I was reading reddit yesterday when I came across the following headline:
Man who sold a few pounds of baking soda is being charged with trafficking cocaine – In case you don’t want to read it, Malcolm Williams is being prosecuted for selling baking soda — which he represented as cocaine — to an undercover police officer.
This article spawned multiple comments such as the following:
- “The comments by police don’t make sense to me. Is there really such a law that says if you pretend to sell drugs you can be held guilty of actually selling drugs?” - unrealious
- “Well, I’ll admit I haven’t read the full text of the federal statute, but I suspect it makes it illegal to sell narcotics. I doubt that it makes it illegal to ‘present a substance as an illegal narcotic.’
It seems to me that they should be charging this guy with fraud, not drug dealing.” - Codebender
These posts were in response to the police officer in the story stating that, “[I]f you sell baking soda as if it’s cocaine… those charges are the same because you are presenting that substance as the illegal narcotic.” My initial reaction was to agree with the officer and treat the crime as an attempt crime, but Codebender actually caused me to realize that this approach is most definitely not appropriate since Williams actually accomplished everything that he meant to do.
What we’re left with is flat-out charging with the substantive crime, which is what Officer Young seems to be hinting at. So let’s look at the relevant federal statute.
21 USCS § 841
(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally–
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
A “counterfeit substance” is defined within 21 USCS § 802(32)(A) as:
(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II [note: these are basically grades of drugs];
(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.
So it seems like we may have a case under § 802(32)(A)(iii). However, without going into my own statutory interpretation, I’ll just tell you that several courts have decided that criterion (i) must be met in order to satisfy § 841(a)(2) — this is known as the conjunctive reading of the statute. See United States v. Hodge, 321 F.3d 429 (3d Cir. 2003); United States v. Clifford, 197 F. Supp. 2d 516 (D. Va. 2002). Let’s take a look at the chemical structures of cocaine v. sodium bicarbonate (a primary component of baking powder):
I’m no chemist, but these molecules are obviously substantially different. Assuming that criterion (i) is not met, we cannot bring charges against Williams for the substantive crime of drug trafficking.
Sorry, WMPD.
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