

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-2289

                          UNITED STATES,

                            Appellee,

                                v.

                      BRADLEY OLIVER BOWEN,

                      Defendant - Appellant.

                                           

No. 96-2290

                          UNITED STATES,

                            Appellee,

                                v.

                      RINALDO TICCHIARELLI,
               a/k/a RONALDO, a/k/a WHITNEY DOREY,

                      Defendant - Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]                                                             

                                           

                              Before

                     Torruella, Chief Judge,                                                     

              Bownes and Cyr, Senior Circuit Judges.                                                             

                                           

     J. Bradford Coffey,  by appointment of the  Court, with whom                                 
Farrell, Rosenblatt &amp; Russell was on  brief for appellant Bradley                                       
Oliver Bowen.
     G. Richard Strafer, with whom  Qui on &amp; Strafer, P.A. was on                                                                    
brief for appellant Rinaldo Ticchiarelli.
     Margaret  D. McGaughey,  Assistant  United States  Attorney,                                     
with whom  Jay  P. McCloskey,  United States  Attorney, James  L.                                                                           
Moore, Assistant  United States  Attorney, and  Timothy D.  Wing,                                                                          
Assistant United States Attorney, were on brief for appellee.

                                           

                        September 24, 1997
                                           

                               -2-

          TORRUELLA,  Chief Judge.  This appeal presents an issue                    TORRUELLA,  Chief Judge.                                           

of first impression, namely, whether the term "hashish oil" under

18   U.S.C.        841(b)(1)(D)    and   U.S.S.G.      2D1.1   is

unconstitutionally  vague,  or  so ambiguous  as  to  require the

application  of  the  rule  of  lenity,  as  applied  to  conduct

occurring prior to  a November 1995  amendment to the  Sentencing

Guidelines  that provided, for  the first time,  a definition for

the term.

          Appellants   were    convicted   for    importing   and

trafficking,  prior to the  Guideline amendment, in  a controlled

cannabis-derived substance  the precise  classification of  which

was  left to  be determined  during sentencing.    The sentencing

court determined the substance to be "hashish oil," as opposed to

"marihuana,"  and concluded  that it  was appropriate to  apply a

fifty to one  quantity conversion ratio  under the Drug  Quantity

Table of  the Sentencing  Guidelines.   See U.S.S.G.    2D1.1(c).                                                     

Finding  that  genuine  ambiguity  regarding  the  definition  of

"hashish oil" prior to 1995  mandates the application of the rule

of lenity in this case, we reverse and remand for re-sentencing.

                            BACKGROUND                                      BACKGROUND

          Defendants-Appellants Bradley Oliver  Bowen and Rinaldo

Ticchiarelli participated in a scheme, along with three other co-

conspirators, to smuggle controlled  substances from Jamaica into

the United  States, to  store the substances  in Maine,  and from

there to eventually  smuggle contraband drugs into Canada.   With

Bowen's assistance,  Ticchiarelli  organized two  boat  trips  to

                               -3-

Jamaica to pick up marihuana  and a marihuana-based substance and

stored  large quantities of these controlled substances in Maine,

for later export into Canada.

          The illicit substances involved were marihuana and much

greater   quantities  of   a   black,  tar-like   marihuana-based

substance.   In  a consolidated  appeal,  Brown and  Ticchiarelli

challenge  the district  court's determination  during sentencing

that the  tar-like substance in  which they were  trafficking was

"hashish  oil."1    Both  seek  to be  sentenced  as  though  the

controlled substance were  "marihuana."  Prior to  the sentencing

stage, their cases travelled different procedural routes.

