MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision: 2015 ME 31
Docket:   Kno-14-196
Argued:   February 12, 2015
Decided:  March 17, 2015

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.


                                        STATE OF MAINE

                                                    v.

                                       DAVID RECKARDS

MEAD, J.

         [¶1]     David Reckards appeals from an order of the Superior Court

(Knox County, Hjelm, J.) denying his motions to dismiss two criminal cases

against him on the ground that the statute defining a “synthetic hallucinogenic

drug,” 17-A M.R.S. § 1101(16-A)(O) (2012), is unconstitutionally vague. We

affirm the judgment.

                                         I. BACKGROUND

         [¶2] On July 10, 2013, a grand jury indicted Reckards on several charges

including unlawful trafficking in synthetic hallucinogenic drugs (Class B),

17-A M.R.S. § 1120(1) (2012), and conspiracy to commit unlawful trafficking in

synthetic hallucinogenic drugs (Class C), 17-A M.R.S § 151(1)(C) (2012).1

Reckards initially entered not guilty pleas to all charges on July 30, 2013, and on
   1
       The drugs at issue in this case are commonly known as “alpha-PVP” or “bath salts.”
2

July 31, 2013, he filed motions to dismiss the two cases on the ground that the

statute defining a “synthetic hallucinogenic drug” is unconstitutionally vague. The

court denied the motions, and Reckards entered conditional guilty pleas pursuant to

M.R. Crim. P. 11(a)(2). Reckards was sentenced on April 29, 2014, subject to the

outcome of this appeal, to serve a four-year sentence, with all but nine months and

one day suspended, with two years’ probation.           He was also fined $505 and

ordered to pay $240 in restitution.

                                   II. DISCUSSION

      [¶3] Reckards argues that the court erred in denying his motions to dismiss

because (1) the term “derivative” used in 17-A M.R.S. § 1101(16-A)(O) is

ambiguous and therefore subject to multiple interpretations, and (2) the statute as a

whole is too complex for an ordinary person to understand, thus rendering it

unconstitutionally vague. We examine his claims in turn.

A.    Standard of Review and Maine Law

      [¶4]    We review the validity of a statute de novo.            State v. Haskell,

2001 ME 154, ¶ 3, 784 A.2d 4. “[A] statute is presumed to be constitutional and

the person challenging the constitutionality has the burden of establishing its

infirmity.” Id. (quotation marks omitted). In a void-for-vagueness challenge, we

do not analyze the statute to ascertain if it is valid on its face, but instead assess the

challenge “by testing it in the circumstances of the individual case and considering
                                                                                   3

whether the statutory language was sufficiently clear to give the defendant

adequate notice that his conduct was proscribed.” State v. Aboda, 2010 ME 125,

¶ 15, 8 A.3d 719 (quotation marks omitted).

      [¶5] The due process clauses of the United States and Maine Constitutions

“require that a statute must provide reasonable and intelligible standards to guide

the future conduct of individuals and to allow the courts and enforcement officials

to effectuate the legislative intent in applying these laws.”        State v. Peck,

2014 ME 74, ¶ 10, 93 A.3d 256 (quotation marks omitted). Additionally, “[a]

statute should define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.”             State v. Preston,

2011 ME 98, ¶ 8, 26 A.3d 850 (quotation marks omitted). However, “[n]ot every

ambiguity, uncertainty or imprecision of language in a statutory pattern rises to the

level of being unconstitutionally void for vagueness.” Id. Legislation will not be

void for vagueness if any reasonable construction will support it. State v. Witham,

2005 ME 79, ¶ 7, 876 A.2d 40.

B.    The Meaning of “Derivative”

      [¶6] Reckards was convicted pursuant to 17-A M.R.S. § 1120(1), which

provides: “A person is guilty of unlawful trafficking in a synthetic hallucinogenic

drug if the person intentionally or knowingly trafficks in what the person knows or
4

believes to be a synthetic hallucinogenic drug, which is in fact a synthetic

hallucinogenic drug.” (Emphasis added.) Title 17-A M.R.S. § 1101 (16-A)(O)

provides that a substance meeting the following criteria is a “synthetic

hallucinogenic drug”:

        A derivative of cathinone, including any compound, material, mixture,
        preparation or other product, structurally derived from
        2-aminopropan-1-one by substitution at the 1-position with either
        phenyl, naphthyl or thiophene ring systems, whether or not the
        compound is further modified in any of the following ways:

                 (1) By substitution in the ring system to any extent with alkyl,
                     alkylenedioxy, alkoxy, haloalkyl, hydroxyl or halide
                     substituents, whether or not further substituted in the ring
                     system by one or more other univalent substituents;

                 (2) By substitution at the 3-position with an acyclic alkyl
                     substituent; or

                 (3) By substitution at the 2-amino nitrogen atom with alkyl,
                     dialkyl, benzyl or methoxybenzyl groups or by inclusion
                     of the 2-amino nitrogen atom in a cyclic structure.

(Emphasis added.)2

        [¶7] Reckards argues that the term “derivative” is based purely in chemistry

and has two possible definitions, and because different chemists could reach

different conclusions, the statute is unconstitutional. At the hearing on the motions

    2
     This statute has been repealed, reenacted, and relocated. Originally, the charging statute was found
at 17-A M.R.S. § 1120(1), and the language above was part of the definition of a “synthetic
hallucinogenic drug” found at 17-A M.R.S. § 1101(16-A)(O) (2012). Currently, the charging statute is
found at 17-A M.R.S. § 1103(1-A)(A) (2014), and the language above is listed under the definition of
“schedule W” drug at 17-A M.R.S. § 1102(1)(P)(15) (2014).
                                                                                                     5

to dismiss, the State offered the testimony of Maria Pease, a chemist employed by

the State of Maine, who explained that a substance can be derived either

synthetically, meaning that it is possible to physically create the substance in a lab

from an antecedent, or it can be derived theoretically, meaning that the substance

can be derived on paper in the abstract.3 Pease also testified that she and several

other chemists had discussed the meaning of the word “derivative,” and had

ultimately agreed that the term encompassed both of the chemistry-related

definitions that Pease described. The word “derivative” also has a common usage

that can be looked up in a dictionary and is consistent with the interpretation

agreed upon by the chemists referenced at the hearing.4 For these reasons, the term

“derivative” is not unconstitutionally vague.

C.       Scienter

         [¶8] Several of the federal circuit courts have addressed void-for-vagueness

challenges to federal statutes enacted as part of the Controlled Substances Act

(CSA). Those courts have unanimously upheld drug statutes when they have

contained adequate scienter requirements.                   Additionally, the United States

     3
     Reckards does not argue for one interpretation of “derivative” over the other. This potential
ambiguity may be better addressed as a question of statutory interpretation rather than a challenge for
unconstitutional vagueness.
     4
      The term “derivative” is defined as “[c]opied or adapted from others.” Webster’s II New College
Dictionary 305 (2001). Webster’s also provides a chemistry-related definition: “A compound derived or
obtained from known or hypothetical substances and containing essential elements of the parent
substance.” Id.
6

Supreme Court has recognized that a scienter requirement may mitigate a law’s

vagueness. Screws v. United States, 325 U.S. 91, 104-05 (1945).

      [¶9]   In 2003, the First Circuit addressed a federal drug statute in a

void-for-vagueness challenge involving a substance known as “khat,” which is a

leafy green plant that contains a chemical stimulant known as cathinone when it is

first cut. United States v. Hussein, 351 F.3d 9, 11 (1st Cir. 2003). The CSA

provides that “it shall be unlawful for any person knowingly or intentionally . . . to

manufacture, distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance.” 21 U.S.C.A. § 841(a) (2014)

(emphasis added). “[A]ny material, compound, mixture, or preparation which

contains . . . cathinone” is a schedule I controlled substance under federal Drug

Enforcement Agency regulations. 21 C.F.R. § 1308.11(f)(3) (2014). Khat, like

alpha-PVP, is not specifically listed as a controlled substance in the schedules.

Hussein, 351 F.3d at 13.

