                                                                 [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                     ________________________         U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                            MAY 02, 2002
                            No. 01-11320                 THOMAS K. KAHN
                     ________________________                 CLERK
                   D.C. Docket No. 00-00068-CR-RV

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

     versus

MARK FISHER,

                                           Defendant-Appellant.

                        ___________________

                             No. 01-11395
                         ____________________
                   D. C. Docket No. 00-00068-CR-003

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

     versus

DEVON SUTTON, a.k.a. Devon
Daniel Sutton,

                                           Defendant-Appellant.
                                  _____________________

                                      No. 01-13039
                                 _____________________
                            D. C. Docket No. 00-00068-CR-001

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

       versus

ARTHUR ROBERTSON,

                                                             Defendant-Appellant.

                                _______________________

                      Appeals from the United States District Court
                             Southern District of Alabama
                             _______________________
                                    (May 2, 2002)

Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS*, District
Judge.

MILLS, District Judge:
                                             FACTS

       On October 2, 2000, Appellants entered conditional pleas1 to the

charge of misprision of a felony:

       *
        Honorable Richard Mills, U.S. District Judge for the Central District of Illinois, sitting
by designation.
       1
         The pleas were entered on the condition that Appellants be allowed to appeal the district
court’s denial of their joint Motion to Dismiss the Indictment.

                                                 2
       Whoever, having knowledge of the actual commission of a felony
       cognizable by a court of the United States, conceals and does not as soon as
       possible make known the same to some judge or other person in civil or
       military authority under the United States, shall be fined under this title or
       imprisoned not more than three years, or both.

18 U.S.C. § 4. The Government charged Appellants with knowledge of the

commission of a felony involving the substance gamma-butyrolactone (“GBL”).

       Although GBL is not a controlled substance, the Government alleged that it

was a controlled substance analogue of a Schedule I controlled substance –

gamma-hydroxybutyrate acid (“GHB”). GHB is more commonly known as the

“date-rape drug.” According to the Drug Enforcement Administration (“DEA”),

GHB can produce drowsiness, dizziness, nausea, visual disturbances,

unconsciousness, seizures, severe respiratory depression and coma.2 Addition of

Gamma-Hydroxybutyric Acid to Schedule I, 65 Fed. Reg. 13235-13238 (March

13, 2000) (to be codified at 21 C.F.R. pts. 1301 and 1308).

       Appellant Mark Fisher owns and operates Gold’s Gym in Mobile, Alabama



       2
        The DEA’s Final Rule, published in the Federal Register, contained additional
information about the dangerous effects associated with GHB.
       Overdose usually requires emergency medical treatment, including intensive care for
       respiratory depression and coma. Several Poison Control Centers have characterized and
       reported cases of GHB-dependence and withdrawal to the DEA. To date, DEA has
       documented over 5,700 overdoses and law enforcement encounters with GHB in 45
       states. DEA has also documented 65 GHB-related deaths.
Addition of Gamma-Hydroxybutyric Acid to Schedule I, 65 Fed. Reg. 13235-13238 (March 13,
2000) (to be codified at 21 C.F.R. pts. 1301 and 1308).

                                              3
and Pensacola, Florida. Gold’s Gym provides facilities for exercising,

bodybuilding, and weight training and sells a number of commercial products that

are popular with patrons of physical fitness centers. One of the products sold was

called “Verve.”3 Verve, a common industrial chemical, contained GBL which

metabolized into GHB when ingested into the human body. GHB is believed by

some to assist the release of growth hormones which in turn stimulate muscle

growth. In addition, a human pharmaceutical formulation of GHB is being

developed as a treatment for catalepsy, a condition associated with narcolepsy, a

serious and debilitating disease .4 Pub. Law No. 106-172, § 2(5) (2000).

       Appellant Fisher filed a Motion to Dismiss the Indictment arguing that the

application of Public Law 106-172 through the Analogue Act was

unconstitutionally vague, arbitrary, capricious, and denied Appellant due process.5

Specifically, Appellants argued that Public Law 106-172 and subsequently filed

DEA rules did not put Appellants on notice that GBL was a controlled substance

analogue. The district court denied Appellants’ Motion holding:


       3
        Appellant Devon Sutton purchased Verve from Gold’s Gym and sold it to others,
including a manager and bartender at a bar in Mobile, Alabama. Appellant Arthur Robertson
sold Verve while he was employed as a manager at Gold’s Gym.
       4
        Cataplexy is defined as a sudden loss of muscle power following a strong emotional
stimulus. MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 179 (10th ed. 1996).
       5
        All Appellants joined this motion at its hearing.

