Case 7:21-cr-00502-PMH Document 65 Filed 08/12/22 Page 1 of 2
`Case 7-21-cr-00502-PMH Document 64 Filed in NYSD on 08/10/2022 Page 1 of 2
`U.S. Department of Justice
`[Type text]
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`United States Attorney
`Southern District of New York
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`United States District Courthouse
`300 Quarropas Street
`White Plains, New York 10601
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`August 10, 2022
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`BY ECF
`The Honorable Philip M. Halpern
`United States District Judge
`Southern District of New York
`300 Quarropas Street
`White Plains, New York 10601
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`Re: United States v. Roharil Cruz, et al., 21 Cr. 502 (PMH)
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`Dear Judge Halpern:
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`The parties jointly and respectfully submit this letter to inform the Court about the results
`of the meet and confer Your Honor ordered on August 3, 2022. See ECF No. 63. After conferring,
`the parties continue to disagree whether the Government has a legal basis to prosecute the
`defendants in light of the Government’s lab report that indicates that the tested substance is either
`para-, ortho-, or meta-fluorofentanyl. Accordingly, the parties believe the existing motion schedule
`should remain in place.
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`The parties agree that para -fluorofentanyl and ortho-fluorofentanyl are Schedule I
`substances proscribed by the Controlled Substances Act, see 21 C.F.R. §§ 1308.11(b)(64) and
`1308.11(b)(70), and that meta -fluorofentanyl is not a scheduled substance at th is time. The
`Government believes that whether meta-fluorofentanyl is an analogue of fentanyl under 21 U.S.C.
`§ 841(b)(1)(B)(iv) is an issue of fact for the jury to decide and intends to call expert witnesses at
`trial who will testify that meta-fluorofentanyl is an analogue of fentanyl because it is chemically
`and pharmacologically similar to fentanyl. See United States v. McCray, 7 F.4th 40, 46 (2d Cir.
`2021) (using ordinary meaning of “analogue,” wh ich is a “a ch emical compound structurally
`similar to another but differing often by a single element of the same valence and group of the
`periodic table as the element it replaces,” and holding that a substance can be an analogue of
`fentanyl under Section 841(b)(1)(B)(iv) even if it is not a “controlled substance analogue” under
`Section 802(32)). The Government is still evaluating potential experts and has not yet produced
`any expert disclosure materials. The Government will timely produce its expert disclosure
`materials in accordance with the trial schedule, which has not yet been set.
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`Mr. Braverman and Mr. Maher believe that this case should be dismissed, and therefore
`motion practice is necessary, because meta-fluorofentanyl is not statutorily proscribed as a fentanyl
`analogue and does not qualify as a fentanyl analogue under 21 U.S.C. § 802(32), 21 U.S.C. § 813,
`or United States v. McCray.
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`In light of the information set forth in this letter, the briefing
`schedule entered by the Court on August 3, 2022 remains
`in place. The Clerk of Court is respectfully requested to
`terminate the pending letter-motion (Doc. 64).
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`SO ORDERED.
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`_______________________
`Philip M. Halpern
`United States District Judge
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`Dated: White Plains, New York
` August 11, 2022
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`Case 7:21-cr-00502-PMH Document 65 Filed 08/12/22 Page 2 of 2
`Case 7-21-cr-00502-PMH Document 64 Filed in NYSD on 08/10/2022 Page 2 of 2
`The Honorable Philip M. Halpern
`Page 2
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`Respectfully submitted,
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` DAMIAN WILLIAMS
` United States Attorney
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` By: ______________________________
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`Jennifer N. Ong
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` Assistant United States Attorney
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`(914) 993-1926
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`Samuel Braverman, Esq. (by ECF)
`Sean Maher, Esq. (by ECF)
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`cc:
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