USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-2289

UNITED STATES,

Appellee,

v.

BRADLEY OLIVER BOWEN,

Defendant - Appellant.

____________________

No. 96-2290

UNITED STATES,

Appellee,

v.

RINALDO TICCHIARELLI,
a/k/a RONALDO, a/k/a WHITNEY DOREY,

Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Bownes and Cyr, Senior Circuit Judges.

_____________________

_____________________

J. Bradford Coffey,
__________________

by appointment of the

Farrell, Rosenblatt & Russell was on

_____________________________

Court, with whom

brief for appellant Bradley

Oliver Bowen.
G. Richard Strafer, with whom

Qui on & Strafer, P.A. was on

__________________

______________________

brief for appellant Rinaldo Ticchiarelli.

Margaret D. McGaughey,
______________________
with whom

Assistant

Jay P. McCloskey,
_________________

Moore, Assistant
_____

United States

United States

United States
Attorney, and

Attorney,

Attorney, James L.
_________

Timothy D. Wing,
________________

Assistant United States Attorney, were on brief for appellee.

____________________

September 24, 1997

____________________

-2-

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

This appeal presents an issue

of first impression, namely, whether the term "hashish oil" under

18

U.S.C.

841(b)(1)(D)

unconstitutionally

application

of

the

occurring prior to

Guidelines

the term.

and

U.S.S.G.

vague,

or

so ambiguous

rule

of

lenity,

a November 1995

that provided, for

as

as

2D1.1

to

applied

amendment to the

the first time,

is

require the

to

conduct

Sentencing

a definition for

Appellants

trafficking,

were

prior to the

left to

for

importing

Guideline amendment, in

cannabis-derived substance

was

convicted

the precise

be determined

a controlled

classification of

during sentencing.

and

which

The sentencing

court determined the substance to be "hashish oil," as opposed to

"marihuana,"

and concluded

fifty to one

quantity conversion ratio

Table of

Finding

the Sentencing

that

genuine

that it

Guidelines.

ambiguity

"hashish oil" prior to 1995

was appropriate to

under the Drug

See U.S.S.G.
___

regarding

the

apply a

Quantity

2D1.1(c).

definition

of

mandates the application of the rule

of lenity in this case, we reverse and remand for re-sentencing.

BACKGROUND
BACKGROUND

Defendants-Appellants Bradley Oliver

Bowen and Rinaldo

Ticchiarelli participated in a scheme, along with three other co-

conspirators, to smuggle controlled

the United

States, to

substances from Jamaica into

store the substances

in Maine,

and from

there to eventually

smuggle contraband drugs into Canada.

Bowen's assistance,

Ticchiarelli

organized two

boat

trips

With

to

-3-

Jamaica to pick up marihuana

and a marihuana-based substance and

stored

large quantities of these controlled substances in Maine,

for later export into Canada.

The illicit substances involved were marihuana and much

greater

quantities

substance.

In

challenge

of

black,

a consolidated

the district

tar-like substance in

"hashish

oil."1

controlled substance were

appeal,

seek

marihuana-based

Brown and

court's determination

that the

Both

tar-like

during sentencing

which they were

to be

sentenced

"marihuana."

Ticchiarelli

Prior to

trafficking was

as

though

the

the sentencing

stage, their cases travelled different procedural routes.

Pursuant to a plea agreement, Ticchiarelli

pled guilty

on September 14, 1995 to Counts One, Eight and Ten of a ten-count

indictment.

Although these

counts made

specific reference

to

"hashish oil," as part of his plea agreement Ticchiarelli did not

concede that

oil."

Count

the Schedule

One

I controlled

alleged

substance was

conspiracy

to

commit

"hashish

and

commission of, with Bowen and three others, the following

occurring

Schedule

between

August

I controlled

1994

and

substance

March

1995:

("hashish oil")

U.S.C.

marihuana into the

952; distributing the

United States

derived

in violation

"hashish oil" intending

would be unlawfully imported, in violation

crimes

importing

marihuana into the United States in violation of 21 U.S.C.

importing

the

from

952;

of 21

that it

of 21 U.S.C.