                                                4
       [T]he court is of the opinion that the GBL is a controlled substance analogue
       of GHB, a Schedule I controlled substance, and that the notice to defendants
       was constitutionally adequate, for the reasons set forth in the government’s
       written and oral responses. In making this ruling, the court specifically
       notes that no party contests the constitutionality of Public Law 106-172 (the
       Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of
       2000) and that no party denies that notice of the illegality of GHB was
       published in the Federal Register on March 13, 2000. Most importantly, it is
       undisputed that although GBL has no pharmacological effects on the human
       body in and of itself, it is quickly converted to GHB once it is ingested in the
       human body. Thus it readily appears that the only reason a person would
       ingest GBL would be to obtain the pharmacological effects that GHB
       produces on the human body. Arguments to the contrary belie the medical
       evidence and common sense.

United States v. Fisher, No. 00-00068 (D. Ala. Oct. 2, 2000) (order denying

motion to dismiss indictment).

       Appellants raise two issues. (1) Whether the Analogue Act 21 U.S.C. §

813, as applied to GBL, is unconstitutionally vague in that it provides inadequate

notice of illegal behavior and allows arbitrary and discriminatory law enforcement?

And (2) whether GBL is a controlled substance analogue of GHB?6 Courts that

       6
         Appellant Sutton raises the additional issue that he did not have adequate constitutional
notice because the March 13, 2000 DEA Rule appeared in the Federal Register only one day
before his arrest. Looking at the docket sheet submitted with Appellant’s appeal, it appears a
bench warrant was issued for Appellant’s arrest on April 18, 2000, more than a month after the
Rule appeared in the Federal Register. Whether it was one day or thirty-six, it is well settled that
when regulations are published in the Federal Register they give legal notice of their contents to
all who may be affected thereby. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947);
44 U.S.C. § 1507.
        A document required by section 1505(a) of this title to be published in the Federal
        Register is not valid as against a person who has not had actual knowledge of it until the
        duplicate originals or certified copies of the document have been filed with the Office of
        the Federal Register and a copy made available for public inspection as provided by

                                                 5
have addressed the constitutionality of the Analogue Act have evaluated it as it

applies to a specific substance. Therefore, these issues are wrapped up together

into the single issue of whether Appellants had constitutional notice that GBL was

a controlled substance analogue of GHB?

       The district court’s decision that 21 U.S.C § 813 is not unconstitutionally

vague is reviewed under a de novo standard. United States v. Carlson, 87 F.3d

440, 443 (11th Cir. 1996). The court’s factual finding that GBL is a controlled

substance analogue of GHB is reviewed for clear error. United States v. Reid, 69

F.3d 1109, 1113 (11th Cir. 1995).

                                           ANALYSIS

       “As generally stated, the void-for-vagueness doctrine requires that a penal

statute 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.” Kolender v. Lawson, 461 U.S. 352,



        section 1503 of this title. Unless otherwise specifically provided by statute, filing of a
        document, required or authorized to be published by section 1505 of this title, except in
        cases where notice by publication is insufficient in law, is sufficient to give notice of the
        contents of the documents to a person subject to or affected by it.
44 U.S.C. § 1507. In the past, parties have argued that it is unreasonable to expect ordinary
people to obtain copies of the Federal Register. While this argument has some appeal, the U.S.
Supreme Court has indicated that notices published in the Federal Register are adequate. Lyng
v. Payne, 476 U.S. 926, 941 (1986). Lyng indicated that the Supreme Court believes the Federal
Register is an appropriate vehicle for communicating action by federal agencies. Hopp v. United
States, 661 F.Supp. 800, 801-802 (S.D. Ia. 1987).

                                                 6
357 (1983). “Although the doctrine focuses both on actual notice to citizens and

arbitrary enforcement, we have recognized recently that the more important aspect

of vagueness doctrine ‘is not actual notice, but the other principal element of the

doctrine--the requirement that a legislature establish minimal guidelines to govern

law enforcement.’” Kolender, 461 U.S. at 357 quoting Smith v. Goguen, 415 U.S.

