
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-2289                                    UNITED STATES,                                      Appellee,                                          v.                                BRADLEY OLIVER BOWEN,                                Defendant - Appellant.                                 ____________________          No. 96-2290                                    UNITED STATES,                                      Appellee,                                          v.                                RINALDO TICCHIARELLI,                         a/k/a RONALDO, a/k/a WHITNEY DOREY,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                        Bownes and Cyr, Senior Circuit Judges.                                        _____________________                                _____________________               J. Bradford Coffey,  by appointment of the  Court, with whom               __________________          Farrell, Rosenblatt & Russell was on  brief for appellant Bradley          _____________________________          Oliver Bowen.               G. Richard Strafer, with whom  Qui on & Strafer, P.A. was on               __________________             ______________________          brief for appellant Rinaldo Ticchiarelli.               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom  Jay  P. McCloskey,  United States  Attorney, James  L.                     _________________                            _________          Moore, Assistant  United States  Attorney, and  Timothy D.  Wing,          _____                                           ________________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                  September 24, 1997                                 ____________________                                         -2-                    TORRUELLA,  Chief Judge.  This appeal presents an issue                    TORRUELLA,  Chief Judge.                                ___________          of first impression, namely, whether the term "hashish oil" under          18   U.S.C.        841(b)(1)(D)    and   U.S.S.G.      2D1.1   is          unconstitutionally  vague,  or  so ambiguous  as  to  require the          application  of  the  rule  of  lenity,  as  applied  to  conduct          occurring prior to  a November 1995  amendment to the  Sentencing          Guidelines  that provided, for  the first time,  a definition for          the term.                    Appellants   were    convicted   for    importing   and          trafficking,  prior to the  Guideline amendment, in  a controlled          cannabis-derived substance  the precise  classification of  which          was  left to  be determined  during sentencing.    The sentencing          court determined the substance to be "hashish oil," as opposed to          "marihuana,"  and concluded  that it  was appropriate to  apply a          fifty to one  quantity conversion ratio  under the Drug  Quantity          Table of  the Sentencing  Guidelines.   See U.S.S.G.    2D1.1(c).                                                  ___          Finding  that  genuine  ambiguity  regarding  the  definition  of          "hashish oil" prior to 1995  mandates the application of the rule          of lenity in this case, we reverse and remand for re-sentencing.                                      BACKGROUND                                      BACKGROUND                    Defendants-Appellants Bradley Oliver  Bowen and Rinaldo          Ticchiarelli participated in a scheme, along with three other co-          conspirators, to smuggle controlled  substances from Jamaica into          the United  States, to  store the substances  in Maine,  and from          there to eventually  smuggle contraband drugs into Canada.   With          Bowen's assistance,  Ticchiarelli  organized two  boat  trips  to                                         -3-          Jamaica to pick up marihuana  and a marihuana-based substance and          stored  large quantities of these controlled substances in Maine,          for later export into Canada.                    The illicit substances involved were marihuana and much          greater   quantities  of   a   black,  tar-like   marihuana-based          substance.   In  a consolidated  appeal,  Brown and  Ticchiarelli          challenge  the district  court's determination  during sentencing          that the  tar-like substance in  which they were  trafficking was          "hashish  oil."1    Both  seek  to be  sentenced  as  though  the          controlled substance were  "marihuana."  Prior to  the sentencing          stage, their cases travelled different procedural routes.                    Pursuant to a plea agreement, Ticchiarelli  pled guilty          on September 14, 1995 to Counts One, Eight and Ten of a ten-count          indictment.   Although these  counts made  specific reference  to          "hashish oil," as part of his plea agreement Ticchiarelli did not          concede that  the Schedule  I controlled  substance was  "hashish          oil."    