                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-11-2003

USA v. Hodge
Precedential or Non-Precedential: Precedential

Docket 01-2198




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                          PRECEDENTIAL

                                    Filed March 11, 2003

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                    No. 01-2198


           UNITED STATES OF AMERICA
                          v.
              RICHARD “BIRD” HODGE
                               Richard Hodge,
                                      Appellant


                    No. 01-2199


           UNITED STATES OF AMERICA
                          v.
                    AKIL GREIG,
                                      Appellant

 Appeal from the District Court of the Virgin Islands
               Division of St. Thomas
    (D.C. Criminal Action Nos. 99-cr-00134-3/1)
    District Judge: Honorable Thomas K. Moore

               Argued: May 13, 2002
Before: AMBRO, FUENTES and GARTH, Circuit Judges

           (Opinion filed: March 11, 2003)
                             2


                      David L. Atkinson, Esquire
                      United States Attorney
                      Kim L. Chisholm, Esquire (Argued)
                      Assistant U.S. Attorney
                      United States Courthouse
                      5500 Veterans Building, Suite 260
                      Charlotte Amalie, St. Thomas
                      USVI, 00802-6924
                        Attorneys for Appellee
                      Richard Della Fera, Esquire (Argued)
                      Entin, Margules & Della Fera
                      110 Southeast 6th Street
                      Suite 1970
                      Fort Lauderdale, FL 33301
                        Attorney for Appellant
                        Richard Hodge
                      Stephen A. Brusch, Esquire (Argued)
                      International Plaza, Suite 2G
                      P.O. Box 988
                      Charlotte Amalie, St. Thomas
                      USVI, 00804
                        Attorney for Appellant
                        Akil Greig


                OPINION OF THE COURT

AMBRO, Circuit Judge:
   Richard “Bird” Hodge and Akil Greig appeal their
convictions on drug and firearm charges. Greig also appeals
his conviction for assault on a federal officer. The primary
issue in this appeal is whether the appellants possessed
and distributed a “controlled substance analogue” within
the meaning of 21 U.S.C. § 802(32)(A) when they sold a
mixture of candle wax and flour to undercover agents
under the pretense that it was crack cocaine. We hold that
the wax and flour mixture is not a controlled substance
analogue.
                                   3


                          I.   Background
  On April 12, 1999, Special Agent Michael Patrick of the
Bureau of Alcohol, Tobacco, and Firearms, posing as a
Jamaican drug dealer and accompanied by a confidential
informant (“CI”), entered the Paul M. Pearson Housing
Community in St. Thomas, United States Virgin Islands.
Another officer videotaped the operation from a distance
and the CI wore a “wire” recording device. Patrick and the
CI approached a group of individuals that included Hodge
and inquired about purchasing crack cocaine. Hodge
informed them that he had nothing with him, but that they
should return in approximately one hour.
   After Patrick and the CI left, Yambo Williams, an
acquaintance of Hodge and Greig, retrieved a mixture of
candle wax and flour which “looked like crack.” Hodge
divided the mixture into two packages. He gave one
package to Greig to sell to the “Yardies”1 — by which he
meant Patrick and the CI — under the pretense that it was
crack cocaine. Hodge, Greig, Williams, and Williams’s father
intended to defraud Patrick and the CI of $800, the price of
an ounce of crack cocaine, and share the proceeds. In
addition, Greig had a gun with him and announced that he
planned to rob the Yardies when they returned, but Hodge
told him that a gun would not be necessary.
   When Patrick and the CI returned to the Pearson
Housing Community at around 11 a.m., Hodge was not
present, but Williams and Greig were. Greig informed them
that Hodge had sent him to complete the transaction. In an
alley, Patrick paid $800 for the wax/flour mixture, which
he described as a “rock crystalline substance.” Patrick and
the CI turned to leave, but Greig called them back and
asked if they would like another ounce for $600. Patrick
stated that he was not interested in additional purchases.
At the same time, Williams tugged on Patrick’s shirt,
exposing his firearm. Patrick attempted to exit the alley,
but Greig then grabbed Patrick by his shirt and tried to pull
him back. After a momentary scuffle, Patrick shoved free
from Greig. As Patrick was walking away he heard a gun