566, 574 (1974). Statutes without identifiable standards “allow[] policemen,

prosecutors, and juries to pursue their personal predilections.” Smith, 415 U.S. at

575. Except where First Amendment rights are involved, vagueness challenges

must be evaluated in the light of the facts of the case at hand. See United States v.

Mazurie, 419 U.S. 544, 550 (1975).

The Analogue Act 7

       7
          “A controlled substance analogue shall, to the extent intended for human consumption,
be treated, for the purpose of any Federal Law as a controlled substance in schedule I.” 21
U.S.C. § 813.
Except as provided in subparagraph (C), 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) (2000).

                                                  7
      The Fifth Circuit has addressed whether the Analogue Act is

unconstitutionally vague. See United States v. Granberry, 916 F.2d 1008 (5th Cir.

1990). The court held:

      [D]espite Granberry’s contention to the contrary, the term
      “controlled substance analogue” in § 813 is clearly and specifically defined,
      in terms readily comprehensible to the ordinary reader. It provides adequate
      notice of what conduct is prohibited. The statute makes plain that drugs
      which have been chemically designed to be similar to controlled substances,
      but which are not themselves listed on the controlled substance schedules,
      will nonetheless be considered as schedule I substances if (1) they are
      substantially similar chemically to drugs that are on those schedules; (2) if
      they produce similar effects on the central nervous system as drugs that are
      on those schedules; or (3) are intended or represented to produce effects
      similar to those produced by drugs that are on those schedules. There is
      nothing vague about the statute.

Granberry, 916 F.2d at 1010.

      The Eleventh Circuit has cited Granberry with approval. United States v.

Carlson, 87 F.3d 440, 443 (11th Cir. 1996). In Carlson, defendants argued that the

definition of a controlled substance analogue was unconstitutionally vague as

applied to 3,4-Methylenedioxymethamphetamine (MDMA). Specifically,

defendants argued that the phrase “substantially similar” was not adequately

defined and that they did not receive fair warning that their conduct was illegal.

Carlson, 87 F.3d at 443. The court rejected defendants’ argument and held that the

Analogue Act was not unconstitutionally vague. Id. at 444.

      A district court in Colorado reached a contrary result in a case involving

                                          8
alphaethyltryptamine (“AET”). In United States v. Forbes, 806 F.Supp. 232

(1992), defendants were charged with distribution of AET in violation of 21 U.S.C.

§§ 813, 841, 846. The indictment alleged that AET was a controlled substance

analogue because it had a substantially similar chemical structure to

dimethyltryptamine (“DMT”) and diethyltryptamine (“DET”), both schedule I

controlled substances. Forbes, 806 F.Supp. at 233. The court dismissed the

indictment because there was no scientific consensus that AET had a chemical

structure that was substantially similar to DMT or DET. Id. at 239. Therefore, the

district court held that the Analogue Act, as applied to AET, was unconstitutionally

vague. Id.

      Appellants here argue that the Analogue Act was unconstitutionally vague as

applied to GBL because Public Law 106-172 and subsequently issued DEA rules

did not state any criteria by which a layperson could determine that GBL was a

controlled substance analogue. They assert that the statute’s lack of specificity

failed to give them constitutional notice that GBL was an illegal substance and

consequently, the public is subjected to arbitrary and/or discriminatory law

enforcement.

Public Law 106-172 and DEA Rules

      In Public Law 106-172, Congress found that the abuse of GHB was “an


                                          9
imminent hazard to the public safety.” Pub. Law No. 106-172, § 3(a)(1) (2000).

Accordingly, Congress ordered the Attorney General to issue a final order placing

the drug in Schedule I. On March 13, 2000, the Drug Enforcement Administration,

under authority delegated by the Attorney General, issued its Final Rule naming

GHB a Schedule I Controlled Substance. Addition of Gamma-Hydroxybutyric

Acid to Schedule I, 65 Fed. Reg. 13235-13238 (March 13, 2000) (to be codified at

21 C.F.R. pts. 1301 and 1308).8

       Although Congress did not designate GBL as a controlled substance, it

recognized the dangerous proclivities of the chemical. In Section 2 of Public Law

106-172, Congress made the following finding: “If taken for human consumption,

common industrial chemicals such as gamma butyrolactone [GBL] and 1.4-

butanediol are swiftly converted by the body into GHB. Illicit use of these and

other GHB analogues and precursor chemicals is a significant and growing law

enforcement problem.” Pub. Law No. 106-172, § 2 (4) (2000).

