                                     ___________

                                     No. 95-2132
                                     ___________


United States of America,                  *
                                           *
           Appellee,                       * Appeal from the United States
                                           * District Court for the
     v.                                    * District of Minnesota.
                                           *
Allen McKinney,                            *
                                           *
           Appellant.                      *
                                     ___________

                     Submitted:      November 14, 1995

                            Filed:   March 25, 1996
                                     ___________

Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Allen McKinney challenges his conviction under 21 U.S.C. § 813 (the
analogue statute) for trafficking in drugs, arguing that the statutory
definition of an analogue drug is unconstitutionally vague.                  He also
appeals from his conviction for using and carrying a firearm during and in
relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c).
We affirm the judgment of the district court.1


                                          I.
     The   proof   tended    to   show   that   Mr.   McKinney   sold   aminorex   and
phenethylamine.    With respect to the period before aminorex became a listed
controlled substance, the government maintained that the sale of aminorex
was punishable as an analogue to the controlled




     1
     The Honorable Robert G. Renner, United States District Judge
for the District of Minnesota.
substance 4-methylaminorex.            Although phenethylamine is not a listed
controlled    substance,      the    government's    position     at     trial      was   that
phenethylamine was an analogue of the controlled substance methamphetamine
and thus prohibited under the analogue statute.             A witness testified that
Mr. McKinney sold pounds of aminorex at a time for prices up to $13,500 per
pound.      There was also testimony that agents searched Mr. McKinney's
property and discovered a 109-pound barrel of phenethylamine, that Mr.
McKinney began trafficking in phenethylamine when he could no longer obtain
aminorex, and that his customers used the aminorex and the phenethylamine
as substitutes for methamphetamine.             Expert witnesses and users of these
and   related      drugs   testified    that    aminorex    and   phenethylamine          were
comparable    to    certain      controlled    substances   in    both      their   chemical
structure and effect.             Government chemists offered descriptions and
comparisons of the chemical structures of the substances.


      There was evidence that Mr. McKinney sold these drugs out of a two-
story brick schoolhouse that he had fortified by covering many of its
windows with bricks or sheet metal.            Access to the building, according to
government testimony, was through an electronically operated door, and Mr.
McKinney had installed numerous video surveillance cameras in and around
the building which fed six monitors in a central "control room" on the
second floor.       Law enforcement officers testified that they found four
firearms (three of which were not loaded) in the control room with extra
ammunition nearby.          While other guns and ammunition were apparently
discovered elsewhere on Mr. McKinney's property, he was charged with
"using" only the four firearms that were in the control room.


      Mr.    McKinney      was    convicted     of   trafficking       in    aminorex      and
phenethylamine, using or carrying a firearm during and in relation to a
drug-trafficking crime, and money laundering.                After trial but before
sentencing, Mr. McKinney retained a new attorney and filed




                                              -2-
a motion to dismiss the counts in the indictment regarding analogue drugs,
arguing that the statute defining analogue substances is unconstitutionally
vague as applied to aminorex and phenethylamine.    Mr. McKinney also filed
a motion for new trial based on newly-discovered evidence, namely a report
from a pharmacologist (whom Mr. McKinney had retained post-trial) stating
that phenethylamine is not an analogue of any controlled substance, but
that aminorex was such an analogue.    (The pharmacologist later opined that
aminorex    was not an analogue either.)       The district court held an
evidentiary hearing and concluded that the analogue statute was not
unconstitutionally vague as applied to the facts in this case.          The
district court denied the motion for a new trial because Mr. McKinney
failed to show that the new evidence presented was in fact new, that it
could not have been produced at trial, and that it would likely have led
to an acquittal.   Mr. McKinney also argued for a new trial on the ground
that his trial lawyer had been ineffective, which argument the court found
untimely.


                                      II.
     Because Mr. McKinney did not raise his constitutional objection to
the statute under which he was prosecuted until after the jury convicted
him, we are more than a little dubious about the propriety of the
procedural posture in which this case presents itself.        But since the
government has made no argument that the issue was waived, we address the
merits of Mr. McKinney's constitutional claim.


     Because manufacturers of illegal drugs have become adept at tinkering
with the molecular structure of controlled substances while retaining the
effects that those substances produce, the analogue statute is aimed at
prohibiting innovative drugs before they are specifically listed in the
schedules as controlled substances.    Under that statute, a drug becomes a
controlled substance if it has a chemical structure substantially similar
to that of a controlled substance, and either has a substantially




                                      -3-
similar effect on the user's central nervous system, or a relevant someone
represents that it has or intends it to have such an effect.             See 21 U.S.C.
§ 802(32)(A).      In our case, the government charged that aminorex was an
analogue of the controlled substance 4-methylaminorex.               (We assume that
that name is a shorthand for the controlled substance cis-4-methylaminorex.
See 21 C.F.R. § 1308.11(f)(5) (1995).)               In September, 1992, the Drug
Enforcement Administration temporarily designated aminorex as a controlled
substance, 57 Fed. Reg. 43,399 (1992), a designation that has since become
permanent.    See 21 C.F.R. § 1308.11(f)(1) (1995).              As noted above, the
government    also      charged    that    phenethylamine   was    an    analogue   of
methamphetamine.


