[00:00:00] Speaker 03:
We have three cases on our docket this morning.

[00:00:04] Speaker 03:
We may not take a break, but we may.

[00:00:08] Speaker 03:
Plan accordingly.

[00:00:11] Speaker 03:
First case on our docket is 25-5026, US versus McCarthy.

[00:00:18] Speaker 03:
Mr. Duncan.

[00:00:27] Speaker 02:
Morning, your honors, may it please the court.

[00:00:29] Speaker 02:
I'm going to endeavor this morning to reserve about two minutes of time for rebuttal, although I understand it's on me to actually follow through on that.

[00:00:38] Speaker 02:
Let's see how close I actually get.

[00:00:40] Speaker 02:
This is a case where the court should reverse the judgment of the district court, because under any canon of construction, the precursor statutes apply to the McCarthy's conduct.

[00:00:53] Speaker 02:
and because the precursor statutes are not vague as applied to that conduct.

[00:00:59] Speaker 02:
The McCarthy's knew that their customers were using their product to make and prepare drugs, even though some other people might have used those same products to make and prepare poppy seed muffins.

[00:01:14] Speaker 02:
This is a statute, the precursor provisions, with two lists that serve two distinct purposes.

[00:01:20] Speaker 02:
But even if

[00:01:22] Speaker 02:
the second list, the more general list, is limited or informed by the first list, the McCarthy's conduct still fits comfortably within the second list.

[00:01:35] Speaker 02:
The McCarthy's have ultimately proposed no coherent dividing line that excludes poppy seeds from the provisions of the precursor act.

[00:01:45] Speaker 02:
But wherever the line is between conduct that could not

[00:01:49] Speaker 02:
violate the precursor statutes and conduct that could violate the precursor statutes, McCarthy's conduct is comfortably on the illegal side of things.

[00:01:59] Speaker 01:
Statute's a bit of a trap, isn't it?

[00:02:02] Speaker 01:
I mean, it expressly excludes unprocessed poppy seeds.

[00:02:09] Speaker 01:
We disagree, obviously.

[00:02:11] Speaker 01:
Then there's like this secret trap door that, if you don't keep reading, drops according to your interpretation.

[00:02:19] Speaker 02:
We don't think it's secret at all.

[00:02:21] Speaker 02:
And the first thing that I'll point out is the McCarthy's argument is essentially the same argument that failed in Casir, which is that because the statute named Cathanone but didn't name Cat, that somehow lulled defendants into a false sense of security, that, well, I don't

[00:02:42] Speaker 02:
I don't know anything about cathinone, and all I have is cat, so it must be legal.

[00:02:46] Speaker 02:
However, casere is distinguishable, because cat and cathinone would have been in the same section of the Controlled Substances Act, where it defines controlled substances.

[00:02:57] Speaker 02:
And so Judge Holeshoe's argument, if you find that persuasive, which the other two judges on the Sixth Circuit didn't, was that that list in the same section of the statute was narrow and precise

[00:03:12] Speaker 02:
And now the court was trying to expand it by including cat.

[00:03:15] Speaker 02:
Here, the statute at issue is the precursor provisions.

[00:03:20] Speaker 02:
And that statute is broad and expansive.

[00:03:23] Speaker 02:
And the McCarthy's are trying to say, well, if you close one eye and squint and you look at one portion of a different part of the Controlled Substances Act, that excludes poppy seeds.

[00:03:35] Speaker 02:
And we know that excluding something from one or two definitions in section 802

[00:03:42] Speaker 02:
doesn't mean what the McCarthy's say it means.

[00:03:45] Speaker 02:
It doesn't mean that that thing is excluded from the CSA altogether or that it's excluded from regulation altogether.

[00:03:52] Speaker 02:
And one of the reasons we know that is because of other sections of 802.

[00:03:55] Speaker 02:
802 17A, for example, defines opium.

[00:04:00] Speaker 02:
And it says, as the district court said in her order, she laid this out.

[00:04:05] Speaker 02:
It says, but opium does not include the isoquine alkaloids of opium.