959(a)

Bowen asserts additional claims

not put

____________________

As discussed infra,
_____

forward by Ticchiarelli.

-4-

(1); possessing with intent to distribute a Schedule I controlled

substance

("hashish oil")

possessing with intent

21

U.S.C.

States, in

Ticchiarelli with

exporting

oil") as well

violation of

marihuana,

as well

to distribute marihuana, in

841(a)(1);

substance ("hashish

derived from

21 U.S.C.

making false

violation of

controlled

as marihuana from

the United

953.

Schedule

as

Count

representations

Eight charged

to the

Customs

Service

by presenting false

identification, in violation

U.S.C.

1001, and Count Ten recited the other counts in invoking

the criminal forfeiture provision of 21 U.S.C.

The plea agreement

the Schedule I

when

processed

liquid

conceded that the substance

853.

signed by Ticchiarelli stated

controlled substance of

into

of 18

form,

but

Count One was

that

"hashish"

Ticchiarelli

nowhere

was "hashish oil," and the

district

court reserved the issue of the precise identity of the substance

for determination at sentencing when it accepted the guilty plea.

Bowen, unlike

named in Count One

bargain.

Ticchiarelli and the

of the indictment, did not enter

On February 6,

into a plea

1996, Bowen was convicted after a

trial on Counts One, Six and Seven.

a second

other conspirators

instance, in March

jury

Counts Six and Seven charged

1995, of possession with

intent to

distribute

violation

a Schedule I controlled substance ("hashish oil"), in

of

21

U.S.C.

possession with intent

21

U.S.C.

(PSR)

in

841(a)

and

841(b)(1)(B)(vii), and

to distribute marihuana, in

841(b)(1)(D).

Bowen's case

violation of

The Presentence Investigation Report

states

that

the contested

Schedule

-5-

controlled substance

was hashish oil.

Bowen disputed

that PSR

determination and contended that the Guideline's use of

"hashish

oil" was

consolidate

respect to

referred

his

unconstitutionally vague.

case

with those

the issue of

to as "hashish

of

the term

Bowen sought

to

his

co-conspirators with

the nature of the

controlled substance

oil" in the

indictment, and as

to the

legal validity of this allegedly ambiguous provision.

The cases were consolidated and

on August 9, 1996, the

district court convened

an evidentiary hearing to

proper characterization

of the

determine the

controlled Schedule

I substance

for the purposes

of sentencing Bowen, Ticchiarelli,

and another

co-conspirator.

At the

differing definitions

1996,

the district

hearing, experts

of the

on each side

term hashish oil.

court ruled

that based on

On

offered

October 2,

undisputed facts

regarding the physical appearance and chemical composition of the

substance,

the substance fit

meaning" of hashish oil.

F. Supp. 77, 83

the

expert

court

(D. Me. 1996) (Order

also

of the "ordinary

See United States v. Ticchiarelli, 943

___ _____________
____________

Controlled Substance

district

within the ambit

Determining the Nature

for

Purposes

of

stated,

however,

that

Sentencing).

The

after considering

testimony proffered by the government and the defendants,

and after consulting further materials in order

meaning of the term "hashish

is

of

to ascertain the

oil," it had discovered that "there

no scientific nor any universally accepted precise definition

of the term hashish oil."

Having found

the

Id. at 82.
___

controlled substance

-6-

to be

hashish

oil, the court

Ticchiarelli

established the base offense level

by following

quantity (measured by

section 2D1.1(c):

weight) of the "hashish

for Bowen and

it multiplied

oil" attributable

to the defendants by a factor of fifty, added that figure

amount

of other marihuana

the

attributable to them,

to the

and determined

the base offense level corresponding to the resulting, marihuana-

equivalent

drug quantity figure.2

The base

offense levels for

Bowen and Ticchiarelli were 36 each, and, ultimately, their total

offense levels were determined to be 38.

