Benjamin Galecki, and Charles Burton Ritchie v. United States

The Federal Analogue Act prohibits the distribution of unscheduled substances that, among other things, are “substantially similar in chemical structure” to a substance listed in Schedules I or II of the Controlled Substances Act. Scientists agree that the phrase “substantially similar in chemical structure” has no scientific meaning. Courts likewise have failed to agree on a meaning for the phrase, producing disparate decisions that often conflict and provide no ascertainable standard. In this case, involving comparison of the unscheduled substance XLR-11 with the scheduled substance JWH-018, the prosecution and defense experts agreed that there was no objective scientific standard for determining substantial similarity, relied instead on their subjective assessments, and invited the jury to reach starkly different conclusions. The district court instructed the jury that “the term substantially similar has no special meaning other than how it is used in everyday language,” after which the jury convicted. Petitioners were also convicted of Continuing Criminal Enterprise on the theory that a co-defendant acquitted on all charges could be included as a criminally culpable supervisee. The questions presented are: 1. Whether the Controlled Substance Analogue Enforcement Act of 1986 is void for vagueness as applied to the substance XLR-11?