United States v. David Augustine Desurra, & Sammy Lee Smith, United States of Am. v. Arthur Breaux, III, 865 F.2d 651 (5th Cir. 1989). · Go Syfert
United States v. David Augustine Desurra, & Sammy Lee Smith, United States of Am. v. Arthur Breaux, III, 865 F.2d 651 (5th Cir. 1989). Cases Citing This Book View Copy Cite
40 citation events (16 in the last 25 years) across 16 distinct courts.
Strongest positive: United States v. James R. Turcotte (ca7, 2005-06-14)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. James R. Turcotte (2×)
7th Cir. · 2005 · confidence medium
See Ansaldi, 372 F.3d at 128 (holding that defendants’ belief that “they were breaking no law by selling GBL” does not constitute a defense); United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989) (similar holding).
discussed Cited as authority (rule) United States v. Turcotte, James R. (2×)
7th Cir. · 2005 · confidence medium
See Ansaldi, 372 F.3d at 128 (holding that defendants’ belief that “they were breaking no law by selling GBL” does not constitute a defense); United States v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989) (similar holding).
discussed Cited as authority (rule) United States v. Richard Lester Klecker
4th Cir. · 2003 · confidence medium
See United States v. Orchard, 332 F.3d 1133, 1137-38 (8th Cir.2003); United States v. Washam, 312 F.3d 926, 930-32 (8th Cir.2002); United States v. Fisher, 289 F.3d 1329, 1333-39 (11th Cir.2002), cert. denied, 537 U.S. 1112 , 123 S.Ct. 903 , 154 L.Ed.2d 786 (2003); Carlson, 87 F.3d at 443-44 ; United States v. McKinney, 79 F.3d 105, 108 (8th Cir.1996), vacated on other grounds, 520 U.S. 1226 , 117 S.Ct. 1816 , 137 L.Ed.2d 1025 (1997); United States v. Hofstatter, 8 F.3d 316, 321-22 (6th Cir.1993) (per curiam); United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990); United States v. Des…
discussed Cited as authority (rule) United States v. Klecker
4th Cir. · 2003 · confidence medium
Although there are important differences between Foxy and DET, the similarities in their structures would put a reasonable person on notice that Foxy might be regarded as a DET analogue, particularly if that person intended (as Klecker plainly did) that Foxy be ingested as a hallucinogen. 3 See United States v. Orchard, 332 F.3d 1133, 1137-38 (8th Cir. 2003); United States v. Washam, 312 F.3d 926, 930-32 (8th Cir. 2002); United States v. Fisher, 289 F.3d 1329, 1333-39 (11th Cir. 2002), cert. denied, 537 U.S. 1112 (2003); Carlson, 87 F.3d at 443-44 ; United States v. McKinney, 79 F.3d 105, 108 …
cited Cited as authority (rule) United States v. Turcotte
N.D. Ill. · 2003 · confidence medium
The defendant possessed an analogue with intent to distribute and, according to United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989), that is enough even if he did not know it was an analogue.
discussed Cited as authority (rule) United States v. Jacquez-Beltran (2×)
5th Cir. · 2003 · confidence medium
Notes: 1 To confer subject matter jurisdiction upon a federal court, an indictment need only charge a defendant with an offense against the United States in language similar to that used by the relevant statute United States v. Desurra, 865 F.2d 651, 654 (5th Cir.1989).
cited Cited as authority (rule) United States v. Jackson
5th Cir. · 2002 · confidence medium
United States v. Desurra, 865 F.2d 651, 654 (5th Cir. 1989).
cited Cited as authority (rule) United States v. Anderson S. Jackson, III Billy Ray Dew
5th Cir. · 2002 · confidence medium
United States v. Desurra, 865 F.2d 651, 654 (5th Cir.1989).
discussed Cited as authority (rule) United States v. Brown
10th Cir. · 1998 · confidence medium
Because the indictment recited the necessary jurisdictional facts, and the contrary has not been shown or argued upon its face, 3 nothing more was required to initially confer subject matter jurisdiction. 18 U.S.C. § 3231 ; United States v. Perea, 413 F.2d 65, 67 (10th Cir.1969); Young v. United States, 354 F.2d 449, 452 (10th Cir.1965); Head v. Hunter, 141 F.2d 449, 451 (10th Cir.1944); United States v. Stoddard, 875 F.2d 1233, 1236-37 (6th Cir.1989); United States v. Desurra, 865 F.2d 651, 654 (5th Cir.1989); United States v. Romero-Galue, 757 F.2d 1147 , 1150 n. 10 (11th Cir.1985).
discussed Cited as authority (rule) United States v. Spy Factory, Inc.
S.D.N.Y. · 1997 · confidence medium
