There’s no easy way around it. We’re just going to have to science the heck out of this case.* And when we’re done with that, we’re going to have to law the heck out of it.
Defendant-Appellant Jason Alexander Phifer was convicted of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). The substance involved was ethylone.
But as it turns out, ethylone constitutes a controlled substance—and Phifer was therefore convicted of an existing crime—only if ethylone is a “positional isomer” of butylone. Phifer says it’s not. To support his position, he urges that “positional isomer” means what he characterizes as the scientific term of art. The Drug Enforcement Administration (“DEA”) disagrees and contends that its regulatory definition of “positional isomer” governs, and even if it doesn’t, ethylone is a positional isomer of butylone under other scientific definitions. If the DEA is right that the regulatory definition necessarily governs, Phifer’s conviction stands. But if not, we must set aside Phifer’s conviction.
After careful consideration and a crash course in organic chemistry, we conclude that the DEA’s regulatory definition of “positional isomer” does not unambiguously apply to the use of that term as it pertains to butylone and ethylone in this case. We therefore vacate Phifer’s conviction and remand for further proceedings consistent with this opinion.
*We paraphrase Matt Damon’s character, Mark Watney, from The Martian (2015). See The Martian Quotes, IMDb, https://www.imdb.com/title/tt3659388/quotes (last visited Sept. 20, 2018). The movie, in turn, was based on the book of the same name by Andy Weir.
The opinion takes a dive into chemistry and even has pictures.