United States v. Hodge

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Precedential or Non-Precedential: Precedential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