But see United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (plain meaning of statutory language can be confirmed by legislative history); Information Providers’ Coalition for Defense of the First Amendment v. Federal Communications Commission, 928 F.2d 866, 874 (9th Cir.1991) (legislative history made clear that statutory term had judicially recognized meaning that was not unconstitutionally vague); United States v. Gavin, 959 F.2d 788, 791 (9th Cir.1992) (court considered legislative history in determining that statute was not unconstitutionally vague as applied), cert. denied, 506 U.S.…
discussed Cited as authority (rule) Robert Vann Wilson v. United States
10th Cir. · 1991 · confidence medium
The latter motion was filed by defendant after he voluntarily dismissed a direct appeal from his conviction, following a guilty plea, of conspiracy to import cocaine into the United States in violation of 21 U.S.C. §§ 952 , 963. 2 Defendant's § 2255 motion sets out four "Challenges to the Jurisdiction of the District Court," which assert the following grounds in support of defendant's claim that the district court lacked subject matter jurisdiction over his offense: 3 (1) There is no specific provision for district court jurisdiction included in the cited statutes or in Title 21 in general;…
cited Cited "see" United States v. Jessica Petree
5th Cir. · 2014 · signal: see · confidence high
See United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989) (“If a defendant possesses an analogue, with intent to distribute ... defendant need not know that the drug ... is an analogue”.).
discussed Cited "see" United States of America v. Todd Bryan Lamere, Francis Ray Ogea, and Roy Kenneth Miller.
6th Cir. · 1995 · signal: see · confidence high
See United States v. Desurra, 865 F.2d 651, 653 (5th Cir. 1989) (holding that defects in the procedures which resulted in the invalidity of the listing of the substance as a controlled substance did not mean the substance was not an analogue); United States v. Raymer, 941 F.2d 1031, 1045-46 (10th Cir. 1991) (pointing out that defendants cannot have it both ways -- if the analogue is subsequently scheduled, then either the scheduling is valid, in which case the substance is a controlled substance, or the scheduling is invalid, in which case the substance is an analogue).
cited Cited "see" United States v. Joe Allen Bounds
5th Cir. · 1991 · signal: see · confidence high
See United States v. Desurra, 865 F.2d 651, 653-54 (5th Cir.1989); United States v. Hicks, 624 F.2d 32, 33 (5th Cir.1980).
discussed Cited "see" United States v. Loftin
usafctmilrev · 1989 · signal: see · confidence high
See generally United States v. Desurra, supra; United States v. Ettleson, 13 M.J. 348 (C.M.A.1982), United States v. Reyes-Ruiz, 16 M.J. 784 (A.C.M.R.1983); see also United States v. Thurman, 7 M.J. 26 (C.M.A.1979), and United States v. Frostell, 13 M.J. 680 (N.M.C.M.R.1982).
discussed Cited "see" United States v. Tyhurst
usafctmilrev · 1989 · signal: see · confidence high
See generally United States v. Desurra, 865 F.2d 651 (5th Cir. 1989); United States v. Reyes-Ruiz, 16 M.J. 784 (A.C.M.R.1983) (use of ephedrine) and United States v. Frostell, 13 M.J. 680 (N.M.C.M.R.1982) (use of a powdered stimulant in Japan).
discussed Cited "see, e.g." United States v. McFadden
W.D. Va. · 2013 · signal: see also · confidence medium
See Id. at 71-72 (setting forth the elements of an Analogue Act violation and noting that the Act “would not be unconstitutionally vague as applied to Foxy even with respect to a defendant who lacked actual notice [that Foxy was a controlled substance analogue]”); see also United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989) (“If a defendant possesses an analogue, with intent to distribute or import, the defendant need not know that the drug he possesses is an analogue.
discussed Cited "see, e.g." United States v. Franz
M.D. Fla. · 1993 · signal: see also · confidence medium
See also United States v. Desurra, 865 F.2d 651, 653 (5th Cir.1989) (finding no vagueness in Analogue Act itself, and noting also that the legislative history of the Act makes clear to defendants the crimes which the Act proscribes).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
David Augustine DESURRA, and Sammy Lee Smith, Defendants-Appellants; UNITED STATES of America, Plaintiff-Appellee, v. Arthur BREAUX, III, Defendant-Appellant
88-2174, 88-2470.
Court of Appeals for the Fifth Circuit.
Mar 16, 1989.
865 F.2d 651
Fred T. Bennett, Stillman & Bennett, Dallas, Tex., for Desurra and Smith., Robert K. Erickson, Atty., U.S. Dept, of Justice, Washington, D.C., Henry K. Oncken, U.S. Atty., Paula Offenhauser, Frances H. Stacy, Keith Edward Wyatt, Asst. U.S. Attys., Houston, Tex., for U.S., Joseph A. Connors, III, McAllen, Tex., for Breaux.
Gee, Higginbotham, Duhe.
Cited by 28 opinions  |  Published
PER CURIAM:

