Safe Havens

 

(B)  Offenses Involving Fake Controlled Substances.  A conviction of sale of a simulated controlled substance,[508] such as sugar, that is not a federally-listed controlled substance, is not an aggravated felony conviction.  There is, however, BIA authority indicating that such a conviction does constitute a conviction relating to a controlled substance.  See § § 7.138, et seq., infra.  It might also be considered a crime involving moral turpitude, if the elements of the offense require fraud.  It should be a partial safe haven in the sense that it does not constitute an aggravated felony drug trafficking offense under either part of the definition.

 

            The federal definition of “counterfeit substance”[509] is a subset of the federally defined “controlled substance,” and therefore cannot not include non-controlled substances, such as oregano sold as marijuana or a cutting agent sold as cocaine.[510]  A conviction of sale of a non-controlled substance as a controlled substance clearly is not an aggravated felony under the “drug trafficking crime” as a “felony punishable under” the drug trafficking felony prong of the aggravated felony definition[511] for two reasons:

            (1)  Sale of a simulated controlled substance, such as flour, is not an aggravated felony under the second, alternate prong of the Davis/Barrett test, which states that a state drug offense qualifies as a “drug trafficking crime,” and thus as an aggravated felony (regardless of state classification as a felony or misdemeanor) if it is analogous to a felony under the federal statutes enumerated in 18 U.S.C. § 924(c)(2) (“federal drug laws”).[512]  In other words, a state drug offense qualifies as a “drug trafficking crime” if it is punishable as a felony under the federal drug laws.[513]  Here, there is no federal felony proscribing sale of “bunk.”[514]  The definition of a counterfeit controlled substance requires the substance to be on the federal list of controlled substances, but mislabeled as to the manufacturer.[515]

            (2)  Sale of a simulated controlled substance should also not be considered to be a drug trafficking aggravated felony since the substance is not a controlled substance on the federal list. 

            A conviction of this offense also does not fit within the general ‘illicit trafficking’ test for the same reason. 

 

            There are decisions both ways in the illegal re-entry sentencing context as to whether a “simulated controlled substance” is a controlled substance under the federal definition.[516]

 

            There is an argument that this type of conviction also does not constitute a controlled substances conviction.  See § § 7.138, et seq., infra.  For the same reasons, sale of sugar as cocaine should not fall within the controlled substances conviction ground of deportation, since the offense is not related to an actual controlled substance.  It boils down to a consumer fraud offense, rather than a controlled substances offense.  On the other hand, the Board of Immigration Appeals some time ago held that a California conviction of sale of a substance in lieu of a controlled substance was a conviction for an offense “relating to” a controlled substance.[517]  Therefore, this type of conviction would not be a safe haven unless the federal courts could be persuaded that an offense involving sugar or another simulated controlled substance is not an offense relating to a controlled substance. [518]  See § 7.142, infra.

 

[508] For example, Washington State forbids creating or delivering a counterfeit controlled substance.  RCW § 69.50.401(b).  See also Texas Health and Safety Code § 482.002 (delivering and offering to sell a simulated controlled substance).  A defendant may be liable under this latter statute for attempting to distribute dominoes, represented to be a bag of cocaine.  See  Ramos v. State, 928 S.W.2d 160 (Tex. App. 1996).  A defendant may also be convicted for distributing leaf stems and sunflower seeds, which represented to be a nickel bag of marijuana.  See Holliman v. State, 692 S.W.2d 120 (Tex. App. 1985).

[509] 21 U.S.C. § 802(7) (“The term ‘counterfeit substance’ means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.”).  This definition provides a federal definition of  “counterfeit substance” under the Controlled Substances Act, and also governs convictions under the Controlled Substances Import and Export Act, see 21 U.S.C. § 951(b) (1994), and the Maritime Drug Law Enforcement Act, see 46 U.S.C. App. § 1903(i) (1994).

[510] United States v. Cooper, 121 F.3d 130, 133, 134 (3d Cir. 1997) (by definition, a “counterfeit substance” must be  a “controlled substance;” if  a particular substance is not a “controlled substance,” then it cannot be a “counterfeit substance” within the meaning of 21 U.S.C. § 802(7)).

[511] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B).

[512] Matter of Davis, supra; Matter of Barrett, supra.

[513] See Matter of LG, supra.

[514] See Appendix C, Checklist of Federal Controlled Substances Offenses. 

[515] 21 U.S.C. § 802(7) (“The term ‘counterfeit substance’ means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.”).

[516] United States v. Crittenden, 372 F.3d 706 (5th Cir. Tex. 2004) (simulated controlled substance is a controlled substance); United States v. Frazier, 89 F.3d 1501, 1505 (11th Cir. 1996) (same); see United States v. Hester, 917 F.2d 1083, 1085 (8th Cir. 1990); but cf. United States v. Peters, 215 F.3d 861, 862 (8th Cir. 2000) (“the district court determined conspiracy to sell a simulated controlled substance, in this case baking soda, did not qualify as a controlled substance offense under the guidelines and the government does not appeal this determination.”).

[517] Matter of TC, 7 I. & N.  Dec. 100, 102 (BIA 1956) (California conviction for selling a liquid substance “in lieu of a narcotic drug” under California law was an offense “relating to” a controlled substance, the respondent was convicted of an offense relating to a  controlled substance violation under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i)). 

[518] Cf. Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. 2000) (a violation of Arizona Criminal Code § 13-3415, possession of drug paraphernalia, was a conviction “related to” an actual controlled substance, because the Arizona statute listed “fourteen factors that a court shall consider . . . in determining whether an object is drug paraphernalia,” including intent to use, a conviction under the statute was clearly “related to” a controlled substance offense).