          Pursuant to a plea agreement, Ticchiarelli  pled guilty

on September 14, 1995 to Counts One, Eight and Ten of a ten-count

indictment.   Although these  counts made  specific reference  to

"hashish oil," as part of his plea agreement Ticchiarelli did not

concede that  the Schedule  I controlled  substance was  "hashish

oil."    Count  One  alleged  a  conspiracy  to  commit  and  the

commission of, with Bowen and three others, the following  crimes

occurring  between  August  1994  and  March  1995:  importing  a

Schedule  I controlled  substance  ("hashish oil")  derived  from

marihuana into the United States in violation of 21 U.S.C.   952;

importing  marihuana into the  United States  in violation  of 21

U.S.C.    952; distributing the  "hashish oil" intending  that it

would be unlawfully imported, in violation  of 21 U.S.C.   959(a)

                                                  

1   As discussed infra,  Bowen asserts additional claims  not put                                
forward by Ticchiarelli.

                               -4-

(1); possessing with intent to distribute a Schedule I controlled

substance  ("hashish oil")  derived from  marihuana,  as well  as

possessing with intent  to distribute marihuana, in  violation of

21   U.S.C.     841(a)(1);  exporting  a  Schedule  I  controlled

substance ("hashish  oil") as well  as marihuana from  the United

States, in  violation of  21 U.S.C.   953.   Count  Eight charged

Ticchiarelli with  making false  representations  to the  Customs

Service  by presenting false  identification, in violation  of 18

U.S.C.   1001, and Count Ten recited the other counts in invoking

the criminal forfeiture provision of 21 U.S.C.   853.

          The plea agreement  signed by Ticchiarelli stated  that

the Schedule I  controlled substance of  Count One was  "hashish"

when  processed  into  liquid  form,  but  Ticchiarelli   nowhere

conceded that the substance  was "hashish oil," and the  district

court reserved the issue of the precise identity of the substance

for determination at sentencing when it accepted the guilty plea.

          Bowen, unlike  Ticchiarelli and the  other conspirators

named in Count One  of the indictment, did not enter  into a plea

bargain.  On February 6,  1996, Bowen was convicted after a  jury

trial on Counts One, Six and Seven.  Counts Six and Seven charged

a second  instance, in March  1995, of possession with  intent to

distribute  a Schedule I controlled substance ("hashish oil"), in

violation  of  21  U.S.C.     841(a)  and  841(b)(1)(B)(vii), and

possession with intent  to distribute marihuana, in  violation of

21  U.S.C.    841(b)(1)(D).  The Presentence Investigation Report

(PSR)  in  Bowen's case  states  that  the contested  Schedule  I

                               -5-

controlled substance  was hashish oil.   Bowen disputed  that PSR

determination and contended that the Guideline's use of  the term

"hashish  oil" was  unconstitutionally vague.    Bowen sought  to

consolidate  his  case  with those  of  his  co-conspirators with

respect to  the issue of  the nature of the  controlled substance

referred  to as "hashish  oil" in the  indictment, and as  to the

legal validity of this allegedly ambiguous provision.

          The cases were consolidated and  on August 9, 1996, the

district court convened  an evidentiary hearing to  determine the

proper characterization  of the  controlled Schedule  I substance

for the purposes  of sentencing Bowen, Ticchiarelli,  and another

co-conspirator.   At the  hearing, experts  on each side  offered

differing definitions  of the  term hashish oil.   On  October 2,

1996,  the district  court ruled  that based on  undisputed facts

regarding the physical appearance and chemical composition of the

substance,  the substance fit  within the ambit  of the "ordinary

meaning" of hashish oil.   See United States v. Ticchiarelli, 943                                                                      

F. Supp. 77, 83  (D. Me. 1996) (Order  Determining the Nature  of

the  Controlled Substance  for  Purposes  of  Sentencing).    The

district  court  also  stated,  however,  that  after considering

expert  testimony proffered by the government and the defendants,

and after consulting further materials in order  to ascertain the

meaning of the term "hashish  oil," it had discovered that "there

is  no scientific nor any universally accepted precise definition

of the term hashish oil."  Id. at 82.                                        

          Having found  the  controlled substance  to be  hashish

                               -6-

oil, the court  established the base offense level  for Bowen and

Ticchiarelli  by following  section 2D1.1(c):  it multiplied  the

quantity (measured by  weight) of the "hashish  oil" attributable

to the defendants by a factor of fifty, added that figure  to the

amount  of other marihuana  attributable to them,  and determined

the base offense level corresponding to the resulting, marihuana-

equivalent  drug quantity figure.2   The base  offense levels for

Bowen and Ticchiarelli were 36 each, and, ultimately, their total

offense levels were determined to be 38.