Count  One  alleged  a  conspiracy  to  commit  and  the          commission of, with Bowen and three others, the following  crimes          occurring  between  August  1994  and  March  1995:  importing  a          Schedule  I controlled  substance  ("hashish oil")  derived  from          marihuana into the United States in violation of 21 U.S.C.   952;          importing  marihuana into the  United States  in violation  of 21          U.S.C.    952; distributing the  "hashish oil" intending  that it          would be unlawfully imported, in violation  of 21 U.S.C.   959(a)                                        ____________________          1   As discussed infra,  Bowen asserts additional claims  not put                           _____          forward by Ticchiarelli.                                         -4-          (1); possessing with intent to distribute a Schedule I controlled          substance  ("hashish oil")  derived from  marihuana,  as well  as          possessing with intent  to distribute marihuana, in  violation of          21   U.S.C.     841(a)(1);  exporting  a  Schedule  I  controlled          substance ("hashish  oil") as well  as marihuana from  the United          States, in  violation of  21 U.S.C.   953.   Count  Eight charged          Ticchiarelli with  making false  representations  to the  Customs          Service  by presenting false  identification, in violation  of 18          U.S.C.   1001, and Count Ten recited the other counts in invoking          the criminal forfeiture provision of 21 U.S.C.   853.                    The plea agreement  signed by Ticchiarelli stated  that          the Schedule I  controlled substance of  Count One was  "hashish"          when  processed  into  liquid  form,  but  Ticchiarelli   nowhere          conceded that the substance  was "hashish oil," and the  district          court reserved the issue of the precise identity of the substance          for determination at sentencing when it accepted the guilty plea.                    Bowen, unlike  Ticchiarelli and the  other conspirators          named in Count One  of the indictment, did not enter  into a plea          bargain.  On February 6,  1996, Bowen was convicted after a  jury          trial on Counts One, Six and Seven.  Counts Six and Seven charged          a second  instance, in March  1995, of possession with  intent to          distribute  a Schedule I controlled substance ("hashish oil"), in          violation  of  21  U.S.C.     841(a)  and  841(b)(1)(B)(vii), and          possession with intent  to distribute marihuana, in  violation of          21  U.S.C.    841(b)(1)(D).  The Presentence Investigation Report          (PSR)  in  Bowen's case  states  that  the contested  Schedule  I                                         -5-          controlled substance  was hashish oil.   Bowen disputed  that PSR          determination and contended that the Guideline's use of  the term          "hashish  oil" was  unconstitutionally vague.    Bowen sought  to          consolidate  his  case  with those  of  his  co-conspirators with          respect to  the issue of  the nature of the  controlled substance          referred  to as "hashish  oil" in the  indictment, and as  to the          legal validity of this allegedly ambiguous provision.                    The cases were consolidated and  on August 9, 1996, the          district court convened  an evidentiary hearing to  determine the          proper characterization  of the  controlled Schedule  I substance          for the purposes  of sentencing Bowen, Ticchiarelli,  and another          co-conspirator.   At the  hearing, experts  on each side  offered          differing definitions  of the  term hashish oil.   On  October 2,          1996,  the district  court ruled  that based on  undisputed facts          regarding the physical appearance and chemical composition of the          substance,  the substance fit  within the ambit  of the "ordinary          meaning" of hashish oil.   See United States v. Ticchiarelli, 943                                     ___ _____________    ____________          F. Supp. 77, 83  (D. Me. 1996) (Order  Determining the Nature  of          the  Controlled Substance  for  Purposes  of  Sentencing).    The          district  court  also  stated,  however,  that  after considering          expert  testimony proffered by the government and the defendants,          and after consulting further materials in order  to ascertain the          meaning of the term "hashish  oil," it had discovered that "there          is  no scientific nor any universally accepted precise definition          of the term hashish oil."  Id. at 82.                                     ___                    Having found  the  controlled substance  to be  hashish                                         -6-          oil, the court  established the base offense level  for Bowen and          Ticchiarelli  by following  section 2D1.1(c):  it multiplied  the          quantity (measured by  weight) of the "hashish  oil" attributable          to the defendants by a factor of fifty, added that figure  to the          amount  of other marihuana  attributable to them,  and determined          the base offense level corresponding to the resulting, marihuana-          equivalent  drug quantity figure.2   The base  offense levels for          Bowen and Ticchiarelli were 36 each, and, ultimately, their total          offense levels were determined to be 38.                    