1. According to the parties, “Yardies” is a term that generally refers to
Jamaicans.
                                     4


shot fired behind him. He turned around to see Williams,
Greig, and the CI, but he could not tell who fired the gun.
Williams then fled into apartment 81 of the housing
community. Greig followed him into the apartment and
gave him his gun. Williams escaped from the back door to
the apartment and tossed the firearm onto the balcony of
apartment 95. It was later recovered with five rounds of
ammunition remaining in the cylinder chamber; one round
had been fired.
   Greig, Hodge, and Williams subsequently were arrested
and indicted.2 Williams pleaded guilty and testified for the
prosecution; Hodge and Greig were tried together. A jury in
the United States District Court for the Virgin Islands
convicted Greig on Counts I (assault on a federal officer), II
(using a firearm during a drug trafficking crime and a crime
of violence), IV (conspiracy to possess with intent to
distribute a controlled substance analogue), and V
(possession with intent to distribute a controlled substance
analogue). The jury convicted Hodge on Counts III (using a
firearm during a drug trafficking crime); IV (conspiracy to
possess with intent to distribute a controlled substance
analogue), and V (possession with intent to distribute a
controlled substance analogue). Greig was sentenced to
twenty-four months imprisonment for his convictions on
Counts I, IV, and V, to be served concurrently, and to ten
years imprisonment for his conviction on Count II, to be
served consecutively to his sentences on Counts I, IV, and

2. Count I of the indictment charged Greig with assault on a federal
officer, in violation of 18 U.S.C. § 111(a)(1) & (b). Count II charged Greig
with knowingly using, carrying, and discharging a firearm in the course
of crimes relating to drug trafficking and a crime of violence (assault on
a federal officer), in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Count III
charged Hodge with knowingly using, carrying, and discharging a firearm
in the course of crimes relating to drug trafficking, in violation of 18
U.S.C. §§ 924(c)(1)(A)(iii) and 2. Count IV charged Greig, Hodge and
Williams with conspiracy to possess with intent to distribute a controlled
substance analogue, in violation of 21 U.S.C. § 846. Count V charged
Greig, Hodge, and Williams with possession with intent to distribute a
controlled substance analogue, in violation of 21 U.S.C. §§ 802(32)(A)(iii),
813, 841(a)(1) and 18 U.S.C. § (2). Count VI charged Williams with being
an accessory after the fact to the crime of assault on a federal officer, in
violation of 18 U.S.C. § 3.
                                  5


V. Hodge was sentenced to twenty-one months
imprisonment for his convictions on Counts IV and V, to be
served concurrently, and to ten years imprisonment for his
conviction on Count III, to be served consecutively to his
sentences on Count IV and V. Both defendants filed
motions for a judgment of acquittal pursuant to Fed. R.
Crim. P. 29 and for a new trial pursuant to Fed. R. Crim.
P. 33. The District Court denied both motions, United
States v. Greig, 144 F. Supp. 2d 386 (D.V.I. 2001), and
these timely appeals followed.3

                          II.   Discussion
A.    Controlled Substance Analogue
     1.   Background
   A “controlled substance analogue,” which is defined more
precisely below, is “substantially similar” to a controlled
substance but not specifically prohibited under the federal
drug laws. 21 U.S.C. § 802(32)(A). The Controlled
Substance Analogue Enforcement Act of 1986 (the
“Analogue Act”) provides that “[a] controlled substance
analogue shall, to the extent intended for human
consumption, be treated, for the purposes of any Federal
law as a controlled substance in schedule I.” 21 U.S.C.
§ 813. The object of the Analogue Act is to prevent
underground chemists from producing slightly modified
drugs that are legal but have the same effects and dangers
as scheduled controlled substances. Examples of controlled
substance analogues include gamma-butyrolactone, an
analogue of GHB (more commonly called the “date-rape
drug”),    and    1-(3-oxy-3   phenyl-propyl)-4    phenyl-4-
propionoxypiperidine, which is a synthetic form of heroin.
See United States v. Fisher, 289 F.3d 1329 (11th Cir. 2002);
United States v. Ono, 918 F.2d 1462 (9th Cir. 1990). At
issue in this case is whether the mixture of candle wax and
flour that appellants sold to Patrick and the CI is a
controlled substance analogue.
  The statutory definition of the term “controlled substance
analogue” states:

3. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                               6


    [With certain exceptions not relevant here,] the term
    “controlled substance analogue” means a substance —
      (i) the chemical structure of which is substantially
    similar to the chemical structure of a controlled
    substance in schedule I or II;
      (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
      (iii) with respect to a particular person, which such
    person represents or intends to have 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.
21 U.S.C. § 802(32)(A).
   The Government, focusing on the word “or” between
subparts (ii) and (iii), proposes a disjunctive interpretation
for § 802(32)(A), namely that a substance is a controlled
substance analogue if it satisfies any one of clauses (i), (ii),
or (iii). If so, the mixture of candle wax and flour that Hodge
and Greig sold appears to be a controlled substance
analogue        under    subpart    (iii). Hodge    and    Greig
“represent[ed]” their product to be crack cocaine and,
therefore, to have a “stimulant . . . effect on the central
nervous system” “substantially similar” to a “controlled
substance in schedule I or II.” Appellants, on the other
hand, read § 802(32)(A) conjunctively. They argue that a
controlled substance analogue must satisfy both clause (i)
and either clause (ii) or (iii). A candle wax and flour mixture
is not “substantially similar” in chemical structure to crack
cocaine as required under clause (i). Accordingly, under
appellants’ reading, it cannot be a controlled substance
analogue regardless whether they represented it to be crack
cocaine.
  The District Court in this case read the definition
disjunctively, but every other federal court to consider the
                             7