          On  appeal, both  Ticchiarelli  and  Bowen assert  that

Sentencing Guideline section 2D1.1's use of "hashish oil" without

a  definition (prior to November 1995) was unconstitutional, and,

in the  alternative, that  the rule of  lenity required  that any

ambiguity as  to the definition  of "hashish oil" be  resolved in

their favor  -- that  is, through a  finding that  the marihuana-

based  substance was  not hashish  oil  for sentencing  purposes.

Bowen  additionally  claims  error in  the  admission  of certain

evidence in his criminal  trial and asserts that the fifty to one

ratio   between  marihuana  and  hashish  oil  is  arbitrary  and

irrational, thereby violating the Due Process clause of the Fifth

                                                  

2  The court determined that 393 kilograms of hashish oil  and 48
kilograms of marihuana were attributable to the defendants.  This
amounts, after the one  to fifty conversion, to 19,698  kilograms
of marihuana equivalent, corresponding to a base offense level of
36.   See U.S.S.G.    2D1.1(c).   Had  the substance  been deemed                   
marihuana instead, the corresponding base offense level for Bowen
and Ticchiarelli  would have  been 28.   Given the  total offense
levels of 38, this eight point increase translates into a minimum
difference in incarceration  periods of 114 months  for Bowen and
141 months for Ticchiarelli.

                               -7-

Amendment.

                               -8-

                            DISCUSSION                                      DISCUSSION

          I.  The Meaning of "Hashish Oil"                    I.  The Meaning of "Hashish Oil"

          The district  court's interpretation of the  meaning of

"hashish  oil" under the  Sentencing Guidelines presents  a legal

question over which we  assume de novo review, as does  the legal                                                

issue  of whether the  term was vague  or ambiguous prior  to the

1995  amendment.  United States v. Camilo,  71 F.3d 984, 986 (1st                                                   

Cir. 1996);  United States  v. Bohai Trading  Co., Inc.,  45 F.3d                                                                 

577, 580  (1st Cir.  1995).  The  sentencing court's  findings of

fact  regarding the properties of the controlled substance itself

are subject to review for clear error.  Camilo, 71 F.3d at 986.                                                        

          The following factual findings regarding the controlled

substance are undisputed:  (1) it is derived from marihuana plant

matter  (cannabis  sativa),  and  not  from  marihuana  resin  or

hashish; (2) it  is a  black or  near-black substance  resembling

road tar; (3)  it is  not pourable  at room  temperature; (4)  it

contains  tetrahydrocannabinol  (THC)  in the  13  to  16 percent

range;   (5)  it  contains  cannabinol  and cannabidiol;  (6)  it

contains no fragments of vegetation perceptible to the naked eye;

(7)  it contains chlorophyll and magnesium;  (8) it originates in

Jamaica.  See 943 F.  Supp. at 78.   The appeal turns on  whether                       

this substance can be said to be "hashish oil."

          Under  the  amendments  to  the  Sentencing  Guidelines

effective November 1,  1995, the following definition  of hashish

oil was provided:

            Hashish  oil, for  the  purposes of  this
            guideline,  means  a preparation  of  the

                               -9-

            soluble    cannabinoids   derived    from
            cannabis that includes:  (i) one or  more
            of the  tetrahydrocannabinols (as  listed
            in 21  C.F.R.   1308.11(d)(25)),  (ii) at
            least two  of the  following: cannabinol,
            cannabidiol,   or  cannabichromene,   and
            (iii)  is   essentially  free   of  plant
            material    (e.g.    plant    fragments).                                       
            Typically, hashish oil is a viscous, dark
            colored oil, but  it can vary from  a dry
            resin to a colorless liquid.

