Crime Relating A Controlled Substance

Things are not always as they appear to be when it comes to crimes relating to a controlled substance as the following brief excerpts illustrate. In order to qualify as a crime relating to a controlled substance, the offense must relate to a substance that is controlled under federal law notwithstanding the broad scope of both the ground of removability and the ground of inadmissibility. Expungements are no longer effective for combating this ground of removability with a narrow exception within the 9th Circuit for older offenses involving straight possession only.

Though the phrase "relating to" has been held to have an expansive effect, it has never permitted for the additional of a limiting element in an otherwise overbroad statute. In Mielewczyk v. Holder, 575 F. 3d 992 - Court of Appeals, 9th Circuit 2009, for instance, the phrase did not permit INA §101(a)(43)(B) to be expanded to include controlled substances not listed in the federal Controlled Substances Act. The Court explained:

The operative statutory phrase, "relating to a controlled substance," modifies "law or regulation." See United States v. Meza Corrales, 183 F.3d 1116, 1127 (9th Cir. 995*995 1999). The ordinary meaning of the term "relate" is "to show or establish a logical or causal connection between." Webster's New International Dictionary 1916 (3d ed.2002). Thus, we look to the language of the statute of conviction to determine whether it establishes a logical or causal connection to a controlled substance as defined in 21 U.S.C. § 802, section 102 of the Controlled Substances Act ("CSA").

Id. at 995.

BRIEF EXCERPT I:

"Cal. Health & Safety Code §11033 punishes the possession of optical and geometrical isomers; the CSA, in contrast, generally punishes the possession of optical isomers alone. 21 C.F.R. § 1300.01(b)(21)." Ruiz-Vidal v. Gonzales, 473 F. 3d 1072, 1078 (9th Cir. 2007). This observation of the Circuit Court has direct bearing on the instant case.

The California Uniform Controlled Substances Act defines the word "isomer" as follows:

"As used in this division, except as otherwise defined, the term "isomer" includes optical and geometrical (diastereomeric) isomers."

Cal. H&S C §11033.

While the California Controlled Substances Act specifically includes geometrical isomers in its definition of the term "isomer," the Federal Controlled Substances Act specifically excludes it by defining the term "isomer" as follows:

Isomer means:

(1) The optical isomer, except as used in §1308.11(d) and §1308.12(b)(4) of this chapter. As used in §1308.11(d) of this chapter, the term "isomer" means any optical, positional, or geometric isomer. As used in §1308.12(b)(4) of this chapter, the term "isomer" means any optical or geometric isomer;

21 C.F.R. § 1300.01(b)(21)

Triazolam is not listed in §§1308.11 or 1308.12 which refer to Schedule I and Schedule II substances. Triazolam is a schedule IV substance. Accordingly, Congress clearly, specifically, and intentionally excluded geometric isomers of Triazolam from their list of controlled substances. Because the California Uniform Controlled Substances Act was based on the same framework as the federal Controlled Substances Act, the California legislature was also fully aware that it was including isomers that were not included in the federal definitions.

Cal H&S C 11057(d), is the subsection of the California Uniform Controlled Substances Act that controls triazolam, includes for each of the substances enumerated thereunder, including triazolam,

"Unless specifically excepted or unless listed in

another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of isomers whenever the existence of those salts, isomers, and salts of isomers is possible within the specific chemical designation:

Accordingly, under California law, a person can be convicted of possessing or possessing for sale triazolam even if he or she actually only possessed a geometric isomer thereof.

8 CFR 1301.14(c), the section scheduling triazolam under the federal Controlled Substances Act is identical in its language. It states:

"Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

Even though the language is the same, under federal law an individual cannot be convicted of possessing a geometric isomer of triazolam.

Because of the exception to this exclusion for Schedule I and Schedule II drugs, it is rarely significant. However, because this case involves a less usual substance (prescription sleeping pills), it happens to fall within this very narrow deviation between federal and state law.

In order to sustain the aggravated felony charge under the definition provided in INA §101(a)(43)(B) the controlled substance MUST be a substance which is controlled under the federal Controlled Substances Act. The government has not provided evidence sufficient to make this finding to the clear and convincing evidence standard required for a finding of removability.

BRIEF EXCERPT II:

Respondent is not removable because a conviction under 18 U.S.C. section 1952(a)(1) is not necessarily a crime relating to a controlled substance under BIA Supreme Court precedent.

Respondent's conviction does not meet the criteria of INA §237(a)(2)(B)(i), the charge of removability against the Respondent herein, because it is not a crime relating to a controlled substance for two reasons. First, the offense alleged as the basis for the charge is an offense that is committed after the underlying offense is complete while the INA only categorizes the actual crime and the inchoate crimes of attempt and conspiracy to commit the underlying crime as falling within the ambit of this ground. Second, under current Supreme Court guidance, it cannot be found that the statute of alleged conviction is divisible and thus, on its face, it does not describe a crime relating to a controlled substance.