[00:04:12] Speaker 02:
One of the reasons we know that that doesn't mean that the isoquinoline alkaloids of opium are excluded from regulation altogether is that the isoquinoline alkaloids of opium include morphine, codeine, and thebane.

[00:04:26] Speaker 02:
So sometimes excluding something from one definition in 802 just means we're not dealing with that here.

[00:04:34] Speaker 02:
The other thing that's notable about the precursor provisions, and Judge Eyde, you looked like you wanted to say something.

[00:04:40] Speaker 04:
I so want to say something.

[00:04:43] Speaker 04:
I really wish you would just start with your affirmative statutory interpretation.

[00:04:49] Speaker 04:
If you could help me understand how you would read the statute from the beginning.

[00:04:57] Speaker 02:
Absolutely.

[00:04:57] Speaker 02:
So the CSA is broad.

[00:05:00] Speaker 02:
It proscribes and prescribes regulations to multiple types of conduct.

[00:05:06] Speaker 02:
So there's conduct involving controlled substances themselves, there's conduct involving paraphernalia, and there's conduct involving precursors.

[00:05:16] Speaker 02:
And so in the precursor statutes, there are two lists.

[00:05:20] Speaker 02:
One list, which is general items, equipment, material, products, chemicals, that may be used

[00:05:28] Speaker 02:
to manufacture a controlled substance and another of which is specific, three neck round bottom flasks, tabulating machines, gelatin capsules.

[00:05:36] Speaker 02:
That list, that's the second list that I read but appears first in the statutes, is specific items whose connection to manufacturing controlled substance is obvious.

[00:05:48] Speaker 02:
So you don't need the qualifier which may be used

[00:05:51] Speaker 02:
to produce a controlled substance, because a gelatin capsule has obvious relevance to the packaging part of manufacturing.

[00:05:59] Speaker 02:
And by the way, gelatin capsules inclusion in the list is one indication that manufacture is not just limited to taking one chemical and a second chemical and producing a third chemical, which is chemical synthesis.

[00:06:12] Speaker 02:
That's one of the definitions of manufacture, but it's clearly not the only one that Congress had in mind.

[00:06:17] Speaker 02:
So when you've got... The statute defines manufacture.

[00:06:21] Speaker 02:
Absolutely.

[00:06:22] Speaker 02:
And so that makes this case distinguishable from cases like the Abuel Hawa, which I'm certain I'm pronouncing wrong, but the case that talked about the word facilitate in 843B, where that term was not otherwise defined in the Controlled Substances Act.

[00:06:39] Speaker 02:
So the court was trying to define the ordinary meaning of that term and then

[00:06:43] Speaker 02:
saying, well, we don't necessarily need to go to common parlance because we need to look at that term in the context of the statute.

[00:06:50] Speaker 02:
We don't need to engage in that sort of analysis here because Congress has done the work for us.

[00:06:55] Speaker 02:
And Congress has said, essentially, we don't want to speculate about all the different ways that people could use various substances, chemicals, products to manufacture, prepare, propagate, cultivate controlled substances.

[00:07:10] Speaker 02:
So we're going to make it general and we're going to make the mens rea specific, which is to say more specific than the mens rea that was involved in Casir, which was just knowing that cat is a controlled substance.

[00:07:24] Speaker 02:
You've got to know not only that the chemical you're dealing with can be used in a manufacturing process to manufacture a controlled substance.

[00:07:34] Speaker 03:
You need more than that.

[00:07:35] Speaker 03:
Will be used, don't you?

[00:07:36] Speaker 02:
Will be used?

[00:07:38] Speaker 02:
Well, so you need maybe used because that's the first part of the definition right after chemicals, materials, products, or equipment, which may be used to produce a controlled substance.

[00:07:50] Speaker 02:
And you need that your customers or that it will be used.

[00:07:54] Speaker 02:
It's passive voice, but that in this case, the customers will be using that product to make a controlled substance.

[00:08:03] Speaker 02:
That's the balance that Congress has struck in this provision.