On  appeal, both  Ticchiarelli  and  Bowen assert  that          Sentencing Guideline section 2D1.1's use of "hashish oil" without          a  definition (prior to November 1995) was unconstitutional, and,          in the  alternative, that  the rule of  lenity required  that any          ambiguity as  to the definition  of "hashish oil" be  resolved in          their favor  -- that  is, through a  finding that  the marihuana-          based  substance was  not hashish  oil  for sentencing  purposes.          Bowen  additionally  claims  error in  the  admission  of certain          evidence in his criminal  trial and asserts that the fifty to one          ratio   between  marihuana  and  hashish  oil  is  arbitrary  and          irrational, thereby violating the Due Process clause of the Fifth                                        ____________________          2  The court determined that 393 kilograms of hashish oil  and 48          kilograms of marihuana were attributable to the defendants.  This          amounts, after the one  to fifty conversion, to 19,698  kilograms          of marihuana equivalent, corresponding to a base offense level of          36.   See U.S.S.G.    2D1.1(c).   Had  the substance  been deemed                ___          marihuana instead, the corresponding base offense level for Bowen          and Ticchiarelli  would have  been 28.   Given the  total offense          levels of 38, this eight point increase translates into a minimum          difference in incarceration  periods of 114 months  for Bowen and          141 months for Ticchiarelli.                                         -7-          Amendment.                                         -8-                                      DISCUSSION                                      DISCUSSION                    I.  The Meaning of "Hashish Oil"                    I.  The Meaning of "Hashish Oil"                    The district  court's interpretation of the  meaning of          "hashish  oil" under the  Sentencing Guidelines presents  a legal          question over which we  assume de novo review, as does  the legal                                         __ ____          issue  of whether the  term was vague  or ambiguous prior  to the          1995  amendment.  United States v. Camilo,  71 F.3d 984, 986 (1st                            _____________    ______          Cir. 1996);  United States  v. Bohai Trading  Co., Inc.,  45 F.3d                       _____________     ________________________          577, 580  (1st Cir.  1995).  The  sentencing court's  findings of          fact  regarding the properties of the controlled substance itself          are subject to review for clear error.  Camilo, 71 F.3d at 986.                                                  ______                    The following factual findings regarding the controlled          substance are undisputed:  (1) it is derived from marihuana plant          matter  (cannabis  sativa),  and  not  from  marihuana  resin  or          hashish; (2) it  is a  black or  near-black substance  resembling          road tar; (3)  it is  not pourable  at room  temperature; (4)  it          contains  tetrahydrocannabinol  (THC)  in the  13  to  16 percent          range;   (5)  it  contains  cannabinol  and cannabidiol;  (6)  it          contains no fragments of vegetation perceptible to the naked eye;          (7)  it contains chlorophyll and magnesium;  (8) it originates in          Jamaica.  See 943 F.  Supp. at 78.   The appeal turns on  whether                    ___          this substance can be said to be "hashish oil."                    Under  the  amendments  to  the  Sentencing  Guidelines          effective November 1,  1995, the following definition  of hashish          oil was provided:                      Hashish  oil, for  the  purposes of  this                      guideline,  means  a preparation  of  the                                         -9-                      soluble    cannabinoids   derived    from                      cannabis that includes:  (i) one or  more                      of the  tetrahydrocannabinols (as  listed                      in 21  C.F.R.   1308.11(d)(25)),  (ii) at                      least two  of the  following: cannabinol,                      cannabidiol,   or  cannabichromene,   and                      (iii)  is   essentially  free   of  plant                      material    (e.g.    plant    fragments).                                   ____                      Typically, hashish oil is a viscous, dark                      colored oil, but  it can vary from  a dry                      resin to a colorless liquid.          U.S.S.G.   2D1.1(c), Drug Quantity Table, Note (J) (Nov. 1995).                    