       8
        The DEA’s Final Rule contained the following statement regarding GBL:
       The DEA has received reports that GBL, the solvent precursor for GHB, is being abused
       due to its rapid conversion to GHB soon after ingestion. On January 21, 1999, the FDA
       issued a request for a voluntary recall of all GBL-containing products sold in health food
       stores and warned the public of its danger to the public health. FDA has also declared
       1,4-butanediol, a chemical related to both GHB and GBL, a Class I Health Hazard. On
       May 11, 1999, the FDA issued another warning on 1,4 butanediol, GHB and GBL stating
       that these substances pose a significant health hazard. Public Law 106-172 also placed
       certain controls on GBL. These will be the subject of a separate Federal Register Notice.
Addition of Gamma-Hydroxybutyric Acid to Schedule I, 65 Fed. Reg. 13235-13238 (March 13,
2000) (to be codified at 21 C.F.R. pts. 1301 and 1308).

                                               10
      In addition, Congress added GBL to the “List I Chemicals.” Pub. Law No.

106-172, § 3(b)(2)(c) (2000); 21 U.S.C. § 802(34)(X). List I chemicals are

chemicals that are used in manufacturing controlled substances. 21 U.S.C. §

802(34). Finally, Congress added a section to the definition of a controlled

substance analogue. Pub. Law. No. 106-172, § 5(a); 21 U.S.C. § 802(32)(B). The

new section states, “The designation of gamma butyrolactone or any other

chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude

a finding pursuant to subparagraph (A) of this paragraph that the chemical is a

controlled substance analogue.” 21 U.S.C. § 802(32)(B).

      Appellants argue that because the DEA’s March 13, 2000 Final Rule stated

that the controls placed on GBL by Public Law 106-172 would be the subject of a

separate Federal Register Notice, GBL had no legal status until the DEA filed that

separate Federal Register Notice. Therefore, as of March 13, 2000, Appellants

claim they had no notice that GBL was illegal.

      On April 24, 2000, the DEA issued its anticipated Final Rule on GBL

designating it a List I chemical in compliance with Public Law 106-172. In a

paragraph entitled, “Is GBL Subject to Any Other Controls under the [Controlled

Substances Act]?” the DEA made the following statement: “GBL and 1,4-

butanediol are structurally and pharmacologically similar to GHB and are often


                                         11
substituted for GHB. Under certain circumstances they may satisfy the definition

of a controlled substance analogue.” Placement of Gamma-Butyrolactone in List I

of the Controlled Substances Act, 65 Fed. Reg. 21645-21647 (April 24, 2000) (to

be codified at 21 C.F.R. pt. 1310).

       Appellants argue that even when the DEA issued the Final Rule on GBL, it

simply clouded the issue because it said GBL would be a GHB analogue, “under

certain circumstances,” without further explanation. To further complicate things,

Appellants argue, the definition of a controlled substance analogue, contained in 21

U.S.C. 802(32), is unconstitutionally vague. Appellants argue that the legal status

of GBL is indefinite due to Public Law 106-172, the DEA’s April 24, 2000 Final

Rule, and the Analogue Act and that this ambiguity allows for arbitrary

enforcement.

       This Court finds that the public was given notice that all GHB analogues

were illegal when Public Law 106-172 was enacted on February 18, 20009 and

again when the DEA’s Final Rule appeared in the Federal Register on March 13,

2000, at the direction of Congress, designating GHB a Schedule I controlled



       9
          Public Law 106-172, known as the “Hillory J. Farias and Samantha Reid Date-Rape
Drug Prohibition Act of 1999," was signed into law on February 18, 2000. It did not become
illegal to possess GHB until March 13, 2000 when the DEA issued its Final Rule designating
GHB as a Schedule I controlled substance.