On

appeal, both

Ticchiarelli

and

Bowen assert

that

Sentencing Guideline section 2D1.1's use of "hashish oil" without

definition (prior to November 1995) was unconstitutional, and,

in the

alternative, that

ambiguity as

their favor

to the definition

-- that

based

substance was

Bowen

additionally

not hashish

claims

between

marihuana

lenity required

of "hashish oil" be

is, through a

evidence in his criminal

ratio

the rule of

finding that

oil

error in

resolved in

the marihuana-

for sentencing

the

that any

admission

purposes.

of certain

trial and asserts that the fifty to one

and

hashish

oil

is

arbitrary

and

irrational, thereby violating the Due Process clause of the Fifth

____________________

The court determined that 393 kilograms of hashish oil

kilograms of marihuana were attributable to the defendants.

amounts, after the one

to fifty conversion, to 19,698

and 48

This

kilograms

of marihuana equivalent, corresponding to a base offense level of

36.

See U.S.S.G.
___

2D1.1(c).

Had

the substance

been deemed

marihuana instead, the corresponding base offense level for Bowen

and Ticchiarelli

would have

been 28.

Given the

total offense

levels of 38, this eight point increase translates into a minimum

difference in incarceration

periods of 114 months

141 months for Ticchiarelli.

-7-

for Bowen and

Amendment.

-8-

DISCUSSION
DISCUSSION

I.
I.

The Meaning of "Hashish Oil"

The Meaning of "Hashish Oil"

The district

"hashish

oil" under the

question over which we

issue

court's interpretation of the

of whether the

meaning of

Sentencing Guidelines presents

assume de novo review, as does

__ ____

term was vague

a legal

the legal

or ambiguous prior

to the

1995

amendment.

Cir. 1996);

577, 580

fact

United States v. Camilo,

_____________
______

United States
_____________

(1st Cir.

1995).

71 F.3d 984, 986 (1st

v. Bohai Trading Co., Inc.,

________________________

The

sentencing court's

45 F.3d

findings of

regarding the properties of the controlled substance itself

are subject to review for clear error.

Camilo, 71 F.3d at 986.

______

The following factual findings regarding the controlled

substance are undisputed:

matter

(cannabis

hashish; (2) it

road tar; (3)

contains

range;

sativa),

is a

it is

(1) it is derived from marihuana plant

and

black or

it

contains

from

marihuana

near-black substance

not pourable

tetrahydrocannabinol

(5)

not

at room

(THC)

cannabinol

in the

resin

resembling

temperature; (4)

13

to

or

it

16 percent

and cannabidiol;

(6)

it

contains no fragments of vegetation perceptible to the naked eye;

(7)

it contains chlorophyll and magnesium;

Jamaica.

See 943 F.
___

Supp. at 78.

(8) it originates in

The appeal turns on

whether

this substance can be said to be "hashish oil."

Under

the

amendments

effective November 1,

to

the

Sentencing

Guidelines

1995, the following definition

of hashish

oil was provided:

Hashish

oil, for

guideline,

means

the

purposes of

a preparation

-9-

of

this
the

soluble

cannabinoids

cannabis that includes:

of the
in 21

from

(i) one or

more

tetrahydrocannabinols (as
C.F.R.

least two

is

material

listed

1308.11(d)(25)),

of the

cannabidiol,
(iii)

derived

or

following: cannabinol,
cannabichromene,

essentially
(e.g.
____

(ii) at

free

of

plant

and
plant

fragments).

Typically, hashish oil is a viscous, dark

colored oil, but

it can vary from

a dry

resin to a colorless liquid.

U.S.S.G.

2D1.1(c), Drug Quantity Table, Note (J) (Nov. 1995).