      [¶10] In Hussein, a jury found Hussein guilty of “knowingly possessing and

intending to distribute khat” in violation of the CSA. Id. at 11. Hussein argued

that the CSA “did not afford him fair warning that possession of khat was illegal”

and that a person of ordinary intelligence would not know that khat contains

cathinone. Id. at 11, 14. In its decision, the First Circuit noted that “[t]he criminal

law should not be a series of traps for the unwary. To that end, the Due Process
                                                                                    7

Clause demands that criminal statutes describe each particular offense with

sufficient definiteness to give a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden.” Id. at 13 (quotation marks omitted).

      [¶11] After determining that the statute and regulation were unambiguous,

the court determined that due process did not require the statute to specifically

name “khat” in order to avoid unconstitutional vagueness. Id. at 15-16. The First

Circuit determined that what really mattered, and what made the statute and

regulation constitutional, was a broad reading of the scienter requirement in the

statute containing the offense:

      To sum up, the scienter requirement of section 841(a)(1) necessitates
      proof beyond a reasonable doubt that the defendant knowingly
      possessed a controlled substance. In most cases, this will be
      accomplished by proving that the defendant knew the specific identity
      of the controlled substance that he possessed. In appropriate
      circumstances, however, knowledge may be shown in other ways,
      including proof that the defendant knew he possessed a controlled
      substance (even though he was either mistaken about or did not know
      its exact identity).

Id. at 19.   The Second, Sixth, and Eighth Circuits have also all upheld the

khat-related regulatory scheme in the CSA because of the statute’s adequate

scienter requirement.     See United States v. Hassan, 578 F.3d 108, 120

(2d Cir. 2008); United States v. Caseer, 399 F.3d 828, 838-39 (6th Cir. 2005);

United States v. Sheikh, 367 F.3d 756, 764 (8th Cir. 2004). In Hassan, the Second

Circuit determined that “what saves the statute at issue here—the CSA as it relates
8

to khat—from constitutional trouble is the fact that scienter is required for a

conviction.”5 Hassan, 578 F.3d at 120.

        [¶12] We agree with the logic and analysis of the federal circuit courts

regarding      the    scienter     requirement        in    a    void-for-vagueness          challenge.

Title 17-A M.R.S. § 1101(16-A)(O) withstands constitutional scrutiny because of

the scienter requirement contained in the charging statute, 17-A M.R.S. § 1120(1).

Reckards argues that the statute as a whole is so complex that ordinary people

cannot understand it, and that it is not clear to an ordinary person whether

alpha-PVP is illegal because the statute makes no reference to the drug.6 While the

statute is complex, the federal circuits have rejected such arguments when the

statute has an adequate scienter requirement. In this case, the State is still required

to prove a culpable state of mind beyond a reasonable doubt, and for that reason,

we hold that 17-A M.R.S. § 1101(16-A)(O) is constitutional.




    5
        There is a comparable line of drug cases involving challenges to the Analogue Act on
void-for-vagueness grounds in which the federal courts hold the statutes to be constitutional because they
contained an adequate scienter requirement. See United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005);
United States v. Klecker, 348 F.3d 69 (4th Cir. 2003); United States v. Orchard, 332 F.3d 1133
(8th Cir. 2003); United States v. Hofstatter, 8 F.3d 316 (6th Cir. 1993); United States v. Granberry,
916 F.2d 1008 (5th Cir. 1990); but see United States v. Forbes, 806 F. Supp. 232, 237-38 (D. Colo. 1992)
(holding that the definition of “controlled substance analogue” is unconstitutional as applied to a drug
known as “AET” because the scientific community could not agree on a methodology to determine
structural similarity and the definition did not require any scienter).
    6
       Reckards suggests that statutes that prohibit possession of particular substances should include
“street names” or nonscientific popular references; such a practice would actually tend to create
uncertainty and vagueness rather than reduce it.
                                                                                 9

        The entry is:

                           Judgment affirmed.



On the briefs:

        Jeremy Pratt, Esq., and Ellen Simmons, Esq., Camden, for appellant David
        Reckards

        Janet T. Mills, Attorney General, Katie Sibley, Asst. Atty. Gen., Office of
        the Attorney General, Augusta, for appellee State of Maine


At oral arguments:

        Jeremy Pratt, Esq., for appellant David Reckards

        Katie Sibley, Asst. Atty. Gen., for appellee State of Maine



Knox County Superior Court docket numbers CR-2013-116, 185
FOR CLERK REFERENCE ONLY