                                             12
substance.10 The next step in this constitutional analysis is to decide whether an

ordinary person could look at the definition of controlled substance analogue and

determine that GBL is an analogue of GHB.11 Although statements found in Public

Law 106-172 and the DEA’s Final Rules indicate that both Congress and the DEA

considered GBL to be an analogue of GHB,12 the only thing that matters is that

       10
         Publication in the Federal Register constitutes notice to the public. See footnote 7.
       11
          Appellants argue that Congress did not addressed whether GBL is illegal and that the
DEA issued ambiguous rules on the subject. This is a red herring. Because a controlled
substance analogue statute exists, the only step Congress had to take to make GHB analogues
illegal was to schedule GHB a controlled substance. It did not have to specifically identify GHB
analogues or place all GHB analogues on a list. The Analogue Act and its definition of
controlled substance analogue is the source for identifying GHB analogues. If no Analogue Act
existed, only those chemicals scheduled by Congress as controlled substances would be illegal
and Appellants’ argument would have force. Unfortunately for Appellants, the Analogue Act
does exist. Therefore, under current law, all substances that meet the definition of a controlled
substance analogue are illegal. No list of controlled substance analogues is necessary. Failure to
specifically identify a substance as a controlled substance analogue is of no consequence.
Contrary to Appellants’ argument, statements on the issue made by Congress or the DEA do not
cloud the issue at all. These statements actually gave Appellants additional notice that at least
two separate bodies of government consider GBL to be an analogue. Statements by Congress or
the DEA are not necessary to our analysis – they are only insightful.
       12
         The following statements were made by Congress and the DEA. “If taken for human
consumption, common industrial chemicals such as gamma butyrolactone [GBL] and 1.4-
butanediol are swiftly converted by the body into GHB. Illicit use of these and other GHB
analogues and precursor chemicals is a significant and growing law enforcement problem.” Pub.
Law No. 106-172, § 2 (4) (2000). “The designation of gamma butyrolactone or any other
chemical as a listed chemical pursuant to paragraph (34) or (35) does not preclude a finding
pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance
analogue.” Pub. Law. No. 106-172, § 5(a)
       The DEA has received reports that GBL, the solvent precursor for GHB, is being abused
       due to its rapid conversion to GHB soon after ingestion. On January 21, 1999, the FDA
       issued a request for a voluntary recall of all GBL-containing products sold in health food
       stores and warned the public of its danger to the public health. FDA has also declared
       1,4-butanediol, a chemical related to both GHB and GBL, a Class I Health Hazard. On
       May 11, 1999, the FDA issued another warning on 1,4 butanediol, GHB and GBL stating

                                                13
GBL meets the controlled analogue definition. Therefore, the Court will use

Section 802(32)(A) to determine if ordinary people would be able to determine that

GBL is an illegal analogue of GHB. If so, then the Analogue Act is not

unconstitutional as applied to GBL. See Kolender, 461 U.S. 352, 357

(1983)(holding that a statute is not void for vagueness if ordinary people can

understand what conduct is prohibited).

The Definition

       The district court here found that GBL was a controlled substance analogue

of GHB. This factual finding is reviewed for clear error. United States v. Reid, 69

F.3d 1109, 1113 (11th Cir. 1995).

       Appellants argue that GBL does not meet the controlled substance analogue

definition. 21 U.S.C. § 802(32)(A).13 Specifically, Appellants allege that the

        that these substances pose a significant health hazard. Public Law 106-172 also placed
        certain controls on GBL. These will be the subject of a separate Federal Register Notice.
Addition of Gamma-Hydroxybutyric Acid to Schedule I, 65 Fed. Reg. 13235-13238 (March 13,
2000) (to be codified at 21 C.F.R. pts. 1301 and 1308). “GBL and 1,4-butanediol are structurally
and pharmacologically similar to GHB and are often substituted for GHB. Under certain
circumstances they may satisfy the definition of a controlled substance analogue.” Placement of
Gamma-Butyrolactone in List I of the Controlled Substances Act, 65 Fed. Reg. 21645-21647
(April 24, 2000) (to be codified at 21 C.F.R. pt. 1310).
       13
         Except as provided in subparagraph (C), 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

                                                14
chemical structure of GBL is not substantially similar to the chemical structure of

GHB and that GBL does not have an effect on the central nervous system

substantially similar to that of GHB.

       The definition of a controlled substance analogue contains three

subparagraphs. The first issue in applying the definition is to determine whether

these subparagraphs are to be read in the conjunctive or the disjunctive. Appellants

argue the definition should be read as requiring subparagraph (i) and either

subparagraph (ii) or (iii). The Government argues that the definition should be

read disjunctively, effectively creating three separate definitions.

