CA2 (12.3.04)

The Second Circuit today rejected a vagueness challenge to the Controlled Substances Act's reporting requirements.  Under the Act, manufacturers of regulated chemicals are required to report to the Attorney General "any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance that the regulated person believes may indicate that the listed chemical will be used in violation of this subchapter."  Defendants -- the nation's largest supplier of pseudoephedrine tablets used to manufacture methamphetamine -- challenged the Act's "extraordinary quantity" and "any other curcumstances" language.

While the quoted language is admittedly broad, the court held that it was not so broad as to obscure what is required by the Act.  Although the Act refers to an "extraordinary quantity" rather than a specific number, and to "any other circumstances" instead of an enummerated list of circumstances, the court held that the Act nonetheless provided "explicit standards."  The court therefore rejected the vaguess challenge, as well as challenges to the sufficiency of the evidence and to the district court's relief.

The case is Advance Pharmaceutical Inc. v. United States.  Note that the caption is backwards.  This was an enforcement action, and the caption identifies Advance Pharmaceutical as the defendants.  I'm not sure that I've seen that in a direct appeal before -- does anyone have an explanation?

In a second decision, United States v. Pabon Cruz, the court addressed a discrepency between the version of 18 U.S.C. 2251 (relating to "exploitation of children") passed by Congress, and the version signed by the President in 1996.  The penalty provision of the former version provided for a penalty of a fine, or a term of imprisonment not less than 10 years, "or both."  The latter version provides for a fine, a term of imprisonment not less than 10 years, "and both."  The district court, relying on the latter version (which is the one that was published), found there to be a 10 year statutory minimum.  The CA2, however, found the latter version controlling, and held that no such statutory minimum exists.  (As the court notes, this problem applies to only a "small universe of cases" because Congress provided for a clear 15 year mandatory minimum as part of the PROTECT Act).