issue has read it conjunctively. We exercise plenary review
over the District Court’s interpretation of a statute and,
more generally, its legal conclusions. See In re CM Holdings,
Inc., 301 F.3d 96, 101 n.3 (3d Cir. 2002). This is a matter
of first impression in our Court. Moreover, no federal court
of appeals has considered the issue in any depth. See
McKinney v. United States, 221 F.3d 1343 (Table) (8th Cir.
2000) (paraphrasing the test in the conjunctive without
discussion); United States v. Granberry, 916 F.2d 1008,
1010 (5th Cir. 1990) (stating the test in the disjunctive
without discussion); see also Fisher, 289 F.3d at 1338
(expressly declining to decide the issue). A more thorough
treatment is found in a number of district court opinions.
  In United States v. Forbes, 806 F. Supp. 232 (D. Col.
1992), the District Court for the District of Colorado held
that the text of § 802(32)(A) either plainly supports the
conjunctive reading or is otherwise “[a]t best . . .
ambiguous.” Id. at 235. It reasoned that the “operative
segments of clauses (ii) and (iii) both begin with the word
‘which,’ signaling the start of a dependent relative clause
modifying a precedent noun.” Id. Moreover, because
“[m]odifying phrases generally refer to immediately
preceding phrase[s],” the “precedent noun is ‘chemical
structure’ in clause (i).” Id. The Court also thoroughly
reviewed the Analogue Act’s legislative history. It
determined that the House bill that ultimately served as the
basis for the Act undeniably intended the conjunctive
reading. “The analogue statute,” it found, “is directed at
underground chemists who tinker with the molecular
structure of controlled substances to create new drugs that
are not scheduled. If a substance could be an analogue
without a substantially similar chemical structure,
Congress’ stated purpose would be significantly expanded.”
Id. at 236. Further, a disjunctive reading would produce
“unintended or absurd results,” the avoidance of which is a
“deeply rooted rule of statutory construction.” Id. at 235.
For example, alcohol or caffeine would be controlled
substance analogues. Likewise, in an observation
particularly pertinent to this case, “powdered sugar would
be an analogue if a defendant represented that it was
cocaine, effectively converting this law into a counterfeit
drug statute.” Id. As evidence that this was not Congress’s
                              8


purpose, a House report on the Analogue Act emphasized
that it required a substantial similarity in chemical
structure to avoid accidentally criminalizing innocuous
substances, such as coffee. Id. at 235-36 (citing H.R. Rep.
No. 948, 99th Cong., 2d Sess. 4, 7 (1986)).
  The District Court for the Southern District of New York
reached a similar conclusion in United States v. Roberts,
2001 WL 1646732 (S.D.N.Y. Dec. 17, 2001). It found
Forbes’s grammatical analysis persuasive. Id. at *3.
Moreover, undertaking its own review of the legislative
history, it concluded that “[c]learly, the targets of the
statute were not pushers of counterfeit drugs that bear no
chemical similarity to scheduled narcotics, but ill-
intentioned manufacturers and distributors of drugs that,
when altered in their chemical structure, resembled those
that had already been scheduled.” Id. at *5.
   In United States v. Clifford, 197 F. Supp. 2d 516 (E.D.
Va. 2002), the District Court for the Eastern District of
Virginia addressed a factual scenario similar to the one in
our case. Three men participated in a fraudulent scheme to
market an over-the-counter combination of ginseng and
vitamin B as the schedule I drug MDMA, commonly known
as “ecstasy.” Id. at 517. Vacating their convictions, the
District Court made a compelling case for the conjunctive
reading. As always, it began with the plain meaning of
§ 802(32)(A). It rejected the assumption that there is a
“universally recognized or authoritatively stated rule” that
“a series of subordinate clauses must be read in the
disjunctive if the penultimate and final clauses are
separated by ‘or.’ ” Id. at 519. In fact, Congress itself
followed a different convention in another part of § 802, in
which it “listed a number of subordinate clauses in a
fashion similar to Section 802(32)(A), but placed the term
‘or’ after every subsection to denote a clear disjunctive
intent.” Id. at 519-20 (citing 21 U.S.C. § 802(9)). Turning to
the legislative history, the Court found “not a scintilla of
evidence” that “Congress intended to cover and criminalize
sales of legal substances such as flour, salt, ginseng,
vitamin B, etc., merely because the seller represents they
will yield a stimulant, depressant, or hallucinogenic effect
like that of a controlled substance.” Id. at 520-21. Instead,
                              9