Prior  to November  1995, the  term  "hashish oil"  was          undefined  in both the Code, see 21 U.S.C.   841(b)(1)(D), and in                                       ___          the  Guidelines.    Moreover,  the  legislative  history  of  the          Comprehensive Crime Control Act of 1984, which first  enacted the          fifty to one ratio and  introduced the term "hashish oil"  to the          Code, is silent as to the meaning  of the term.  See Pub. L.  No.                                                           ___          98-473, 98  Stat. 2030,  2070, 2086; S.  Rep. No.  98-634 (1984);          H.R.  Rep.  No. 98-1030  (1984).   Although the  undisputed facts          regarding the substance at issue  would appear to place it within          the   current  definition,   this   definition,  constituting   a          significant and substantive addition to the guidelines, cannot be          retroactively applied to these defendants.   See United States v.                                                       ___ _____________          S nchez, 81 F.3d 9, 12  (1st Cir. 1996) (Guideline amendment that          _______          is  not a  mere clarification,  and that  is not  covered by  the          policy  statement  of  section  1B1.10,  is  not  to  be  applied          retroactively).   For example,  this definition  includes a  "dry          resin"  within the  scope of  the  term "hashish  oil," a  matter                                         -10-          which, as discussed  below,3 could not be considered  part of the          core meaning of "hashish oil" prior to the amendment.                    It is clear, however, that whether or not the substance          at issue is "hashish oil," it certainly  qualifies as "marihuana"          under the Code:                      The term "marihuana"  means all parts  of                      the  plant  Cannabis sativa  L.,  whether                      growing  or not;  the seeds  thereof; the                      resin  extracted  from any  part  of such                      plant; and  every compound,  manufacture,                      salt, derivative, mixture  or preparation                      of  such plant, its seeds or resin.  Such                      term does  not include the  mature stalks                      of such  plant, fiber produced  from such                      stalks, oil or  cake made from  the seeds                      of such plant, or . . . [any preparations                      thereof].          21 U.S.C.    802(16) (Supp. 1997).   It is not disputed  that the          substance at issue in this appeal falls within this broad, catch-          all definition  of "marihuana."   The question is whether  it can          also  be  found  to  be  "hashish  oil"  under the  pre-amendment          Guidelines.  Appellants raise several grounds for concluding that          it cannot.   We need not  address their contention  that the term          "hashish  oil"  is  void  for  vagueness,  however,  because  our          conclusion  that  the  application  of  the  rule  of  lenity  is          appropriate  in this case provides the appellants the relief they          seek.                    II.  The Rule of Lenity                    II.  The Rule of Lenity                    Appellants  contend  that  in  the  face  of  ambiguity          regarding the scope of the term "hashish oil," the district court                                        ____________________          3  See  infra discussion of applicability  of rule of  lenity for             ___  _____          core meaning of hashish oil.                                         -11-          should have  followed the  rule of lenity  by accepting  the more          restricted  definition of hashish  oil offered by  the defendants          and by  sentencing the  defendants as  though the substance  were          "marihuana" under the Guidelines.                    As the Supreme Court has consistently held, the rule of          lenity  commands that  genuine  ambiguities affecting  a criminal          statute's scope be resolved in the defendant's favor.  See, e.g.,                                                                 ___  ____          United States  v. Lanier,  117 S. Ct.  1219, 1225  (1997); United          _____________     ______                                   ______          States  v. Nippon  Paper Indus.  Co., 109 F.3d  1, 7-8  (1st Cir.          ______     _________________________          1997)(collecting  cases).  The  important purposes served  by the          rule of lenity include the  following: "to promote fair notice to          those  subject to  the criminal  laws,  to minimize  the risk  of          selective  or arbitrary enforcement,  and to maintain  the proper          balance between  Congress,  prosecutors,  and  courts."    United                                                                     ______          States v. Kozminski, 487 U.S. 931, 952 (1988).  However, the rule          ______    _________          only "properly comes  into play when,  at the  end of a  thorough          inquiry,  the meaning  of a  criminal  statute remains  obscure."          