[00:08:06] Speaker 02:
And it's notable that there's a neighboring provision that has a similar, fills a similar role in the Controlled Substances Act, which is 863, which is the drug paraphernalia statute, which is much more specific in terms of the things it lists, in terms of the factors that courts should consider as to whether something is paraphernalia or not.

[00:08:29] Speaker 02:
And so it's narrower.

[00:08:30] Speaker 02:
And it also shows that Congress knew how to exclude specific things from provisions like the precursor provision when it wanted to, because Section 863 specifically excludes pipes and other smoking devices that are primarily intended for use in smoking tobacco products.

[00:08:50] Speaker 02:
So the structure of 843A6 and 843A7 shows that when you've got

[00:08:59] Speaker 02:
chemical product material or equipment that is something that you can show may be used to produce a controlled substance or manufacture under the definitions in the Controlled Substances Act and that this particular defendant knew that that's what it would be used for, very specific mens rea, that is chargeable as a controlled substance precursor offense.

[00:09:28] Speaker 02:
If I may move on to due process.

[00:09:29] Speaker 01:
Is this the first prosecution of poppy seeds as a precursor?

[00:09:35] Speaker 02:
Absolutely not.

[00:09:36] Speaker 02:
And we cited some of the examples in the hearing.

[00:09:40] Speaker 02:
And so towards the beginning of the hearing transcript with the district court, there was a case out of Iowa, I believe, but it was

[00:09:54] Speaker 02:
A couple from Flagstaff who had Carolyn's dried flowers was the business.

[00:10:02] Speaker 02:
But in reality, the business was a sham just to get poppy seeds in the hands of people who were going to make poppy seed tea.

[00:10:10] Speaker 03:
There's also... These are cases involving just prosecutions.

[00:10:13] Speaker 03:
They're not reported opinions or are they?

[00:10:15] Speaker 02:
No, no.

[00:10:15] Speaker 02:
And I want to be clear.

[00:10:17] Speaker 02:
This is... I wish we had a reported opinion on poppy seed tea.

[00:10:22] Speaker 02:
We don't, but we have the Carolyn's dried flower case out of Flagstaff.

[00:10:29] Speaker 02:
And again, we discussed that case at the beginning of the hearing with the district court on the motion to dismiss.

[00:10:37] Speaker 02:
There's also the Tew case, which is, again, not a published opinion, but it's from a district court in this circuit.

[00:10:45] Speaker 02:
that said if you're sending out these specialized water bottles to help people make poppy seed tea by extracting the opium latex from the surface of the poppy seeds, that's manufacturing under the Controlled Substances Act.

[00:10:59] Speaker 02:
And so that's possession of precursors.

[00:11:02] Speaker 02:
So the question for both statutory interpretation, but in particular due process in this case, because I think the district court was very concerned about the potential

[00:11:14] Speaker 02:
into a false sense of security, as Judge Timkovich alluded to at the beginning here.

[00:11:22] Speaker 02:
The judge was thinking about this in terms of would a person just shopping at a grocery store have any inkling that there is some conduct involving poppy seeds that could be illegal?

[00:11:35] Speaker 02:
And even if the answer to that question is no, it doesn't preclude this prosecution because that's not the question under a due process vagueness analysis.

[00:11:44] Speaker 02:
The question is, would these defendants be on fair notice that their conduct and the knowledge that they have is prescribed under the Controlled Substances Act?

[00:11:55] Speaker 02:
And so they didn't have to specifically know that their conduct was illegal, because ignorance of the law is still no defense.

[00:12:04] Speaker 02:
The question is not, did they know specifically that their conduct was illegal?

[00:12:09] Speaker 02:
The question is, does the statute provide fair notice?

[00:12:13] Speaker 02:
And here it does.

[00:12:15] Speaker 02:
In general, statutes preclude conduct, not objects.

[00:12:27] Speaker 02:
So the question may well be asked, could a hammer be a dangerous weapon or a deadly weapon?

[00:12:35] Speaker 02:
And the answer is it depends on how it's used.

[00:12:38] Speaker 02:
And so the question could come up, could a poppy seed be a drug precursor?

[00:12:43] Speaker 02:
And the answer is depending on how it's used.