it agreed with Forbes that the focus of the law was to
criminalize the work of underground chemists. Ultimately,
the Clifford Court concluded that “after considering the
statute’s language, structure, and purpose, it is clear that
Congress intended Section 802(32)(A) to be read
conjunctively.” Id. at 522.
  Next, the District Court for the Northern District of
Georgia in United States v. Vickery, 199 F. Supp. 2d 1363
(N.D. Ga. 2002), followed the reasoning in Clifford, Forbes,
and Roberts in most relevant respects. It also added further
insights on the Analogue Act’s legislative history, such as
the observation that the Senate’s version of the bill did not
permit liability for merely a “represented or intended effect.”
Id. at 1369.
  Finally, United States v. Klecker, 228 F. Supp. 2d 720,
727 (E.D. Va. 2002), noted briefly that “[a]ll of the cases
that have interpreted the Analogue Act, with one exception”
— the District Court in Greig — “have held it should be
interpreted in the conjunctive,” and opted to do so in that
case as well.
   Parting company with the above decisions, the District
Court in this case determined that § 802(32)(A) must be
read disjunctively. Greig, 144 F. Supp. 2d at 386. It first
asserted that as “a general rule of statutory construction,
an ‘or’ placed before the last term in a series indicates that
each term in the series is intended to be read in the
disjunctive and given separate meaning.” Id. at 389 (citing
United States v. Urban, 140 F.3d 229, 331 (3d Cir. 1998)).
It then reasoned that
      [t]he structure of section 802(32)(A) and the plain
      meaning of its language compel the conclusion that
      this is an ordinary disjunctive series. In all three
      clauses, a dependent relative clause modifying a
      precedent noun is signaled by the relative pronoun
      “which.” In each case, the precedent noun is “a
      substance,” which is found in the main clause.
Id.
  Turning to the legislative history, the District Court found
that neither the House nor the Senate intended to require
                                   10


proof by the Government of both a chemical structure
substantially similar to that of a controlled substance and
a substantially similar effect. The House version of the bill
initially included the word “and” after clause (i) and its
three prongs were structured differently so that what is
now clause (i) was more obviously a requirement in every
case; however, these indications of a conjunctive meaning
were deleted from the final version without explanation.4
Likewise, the Senate’s version of the bill required the
Government to prove either that the alleged controlled
substance analogue possessed a chemical structure
“substantially similar to the chemical structure of a
controlled substance” or was “specifically designed to
produce an effect substantially similar to, or greater than,
the effect of a controlled substance,” but not both. Id. at
393 (quoting 132 Cong. Rec. 30322, 30329 (1986))
(emphasis added by the District Court). “Since there is no
‘clearly expressed legislative intention to the contrary,’ ” the
District Court noted that it “must follow the Supreme
Court’s directive and regard the plain language of section
802(32)(A) as conclusive.” Id. at 393-94 (quoting American
Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)). The
District Court then determined what it considered the plain
meaning of the statute to be, and held that “a substance
may be a controlled substance analogue if it satisfies

4. Id. at 390. The initial House version stated:
    [T]he term ‘controlled substance analogue’ means a substance —
    (i) the chemical structure of which is substantially similar to the
    chemical structure of a controlled substance in schedule I or II; and
    (ii)(I) which has a stimulant, depressant, or hallucinogenic effect on
    the central nervous system; or
    (II) with respect to a particular person, which such person
    represents or intends to have a stimulant, depressant, or
    hallucinogenic effect on the central nervous system substantially
    similar to [that] of a controlled substance.
Id. at 390 (citing H.R. Rep. No. 99-848, pt. 1, at 1 (1986)) (emphasis
added by the District Court). While the change from this version of the
bill may seem incongruous with a conjunctive reading, for the reasons
we discuss below in the text, we do not consider it a persuasive
indication of Congressional intent.
                               11


subsection (i), (ii), or (iii) of 21 U.S.C. § 802(32)(A).” Id. at
394.
  We reject the District Court’s disjunctive reading and
adopt instead the conjunctive reading endorsed in Forbes,
Roberts, Clifford, Vickery, and Klecker. Our reasoning is
similar to that of these district courts. In short, we
conclude that the plain meaning of § 802(32)(A) is
ambiguous and that the legislative history indisputably
favors the conjunctive reading.
  2.   Plain Meaning
   We begin, of course, with the plain meaning of a statute.
See Smith v. Fid. Consumer Disc. Co., 898 F.2d 907, 909
(3d Cir. 1990) (“[T]he starting point for interpreting a
statute is the language of the statute itself.”) (internal
citation omitted). We have said that “canons of construction
ordinarily suggest that terms connected by a disjunctive be
given separate meaning unless the context dictates
otherwise.” United States v. 6109 Grubb Rd., 886 F.2d 618,
626 (3d Cir. 1989) (quoting Reiter v. Sonotone Corp., 442
U.S. 330, 339 (1979)). Indeed, we have also said that
“[w]hether requirements in a statute are to be treated as
disjunctive or conjunctive does not always turn on whether
the word ‘or’ is used; rather it turns on context.” United
States v. One 1973 Rolls Royce, 43 F.3d 794, 815 (3d Cir.
1994).
  This proposition — that “or” between two words indicates
that each can stand alone — decides the ordinary case. But
is this the “ordinary” case, i.e., does “the context dictate
otherwise”? Here, even within § 802, Congress did not
always consider a single “or” between the final terms of a
series sufficient evidence of disjunctive intent. As noted in
Clifford, the definition of “depressant or stimulant
substance” in § 802(9) contains an “or” after each clause.
197 F. Supp. 2d at 519-20. Accordingly, where “or” is
absent between clauses (i) and (ii) but present between (ii)
and (iii), we do not find conclusive evidence for a disjunctive
reading.
  Indeed, in the context of the Analogue Act, we think that
the definition of a controlled substance analogue reads
more naturally in the conjunctive. First, clause (i) seems to
                                    12