U.S.S.G.   2D1.1(c), Drug Quantity Table, Note (J) (Nov. 1995).

          Prior  to November  1995, the  term  "hashish oil"  was

undefined  in both the Code, see 21 U.S.C.   841(b)(1)(D), and in                                          

the  Guidelines.    Moreover,  the  legislative  history  of  the

Comprehensive Crime Control Act of 1984, which first  enacted the

fifty to one ratio and  introduced the term "hashish oil"  to the

Code, is silent as to the meaning  of the term.  See Pub. L.  No.                                                              

98-473, 98  Stat. 2030,  2070, 2086; S.  Rep. No.  98-634 (1984);

H.R.  Rep.  No. 98-1030  (1984).   Although the  undisputed facts

regarding the substance at issue  would appear to place it within

the   current  definition,   this   definition,  constituting   a

significant and substantive addition to the guidelines, cannot be

retroactively applied to these defendants.   See United States v.                                                                        

S nchez, 81 F.3d 9, 12  (1st Cir. 1996) (Guideline amendment that                 

is  not a  mere clarification,  and that  is not  covered by  the

policy  statement  of  section  1B1.10,  is  not  to  be  applied

retroactively).   For example,  this definition  includes a  "dry

resin"  within the  scope of  the  term "hashish  oil," a  matter

                               -10-

which, as discussed  below,3 could not be considered  part of the

core meaning of "hashish oil" prior to the amendment.

          It is clear, however, that whether or not the substance

at issue is "hashish oil," it certainly  qualifies as "marihuana"

under the Code:

            The term "marihuana"  means all parts  of
            the  plant  Cannabis sativa  L.,  whether
            growing  or not;  the seeds  thereof; the
            resin  extracted  from any  part  of such
            plant; and  every compound,  manufacture,
            salt, derivative, mixture  or preparation
            of  such plant, its seeds or resin.  Such
            term does  not include the  mature stalks
            of such  plant, fiber produced  from such
            stalks, oil or  cake made from  the seeds
            of such plant, or . . . [any preparations
            thereof].

21 U.S.C.    802(16) (Supp. 1997).   It is not disputed  that the

substance at issue in this appeal falls within this broad, catch-

all definition  of "marihuana."   The question is whether  it can

also  be  found  to  be  "hashish  oil"  under the  pre-amendment

Guidelines.  Appellants raise several grounds for concluding that

it cannot.   We need not  address their contention  that the term

"hashish  oil"  is  void  for  vagueness,  however,  because  our

conclusion  that  the  application  of  the  rule  of  lenity  is

appropriate  in this case provides the appellants the relief they

seek.

          II.  The Rule of Lenity                    II.  The Rule of Lenity

          Appellants  contend  that  in  the  face  of  ambiguity

regarding the scope of the term "hashish oil," the district court
                                                  

3  See  infra discussion of applicability  of rule of  lenity for                       
core meaning of hashish oil.

                               -11-

should have  followed the  rule of lenity  by accepting  the more

restricted  definition of hashish  oil offered by  the defendants

and by  sentencing the  defendants as  though the substance  were

"marihuana" under the Guidelines.

          As the Supreme Court has consistently held, the rule of

lenity  commands that  genuine  ambiguities affecting  a criminal

statute's scope be resolved in the defendant's favor.  See, e.g.,                                                                          

United States  v. Lanier,  117 S. Ct.  1219, 1225  (1997); United                                                                           

States  v. Nippon  Paper Indus.  Co., 109 F.3d  1, 7-8  (1st Cir.                                              

1997)(collecting  cases).  The  important purposes served  by the

rule of lenity include the  following: "to promote fair notice to

those  subject to  the criminal  laws,  to minimize  the risk  of

selective  or arbitrary enforcement,  and to maintain  the proper

balance between  Congress,  prosecutors,  and  courts."    United                                                                           

States v. Kozminski, 487 U.S. 931, 952 (1988).  However, the rule                             

only "properly comes  into play when,  at the  end of a  thorough

inquiry,  the meaning  of a  criminal  statute remains  obscure."