[00:12:45] Speaker 02:
And based on the very specific knowledge that was alleged in this case, there is no question that the statute can be applied this way and that the statute can constitutionally be applied this way.

[00:12:58] Speaker 02:
And if I may, if there are no further questions at this point, I'd like to reserve the remainder of my time.

[00:13:05] Speaker 02:
Sure.

[00:13:21] Speaker 03:
Ms.

[00:13:22] Speaker 03:
Yaffe.

[00:13:24] Speaker 00:
Good morning, Your Honors.

[00:13:25] Speaker 00:
I'm Leah Yaffe on behalf of my client, Rachel McCarthy, but also the co-appellee, Brandon McCarthy, as we've filed the same brief.

[00:13:33] Speaker 00:
But for the record, Mr. McCarthy's counsel, Alan Mortzen, is also present today at the counsel table.

[00:13:41] Speaker 00:
So I just want to start by talking about what's apparent from the indictment.

[00:13:47] Speaker 00:
The government's underlying theory of this case

[00:13:49] Speaker 00:
is that the McCarthy's have distributed a readily consumable form of opium latex to opium users who they knew were going to adjust it to get high.

[00:13:58] Speaker 00:
That's the alleged conduct.

[00:14:00] Speaker 00:
And I just want to point into the indictment where they talk about selling to, quote, opiate users.

[00:14:08] Speaker 00:
refer to most buyers as, quote, individuals purchasing the product for personal use and consumption, and describe in paragraph eight that consumers ingest unprocessed poppy seeds to get high, and that, quote, the most common method of ingesting unprocessed poppy seeds coated in opium latex is brewing poppy seed tea.

[00:14:29] Speaker 00:
So why do I say this?

[00:14:31] Speaker 00:
It's because, in other words, the underlying conduct that's being alleged here is distribution by the McCarthy's and possession by the end users.

[00:14:39] Speaker 00:
And this is a problem for the government because Congress has explicitly legislated that poppy seeds with opium latex coating are not a controlled substance.

[00:14:49] Speaker 00:
What that means is, like every other not controlled substance, even if it has properties that could be dangerous,

[00:14:56] Speaker 00:
You can't be charged under the Controlled Substance Act for distributing, and you can't be charged for use or simple possession.

[00:15:05] Speaker 00:
So with that statutory exemption not challenged on appeal and clear from the text of the Controlled Substances Act, the government is trying to get at that exact same conduct through a statute, the precursor statute, that's a manufacturing statute.

[00:15:21] Speaker 00:
It's intended to stop the process of the creation of a drug in the first place.

[00:15:25] Speaker 00:
And it's a poor fit to try to jam what is essentially distribution and possession conduct that perhaps the government thinks should be illegal but isn't into a manufacturing statute.

[00:15:36] Speaker 00:
It just isn't designed for this case, and it's not a good textual fit.

[00:15:44] Speaker 00:
Just to kind of illustrate the result of the government's argument here, you have it being legal under the Controlled Substances Act for someone like the McCarthy's who knows about the properties of poppy seeds to sell to someone they know is an opium user if that person is intending to eat a couple of cups of poppy seeds raw to feel that opiate effect.

[00:16:07] Speaker 00:
Same if they sell to an opiate user who is maybe going to suck on the seeds for a while to try to get some of that latex off and then spit them out.

[00:16:14] Speaker 00:
If I put them in my morning smoothie, I've ingested the seed, I'm maybe getting an intoxicating effect from that, but this isn't controlled under the Controlled Substances Act.

[00:16:26] Speaker 00:
However,

[00:16:26] Speaker 00:
According to the government, if a user prefers to drink the latex via poppy seed tea and has strained out the seed from that water, those users have suddenly manufactured a controlled substance under 841A1 and are subject to the penalties that come along with that.

[00:16:42] Speaker 00:
These are the same people that, in the indictment, the government has referred to as opium users and individuals purchasing the product for personal use.

[00:16:52] Speaker 00:
just getting to outline sort of the textual hooks that I'm talking about here.

