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United States v. Nasir

United States District Court, Sixth Circuit

September 25, 2013

UNITED STATES OF AMERICA Plaintiff,
v.
ZAFAR I. NASIR, SOHA ALJENABI, ASIM MALIK, NAWAZ KHAN, and SETH J. JOHNSTON. Defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH M. HOOD, Senior District Judge.

This matter is before the Court on a Motion to Exclude Government's Expert Opinions Pursuant to Daubert and Federal Rules of Evidence filed by Seth J. Johnston.[1] [DE 222]. The Government responded. [DE 233]. With the Court's permission [DE 250], the Government [DE 295] and Johnston [DE 305] filed supplemental briefs following the hearing held on July 11, 2013. This matter is now ripe for review.

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 Controlled Substance Analogue Enforcement Act of 1986 (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 controlled substance. Under 21 U.S.C. § 813, a "controlled substance analogue" is treated as a controlled substance to the extent that it is intended for human consumption.

The statutory definition of a controlled substance analogue is:

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).

Conviction under the controlled substance analogue statute does not require that the experts agree that a substance meets this definition. Washam, 312 F.3d at 931 (citing United States v. McKinney, 79 F.3d 105, 108 (8th Cir. 1996)).

Michelle Walker, Ph.D., a pharmacologist employed by the Drug Enforcement Agency (DEA), testified [DE 222-2] that AM 2201 has similar pharmacological effects to the Schedule I controlled substance JWH-018.[2] 21 U.S.C. § 802(32)(A)(ii). The parties agree that Dr. Walker's testimony is relevant. The issue before this Court is whether Dr. Walker's testimony regarding the second prong of the controlled substance analogue definition, specifically whether AM 2201 "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" JWH-018, is sufficiently reliable to be admissible. 21 U.S.C. § 802(32)(A)(ii). At the hearing, Dr. Walker testified that based on pharmacological data, receptor binding and activation studies on AM 2201, and drug discrimination studies on AM 2201 involving rodents, it was her opinion that AM 2201 was substantially similar pharmacologically and in physiological effect to JWH-018. [DE 291 at 1307].[3]

Through his expert, Craig Rush, Ph.D., who is a psychologist and behavioral pharmacologist teaching at the University of Kentucky, Johnston challenges Dr. Walker's opinion on the bases that (1) the studies on which Dr. Walker relies are not reliable and are not sufficiently peer-reviewed to be admissible and (2) that Dr. Walker's opinion does not rely on studies involving the effects of AM 2201 and JWH-018 on humans, and, therefore, is not reliable.

"District courts have broad latitude in deciding whether to admit expert testimony under Daubert. .." United States v. Ashraf, 628 F.3d 813, 826 (6th Cir. 2011) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1973)). This Court is required to determine whether the opinion rests upon a reliable foundation. In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529-30 (6th Cir. 2008). "Under Rule 702, an expert may offer scientific or technical testimony if the court finds the witness is qualified by knowledge, skill, experience, training, or education; that the testimony is relevant; and ...


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