United  States v. O'Neil, 11 F.3d 292,  301 n.10 (1st Cir. 1993).                                  

Put  another way, the  rule of lenity means  that "the Court will

not interpret  a federal criminal  statute so as to  increase the

penalty  that   it  places   on  an   individual  when  such   an

interpretation can be  based on no more  than a guess as  to what

Congress intended."   Ladner v. United States, 359  U.S. 169, 178                                                       

(1958).

          We  find that experts  for both the  government and the

defendants offered reasonable constructions of the  term "hashish

                               -12-

oil" at the August 9,  1996 evidentiary hearing, and further find

that  the legislative  history  provides no  guidance  as to  the

term's meaning.  Presented with  a variety of educated guesses as

to  the meaning  of "hashish  oil" --  that is, presented  with a

genuine ambiguity  -- we  hold that the  rule of  lenity applies.

The defense expert, James Woodford, testified on the basis of his

experience as a chemist and as a drug testing expert that hashish

oil is a  transparent, honey-colored oil produced  in the process

of  compressing hashish into bricks.  Part. Tr. of August 9, 1996

Hearing,  at 38-40.   Woodford  testified that  hashish oil  is a

liquid with  high THC levels  (around 40%) and  that it is  not a

tarry,  thick substance.   Id.   On the other  hand, a government                                        

expert,  a forensic  chemist with  the  Drug Enforcement  Agency,

testified that  the substance  appeared to  be  hashish oil,  for

hashish  oil is  a marihuana-derived  substance  that is  chiefly

distinguished  from marihuana by  its lack of  plant material and

cystolithic  hairs,  and  that the  controlled  substance  lacked

cystolithic  hairs.   Id. at  6-7.   According to  the government                                   

experts, "hashish oil" need not resemble other familiar oils that

are liquid  at room temperature.   The record indicates  that the

substance, although undoubtedly  a controlled substance,  did not

have the slippery, viscous, or  liquid properties of an "oil," at

least as  that  term is  commonly used.   This  fact  is, in  our

opinion,  critical  to our  conclusion  that the  rule  of lenity

applies in this case.

          Although no  other  circuit court  has  addressed  this

                               -13-

issue,  appellants draw  our  attention  to  two  district  court

decisions involving a similar tar-like marihuana-based  substance

in which  the courts, in  the face of conflicting  definitions of

hashish oil from experts, applied the rule of lenity.  See United                                                                           

States v. Gravelle,  819 F. Supp. 1076, 1078-79  (S.D. Fla. 1993)                            

(pursuant to rule  of lenity, finding  substance to be  marihuana

rather than hashish oil); United  States v. Schultz, 810 F. Supp.                                                             

230, 234  (S.D. Ohio  1992) (pursuant to  rule of  lenity finding

substance to  be hashish  rather than hashish  oil).   Both cases

dealt with a  thick, tarry, black substance that did  not pour at

room temperature.

          In United  States v. Camilo,  we held that the  rule of                                               

lenity  was  not  applicable  where  a  defendant  challenged  an

enhanced sentence  for trafficking  in   "crack"  (as opposed  to

"powder")  cocaine.   See 71  F.3d  at 990  (rule  of lenity  not                                   

applicable because  "crack in  reality does  differ from  cocaine

powder," notwithstanding  similar medical  effects and  identical

scientific composition).   That case is distinguishable  from the

instant  appeal, because  in Camilo  we emphasized  that one  can                                             

clearly distinguish,  as a  practical matter,  between crack  and

powder cocaine.   The meaning  of the  term "crack" was  thus not

ambiguous.   Here, "hashish  oil," prior  to the  1995 amendment,

presents a  problem of definitional ambiguity, a problem to which

the rule of lenity clearly is addressed.