[00:16:57] Speaker 00:
The first I think I've sort of alluded to, and Judge Timkovich, you did as well, which is this statutory exemption for distribution and possession of this not controlled substance covers the exact conduct that we're talking about here.

[00:17:10] Speaker 00:
That's why it's inconsistent.

[00:17:12] Speaker 00:
Our argument is not more broadly

[00:17:14] Speaker 00:
that if you exempt something in one part of a statute, it necessarily exempts it in the other part of the statute.

[00:17:19] Speaker 00:
What I'm saying is here, what is specifically exempted is the conduct at issue in this case.

[00:17:24] Speaker 00:
And that is why the precursor statute is a backdoor to criminalization of something that Congress has already spoken on.

[00:17:31] Speaker 00:
That's textual hook number one.

[00:17:32] Speaker 00:
Even if we don't look at the statutory exemption, we then need to look at the text of the precursor statute itself.

[00:17:41] Speaker 00:
And there, there are two, at least two,

[00:17:44] Speaker 00:
limiting components of the text of that statute that make it clear it's not intended to cover a particular method of consumption by the end user.

[00:17:55] Speaker 00:
So the first is the itemized list of precursor nouns.

[00:17:59] Speaker 00:
Whether it's one or two lists, they're together in this statute.

[00:18:02] Speaker 00:
And the first four, the more specific nouns here, are a very specialized flask that allows for multiple chemical reactions at one time.

[00:18:14] Speaker 00:
what's essentially a pill presser, a tabulating machine, so putting the drug into pill form, an encapsulating machine, which I understand to be putting a drug into capsule form and then the gelatin capsules themselves.

[00:18:25] Speaker 00:
None of those, to me, invoke an end user using a product.

[00:18:29] Speaker 00:
It's not common that you would think of a user of a drug as first putting their drug into pill form and then ingesting it.

[00:18:36] Speaker 00:
All of them

[00:18:37] Speaker 00:
invoke some sort of deliberate process that is more than just getting after an end user.

[00:18:45] Speaker 00:
And that's because we're talking about manufacturing.

[00:18:47] Speaker 03:
You're looking at 843A7, right?

[00:18:51] Speaker 00:
6 and 7, the same list of nouns.

[00:18:54] Speaker 03:
So 7 prohibits distributing any equivalent chemical product or material which may be used to manufacture a controlled substance.

[00:19:07] Speaker 03:
intending or having reasonable cause to believe that it will be used to manufacture a controlled substance.

[00:19:16] Speaker 03:
So why does that not cover selling these seeds to someone whom you know will be using it to make the tea that contains a controlled substance?

[00:19:32] Speaker 00:
I think an assumption in that question is that washing a coating of latex off of a seed is necessarily manufacturing within the context of the control substances act and it certainly is not because if it is then pretty much any minor action that an end user takes to consume a drug lighting a joint.

[00:19:52] Speaker 00:
The government has conceded you wouldn't refer a spoon that you might heat something up in in order to ingest it.

[00:19:57] Speaker 00:
That wouldn't be something under manufacturing.

[00:19:59] Speaker 00:
If just washing off, even if it's a vigorous shaking process, a coding that pre-exists that the government was ready to charge as a controlled substance in its own right, is manufacturing a controlled substance, then I think there's a real problem with this statute because it means it's not clear to anyone if you have manufactured something and you're subject to a felony or if you've maybe possessed something

[00:20:21] Speaker 00:
like a joint and with it, and now you're subject to a misdemeanor simple possession offense.

[00:20:26] Speaker 01:
Could you then address 802.15, which is the definition of manufacturing?

[00:20:35] Speaker 00:
Sure.

[00:20:35] Speaker 01:
And it does say manufacturer means the production, et cetera, either directly or indirectly or by extraction from substances of natural origin.

[00:20:45] Speaker 01:
Absolutely.

[00:20:46] Speaker 01:
Can you distinguish that?

[00:20:48] Speaker 00:
The government assumes that

[00:20:51] Speaker 00:
Removing a coating of latex from a poppy seed, which their own indictment says doesn't have any alkaloids in the poppy seed, is extraction under the manufacturing statute.