In these consolidated cases, three defendants appeal convictions obtained pursuant to the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. § 813. All three contend that the drug which they possessed was not a controlled substance analogue within the meaning of the Act, or, alternatively, that the Controlled Substance Analogue Enforcement Act is unconstitutionally vague. Appellant Breaux also argues that his guilty plea was not voluntary, and that the district court lacked jurisdiction over the crime alleged. We find that the drug in question was a controlled substance analogue, and that the statute provided adequate notice of the criminal character of defendants’ actions. We also find that Breaux’s conviction was without procedural or jurisdictional defect. We therefore affirm.

I

Appellants Desurra and Smith were indicted for possessing, during July 1987, a controlled substance analogue with intent to distribute it. 21 U.S.C. §§ 813, 841. In an apparently unrelated proceeding, Breaux was indicted for possessing with intent to distribute, and for knowingly and intentionally importing, a controlled substance analogue. 21 U.S.C. §§ 813, 841, 952, 960. The indictment referred to events which occurred in June and July of 1987. Breaux was also charged with related conspiracy offenses.

All three defendants were alleged to have dealt with the substance “3, 4 Methy-lenedioxymethamphetamine,” or MDMA, which sells on the street by the name, “Ecstasy.” The indictments stated that MDMA was a chemical analogue of “3, 4 Methylenedioxyamphetamine,” or MDA, which is a Schedule I controlled substance. See 21 U.S.C. §§ 811, 812.

Desurra, Smith, and Breaux all entered conditional guilty pleas to some of the offenses charged against them. The pleas were conditioned upon the right of the defendants to argue on appeal that the Drug Enforcement Agency’s efforts to list MDMA as a controlled substance render the indictments against them infirm on statutory or constitutional grounds. We now consider, and reject, those arguments.

II

The issues on appeal arise for the most part out of an intersection between criminal law and administrative law. The DEA administrator has sought to make MDMA a controlled substance. In order to accomplish this, the Administrator attempted to add MDMA to the list of substances in Schedule I of the Controlled Substances[*653] Act. 21 U.S.C. §§ 811, 812. Procedural missteps have foiled at least two such efforts. See United States v. Caudle, 828 F.2d 1111 (5th Cir.1987); Grinspoon v. Drug Enforcement Admin., 828 F.2d 881 (1st Cir.1987).