state an independent requirement; even the dictionary
defines chemical analogues in terms of their similar
chemical structures.5 See American Heritage Dictionary 65-
66 (3d ed. 1992) (defining “analogue” in chemistry as “[a]
structural derivative of a parent compound that often
differs from it by a single element”). At the same time,
clauses (ii) and (iii) read in parallel and appear subordinate
to clause (i) because the functional language in each begins
with the relative pronoun “which.” The doctrine of the last
antecedent teaches that “qualifying words, phrases, and
clauses are to be applied to the words or phrase
immediately preceding” and not to “others more remote.”
See Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 65 (3d
Cir. 1993) (quoting Azure v. Morton, 514 F.2d 897, 900 (9th
Cir. 1975)). That suggests that clauses (ii) and (iii) more
likely modify clause (i)’s phrase “controlled substance in
schedule I or II” than the word “substance” in the main
clause. See also 2A Norman J. Singer, Sutherland Statutory
Construction § 47.33 (6th ed. 2000).
   Notwithstanding this analysis, we readily concede that
the disjunctive reading is plausible. The word “or” between
clauses (ii) and (iii) does not prove that all three clauses of
§ 802(32)(A) are disjunctive, only that many people would
read it that way. With two possible readings, we conclude
that § 802(32)(A) is ambiguous as to whether it should be
read conjunctively or disjunctively.
  3.   Legislative History
   When the language of a statute is ambiguous, we look to
its legislative history to deduce its purpose. See Gerbier v.
Holmes, 280 F.3d 297, 309 (3d Cir. 2002); United States v.
Pollen, 978 F.2d 78, 85 (3d Cir. 1992). It is particularly
important to confine ambiguous criminal statutes to their
intended scope. See Dowling v. United States, 473 U.S. 207,
213 (1985) (“[W]hen assessing the reach of a federal
criminal statute, we must pay close heed to language,

5. We recognize, however, that arguments from dictionary definitions can
only take us so far when construing a provision that is itself definitional.
Absent an absurd departure from conventional English, Congress of
course is free to define terms in statutes differently than any particular
dictionary does.
                             13


legislative history, and purpose in order strictly to
determine the scope of the conduct the enactment forbids.
Due respect for the prerogatives of Congress in defining
federal crimes prompts restraint in this area, where we
typically find a ‘narrow interpretation’ appropriate.”).
Moreover, we will not read a statute to produce absurd or
unintended results “demonstrably at odds with the
intentions of its drafters.” Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 571 (1982); accord United States v. Zats,
298 F.3d 182, 187 (3d Cir. 2002).
   The Analogue Act’s purpose is to make illegal the
production of designer drugs and other chemical variants of
listed controlled substances that otherwise would escape
the reach of the drug laws. This was the goal — the only
goal — announced by legislators during debate on the
House and Senate versions of the bill that became the
Analogue Act. See, e.g., 131 Cong. Rec. 19114 (1985)
(statement of Sen. Thurmond) (“This proposal will prevent
underground chemists from producing dangerous designer
drugs by slightly changing the chemical composition of
existing illegal drugs.”); 131 Cong. Rec. 27311 (1985)
(statement of Sen. D’Amato) (stating that the Analogue Act
“closes the loophole in present law that allows the creation
and distribution of deadly new drugs without violating
Federal law”); 131 Cong. Rec. 32950 (1985) (statement of
Rep. Lungren) (“The focus of this proposal is clearly to
impact on the designer drug phenomena by making it
illegal for the clandestine chemists to manufacture and
distribute these substances.”). Congress was concerned
about chemicals that have been altered by “adding a
fluoride or an extra carbon molecule” from their scheduled
counterparts, 131 Cong. Rec. 27311 (1985) (statement of
Sen. D’Amato), not about mundane compounds such as
candle wax and flour. See 131 Cong. Rec. 32950 (1985)
(statement of Rep. Lungren) (explaining that “this proposal
is not intended to cover alcoholic beverages, tobacco
products, aspirin, or other legitimate consumer products”).
  The District Court emphasized that while the House’s
original version of § 802(32)(A) unambiguously was phrased
conjunctively and the Senate’s version was phrased
disjunctively, the final version was “an amalgam of the
                                   14