INA §237(a)(2)(B)(i) states:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

The statute of conviction herein states in pertinent part punishes, "(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to-(1) distribute the proceeds of any unlawful activity; ..." Part (b) of that statute lists a number of offenses that qualify as unlawful activity which includes violations of the controlled substances act and other violations that do not relate to controlled substances.

Thus, this offense is does not define either a conspiracy or an attempt to commit a drug-related offense. In 1992, the Board of Immigration Appeals discussed the parameters of the "relating to clause" in the deportation context as follows:

Congress intended to give inclusive meaning in the immigration laws to the phrase "relating to," has led to the conclusion that Congress meant for section 241(a)(11) of the Act to encompass the other inchoate or preparatory crimes of attempt, conspiracy, and facilitation when the underlying substantive crime involves a drug offense. See Matter of Del Risco, supra (facilitation); Matter of Bronsztejn, supra (attempt); Matter ofN-, supra (conspiracy); Matter of G-,6 I&N Dec. 353 (BIA 1954) (attempt). In fact, the crime of conspiracy was long ago included in the statutory provision for deportability of aliens convicted of drug offenses. See Act of Feb. 18, 1931, Pub. L. No. 71-683, 46 Stat. 1171; Narcotic Control Act of 1956, Pub. L. No. 84-728, § 301(6), 1956 U.S.C.C.A.N. (70 Stat.) 651, 661-62. Furthermore, Congress has also recently added the crime of attempt to the statute.' See section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 125 I(a)(2)(B)(i) (Stipp. II 1990) (providing that any alien who "has been convicted of a violation of (or a conspiracy or attempt to violate) any law ... relating to a controlled substance ... is deportable").

Matter of Beltran, Interim Decision 3179, 526 (BIA 1992).

In this instance, the Respondent was not convicted of an inchoate crime but rather a crime that occurred after fact.

The Board has unequivocally held that offenses which occur after the fact cannot be held to be crimes relating to a controlled substance.

The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. § 3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994).

Matter of Batista-Hernandez, Interim Decision 3321 (BIA 1997).

Further, under current Supreme Court guidance, absent evidence that the precise underlying "unlawful activity" needs to be found by a jury to sustain a finding of guilt, the Respondents statute of alleged conviction fails to qualify as crime relating to a controlled substance under the categorical approach.

In Descamps v. United States, 133 S.Ct. 2276 (2013), the Supreme Court outlined the analysis of criminal statutes in immigration cases. Specifically, the Court stated that where a statute has "multiple, alternative elements," it thus "creates 'several different crimes.'" Id. at 2285 (alteration omitted) (quoting Nijhawan v. Holder , 557 U.S. 29, 41 (2009)). When the statute has alternative elements, it is divisible. However, if the statute has a "single, indivisible set of elements" with different means of committing one crime, then it is indivisible and the analysis of the statute ends and the court does not apply the modified categorical approach. Id. at 2286.

In Richardson v. United States , 526 U.S. 813 (1999), the Supreme Court further held that if a "statute creates a single element, a 'series,' in respect to which individual violations are but the means, then the jury need only agree that the defendant committed at least [for example] three of all the underlying crimes the Government has tried to prove. The jury need not agree about which three. On the other hand, if the statute makes each 'violation' a separate element, then the jury must agree unanimously about which three crimes the defendant committed."

Thus, a single element must be part of a charged offense with which a jury found a defendant guilty. See Taylor v. United States , 495 U.S. 575, 602 (1990) (holding that when a statute includes entry of a building or automobile, a court can only use the modified approach "if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict"); see also Descamps , 133 S.Ct. at 2288 ("The Sixth Amendment contemplates that a jury-not a sentencing court-will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense-as distinct from amplifying but legally extraneous circumstances.").

Here, Respondent was convicted of Section 1952(a)(1) of title 18 of the United States Code, which states that it is unlawful to "travel[] in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to . . . distribute the proceeds of any unlawful activity . . . ." Section 1952(b) of the same title and code defines "unlawful activity" as

(1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States

(2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or

(3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title.

It is therefore unclear whether, to find a defendant guilty of 18 U.S.C. section 1952(a)(1), a jury must find that a defendant committed any of the unlawful activities described in 18 U.S.C. section 1952(b) or a specific unlawful activity; e.g., distributing the proceeds of a business enterprise involving narcotics or controlled substances. Indeed, there is no jury instruction on 18 U.S.C. 1952(a)(1) in the Tenth Circuit, the circuit in which Respondent was convicted, or the Fifth Circuit, the circuit in which this Court lies, to indicate whether the jury must find as an element necessary in finding guilt that the defendant committed a specific unlawful activity. Thus, given the fact that there are multiple means of committing the crime discussed in Section 1952(a)(1) and there is no clear indication as to whether a jury must necessarily find that a defendant committed a certain unlawful activity or any unlawful activity discussed in Section 1952(b), the statute under which Respondent was convicted is indivisible and therefore not subject to the modified categorical approach. As such, given the plain language of the statute, Respondent was not necessarily convicted of a crime relating to a controlled substance and thus is not removable under INA section 237(a)(2)(B)(i).