United  States v. O'Neil, 11 F.3d 292,  301 n.10 (1st Cir. 1993).          ______________    ______          Put  another way, the  rule of lenity means  that "the Court will          not interpret  a federal criminal  statute so as to  increase the          penalty  that   it  places   on  an   individual  when  such   an          interpretation can be  based on no more  than a guess as  to what          Congress intended."   Ladner v. United States, 359  U.S. 169, 178                                ______    _____________          (1958).                    We  find that experts  for both the  government and the          defendants offered reasonable constructions of the  term "hashish                                         -12-          oil" at the August 9,  1996 evidentiary hearing, and further find          that  the legislative  history  provides no  guidance  as to  the          term's meaning.  Presented with  a variety of educated guesses as          to  the meaning  of "hashish  oil" --  that is, presented  with a          genuine ambiguity  -- we  hold that the  rule of  lenity applies.          The defense expert, James Woodford, testified on the basis of his          experience as a chemist and as a drug testing expert that hashish          oil is a  transparent, honey-colored oil produced  in the process          of  compressing hashish into bricks.  Part. Tr. of August 9, 1996          Hearing,  at 38-40.   Woodford  testified that  hashish oil  is a          liquid with  high THC levels  (around 40%) and  that it is  not a          tarry,  thick substance.   Id.   On the other  hand, a government                                     ___          expert,  a forensic  chemist with  the  Drug Enforcement  Agency,          testified that  the substance  appeared to  be  hashish oil,  for          hashish  oil is  a marihuana-derived  substance  that is  chiefly          distinguished  from marihuana by  its lack of  plant material and          cystolithic  hairs,  and  that the  controlled  substance  lacked          cystolithic  hairs.   Id. at  6-7.   According to  the government                                ___          experts, "hashish oil" need not resemble other familiar oils that          are liquid  at room temperature.   The record indicates  that the          substance, although undoubtedly  a controlled substance,  did not          have the slippery, viscous, or  liquid properties of an "oil," at          least as  that  term is  commonly used.   This  fact  is, in  our          opinion,  critical  to our  conclusion  that the  rule  of lenity          applies in this case.                    Although no  other  circuit court  has  addressed  this                                         -13-          issue,  appellants draw  our  attention  to  two  district  court          decisions involving a similar tar-like marihuana-based  substance          in which  the courts, in  the face of conflicting  definitions of          hashish oil from experts, applied the rule of lenity.  See United                                                                 ___ ______          States v. Gravelle,  819 F. Supp. 1076, 1078-79  (S.D. Fla. 1993)          ______    ________          (pursuant to rule  of lenity, finding  substance to be  marihuana          rather than hashish oil); United  States v. Schultz, 810 F. Supp.                                    ______________    _______          230, 234  (S.D. Ohio  1992) (pursuant to  rule of  lenity finding          substance to  be hashish  rather than hashish  oil).   Both cases          dealt with a  thick, tarry, black substance that did  not pour at          room temperature.                    In United  States v. Camilo,  we held that the  rule of                       ______________    ______          lenity  was  not  applicable  where  a  defendant  challenged  an          enhanced sentence  for trafficking  in   "crack"  (as opposed  to          "powder")  cocaine.   See 71  F.3d  at 990  (rule  of lenity  not                                ___          applicable because  "crack in  reality does  differ from  cocaine          powder," notwithstanding  similar medical  effects and  identical          scientific composition).   That case is distinguishable  from the          instant  appeal, because  in Camilo  we emphasized  that one  can                                       ______          clearly distinguish,  as a  practical matter,  between crack  and          powder cocaine.   The meaning  of the  term "crack" was  thus not          ambiguous.   Here, "hashish  oil," prior  to the  1995 amendment,          presents a  problem of definitional ambiguity, a problem to which          the rule of lenity clearly is addressed.                    For   lenity    to   be   appropriate,    genuine   and          insurmountable  doubt must  exist  as  to  whether  Congress,  in                                         -14-          enacting a higher penalty for  "hashish oil," intended to include          this particular, tarry substance within its scope.   