House and Senate versions” that “effectively transformed
the House’s original two prongs into three prongs, deleted
the House’s conjunctive ‘and,’ included the Senate’s
‘substantially similar’ language in subpart (ii), and retained
the disjunctive ‘or’ between subparts (ii) and (iii).” Greig,
144 F. Supp. 2d at 393. The District Court took from this
that the House abandoned its conjunctive approach.
   We disagree. What the District Court overlooks is that
neither the original House nor Senate version evidenced
any intent to extend the drug laws to substances, like wax
and flour, that bear no similarity to scheduled controlled
substances. The House version, as already described,
required both a similar chemical structure to a controlled
substance and a similar effect. Id. at 390. The Senate
version required either a similar chemical structure or that
the substance was “specifically designed” to produce the
effect of a controlled substance. Id. at 393. Thus, while the
Senate version was disjunctive in one sense, both prongs of
its test plainly referred to attempts to create actual
chemical substitutes for scheduled controlled substances.
Neither the Senate version nor the House version had
anything to do with criminalizing the sale of non-drugs
labeled as scheduled controlled substances. Accordingly,
whether the final draft of § 802(32)(A) was an “amalgam” of
the House and Senate version does not affect our
conclusion. Two competing versions of the same law,
neither of which would impose liability separately, do not
result in liability when put together.6
  Further, we fundamentally disagree with the District
Court’s implicit presumption that § 802(32)(A) criminalizes
the appellants’ conduct absent a clear legislative intent to
the contrary. See id. at 394 (“Importantly, there is nothing
in the legislative history of the [Analogue Act] to hint that
Congress did not intend to provide for prosecution of

6. Incidentally, the change in the name of the bill from “Designer Drug
Enforcement Act of 1986” to “Controlled Substance Analogue
Enforcement Act” was not, as the District Court suggests, intended to
reflect an expanded “purpose and scope” for the Act after its inception.
Id. at 393 n.5. Rather, Senator D’Amato explained that the “title is being
changed because of concern that the phrase ‘designer drugs’ is too
appealing a name for these killers.” 131 Cong. Rec. 27311 (1985).
                               15


persons as illegal drug traffickers who falsely represent that
a substance has the same effect as a schedule I
substance.”). It is improper to infer criminal liability from a
statute’s failure to say what is permitted. The burden is the
inverse. See Dowling, 473 U.S. at 214 (“[W]hen choice has
to be made between two readings of what conduct Congress
has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have
spoken in language that is clear and definite.”) (citations
omitted).
   One argument for the Government’s disjunctive reading
is that the House of Representatives apparently modified an
earlier version of the Analogue Act that contained the word
“and” between clauses (i) and (ii) and in which clauses (ii)
and (iii) were combined into a single prong. See supra note
4 (quoting the earlier House version). Arguably this
modification represented an “intentional step away from the
conjunctive approach.” Vickery, 199 F. Supp. 2d at 1368.
However, we are not persuaded that this unexplained
change was intentional. It would be passing strange for
Congress unexpectedly to have expanded without comment
the definition of controlled substance analogues to include
non-drugs at the last minute. See Clifford, 197 F. Supp. 2d
at 522 (“Such a radical alteration would surely have
occasioned some comment or remark from Congress. The
silence in this regard speaks loudly in favor of inadvertence
as the explanation for the change.”). Moreover, another
House version of the same bill inadvertently omitted not
only the two-prong structure and the word “and,” but also
the word “or” after clause (ii). Greig, 144 F. Supp. 2d at 390
n.2 (quoting 132 Cong. Rec. 32717, 32732 (1986)). If that
version were our focus, one could argue that only
substances satisfying clauses (i), (ii), and (iii) are controlled
substance analogues, a reading with which we assume the
Government would disagree vehemently. We hesitate to
read too much into unexplained, minor structural or
stylistic changes in legislation. If one looks hard enough,
there may be typographical errors in the sundry drafts of a
statute to suit many possible interpretations.
  We conclude that Congress did not intend to include
innocuous substances such as wax and flour within its
                              16