Because these efforts to list MDMA were temporarily stymied, the DEA must prosecute the MDMA transactions charged here under the Controlled Substance Analogue Enforcement Act, if at all. Under 21 U.S.C. § 813, “a controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of this title ... as a controlled substance.” There is no dispute that MDA was on the list of Schedule I controlled substances at the time that Smith, Desurra, and Breaux committed the acts which led to their indictments. Moreover, the legislative history of the Analogue Act shows that the development of MDMA by drug dealers trying to escape regulation of MDA was one of the events that prompted Congress to regulate controlled substance analogues. S.Rep. No. 99-196, 99th Cong., 1st Sess. 2 (1985); H.R.Rep. No. 99-848, 99th Cong., 2d Sess. 4 (1986). However, the Analogue Act also provides that a controlled substance cannot itself be a controlled substance analogue. 21 U.S.C. § 802(32)(B)(i). Appellants contend that the DEA’s efforts to list MDMA on Schedule I rendered MDMA a controlled substance within the meaning of § 802(32)(B)(i), and therefore exempted MDMA from treatment as an analogue. Alternatively, they contend that the DEA’s efforts created such confusion as to render the Analogue Act unconstitutionally vague as applied to MDMA.

Neither of these arguments has any merit. Because of the defects in the DEA’s procedures, MDMA was not a controlled substance in June and July of 1987. Had the defendants been indicted for transactions involving a controlled substance, they could have defeated conviction, as did the defendants in Caudle, 828 F.2d 1111. Indeed, Breaux was originally indicted for transactions involving a controlled substance, and successfully sought dismissal of the indictment on the ground that MDMA was not a controlled substance.

Nor is there any vagueness. “[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). The legislative history of the Analogue Act makes clear that MDMA is a controlled substance analogue. The DEA’s efforts, if anything, gave the defendants additional notice that MDMA was an illicit drug. At no time did the DEA do anything that would have exempted MDMA from coverage of the criminal drug laws. There is no danger that these defendants were “convicted for an offense [they] could not have understood to exist.” United States v. McClain, 545 F.2d 988, 1001-02 n. 30 (5th Cir.1977). They cannot complain that the Analogue Act is unconstitutionally vague when the legislative history of the Act discloses that crimes of the sort committed by these defendants were a primary target of the Act. See United States v. Brown, 859 F.2d 974, 976 (D.C.Cir.1988).

Ill

Breaux contends that his guilty plea was not voluntary, because the trial judge failed to explain to him the essential elements of the crime. See F.R.Crim.P. 11. In particular, Breaux contends that the judge failed to inform Breaux that the government, to convict him, would have to prove that Breaux understood MDMA to be a chemical analogue of MDA. This argument misunderstands the intent requisite to convictions under 21 U.S.C. §§ 813, 841, 952, and 960. If a defendant possesses an analogue, with intent to distribute or import, the defendant need not know that the drug he possesses is an analogue. It suffices that he know what drug he possesses, and that he possess it with the statutorily defined bad purpose. The trial judge correctly instructed Breaux with respect to the mental state required to prove the charges against him.

[*654] Breaux also contends that his plea should be vacated because the government failed to charge, or offer proof, that the MDMA in his possession was “intended for human consumption.” See 21 U.S.C. § 813. Because this argument was not made before the district court, it is preserved for appeal only if it is jurisdictional. We, however, find no jurisdictional defect in the indictment. The federal district courts have jurisdiction to hear any case in which a violation of the federal laws is charged. 18 U.S.C. § 3231; United States v. Sardelli, 813 F.2d 654, 656 (5th Cir.1987). To confer subject matter jurisdiction upon a federal court, an indictment need only charge a defendant with an offense against the United States in language similar to that used by the relevant statute. United States v. McDaniel, 428 F.Supp. 1226, 1230-31 (W.D.Okla.1977). In this case, there is no question that each count of the indictment charged Breaux with a violation of clearly specified federal laws.

IV

For the reasons stated above, the orders of the district court with respect to all appellants in these consolidated cases are, in all respects,

AFFIRMED.