Prior

undefined

the

to November

1995, the

term

in both the Code, see 21 U.S.C.

___

Guidelines.

Moreover,

the

"hashish oil"

841(b)(1)(D), and in

legislative

history

Comprehensive Crime Control Act of 1984, which first

fifty to one ratio and

was

of

the

enacted the

introduced the term "hashish oil"

to the

Code, is silent as to the meaning

of the term.

98-473, 98

Stat. 2030,

2070, 2086; S.

H.R.

No. 98-1030

(1984).

Rep.

Although the

regarding the substance at issue

the

current

definition,

Rep. No.

See Pub. L.
___

No.

98-634 (1984);

undisputed facts

would appear to place it within

this

definition,

constituting

significant and substantive addition to the guidelines, cannot be

retroactively applied to these defendants.

S nchez, 81 F.3d 9, 12
_______

is

not a

policy

retroactively).

resin"

(1st Cir. 1996) (Guideline amendment that

mere clarification,

statement

within the

of

See United States v.

___ _____________

section

For example,

scope of

and that

1B1.10,

is not

is

not

this definition

the

term "hashish

covered by

to

be

applied

includes a

oil," a

the

"dry

matter

-10-

which, as discussed

below,3 could not be considered

part of the

core meaning of "hashish oil" prior to the amendment.

It is clear, however, that whether or not the substance

at issue is "hashish oil," it certainly

under the Code:

qualifies as "marihuana"

The term "marihuana"

the

plant

growing
resin

means all parts

Cannabis sativa

or not;

the seeds

extracted

plant; and

from any

whether

thereof; the
part

every compound,

salt, derivative, mixture

of

L.,

of such

manufacture,
or preparation

such plant, its seeds or resin.

term does
of such

not include the

Such

mature stalks

plant, fiber produced

stalks, oil or

of

cake made from

from such
the seeds

of such plant, or . . . [any preparations

thereof].

21 U.S.C.

802(16) (Supp. 1997).

It is not disputed

that the

substance at issue in this appeal falls within this broad, catch-

all definition

also

be

found

of "marihuana."

to

be

The question is whether

"hashish

oil"

under the

it can

pre-amendment

Guidelines.

Appellants raise several grounds for concluding that

it cannot.

We need not

"hashish

oil"

is

void

address their contention

for

vagueness,

however,

that the term

because

our

conclusion

that

appropriate

the

application

of

the

rule

of

lenity

is

in this case provides the appellants the relief they

seek.

II.
II.

The Rule of Lenity

The Rule of Lenity

Appellants

contend

that

in

the

face

of

ambiguity

regarding the scope of the term "hashish oil," the district court
____________________

See
___

infra discussion of applicability

_____

core meaning of hashish oil.

-11-

of rule of

lenity for

should have

restricted

and by

followed the

rule of lenity

definition of hashish

sentencing the

by accepting

oil offered by

defendants as

the more

the defendants

though the substance

were

"marihuana" under the Guidelines.

As the Supreme Court has consistently held, the rule of

lenity

commands that

ambiguities affecting

a criminal

statute's scope be resolved in the defendant's favor.

See, e.g.,
___ ____

United States
_____________

States
______

genuine

v. Lanier,
______

117 S. Ct.

1219, 1225

v. Nippon Paper Indus. Co., 109 F.3d

_________________________

1997)(collecting

cases).

The

(1997); United
______

1, 7-8

(1st Cir.

important purposes served

by the

rule of lenity include the

those

subject to

selective

following: "to promote fair notice to

the criminal

laws,

or arbitrary enforcement,

balance between

Congress,

to minimize

and to maintain

prosecutors,

and

inquiry,

into play when,

the meaning

of a

at the

criminal

Put

another way, the

not interpret

penalty

that

it

places

interpretation can be

Congress intended."

on

end of a

obscure."

that "the Court will

statute so as to

an

thorough

301 n.10 (1st Cir. 1993).

rule of lenity means

a federal criminal

United
______

However, the rule

statute remains

United States v. O'Neil, 11 F.3d 292,

______________
______

of

the proper

courts."