       The first rule in statutory construction is to determine whether the “language

at issue has a plain and unambiguous meaning with regard to the particular

dispute.” Smith v. Magras, 134 F.3d 457, 462 (3d. Cir. 1997). If the statute’s

meaning is plain and unambiguous, there is no need for further inquiry. The plain

language is presumed to express congressional intent and will control a court’s

interpretation.


               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).

                                                 15
      As in all cases involving statutory construction, our starting point must be
      the language employed by Congress, and we assume that the legislative
      purpose is expressed by the ordinary meaning of the words used. Thus
      absent a clearly expressed legislative intention to the contrary, that language
      must ordinarily be regarded as conclusive.

American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982).

      A plain reading of the statute would indicate that the definition should be

read in the alternative. It reads (i); (ii); or (iii). However, appellate courts have

concluded differently. McKinney v. United States, 79 F.2d 105, 107-108 (8th Cir.

1996) assumes without holding that the definition is a two-prong test, with a

conjunction between clause (i) and (ii). The Fifth Circuit in Granberry paraphrased

the definition in the disjunctive.

      The district courts that have addressed the issue also came to different

conclusions. Appellants rely on United States v. Forbes, 806 F.Supp. 232, 234-236

(D.C. Colo. 1992), which held the definition must be in the conjunctive to avoid

absurd results. In United States v. Greig, 144 F.Supp.2d 386 (D. V.I. 2001), the

Court held the definition was in the disjunctive. The Southern District of New

York recently issued an opinion holding the definition was in the conjunctive.

United States v. Roberts, No. 01 CR 410 RWS, unpublished opinion (S.D.N.Y.

Dec. 14, 2001).

      We find there is no reason to take sides on this issue as GBL satisfies both


                                           16
subparagraphs (i) and (ii). 21 U.S.C. § 802(32)(i)-(ii).

      Defendant Fisher’s expert, Rodney Guttmann, Ph.D., submitted an affidavit

in which he testified that the chemical structures of GBL and GHB are not

substantially similar. In addition, Dr. Guttmann testified that recent data indicates

GBL has little, if any, effect on the brain. Dr. Guttmann also testified that “the

stimulant, depressant, or hallucinogenic effect on the central nervous system by

GBL and GHB are not substantially similar.” However, Dr. Guttman continues by

saying:

      [b]ecause GHB is a metabolite of GBL, care must be taken when evaluating
      data taken from certain studies as the effects of GBL may be attributable to
      GHB rather than GBL itself. For example, it is sometimes stated that GBL
      has greater effects than GHB. This statement is only partially correct as the
      effects described are not actually due to GBL but the metabolically active
      product, GHB. (Supplemental Affidavit of Dr. Guttmann.)

While academics may distinguish between how the originally ingested substance

affects the body as compared to how the substance’s metabolite affects the body,

the Court will not make such a distinction. Once GBL is ingested, the body

transforms it into a GBL metabolite: GHB. This transformation is not without

consequence; along with it comes all the harmful effects associated with GHB. For

this reason, it is ludicrous to argue that GBL has no effect on the central nervous

system. After ingestion, a person, by will or by choice, cannot prevent GBL from

metabolizing into GHB. The district court’s assessment of the facts was not clearly

                                          17
erroneous.

      It is undisputed that GBL has no pharmacological effects in a vacuum.

However, the human body is not a vacuum. It is also undisputed that upon

ingestion, GBL converts into a GBL metabolite: GHB. Therefore, this Court finds

that GBL upon ingestion meets the definition of a controlled substance analogue as

its chemical structure and effect on the central nervous system are substantially

similar to GHB, a Schedule I Controlled Substance. 21 U.S.C. § 802(32)(A)(i)-(ii).

People of ordinary intelligence would easily be able to determine that a substance,

which is converted upon ingestion into a metabolite with a substantially similar

chemical structure and effect on the central nervous system as a schedule I

controlled substance, would meet the definition of a controlled substance analogue.



      We affirm the district court’s holding and find that the Analogue Act 21

U.S.C. § 813, as applied to GBL, is not unconstitutionally vague. Appellants had

constitutional notice that GBL was a controlled substance analogue of GHB.

AFFIRMED.




                                         18