[00:21:02] Speaker 00:
I'm not aware of a case that specifically talks about extraction.

[00:21:05] Speaker 00:
But if you look at what extraction means in other contexts of drug manufacturing, for instance, if you think about removing cocaine from a coca leaf, the first process is to extract the coca paste.

[00:21:18] Speaker 00:
It's a somewhat of an involved process.

[00:21:20] Speaker 00:
the district or the DC circuit has described it as the leaves undergoing an extensive processing where processors shred the leaves, mash them with a strong alkali like lime, a solvent like kerosene and sulfuric acid.

[00:21:37] Speaker 00:
Then you get this light brown paste that then has to go through further manufacturing to be powder cocaine.

[00:21:42] Speaker 00:
I'm sorry if the microphone went out.

[00:21:44] Speaker 00:
My point being that this assumption that

[00:21:47] Speaker 00:
Washing something is extraction is, I think, erroneous, both in terms of how we typically see extraction in the drug manufacturing context, but also because this statue and the verbs within it must be interpreted in a way that does not collapse the distinction between a manufacturing and a use.

[00:22:05] Speaker 03:
What about getting gold out of gold ore?

[00:22:08] Speaker 03:
You're sluicing it with water.

[00:22:11] Speaker 03:
No one would say that's extracting the gold from the rock that you

[00:22:17] Speaker 00:
I don't have a lot of mining factual background, Your Honor, but I do think even if there's a way to describe, you know, if I say I bought some fruit last night and I washed off the dirt and the pesticides, I've extracted them.

[00:22:31] Speaker 00:
I could say that, but we're talking about interpreting an action in the context of the Controlled Substances Act, which specifically delineates between manufacturing

[00:22:42] Speaker 00:
And so the definition of manufacturing in the context of this statute has to be interpreted in a way that can't be extended to something that an end user is doing with an end product.

[00:22:55] Speaker 00:
I do want to note, though, that I think that there are two distinct, although interrelated, limiting textual components of the precursor statute.

[00:23:02] Speaker 00:
So one is the definition of manufacturing, which can't be extended.

[00:23:08] Speaker 00:
to as broad as possible form, or we're left with a real problem in the Controlled Substances Act.

[00:23:13] Speaker 00:
But the second is this list of nouns, once again.

[00:23:16] Speaker 00:
So it invokes, when you're talking about a precursor, when we're going to penalize somebody for contributing to a manufacturing process, even if theoretically you could say that because one step of an assembly line is lighting something on fire, lighting something on fire is manufacturing,

[00:23:34] Speaker 00:
We're not going to go after the person who provides a lighter to the person with the joint, because we need more of a deliberate production process in order for the statute to apply.

[00:23:43] Speaker 01:
Before you get to that, I was just thinking about Sudafed, which is a lawful product, as a precursor, obviously.

[00:23:54] Speaker 01:
But how would you distinguish the Sudafed precursor case versus the Poppy Seed precursor case?

[00:24:01] Speaker 00:
Because Sudafed, when it is being used to manufacture some other drug, can be a precursor.

[00:24:07] Speaker 00:
It's OK that it's a substance.

[00:24:09] Speaker 00:
My point here is that poppy seeds with opium latex on them are a readily consumable form of opium latex that Congress has carved out from the Controlled Substance Act and said is legal as an end product.

[00:24:22] Speaker 01:
And so is Sudafed.

[00:24:24] Speaker 00:
And so Sudafed, I think,

[00:24:26] Speaker 00:
I'm not quite sure if Sudafed is a listed chemical, but if it is, then it can be prosecuted in that way.

[00:24:32] Speaker 01:
Let's assume it's not.

[00:24:33] Speaker 00:
Yeah, so Sudafed to Sudafed is not going to go in the precursor statute.

[00:24:36] Speaker 00:
Sudafed, as used in the process to manufacture methamphetamine, might be a precursor.

[00:24:42] Speaker 00:
And so it's somewhat context dependent.

[00:24:43] Speaker 00:
But there are any cases that I'm aware of, and certainly not that the government has cited, where the precursor statute has been implied essentially to

[00:24:52] Speaker 00:
the use of an end product.