States v. Kozminski, 487 U.S. 931, 952 (1988).

______
_________

only "properly comes

the risk

individual

based on no more

increase the

when

than a guess as

Ladner v. United States, 359

______
_____________

such

an

to what

U.S. 169, 178

(1958).

We

find that experts

for both the

government and the

defendants offered reasonable constructions of the

term "hashish

-12-

oil" at the August 9,

1996 evidentiary hearing, and further find

that

history

the legislative

term's meaning.

Presented with

provides no

guidance

as to

the

a variety of educated guesses as

to

the meaning

of "hashish

genuine ambiguity

-- we

oil" --

that is, presented

hold that the

rule of

with a

lenity applies.

The defense expert, James Woodford, testified on the basis of his

experience as a chemist and as a drug testing expert that hashish

oil is a

of

transparent, honey-colored oil produced

compressing hashish into bricks.

Hearing,

at 38-40.

liquid with

tarry,

expert,

high THC levels

thick substance.

a forensic

testified that

hashish

Woodford

oil is

distinguished

(around 40%) and

On the other

chemist with

the substance

Part. Tr. of August 9, 1996

testified that

Id.
___

the

from marihuana by

hashish oil

is a

that it is

not a

hand, a government

Drug Enforcement

appeared to

a marihuana-derived

in the process

be

substance

its lack of

Agency,

hashish oil,

that is

for

chiefly

plant material and

cystolithic

hairs,

cystolithic

hairs.

and

that the

Id. at
___

6-7.

controlled

substance

According to

lacked

the government

experts, "hashish oil" need not resemble other familiar oils that

are liquid

at room temperature.

substance, although undoubtedly

have the slippery, viscous, or

least as

that

term is

opinion,

critical

The record indicates

that the

a controlled substance,

did not

liquid properties of an "oil," at

commonly used.

to our

conclusion

This

that the

fact

rule

is, in

our

of lenity

applies in this case.

Although no

other

circuit court

-13-

has

addressed

this

issue,

appellants draw

our

attention

to

two

district

decisions involving a similar tar-like marihuana-based

in which

the courts, in

the face of conflicting

(pursuant to rule

819 F. Supp. 1076, 1078-79

of lenity, finding

substance

definitions of

hashish oil from experts, applied the rule of lenity.

States v. Gravelle,
______
________

court

See United
___ ______

(S.D. Fla. 1993)

substance to be

marihuana

rather than hashish oil); United States v. Schultz, 810 F. Supp.

______________
_______

230, 234

(S.D. Ohio

1992) (pursuant to

rule of

lenity finding

substance to

be hashish

rather than hashish

oil).

Both cases

dealt with a

thick, tarry, black substance that did

not pour at

room temperature.

In United States v. Camilo,

______________
______

lenity

was

not

applicable

enhanced sentence

"powder")

for trafficking

cocaine.

applicable because

See 71
___

scientific composition).

appeal, because

clearly distinguish,

powder cocaine.

F.3d

"crack in

powder," notwithstanding

instant

where

as a

we held that the

defendant

challenged

an

in

"crack"

(as opposed

to

of lenity

not

at 990

(rule

reality does

similar medical

differ from

effects and

That case is distinguishable

in Camilo
______

we emphasized

practical matter,

The meaning

rule of

of the

cocaine

identical

from the

that one

can

between crack

and

term "crack" was

thus not

ambiguous.

presents a

Here, "hashish

oil," prior

to the

1995 amendment,

problem of definitional ambiguity, a problem to which

the rule of lenity clearly is addressed.

