IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ... IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...
F. CSA As Applied To Internet Pharmacies .................. 22 G. Rule Of Lenity ................................... 23 H. Impact of Devine’s Testimony ......................... 24 I. Subjective Standard Or Objective Standard ................. 25 VII. CONCLUSION ....................................... 26 I. INTRODUCTION The matters before the court are Defendant Douglas Willis Bouchey’s “Motion to Dismiss Due to Vagueness of Statute, Administrative Regulations; Violation of Due Process” (“Bouchey’s Motion”) (docket no. 100), “Supplement to [Bouchey’s Motion]” (“Bouchey’s Supplement”) (docket no. 214), Defendant Marshall Neil Kanner’s “Motion to Dismiss Due to Vagueness and Violation of Due Process” (“Kanner’s Motion”) (docket no. 102) and “Motion to Dismiss Indictment” (“Kanner’s Supplement”) (docket no. 207) (collectively, “Motions”). 1 II. RELEVANT PRIOR PROCEEDINGS On November 7, 2007, a grand jury returned and the government filed a thirty-one count Indictment (docket no. 2) against Defendant Orlando Birbragher (“Birbragher”), Marshall Neil Kanner (“Kanner”), Jack Eugene Huzl (“Huzl”), Douglas Willis Bouchey (“Bouchey”), Armando Angulo (“Angulo”) and Peter Colon Lopez (“Lopez”) (collectively, “the original defendants”). Count 1 charged the original defendants with Drug Conspiracy, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 841(b)(1)(D)(2), 846, 856(a)(1) and 861(a)(1). Count 1 To varying extents, Defendants Orlando Birbragher, Peter Colon Lopez and Douglas Willis Bouchey join the Motions. See Defendant Birbragher’s “Joinder in Co- Defendants’ Motions to Dismiss” (docket no. 105), Defendant Lopez’s “Joinder in Co- Defendant’s [sic] Motions to Dismiss” (docket no. 110), Defendant Birbragher’s “Joinder in Co[-]Defendant Kanner’s [Supplement]” (docket no. 210), Defendant Birbragher’s “Joinder in Co[-]Defendant [Bouchey’s Supplement]” (docket no. 215) and Defendant Bouchey’s “Joinder of Co-Defendant Kanner[’s Supplement]” (docket no. 212). See also Order (docket no. 121), at 1. 2
2 charged the original Defendants with Money Laundering Conspiracy, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I), 1956(a)(1)(B)(I), 1956(h) and 1957. 2 Counts 3, 8, 15, 18, 19, 21, 22 & 23 charged Bouchey with Distribution of a Scheduled III or IV Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1) or (2). Counts 4, 5, 6, 7, 9, 10, 11, 12, 14, 16, 17 and 20 charged Huzl with the Distribution of a Scheduled III or IV Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1) or (2). Counts 24 and 25 charged Huzl with Aiding and Abetting the Distribution of a Schedule III or IV Controlled Substance to a Minor, in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D)(1) or (2) and 859. Counts 26, 27 and 28 charged Huzl with Aiding and Abetting the Distribution of a Schedule III Controlled Substance, in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1). Counts 29 and 31 charged Angulo with Distribution of a Schedule III Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1). Count 30 charged Lopez with Distribution and Attempted Distribution of a Schedule III Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D)(1) and 846. The Indictment also contains Forfeiture Allegations against the original defendants. Pursuant to 21 U.S.C. § 853, 18 U.S.C. § 982(a)(1) and Federal Rule of Criminal Procedure 32.2(a), the government seeks approximately $41 million from Birbragher and Kanner, $103,000 from Huzl, $4,000 from Bouchey, $240,000 from Angulo and $240,000 from Lopez. Huzl died shortly after the Indictment. Upon suggestion of his death, the court dismissed all counts in the Indictment as to him. See Order (docket no. 51), at 1 (granting Motion to Dismiss (docket no. 47), at 1). That is, the court dismissed Counts 1 and 2 as to Huzl, and Counts 4-7, 9-12, 14, 16-17, 20 and 24-28 in their entirety. On July 11, 2 On June 9, 2008, the court dismissed Count 2 of the Indictment as to Bouchey. Order (docket no. 222). 3
- Page 1: IN THE UNITED STATES DISTRICT COURT
- Page 5 and 6: Rule 12. Pleadings and Pretrial Mot
- Page 7 and 8: 2. Money laundering conspiracy Betw
- Page 9 and 10: distributed at least 180,430 Schedu
- Page 11 and 12: C. Jacqueline Devine At all times r
- Page 13 and 14: Indictment instead relies upon admi
- Page 15 and 16: States and, in the event of abuse,
- Page 17 and 18: practice. Moore, 423 U.S. at 124 &
- Page 19 and 20: with criminal conduct under the CSA
- Page 21 and 22: absence of a definition of “legit
- Page 23 and 24: Fuchs, 467 F.3d at 905 (affirming c
- Page 25 and 26: vague state of the statutes and reg
- Page 27: IT IS SO ORDERED. DATED this 22nd d
2 charged the original Defendants with Money Laundering Conspiracy, in violation of 18<br />
U.S.C. §§ 1956(a)(1)(A)(I), 1956(a)(1)(B)(I), 1956(h) and 1957. 2 Counts 3, 8, 15, 18,<br />
19, 21, 22 & 23 charged Bouchey with Distribution of a Scheduled III or IV Controlled<br />
Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1) or (2). Counts 4,<br />
5, 6, 7, 9, 10, 11, 12, 14, 16, 17 and 20 charged Huzl with the Distribution of a<br />
Scheduled III or IV Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and<br />
841(b)(1)(D)(1) or (2). Counts 24 and 25 charged Huzl with Aiding and Abetting the<br />
Distribution of a Schedule III or IV Controlled Substance to a Minor, in violation of 18<br />
U.S.C. § 2, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D)(1) or (2) and 859. Counts 26, 27 and<br />
28 charged Huzl with Aiding and Abetting the Distribution of a Schedule III Controlled<br />
Substance, in violation of 18 U.S.C. § 2, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1).<br />
Counts 29 and 31 charged Angulo with Distribution of a Schedule III Controlled<br />
Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)(1). Count 30 charged<br />
Lopez with Distribution and Attempted Distribution of a Schedule III Controlled<br />
Substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D)(1) and 846. The<br />
Indictment also contains Forfeiture Allegations against the original defendants. Pursuant<br />
to 21 U.S.C. § 853, 18 U.S.C. § 982(a)(1) and Federal Rule of Criminal Procedure<br />
32.2(a), the government seeks approximately $41 million from Birbragher and Kanner,<br />
$103,000 from Huzl, $4,000 from Bouchey, $240,000 from Angulo and $240,000 from<br />
Lopez.<br />
Huzl died shortly after the Indictment. Upon suggestion of his death, the court<br />
dismissed all counts in the Indictment as to him. See Order (docket no. 51), at 1 (granting<br />
Motion to Dismiss (docket no. 47), at 1). That is, the court dismissed Counts 1 and 2 as<br />
to Huzl, and Counts 4-7, 9-12, 14, 16-17, 20 and 24-28 in their entirety. On July 11,<br />
2 On June 9, 2008, the court dismissed Count 2 of the Indictment as to Bouchey.<br />
Order (docket no. 222).<br />
3
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