[00:24:54] Speaker 00:
Nearly every case at the circuit level that I have seen talks about methamphetamine.

[00:24:59] Speaker 00:
I understand the statute isn't limited to methamphetamine, but where it's been used is in these real deliberate production processes.

[00:25:06] Speaker 00:
There's not a case where end user

[00:25:10] Speaker 00:
you know, heroin user used a spoon to ingest, to ultimately ingest the heroin product and that's been considered manufacturing or that that's been considered distribution of a precursor.

[00:25:22] Speaker 03:
But intent is what's the key here.

[00:25:24] Speaker 03:
Yes, let me talk about... You're selling this product encouraging people to manufacture the opium by extracting it through tea.

[00:25:36] Speaker 03:
I know you don't like the word extracting.

[00:25:38] Speaker 03:
I didn't mean to foreclose that argument.

[00:25:41] Speaker 03:
But they're getting the opium through the T. That's their clear intent.

[00:25:48] Speaker 03:
And the purpose is to give the buyer a means of creating opium for them to get high.

[00:25:58] Speaker 00:
So I want to talk about the intent piece because the government continues to kind of make the dichotomy between knowing that someone's going to use it to get high and knowing that maybe somebody's going to make a poppy seed muffin.

[00:26:11] Speaker 00:
That's actually not the relevant distinction here.

[00:26:14] Speaker 00:
The relevant distinction is, do you know that this method of using a drug to get high

[00:26:20] Speaker 00:
is okay, and this method of using the drug is not.

[00:26:25] Speaker 00:
So it's carved out one particular method of consumption of poppy seeds.

[00:26:29] Speaker 00:
The McCarthy's could legally, under the statutory exemption for not being a controlled substance, distribute the poppy seed to someone they know as a drug user who's going to eat the poppy seeds raw.

[00:26:45] Speaker 00:
They can know all of that.

[00:26:47] Speaker 00:
and not know that just because the user decides to follow the most common method of ingesting, that now suddenly they're on the hook for precursor penalties, and also that that end user is on the hook for manufacturing penalties.

[00:27:03] Speaker 00:
So that's really what the distinction is here is, is there enough in the statute

[00:27:07] Speaker 00:
for somebody to know that a particular method of use, a particular method of consumption, is not OK when everything else is.

[00:27:14] Speaker 00:
And I think going to vagueness quickly in my last minute, if the court is unsure whether the precursor statute could cover this conduct, as applied to this case, there is an affirmatively misleading part of the statute where you have the statutory exemption saying the distribution of poppy seeds

[00:27:36] Speaker 00:
to a drug user for that drug user to get high by eating them is OK.

[00:27:42] Speaker 00:
Now we've interpreted a manufacturing statute to say, except when that person drinks the opium via tea.

[00:27:49] Speaker 00:
That is an affirmatively misleading statement in a different part of the Controlled Substances Act that both poses a fair notice problem for persons in the McCarthy situation, but also is a separation of powers problem because, as I understand it, the government continues to think this only applies to poppy seeds with a particular amount of opium latex on them.

[00:28:10] Speaker 00:
Are they going to charge somebody who tells you how to make poppy seed tea with a processed poppy seed and it's poppy seed tea light?

[00:28:17] Speaker 00:
That's not clear from any of the argument that the government has briefed or made today.

[00:28:21] Speaker 00:
There's both a separation of powers and a notice problem because of the interaction between the statutory exemption for distribution and use, even in the drug context, and this one method of use to drink the opium from poppy seed tea.

[00:28:38] Speaker 01:
Do we have one list here or two lists?

[00:28:41] Speaker 00:
I read it as one list, but I don't think that

[00:28:43] Speaker 00:
Particular question matters, so I'll just point the court quickly to the Fisher case, the Supreme Court case in 2024.

[00:28:50] Speaker 00:
You have subsection C1 and subsection C2.

[00:28:53] Speaker 00:
That's two distinct subsections.

[00:28:56] Speaker 00:
C2 is a broader, otherwise subsection.