For

insurmountable

lenity

doubt must

to

be

exist

appropriate,

as

to

whether

genuine

Congress,

and

in

-14-

enacting a higher penalty for

"hashish oil," intended to include

this particular, tarry substance within its scope.

The district

court, finding that "[t]he three experts presented by the parties

were as

the

deficient on the

Sentencing

subject of definition as

Commission,"

943 F.

Supp.

variety of publications for assistance.

82.

The

"ordinary meaning"

court ultimately

least common

culled.

of hashish

applied, however, did

denominator among

narrow and broad definitions of

for a broader definition

79,

surveyed a

See 943 F. Supp. at

___

oil that

kind of

definitions it

the court cited

80-

the district

not represent a

the various

Indeed, the publications

at

Congress and

had

include both

hashish oil, and the court opted

rather than a narrower one.

Id.
___

Even

on the basis of the publications cited and quoted by the district

court in its order, we find that, at the very least, there exists

ambiguity as to whether "hashish oil":

readily pourable, or

room temperature;

significantly

(a) must be a liquid

capable of being administered in

and

(b) must

higher than

have

that

of

a THC

level

marihuana.

(or

drops) at

in a

We

range

therefore

conclude that the rule of lenity should have been applied in this

case, requiring

a narrower construction

the substance been

lacking plant

material, then the

been appropriate.

Bowen

and

a potent liquid,

Although,

Ticchiarelli

trafficking

in

penalties,

as we

derived from cannabis,

rule of lenity would

have

that

have indicated,

-15-

known

could

that

result

fair notice

they

in

is not

Had

and

not have

as the district court pointed

should

substance

of "hashish oil."

out,

were

serious

the sole

consideration motivating the rule of lenity.

II.
II.

We

claims.

Bowen's Other Claims

Bowen's Other Claims

need

dwell at

First, his request for

low THC levels

of

not

our holding

length

on

a downward departure due to

of the substance is rendered

that the

rule

challenges the constitutionality

Bowen's additional

of lenity

the

irrelevant in light

applies.

of the fifty to

Second, he

one conversion

ratio between

hashish oil and

and 21 U.S.C

841(b)(1) (D).

marihuana under U.S.S.G.

2D1.1

In declining Bowen's invitation to

deem

Congress' enactment of

this ratio patently

need

only direct his attention to

irrational, we

United States v. Singleterry,

_____________
___________

29 F.3d 733, 739 (1st Cir. 1994), which upheld a challenge to the

Guideline

provision equating one

grams of cocaine.

presents

much

rationalization:

Indeed, the

gram of cocaine

fifty to one

more straightforward

hashish oil can

case

base with 100

hashish oil

ratio

for after-the-fact

be expected to

be more potent

and more easily transported than marihuana.

Finally,

ledger

alleges,

during

Bowen

challenges

his criminal

that the

trial.

drug ledger

arrest was not related to

the

admission of

Even assuming,

confiscated at

as

the time

drug

Bowen

of his

the conduct charged in the indictment,

and

therefore

should

have

reviewing the record we find

and did not

and

been

excluded

as

proof,

participation

in the

based

on

that any error was plainly harmless

implicate a constitutional right.

strong

irrelevant,

on

direct

conspiracy,

Given the varied

evidence,

we find

the

of

Bowen's

"weight of

the

-16-

additional

evidence overwhelming,"

and conclude

that

the same

verdict would almost certainly result from

States v. Rose,
______
____

the drug

testimony

104 F.3d 1408,

ledger was used

of

Bowen's

accomplice testimony

a new trial.

1414 (1st Cir. 1997).

by the prosecution to

co-conspirators,

United
______

Although

corroborate the

significantly,

was forcefully corroborated

evidence and by the testimony of customs agents.

by other

the

real

-17-

CONCLUSION
CONCLUSION

For

the foregoing reasons the sentences applied to the

appellants are vacated

vacated
_______

and the case

pursuant to this opinion.

is remanded for
remanded
________

sentencing

-18-