          For   lenity    to   be   appropriate,    genuine   and

insurmountable  doubt must  exist  as  to  whether  Congress,  in

                               -14-

enacting a higher penalty for  "hashish oil," intended to include

this particular, tarry substance within its scope.   The district

court, finding that "[t]he three experts presented by the parties

were as  deficient on the  subject of definition as  Congress and

the  Sentencing  Commission,"  943 F.  Supp.  at  79,  surveyed a

variety of publications for assistance.  See 943 F. Supp. at  80-                                                      

82.   The  "ordinary meaning"  of hashish  oil that  the district

court ultimately  applied, however, did  not represent a  kind of

least common  denominator among  the various  definitions it  had

culled.   Indeed, the publications  the court cited  include both

narrow and broad definitions of  hashish oil, and the court opted

for a broader definition  rather than a narrower one.   Id.  Even                                                                     

on the basis of the publications cited and quoted by the district

court in its order, we find that, at the very least, there exists

ambiguity as to whether "hashish oil":  (a) must be a liquid  (or

readily pourable, or  capable of being administered in  drops) at

room temperature;  and  (b) must  have  a THC  level  in a  range

significantly  higher than  that  of  marihuana.    We  therefore

conclude that the rule of lenity should have been applied in this

case, requiring  a narrower construction  of "hashish oil."   Had

the substance been  a potent liquid,  derived from cannabis,  and

lacking plant  material, then the  rule of lenity would  not have

been appropriate.  Although,  as the district court pointed  out,

Bowen  and  Ticchiarelli   should  have  known  that   they  were

trafficking  in  a   substance  that  could  result   in  serious

penalties,  as we  have indicated,  fair notice  is not  the sole

                               -15-

consideration motivating the rule of lenity.

          II.  Bowen's Other Claims                    II.  Bowen's Other Claims

          We  need  not  dwell at  length  on  Bowen's additional

claims.  First, his request for  a downward departure due to  the

low THC levels  of the substance is rendered  irrelevant in light

of  our holding  that the  rule  of lenity  applies.   Second, he

challenges the constitutionality  of the fifty to  one conversion

ratio between  hashish oil and  marihuana under U.S.S.G.    2D1.1

and 21 U.S.C   841(b)(1) (D).  In declining Bowen's invitation to

deem  Congress' enactment of  this ratio patently  irrational, we

need  only direct his attention to  United States v. Singleterry,                                                                          

29 F.3d 733, 739 (1st Cir. 1994), which upheld a challenge to the

Guideline  provision equating one  gram of cocaine  base with 100

grams of cocaine.   Indeed, the  fifty to one  hashish oil  ratio

presents  a  much  more straightforward  case  for after-the-fact

rationalization:  hashish oil can  be expected to  be more potent

and more easily transported than marihuana.

          Finally,  Bowen  challenges  the  admission of  a  drug

ledger  during  his criminal  trial.    Even assuming,  as  Bowen

alleges,  that the  drug ledger  confiscated at  the time  of his

arrest was not related to  the conduct charged in the indictment,

and  therefore  should  have  been  excluded  as  irrelevant,  on

reviewing the record we find  that any error was plainly harmless

and did not  implicate a constitutional right.   Given the varied

and   strong  proof,  based   on  direct  evidence,   of  Bowen's

participation  in the  conspiracy,  we find  the  "weight of  the

                               -16-

additional  evidence overwhelming,"  and conclude  that  the same

verdict would almost certainly result from  a new trial.   United                                                                           

States v. Rose,  104 F.3d 1408,  1414 (1st Cir. 1997).   Although                        

the drug  ledger was used  by the prosecution to  corroborate the

testimony   of   Bowen's  co-conspirators,   significantly,   the

accomplice testimony  was forcefully corroborated  by other  real

evidence and by the testimony of customs agents.

                               -17-

                            CONCLUSION                                      CONCLUSION

          For  the foregoing reasons the sentences applied to the

appellants are vacated  and the case  is remanded for  sentencing                         vacated                   remanded                                                           

pursuant to this opinion.

                               -18-
