In United States v. Phifer, No. 17-10397 (Sept. 21, 2018) (Rosenbaum, Jordan, Dubina), the Court vacated the defendant's conviction for possession with intent to distribute ethylone.
The issue on appeal was whether ethylone was a "positional isomer" of butylone. After a "crash course in organic chemistry," the Court concluded that the DEA's regulatory of definition of "positional isomer" did not unambiguously apply. And, because this was a criminal case, the Court refused to defer to the DEA's interpretation of its own regulation. The Court instructed the district court to conduct an evidentiary hearing on remand to determine the scientific meaning of "positional isomer," as used in the regulation. The Court rejected the defendant's argument that re-trying him would violate double jeopardy.
Judge Jordan concurred, expressing concerns that the statute might be vague as applied to the defendant.