definition of controlled substance analogues. Moreover,
even if we were not sure, we would be compelled to reverse
the appellants’ drug convictions. See Government of Virgin
Islands v. Knight, 989 F.2d 619, 633 (3d Cir. 1993)
(counseling that “any ambiguity concerning the meaning of
a criminal statute be resolved in favor of the criminal
defendant”). We find prophetic a related discussion — cited
in Clifford and Vickery — by the Fourth Circuit in United
States v. Sampson, 140 F.3d 585 (4th Cir. 1998). Sampson
held that “flex” — a mixture of flour, wax, and baking soda
fraudulently sold as cocaine — was not a “counterfeit
substance” within the meaning of 21 U.S.C. § 802(7). Id. at
589-90. In language equally applicable to our case, the
Fourth Circuit remarked that
     [s]elling flex does not constitute a crime punishable by
     any known federal law. Simply because a substance
     looks like cocaine, and the defendant misrepresents to
     his unsuspecting purchaser that the substance is
     cocaine, does not make the mere distribution of that
     substance a violation of the federal narcotics laws.
Id. at 589.
   We share the Sampson Court’s common sense skepticism
of the District Court’s outcome. The treatment of candle
wax and flour, no matter how it is marketed, as a schedule
I controlled substance is an “absurd” result of the kind our
canons of construction instruct us to avoid. See Zats, 298
F.3d at 187. Accordingly, we reverse Hodge’s and Greig’s
drug convictions on Counts IV and V.
B.   Assault on a Federal Officer
  Greig challenges the sufficiency of the evidence
supporting his conviction for assault on a federal officer
pursuant to 18 U.S.C. § 111(a)(1) & (b). Our review of the
sufficiency of the evidence after a guilty verdict is “highly
deferential.” United States v. Hart, 273 F.3d 363, 371 (3d
Cir. 2001).
     [W]hen deciding whether a jury verdict rests on legally
     sufficient evidence it is not for us to weigh the evidence
     or to determine the credibility of the witnesses. Rather,
     we must view the evidence in the light most favorable
                                   17


     to the government, and will sustain the verdict if any
     rational trier of fact could have found the essential
     elements of the crime beyond a reasonable doubt.
United States v. Smith, 294 F.3d 473, 478 (3d Cir. 2002)
(citation omitted).
  The Government introduced evidence that Greig obtained
a gun after Patrick and the CI left the Pearson Housing
Community on the morning of April 12, 1999, and that,
according to Williams, Greig announced his intention to rob
them. Later, when Patrick refused to purchase a second
ounce of “crack” and attempted to leave the alley where the
transaction occurred, Greig pulled him back. Greig also
struggled with Patrick until he shoved Greig away and
turned to escape. Someone — Patrick did not see which
individual — then fired a gun. Patrick perceived that the
gun had been fired at him. He turned around and saw
Greig and the CI with Williams close by. Greig then fled into
an apartment where he handed a gun to Williams. When
authorities retrieved the gun from the balcony of another
apartment, they found that it had been fired.
  We hold that a rational jury could have concluded from
this evidence that Greig, while using a deadly weapon,
assaulted a federal officer.7 Accordingly, we affirm his
conviction pursuant to 18 U.S.C. § 111(a)(1) & (b).
C.   Possession of a Firearm
  Hodge and Greig both challenge their convictions for
possession of a firearm during and in relation to a drug
trafficking crime or a crime of violence pursuant to 18
U.S.C. § 924(c)(1)(A)(iii). We immediately resolve Hodge’s
challenge in his favor because we have reversed his
underlying drug conviction, and he was not convicted of a
crime of violence. Greig was convicted of a crime of violence
— assault on a federal officer using a deadly weapon — so
his challenge does not automatically succeed.

7. To the contrary, Greig contends that there was not enough evidence
for a rational jury to so conclude. He argues that, inter alia, Agent
Patrick testified to not seeing Greig with a gun and to not being certain
that a gun was even fired at him. We are not persuaded by Greig’s
arguments.
                                    18


  Greig argues that the question whether he discharged a
deadly weapon, for which § 924(c)(1)(A)(iii) prescribes a
mandatory ten-year minimum sentence, should have been
submitted to the jury. He cites Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), which established that “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt.”8
   Greig’s argument is foreclosed by the Supreme Court’s
recent decision in Harris v. United States, 122 S.Ct. 2406
(2002). It focused on § 924(c)(1)(A)(ii), a parallel provision to
§ 924(c)(1)(A)(iii). Clause (ii) provides a seven-year minimum
penalty for brandishing a gun, while clause (iii) provides a
ten-year minimum for discharging one. The Court held that
“brandishing” in clause (ii) and “discharging” in clause (iii)
are “sentencing factors to be found by the judge, not
offense elements to be found by the jury.” Id. at 2414.
Because these sentencing factors increase the minimum
penalty, not the statutory maximum, Apprendi does not
apply. Accordingly, the District Court need not have
instructed the jury to find beyond a reasonable doubt that
Greig “discharged” a firearm within the meaning of
§ 924(c)(1)(A)(iii).
D.    Juror Misconduct
  Greig contends that he is entitled to a new trial on the
ground of juror misconduct.9 The District Court denied the
motion in a published opinion. United States v. Greig, 133
F. Supp. 2d 697 (D.V.I. 2001). We review the District
Court’s response to allegations of juror misconduct for
abuse of discretion, United States v. Bertoli, 40 F.3d 1384,
1392 (3d Cir. 1994), and we affirm.
     The misconduct alleged is that juror Chastity Caines