The district          court, finding that "[t]he three experts presented by the parties          were as  deficient on the  subject of definition as  Congress and          the  Sentencing  Commission,"  943 F.  Supp.  at  79,  surveyed a          variety of publications for assistance.  See 943 F. Supp. at  80-                                                   ___          82.   The  "ordinary meaning"  of hashish  oil that  the district          court ultimately  applied, however, did  not represent a  kind of          least common  denominator among  the various  definitions it  had          culled.   Indeed, the publications  the court cited  include both          narrow and broad definitions of  hashish oil, and the court opted          for a broader definition  rather than a narrower one.   Id.  Even                                                                  ___          on the basis of the publications cited and quoted by the district          court in its order, we find that, at the very least, there exists          ambiguity as to whether "hashish oil":  (a) must be a liquid  (or          readily pourable, or  capable of being administered in  drops) at          room temperature;  and  (b) must  have  a THC  level  in a  range          significantly  higher than  that  of  marihuana.    We  therefore          conclude that the rule of lenity should have been applied in this          case, requiring  a narrower construction  of "hashish oil."   Had          the substance been  a potent liquid,  derived from cannabis,  and          lacking plant  material, then the  rule of lenity would  not have          been appropriate.  Although,  as the district court pointed  out,          Bowen  and  Ticchiarelli   should  have  known  that   they  were          trafficking  in  a   substance  that  could  result   in  serious          penalties,  as we  have indicated,  fair notice  is not  the sole                                         -15-          consideration motivating the rule of lenity.                    II.  Bowen's Other Claims                    II.  Bowen's Other Claims                    We  need  not  dwell at  length  on  Bowen's additional          claims.  First, his request for  a downward departure due to  the          low THC levels  of the substance is rendered  irrelevant in light          of  our holding  that the  rule  of lenity  applies.   Second, he          challenges the constitutionality  of the fifty to  one conversion          ratio between  hashish oil and  marihuana under U.S.S.G.    2D1.1          and 21 U.S.C   841(b)(1) (D).  In declining Bowen's invitation to          deem  Congress' enactment of  this ratio patently  irrational, we          need  only direct his attention to  United States v. Singleterry,                                              _____________    ___________          29 F.3d 733, 739 (1st Cir. 1994), which upheld a challenge to the          Guideline  provision equating one  gram of cocaine  base with 100          grams of cocaine.   Indeed, the  fifty to one  hashish oil  ratio          presents  a  much  more straightforward  case  for after-the-fact          rationalization:  hashish oil can  be expected to  be more potent          and more easily transported than marihuana.                    Finally,  Bowen  challenges  the  admission of  a  drug          ledger  during  his criminal  trial.    Even assuming,  as  Bowen          alleges,  that the  drug ledger  confiscated at  the time  of his          arrest was not related to  the conduct charged in the indictment,          and  therefore  should  have  been  excluded  as  irrelevant,  on          reviewing the record we find  that any error was plainly harmless          and did not  implicate a constitutional right.   Given the varied          and   strong  proof,  based   on  direct  evidence,   of  Bowen's          participation  in the  conspiracy,  we find  the  "weight of  the                                         -16-          additional  evidence overwhelming,"  and conclude  that  the same          verdict would almost certainly result from  a new trial.   United                                                                     ______          States v. Rose,  104 F.3d 1408,  1414 (1st Cir. 1997).   Although          ______    ____          the drug  ledger was used  by the prosecution to  corroborate the          testimony   of   Bowen's  co-conspirators,   significantly,   the          accomplice testimony  was forcefully corroborated  by other  real          evidence and by the testimony of customs agents.                                         -17-                                      CONCLUSION                                      CONCLUSION                    For  the foregoing reasons the sentences applied to the          appellants are vacated  and the case  is remanded for  sentencing                         vacated                   remanded                         _______                   ________          pursuant to this opinion.                                         -18-
