MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court on a Motion to Dismiss Count I of the Third Superseding Indictment filed by Seth J. Johnston [DE 220] and Nawaz Khan [DE 225], and Motion to Dismiss the Indictment [DE 221], filed by Asim Malik. The United States has filed a Response [DE 234] to these motions. Malik has filed a Reply regarding his Motion to Dismiss the Indictment [DE 237]. Both Malik and the Government have filed supplemental statements of fact [DE 269-1, DE 296]. Thus, these matters are now ripe for this Court's review.
Defendants argue that the definition of a "controlled substance analogue, " codified in 21 U.S.C. § 802(32)(A), is unconstitutionally vague, both on its face and as applied, so as to prohibit Defendants' prosecution. Finding that the challenged statute does not violate the void-for-vagueness doctrine, this Court denies Defendants' motions.
I. Facial Void-For-Vagueness Challenge
Defendants have moved to dismiss based on a facial void-forvagueness challenge and argue that the statutory language, on its face, is unconstitutionally vague in that an ordinary person cannot determine what conduct is prohibited. However, "[v]agueness challenges to statutes not threatening First Amendment interests are examined in light of the facts at hand." Nat'l Rifle Assoc. of Am. v. Magaw, 132 F.3d 272, 292 (6th Cir. 1997) (quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988)). "[T]he statute must be judged on an as-applied basis, and a facial challenge before the statute has been applied is premature." Id. (citing United States v. Mazurie, 419 U.S. 544, 550 (1975); United States v. Hofstatter, 8 F.3d 316, 321 (6th Cir. 1993)). An as-applied challenge is required because "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." United States v. Saffo, 227 F.3d 1260, 1270 (10th Cir. 2000) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)).
Defendants argue that a facial challenge may be considered when criminal penalties are imposed as sanctions for violations, relying on the Sixth Circuit's decision in Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th Cir. 1994). Springfield does not apply to federal statutes. Magaw, 132 F.3d at 292 (distinguishing Springfield ). Other courts considering vagueness challenges to the controlled substance analogue definition have done so only on an as-applied basis. See Hofstatter, 8 F.3d at 321. In fact, the court in United States v. Forbes, 806 F.Supp. 232, 237 (D. Colo. 1992), on which Defendants rely in support of their motion, also engaged an as-applied analysis.
Defendants have not offered any factual arguments supporting their contention that the controlled substance analogue statute is unconstitutional as applied to them or to the substances charged in the indictment. At best, these defendants have blended a facial void-for-vagueness challenge and an as-applied void-for-vagueness challenge of the Controlled Substance Analogue Enforcement Act (CSAEA), but failed to assert any facts in support thereof. This Court finds no legal precedent supporting Defendants' argument that this statute should be looked at in a vacuum. Accordingly, Defendants' Motions to Dismiss on the basis of a facial challenge to the statute are denied.
II. As-Applied Constitutional Challenge
Malik argues that, as applied to the facts alleged in the case against him, the statute failed to provide him with sufficient notice regarding the prohibited conduct and that the statute encourages arbitrary enforcement. Thus, the statute deprives him of due process under the Fifth and Fourteenth Amendments.
Malik and his co-defendants have been charged with, inter alia, possession with intent to distribute and a conspiracy to distribute synthetic marijuana containing JWH-122 and AM 2201, alleged analogues of the Schedule I controlled substance JWH-018. Congress enacted the CSAEA to keep up with rapidly progressing drug technologies and to target the distribution of so-called "designer drugs." United States v. Washam, 312 F.3d 926, 933 (8th Cir. 2002).
Under 21 U.S.C. § 841(a)(1), it is a criminal offense to knowingly or intentionally distribute or dispense a controlled substance or to possess with an intent to distribute or dispense a a controlled substance. Under 21 U.S.C. § 813, as enacted in the CSAEA, a "controlled substance analogue" is treated as a controlled substance to the extent it is intended for human consumption.
The statutory definition of a controlled ...