8. The Government argues that Greig did not raise this issue in the
District Court and therefore our review is for plain error. See United
States v. Vasquez, 271 F.3d 93, 96 (3d Cir. 2001). Our outcome,
however, is the same regardless of the standard of review.
9. Hodge initially joined in Greig’s motion for a new trial in the District
Court, but he does not press the issue of juror misconduct on appeal.
                             19


intentionally did not disclose at voir dire that she knew
Greig, and that she improperly revealed extraneous
information about Greig to the other jurors. Greig
introduced an affidavit by Marlene Francis, sister of
alternate juror Millicent Francis, stating that Millicent told
Marlene that a juror serving with her knew Greig and that
he was often in trouble. The District Court granted Greig’s
motion for an evidentiary hearing to investigate these
allegations.
  The District Court first interviewed Millicent Francis and
then heard testimony from Chastity Caines. Francis stated
that Caines told the jurors that Greig had a bad reputation
and that he once stabbed a person. Caines confessed that
she knew Greig from an adult education class, but
explained that she did not believe that she knew him
personally. She denied discussing his reputation or
background with the other jurors. Coincidentally, the
hearing revealed that Francis herself also knew Greig but
did not say so at voir dire because she, too, believed that
she did not know him personally. After interviewing eleven
of the twelve jurors and all three alternate jurors, the
District Court determined that only one juror remembered
hearing anything at trial about Greig purportedly stabbing
someone. Moreover, the trial transcript revealed that
Williams mentioned that stabbing when he testified.
  To receive a new trial because of errors during voir dire,
Greig “must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further
show that a correct response would have provided a valid
basis for a challenge for cause.” McDonough Power Equip.
Inc. v. Greenwood, 464 U.S. 548, 556 (1984); accord United
States v. Richards, 241 F.3d 335, 344 (3d Cir. 2001).
Generally, we will not invalidate a jury verdict because of a
juror’s “mistaken, though honest” response at voir dire.
McDonough Power, 464 U.S. at 555. The standard with
regard to extraneous information is that “[a] new trial is
warranted if the defendant likely suffered ‘substantial
prejudice’ as a result of the jury’s exposure to the
extraneous information.” United States v. Lloyd, 269 F.3d
228, 238 (3d Cir. 2001) (citing United States v. Gilsenan,
949 F.2d 90, 95 (3d Cir.1991)).
                                     20


  The failure of Caines to disclose her familiarity with Greig
was apparently “mistaken, though honest,” and did not
materially affect the fairness of the trial. See McDonough
Power, 464 U.S. at 555. Moreover, the jurors
overwhelmingly denied that Caines disclosed any
prejudicial, extraneous information about Greig. In this
context, the District Court did not abuse its discretion in
refusing to grant Greig a new trial.
                               * * * * * * *
   The District Court erred in characterizing the wax and
flour mixture sold by the appellants as a controlled
substance analogue. Accordingly, we reverse both
appellants’ convictions for conspiracy to possess with intent
to distribute a controlled substance analogue (Count IV)
and possession with intent to distribute a controlled
substance analogue (Count V). As a result, we reverse
Hodge’s conviction for possession of a firearm during and in
relation to a drug trafficking crime (Count III) and remand
for an entry of judgment of acquittal.
   We affirm Greig’s conviction for assault on a federal
officer (Count I) and his conviction for possession of a
firearm during and in relation to, inter alia, a crime of
violence (Count II), but we remand for resentencing on both
counts.10 We also affirm the District Court’s denial of

10. First, as to Greig’s conviction on Count I (assault on a federal officer),
the adjusted offense level was 15. His convictions on Counts IV
(conspiracy to possess with intent to distribute a controlled substance
analogue) and V (possession with intent to distribute a controlled
substance analogue) increased his offense level by 2 points to 17. The
Presentence Investigation Report indicates that Greig was to be
sentenced under Criminal History Category I. Accordingly, the guideline
range for a 15 point offense is 18-24 months and for a 17 point offense
it is 24-30 months. Because we have voided Greig’s convictions on
Counts IV and V, it would appear that the resulting total offense level for
his conviction on Count I falls within a different sentencing range.
  Second, as to Greig’s firearm conviction (Count II), 18 U.S.C.
§ 924(c)(1)(A)(iii) provides for a minimum sentence of ten years
imprisonment if the firearm is discharged “during and in relation to any
crime of violence or drug trafficking crime . . . .” (emphasis added). Greig
initially was convicted and sentenced for crimes of both violence and
drug trafficking. We have voided his conviction for the latter, but we are
not in a position to determine whether this affects Greig’s sentence.
Although it may not, we remand to have his sentence on Count II
considered for the particular crime for which Greig is being sentenced.
                            21


Greig’s motion for a new trial on the ground of juror
misconduct.

A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
