connecticut's Controlled Substance regulations to those adopted under the Federal Controlled Substances Act") (on file at the Office of the Conn. Sec. of State); 56 Conn. L. J. 38 (March 21, 1995) (notice of amendment to Conn. Regs. 21a through 11: "Statement of Purpose: To 12

13 update the schedules of controlled drugs to reflect changes made in the Federal schedules"); 59 Conn. L (Nov. 25, 1997) (notice of intent to amend Conn. Regs. 21 a through 11: "Statement of purpose: To reclassify flunitrazepam from a Schedule IV controlled substance to a Schedule I controlled substance, and to classify the drug Butorphanol as a Schedule IV controlled substance"), following earlier final nlle by federal DEA, 62 Fed. Reg (October 1, 1997); 59 Conn. L. J. 49 (June 2, 1998) (notice of intent to amend Conn. Regs. 21a through 11: "Statement of purpose: To designate the drug Sibutramine as a Schedule IV controlled substance"), following earlier final rule by federal DEA, 63 Fed. Reg (February 11, 1998); 64 Conn. L (Dec. 10,2002) (notice of intent to amend Conn. Regs. 21a through 11: "Statement of purpose: To conform Connecticut's Controlled Substances Schedules to changes made to the federal Controlled Substances Schedules"). In fact, in keeping with the general statutory scheme of maintaining conformance with the federal schedules, virtually every regulatory revision was intended to effect overall conformance with the federal schedules. Yet, despite the expiration of thenylfentanyl and benzylfentanyl as federally scheduled substances as a matter of law a year after the emergency listing, in spite of the overall trend in Connecticut's regulation of controlled substances toward conformance with federal scheduling, and notwithstanding the scientific data establishing that the substances are inactive, thenylfentanyl and benzylfentanyl have remained present in the state regulatory schedules. No federal action in the Federal Register, or otherwise, had been taken to note in the Code of Federal Regulations the date on which the temporary listing expired, and no action has been taken on the state side either. See 21 C.F.R (g) (2007); Conn. Regs. 21a (2007). It is extremely unlikely that anyone has ever been prosecuted in Connecticut or 13

14 anywhere else - for conduct relating to these obscure, phannacologically inactive substances. There appears to be no published or unpublished decisions by Connecticut's state courts that even mention these substances; a search in Westlaw's "allstates" and "allfeds" databases for the two terms yields no responsive cases involving prosecution in any jurisdiction. Indeed, the director of the Connecticut Controlled Substances/Toxicology Laboratory has advised the Government that the Laboratory has never identified either of these substances in any sample of suspected drugs submitted to the laboratory for analysis by state or local law enforcement, has therefore never been asked by law enforcement officials to test for the substances, has never needed to develop a protocol for the detection of these substances, and is unable even to purchase the stock samples of these substances that would be necessary to test for them due to their absence from the marketplace for such samples. Nevertheless, because thenylfentanyl and benzylfentanyl have remained listed in Connecticut's Schedule I as narcotic substances, Conn. Regs. 21a-243-7, there remains an abstract theoretical possibility that under Conn. Gen. Stat. 21a-277(a) someone hypothetically could have been convicted in April 1994 the time of defendant's Connecticut drug conviction at issue here - for conduct relating to a substance that did not constitute a "narcotic drug" under federallaw. 5 Consequently, the Government concedes that the Court may not place categorical 5 The defendant notes one additional substance that is not controlled federally but that could theoretically have formed the basis of a prosecution under Conn. Gen. Stat. 21a-277(a) during a certain period oftime: TFMPP, or trifluoromethylphenylpiperazine, which appears on Connecticut's Schedule I(c) as a hallucinogen, Conn. Regs. 21a-243-7, but not on the corresponding federal schedules. See Def. Mem. 6/8/09 at As with the discrepancy concerning thenylfentanyl and benzylfentanyl, this divergence is another accident of history, which was caused by the State of Connecticut's ironic effort to track federal law. In September 2002, the U.S. Drug Enforcement Agency temporarily listed TFMPP on the federal Schedule of Controlled Substances, on an emergency basis. See 67 Fed. Reg (Sept. 20,2002),67 Fed. Reg (Sept. 20, 2002). 14