       Mr. McKinney argues that the statute is unconstitutionally vague
because    there   is   a   lack   of   scientific   consensus    that   aminorex   and
phenethylamine are analogues.           The focus of Mr. McKinney's attack on the
statute is the term "substantial similarity."            He urges that if experts
disagree as to whether the chemical structure of one drug is substantially
similar to a controlled substance, then the statute is unconstitutionally
vague as to that drug.        We concede that the statute is somewhat elastic,
because it is intended to capture within its scope drugs that are not
specifically listed and even some that perhaps have not been discovered
yet.      But we find that application of the statute to aminorex and
phenethylamine is not unconstitutionally vague, because, "[w]hile doubts
as to the applicability of the language in marginal fact situations may be
conceived, we think that the statute gave [defendant] adequate warning that
[his conduct] was a criminal offense."           United States v. Powell, 423 U.S.
87, 93 (1975).     "[T]he law is full of instances where a man's fate depends
on his estimating rightly, that is, as the jury subsequently estimates it,
some matter of degree."       Nash v. United States, 229 U.S. 373, 377 (1913).
In our case, a reasonable layperson could, for example, have examined a
chemical chart and intelligently decided for himself or herself, by
comparing their




                                           -4-
chemical diagrams, whether the chemical structure of two substances were
substantially similar.    At trial, two experts testified that aminorex and
phenethylamine were analogues under the statute, and one expert apparently
drew   diagrams   of   phenethylamine   and    methamphetamine   for   the   jury's
comparison.   We have examined the charts that appellant has submitted and
believe that they would have put a reasonable person on notice that the
substances in question were substantially similar within the meaning of the
statute.


                                        III.
       Mr. McKinney also contends that he was entitled to a new trial based
on newly-discovered evidence, namely, his expert's opinion.            To obtain a
new trial based on newly-discovered evidence one must show, inter alia,
facts from which the court may infer diligence on the part of the movant.
See, e.g., United States v. Provost, 921 F.2d 163, 164 (8th Cir. 1990) (per
curiam), cert. denied, 499 U.S. 968 (1991).           We do not think that the
district court clearly erred in finding that the expert opinion could have
been produced at trial had Mr. McKinney acted with due diligence.


       Mr. McKinney sought a new trial on the additional ground that his
trial counsel was ineffective.    This motion, however, was properly denied
as untimely, because a motion for a new trial not based on newly discovered
evidence must be brought within seven days after the verdict, Fed. R. Crim.
P. 33, and Mr. McKinney did not move for a new trial until months later.
Furthermore, Mr. McKinney's claims of ineffective assistance of counsel are
undeveloped in this record and therefore would be more properly raised in
a collateral proceeding under 28 U.S.C. § 2255.           See United States v.
Jennings, 12 F.3d 836, 840 (8th Cir. 1994).


                                        IV.
       Mr. McKinney was also convicted for using or carrying a firearm
during and in relation to a drug-trafficking crime in




                                        -5-
violation of 18 U.S.C. § 924(c).            Since Mr. McKinney's appeal was
submitted, the Supreme Court has established a narrower meaning for the
word "use" in 18 U.S.C. § 924(c)(1) than the one that we had previously
adopted in many of our cases.   Compare Bailey v. United States, 116 S. Ct.
501 (1995), with United States v. Matra, 841 F.2d 837, 841-43 (8th Cir.
1988).   But Mr. McKinney's motion for acquittal did not challenge the
correctness of our previous cases, he did not object to the instruction
that embodied the principles announced in those cases, and he did not argue
in his initial appeal brief that his conviction for using firearms was in
any way infirm.   We therefore conclude that Mr. McKinney's argument based
on Bailey has been waived.


                                      V.
     For the foregoing reasons, we affirm the judgment of the district
court.


HEANEY, Circuit Judge, concurring and dissenting.
     I concur in Sections I through III of the majority's opinion.         I
dissent with respect to Section IV.    At the time of McKinney's conviction,
sentence, and the filing of his appeal, the Supreme Court had not yet
decided Bailey v. United States, 116 S.Ct. 501 (1995); thus, it would have
been useless for McKinney to challenge the correctness of our previous
cases, object to the jury's instructions, and to argue that his conviction
was in any way infirm.   As soon as Bailey was decided and before this court
acted on his direct appeal, he argued that this court should apply Bailey.
I agree that we should.    The majority concludes that McKinney's argument
based on Bailey was waived.     It has always been my understanding that a
waiver must be knowing and intentional.      I am at a loss to understand how
a waiver can be found here.


     In my view, the proper course for this court to take would be to
remand to the district court and permit it to determine whether




                                      -6-
in light of Bailey, McKinney's conviction and sentence can be sustained.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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