[00:28:59] Speaker 00:
C1 has specific conduct that constitutes obstruction in that context.

[00:29:05] Speaker 00:
So this is the obstruction of an official proceeding statute.

[00:29:08] Speaker 00:
Subsection C1 has very specific ways to violate the obstruction statute, which relate to the destruction of documentary evidence.

[00:29:17] Speaker 00:
Subsection 2 is saying, and other forms of obstruction too.

[00:29:20] Speaker 00:
And this was applied to the January 6 conduct.

[00:29:23] Speaker 00:
And the Supreme Court said, we're going to read those two subsections together, even if there are two delineations in the statute.

[00:29:32] Speaker 00:
Because otherwise, you have rendered this very four highly particularized verbs

[00:29:37] Speaker 00:
and means of violating that statute, utterly surplusage.

[00:29:41] Speaker 00:
You can't go from, this is obviously about destruction of documentary evidence, and anything else too, including assault.

[00:29:49] Speaker 00:
And so I don't think that the one to two thing is sort of a misleading point here.

[00:29:56] Speaker 00:
Thank you, Your Honors.

[00:30:09] Speaker 02:
So something that Ms.

[00:30:11] Speaker 02:
Yaffe just said was that Sudafed, when it's being used to manufacture meth, would be a precursor.

[00:30:21] Speaker 02:
And it's conduct specific or context specific.

[00:30:26] Speaker 02:
And I hope I'm not misquoting.

[00:30:27] Speaker 02:
But that is exactly the same argument that we are making about poppy seeds.

[00:30:33] Speaker 02:
Sudafed is not in and of itself a controlled substance.

[00:30:37] Speaker 02:
Pseudoephedrine is a listed chemical, but it's not a controlled substance.

[00:30:42] Speaker 02:
And then you have cases involving things like lithium, which is not a controlled substance or a listed chemical, but can be used as a precursor.

[00:30:52] Speaker 02:
And then the other thing that I heard was that manufacturing under the Controlled Substances Act doesn't connote an end user

[00:31:01] Speaker 02:
making things for his or her own personal use, that totally flies in the face of all the manufacturing cocaine base cases that we've got, where all you need to be a manufacturer of cocaine base is a pot, water, cocaine powder, and baking soda.

[00:31:18] Speaker 02:
And you can make that for your own personal use.

[00:31:21] Speaker 02:
And it also flies in the face of the Wood case from 1995, where this court said, even though you claimed that all you were doing was cutting some leaves off of marijuana plants

[00:31:31] Speaker 02:
That's manufacturing under the Controlled Substances Act because, like Ms.

[00:31:35] Speaker 02:
Yaffe said, it's conduct-specific.

[00:31:37] Speaker 02:
It's context-specific.

[00:31:41] Speaker 02:
The other thing that I just want to point out is that there's nothing in the indictment

[00:31:48] Speaker 02:
or in the record that says you can make a controlled substance by eating poppy seeds raw.

[00:31:54] Speaker 02:
The indictment makes very clear, although it says one of the ways to get the opium latex off poppy seeds is by making poppy seed tea.

[00:32:04] Speaker 02:
What's being alleged here is that they extracted the opium latex from the surface of the poppy seeds by making poppy seed tea.

[00:32:12] Speaker 02:
There's no allegation and there's no reality if you talk to some of these

[00:32:15] Speaker 02:
end users of the poppy seed tea like we have, there's no reality that you can get any sort of a high from eating poppy seeds raw.

[00:32:23] Speaker 02:
And by the way, the word extract, which I think Judge Hartz asked about, that just means to take out of.

[00:32:30] Speaker 02:
So it comes from the Latin triere, which means to pull or to draw.

[00:32:35] Speaker 02:
So there's nothing fancy about extracting something from a substance of natural origin.

[00:32:41] Speaker 02:
So if there's no further questions, we'd ask the court to reverse.

[00:32:45] Speaker 02:
Thank you, counsel.

[00:32:47] Speaker 03:
Case is submitted.

[00:32:49] Speaker 03:
Counselor excused.