15 reliance on defendant's 1994 state conviction to detennine whether it constitutes a prior felony drug offense under 21 U.S.C. 851, 841 (b)(1)(b) and 802(44). C. Modified Categorical Analysis - the Ironic Inability to Prove that Defendant's Offense Involved Cocaine Because a categorical approach is not possible, the Court must consider whether defendant's 1994 conviction can be detennined through a modified categorical analysis to constitute a prior felony drug offense under 21 U.S.C. 851, 841 (b)(1)(b) and 802(44). Shepard, 544 U.S. at 21, 26. The Government concedes that in light of the lack of specification Following the federal lead, the State of Connecticut likewise added TFMPP to its schedule in 2002, confinning in its explanation that the "purpose" of the change was "[t]o confonn Connecticut's Controlled Substances Schedules to changes made to the federal Controlled Substances Schedules." 64 Conn. L. J. 24 (Dec. 10, 2002); 65 Conn. L. J. 7 (Aug. 12, 2003) (regulatory changes effective as of Jun. 18,2003). The Attorney General of the United States eventually allowed TFMPP's federal listing to expire on March 19, 2004, after having reviewed "available infonnation regarding the phannacology, chemistry, trafficking, actual abuse, pattern of abuse and the relative potential for abuse" of that drug. 69 Fed. Reg (Mar. 18, 2004). However, once again, the State of Connecticut has never acted to remove TFMPP from the state Schedules of Controlled Substances. Because the federal-state discrepancy concerning this substance did not arise until March 19, 2004 long after the 1994 conviction at issue here the Court need not consider TFMPP in this case. The defendant has also advanced arguments regarding the alleged over-inclusion of Conn. Gen. Stat. 21a-277(b), due to Connecticut's control offenfluramine and chorionic gonadotropin. Def. Mem. 6/8/09 at While the state indeed does regulate fenfluramine as a Schedule IV controlled substance, Conn. Regs. 21a , it appears that fenfluramine has been consistently regulated by the DEA since 1973, when the DEA detennined that it was chemically and phannacologically similar to the stimulant amphetamine. See 62 Fed. Reg (May 6, 1997) (reviewing history of DEA's regulation of fenfluramine). Chorionic gonadotropin has not been scheduled in the federal Controlled Substances Schedules; the substance was added to Connecticut's schedules in 1989 pursuant to legislation mandating the scheduling of certain listed substances as anabolic steroids. Conn. Special Acts 1989, S.A ; 51 Conn. L. J. 5B (Oct. 10, 1989) (anabolic steroids scheduling in Connecticut complete Sept. 22, 1989). However, these issues are not currently before the Court, insofar as defendant's 1994 conviction was under Conn. Gen. Stat. 21a-277(a), which criminalizes conduct relating to only "hallucinogenic sub stance [ s]" and "narcotic substance[s]." Defendant's conviction therefore could not have been based on conduct relating to fenfluramine or chorionic gonadotropin, as defendant acknowledges. See Def. Mem. 6/8/09 at

16 in the charging document and considering that defendant invoked the Alford doctrine in pleading guilty, despite the fact that the prosecutor specified that the offense was based on an accusation of dealing in cocaine - the Government cannot prove that the conviction constituted a felony drug offense through the limited forms of proof allowed under Taylor and Shepard. First, as is often the case in Connecticut state criminal practice, the charging document for the 1994 conviction does not specify the substance involved in defendant's offense. See Information, Ex. D to Def. Mem. 6/8/09. It merely notes "Poss narcs w/ intent to sell," id., which leaves open the hypothetical possibility of conviction for conduct involving the state-controlled substances, thenylfentanyl and benzylfentanyl. Second, as is also often the case in Connecticut criminal practice, defendant invoked the Alford doctrine in pleading guilty, thereby avoiding admission of his participation in the acts constituting the crime. North Carolina v. Alford, 400 U.S. 21 (1970). Ironically, the transcript of the plea proceeding reveals that the prosecutor explicitly identified cocaine not thenylfentanyl or benzylfentanyl- as the substance upon which defendant's charge was based: [On] April 12 th, 1992 in the area of89 Melton (phonetic) Court officers observed the defendant approaching individuals, making exchanges, and receiving cash in exchange... [Brief discussion with Court] The officer observed him making exchanges and receiving money in exchange for a small item. Officers moved in and stopped the defendant along with codefendants. He was in possession of a bag of white powder substance hidden in between his money which totaled $298.00, and the narcotic in question voltox tested positive to cocaine.... See Conn. Sup. Ct. Transcript 2110/94, Ex. E to Def. Mem. 6/8/09 at 9 (emphasis added). However, in light of the recent decision of the Second Circuit in Savage, defendant's invocation 16

17 of the Alford doctrine precludes reliance on the prosecutor's statement of the facts - without more - to narrow defendant's conviction to conduct that would necessarily constitute a felony drug offense under 21 U.S.C. 841(b)(1)(B). See Conn. Sup. Ct. Transcript 2110/94, Ex. E to Def. Mem. 6/8/09 at 18; Savage, 543 F.3d at 966. III. CONCLUSION In enacting the second offense provisions at 21 U.S.C. 841(b)(I), Congress clearly deemed it appropriate to protect the public by imposing significantly longer tenns of imprisonment on narcotics trafficking defendants who have a track record of recidivisnl. It is hard to imagine that Congress envisioned defendants with prior convictions such as Mr. Jackson's avoiding those enhanced penalties because of the circumstances described herein. Nevertheless, for the reasons set forth above, the Government is constrained to concede that the second offender sentencing enhancement pursuant to 21 U.S.C. 851 and 841 (b)(l)(b) should not be applied to defendant in this case. Respectfully submitted, NORA R. DANNEHY ACTING UNITED STATES ATTORNEY /s/ JAMES R. SMART ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct20982 United States Attorney's Office 915 Lafayette Boulevard Bridgeport, Connecticut Phone: (203) Fax: (203) James. Smart@usdoj.gov 17

18 CERTIFICATION OF SERVICE This is to certify that on June 29, 2009, a copy of the foregoing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CM/ECF System. James R. Smart 18