When the Drug Is Not Scheduled: Analogue Act Defenses That Actually Work.

No, an unscheduled drug is not automatically illegal simply by being unscheduled. Instead, federal government law enforcement personnel will need to prove that an unscheduled drug meets the statutory conditions for criminal prosecution under 21 U.S.C. § 813 (colloquially known as the “Federal Analogue Act”). Section 813 treats substances meeting its statutory conditions as though they are Schedule I controlled substances. To support a criminal prosecution under this provision, the government must satisfy two requirements: first, it must establish that the substance is intended for human consumption, and second, it must establish that the substance is either a controlled substance analogue as defined in 21 U.S.C. § 802(32), or a controlled substance analogue as defined in 21 U.S.C. § 802(32)

What is a controlled substance analogue?

21 U.S.C. § 802(32) defines “controlled substance analogue” as “a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or 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 which, with respect to a particular person, such person represents or intends to have such an effect” The definitions for controlled substances are subject to substantial modification by the U.S. Department of Justice, U.S. Drug Enforcement Administration (DEA), and several other regulatory bodies. Therefore, as a result of the numerous statutory grounds on which the federal government can charge substance analogue offenses, it is essential to have access to a robust criminal defense strategy that can address each element of the prosecution. With that said, while substantial evidence will support convictions under the Federal Analogue Act in some cases, this statutory framework is not without weakness, and it is well within the means of a federal defense attorney to protect clients’ rights and liberties against unjust prosecutions and convictions under the Act.

Which five proof failures can defeat an analogue charge?

- Similarity to a Scheduled Reference Substance - Substantial similarity to a Schedule I or Schedule II substance is required.

• Similarity to Central Nervous System Effects - Substantial similarity to the central nervous system (stimulant, depressant, or hallucinogenic) effects of a Schedule I or Schedule II substance is also required. (This prong applies to the effects a person represents, claims, or intends the substance to produce.)
• Human Consumption Intent - Intending the substance for human consumption is also required.
• Admissible Evidence - The government’s evidence must be admissible under the applicable federal rules.
• Proof Beyond a Reasonable Doubt - The government must prove each charged analogue offense element beyond a reasonable doubt.

When Does the Federal Analogue Act Apply to a Drug Charge?

While these five shortcomings are the most prevalent ones, there are other defenses that may ultimately be most appropriate for addressing a specific case. With that said, to make an informed decision, the first step for an accused defendant will be to make a full analysis of the government’s evidence. We understand this. As a result, we don’t only evaluate the government’s case under the Federal Analogue Act, but under the Federal Controlled Substance Act as well. We understand that proving federal analogue status is an uphill battle. Therefore, our legal team is prepared to challenge the government’s evidence on every statutory ground. Whether this means:

• Challenging the analysis of a government chemical analyst who claims that molecular differences do not defeat substantial similarity;
• Challenging the analysis of a government pharmacologist who claims that a substance produces substantially similar central nervous system (CNS) effects;
• Challenging the applicability of the Federal Analogue Act based on the specific drug(s) involved;
• Challenging a government attorney’s argument that an allegation of human consumption is intended to be satisfied by the facts of the case;

Or

• Challenging the admissibility of the government’s evidence under the Federal Rules of Evidence.

No matter what grounds for challenge may be most appropriate, our goal will be the same: protect our clients’ constitutional rights and liberty interests. When your life is on the line, you need to be sure that your attorney has your interests in mind. At Spodek Law Group, we rely on our legal team. We offer a defense strategy in federal drug cases, and we focus our resources on protecting clients who are not guilty and innocent clients as well.

How do suppression, due-process, and entrapment fights change an analogue case?

These are three major forms of defense in criminal trials and proceedings. Due process violations, most commonly presented as lack of notice, form the basis for the first. While the other two are generally categorized as “trial defenses” and not “substantive defenses,” they can nonetheless lead to substantial improvements to the prognosis for an accused defendant. Each of these challenges will apply in Federal Analogue Act cases as well. These cases often involve arguments like:

Due Process and Vagueness / Overbreadth

When the government seeks to impose criminal liability for unlawful conduct, it is generally required to provide adequate notice of prohibited conduct and prohibited conduct. This, is known as the government’s duty of notice. Lack of notice is also known as the due process requirement. With this requirement in mind, vague and overbroad provisions can lead to dismissals or reversals of convictions. Due-process claims can be significant in federal analogue cases.

Suppression of Evidence

The Fourth Amendment supports suppression of evidence obtained through illegal searches and seizures, as well as suppression of evidence obtained through a defective warrant affidavit. The Fourth Amendment also applies in criminal cases where the government obtains evidence through unauthorized wiretaps, internet surviellance, and other forms of warrantless searches. Therefore, if the government obtained incriminating evidence improperly, the Federal Rules of Evidence may not allow the government to use the information against a defendant. Challenging evidence’s admissibility is another form of defense to an analogue charge.

Entrapment

The last type of defense is entrapment. Entrapment requires government inducement and the defendant’s lack of predisposition to commit the crime. With the Federal Analogue Act, the element of intent is critical. As a result, if the government’s investigation is the reason you were accused in a criminal case, a skilled federal drug defense attorney can use the principle of entrapment to protect your rights, liberty, and livelihood. Unlike the other defenses, entrapment is an affirmative defense that, if established, defeats criminal liability and ordinarily results in acquittal rather than dismissal.

When do federal exclusions, state analogue laws, and pharmacy’s five rights actually matter?

If a substance is already on a list of controlled substances, then by definition, it can’t be an analogue to a Schedule I or Schedule II substance. It is excluded under 21 U.S.C. § 802(32) in the drug’s approved form, and it continues to remain excluded unless and until the substance is converted. This is the same principle that applies to all prescribed medication and other federally approved substances: they are excluded from analogue status so long as they are used in their approved forms. As a result, a primary focus of our legal team is to determine what are the applicable rules and what types of arguments will be the most effective under the specific facts of the case at hand.

Investigational Use or Research

In some cases, an investigational substance is excluded from the definition of controlled substance analogue only to the extent that an exemption for investigational use is in effect under 21 U.S.C. § 355 and the conduct is pursuant to that exemption. This exemption covers a broad spectrum of drugs and other substances used in medical research. As a result, these statutory grounds may provide opportunities to challenge the government’s case.

Non-Human Consumption Use

Under 21 U.S.C. § 813(a), a controlled substance analogue is treated as a Schedule I controlled substance only to the extent it is intended for human consumption. This means that the government must establish that the controlled substance analogue was intended for human consumption before it may be treated as a Schedule I controlled substance under 21 U.S.C. § 813. While this may seem like an “exception” or an “exemption,” it is actually a foundational requirement for establishing analogue status under the statute. It is just one of several shortcomings and weaknesses that a skilled federal drug defense lawyer can use to challenge a case.

State Analogue Laws

Our federal analogue defense team will also investigate applicable state analogue laws. In many cases, state laws apply to the manufacture, sale, and distribution of substances that meet the state’s statutory criteria for analogue status. Many states adopt substantially identical definitions of analogue status to those found under the Federal Analogue Act. However, some states adopt different definitions of analogue status as well. Some state statutes also cover more types of conduct that can trigger analogue liability, e.g., possessing the drug or attempting to sell it. Like the federal statute, state analogue laws have varying exclusions, and state courts interpret these exclusions differently as well. As a result, the state analogue laws applicable to your case may have a vastly different impact.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.