In less than cool news for recreational drug users and sock wearers alike, the U.S. Court of Appeals for the Eighth Circuit recently upheld a broad interpretation of what constitutes ‘drug paraphernalia’ as that term could be construed as “relating to a controlled substance”. A link to the July 9, 2013, decision in Mellouli v. Holder can be found below:
http://us8thcircuitcourtofappealsopinions.justia.com/2013/07/09/mellouli-v-holder-jr/
A common ground of removability charged against non- citizens is for a conviction for an offense relating to a controlled substance, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana. An analysis of the “relating to” aspect of the statute involves an “understanding of a complex federal and state statutory universe” and has led to some interesting and varied judicial decisions.
Mr. Mellouli had the misfortune of being found with four tablets of Adderall in his sock. Perhaps he truly needed the Adderall in light of the fact that he apparently could not remain focused enough to realize he should not be driving under the influence of alcohol which is what led to his arrest and the discovery of his sock stash. In any event, a drug possession charge was dismissed in light of a plea to the Kansas statute pertaining to possession of drug paraphernalia, a misdemeanor. The statute provides that it “shall be unlawful for any person to use or possess with intent to use any drug paraphernalia to . . . (2) store, contain, conceal, ingest, inhale or otherwise introduce a controlled substance into the human body.”
The Circuit Court acknowledged that it “seems surprising to call a sock paraphernalia” but nonetheless upheld the literal interpretation of the statute in finding that the sock was used to store and conceal the controlled substance. It makes one wonder what, if anything, would not constitute paraphernalia (pause to allow imagination to wander). The Court further upheld the Board of Immigration Appeals conclusion that since the drug paraphernalia statute involved “other conduct associated with the drug trade in general”, it was categorically related to a controlled substance offense. Moreover, the Court upheld the determination that evidence from outside the record of conviction could be relied upon as part of the “circumstance specific approach” to determine that the exception for personal use of marijuana in an amount less than 30 grams did not apply.
While this decision is a bummer and surely neither Cheech nor Chong would find it humorous, it nonetheless does offer us a few lessons. First, of course, is that we should all just say no to drugs (and anything in which you could conceivably store or conceal drugs). Second, if for some reason you ignore lesson number one, abide by the old saying of “smoke ’em if you got ’em” before you find yourself arrested.
