Professional Documents
Culture Documents
No. 13-4349
Argued:
Decided:
ARGUED:
J.
Lloyd
Snook,
III,
SNOOK
&
HAUGHEY,
P.C.,
Charlottesville, Virginia, for Appellant.
Anthony Paul Giorno,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, Ronald M. Huber, Assistant United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
jury
distribute
trial,
McFadden
controlled
was
substance
convicted
analogues
of
and
conspiring
of
to
distributing
affirmed
the
district
courts
judgment,
and
McFadden
trial
improperly
omitted
elements
relating
to
McFaddens
harmless
error
with
respect
to
McFaddens
convictions under Counts One, Five, Six, Seven, Eight, and Nine
of the superseding indictment.
I.
A.
We begin by providing an overview of the relevant federal
statutes
their
and
regulations
analogues.
The
governing
CSA
controlled
prohibits
the
substances
distribution
and
of
to
mean
any
drug
or
substance
included
in
five
Schedule
Distribution of controlled
substances
listed
carries
penalties.
21 U.S.C. 841(b)(1)(C).
strict
criminal
21 U.S.C. 811(a).
The up-to-date
See
21 C.F.R. 1308.111308.15.
Congress
distribution
enacted
of
newly
the
Analogue
created
drugs,
Act
not
to
yet
prevent
listed
on
the
the
See
The
the
chemical
structure
of
which
is
substantially
effect
on
the
central
nervous
system
that
is
substantially
21 U.S.C.
802(32)(A).
Under the Analogue Act, controlled substance analogues are
treated
as
Schedule
federal law.
controlled
21 U.S.C. 813.
substances
for
purposes
of
facts
of
this
case
are
discussed
in
detail
in
our
July
2011,
certain
law
enforcement
officials
(police
of
synthetic
stimulants
commonly
known
as
bath
from
video
rental
McDaniel.
Under
confidential
informant
store
supervision
made
two
owned
of
the
and
operated
police
controlled
by
Lois
officers,
purchases
of
bath
officers
confronted
investigation,
McDaniel
searched
with
the
evidence
video
store,
from
and
their
solicited
McFadden.
initiated
recorded
At
the
telephone
officers
direction,
conversations
with
McDaniel
McFadden,
conversations,
McFadden
who
described
In these
the
active
of
McDaniel
several
engaged
varieties
in
of
bath
separate
salts
controlled
from
McFadden.
United
States
Drug
Enforcement
Administration
(DEA)
the vials and baggies containing the bath salts had been
labeled by McFadden, and some labels warned that the contents
were not for human consumption or illegal use.
listed
chemical
compounds,
some
5
of
which
were
Other labels
Schedule
controlled
substances,
and
stated
that
the
package
contents
McFaddens
(MDPV),
3,4-
Temporary
Placement
of
Three
Synthetic
Cathinones
federal
grand
methylone,
Analogue
Act.
jury
indicted
and
4-MEC
in
The
indictment
McFadden
violation
alleged
of
for
distributing
the
CSA
that
and
although
the
MDPV,
McFaddens
distribution,
these
three
compounds
nonetheless
See 21 U.S.C.
Three counts of
24,
2011
(Count
supervising
telephone
McDaniel
August
on
25,
Four),
before
conversations
2011.
police
officers
between
Five
counts
began
McFadden
of
and
distribution
instructions,
McFadden
argued
that
the
government
was
controlled
substance
analogues
under
the
Analogue
Act.
been
analogues
required
had
to
prove
substantially
that
McFadden
knew
that
the
similar
chemical
structures
and
The
district
court
denied
McFaddens
motion,
relying
on
by
humans).
During
the
four-day
trial,
McFadden
not
substance
to
sell
schedules.
any
substances
McFadden
and
listed
the
on
the
controlled
government
stipulated
that McFadden had consulted the DEA website for the list of
controlled substances, and that the website did not contain any
warning at the time that controlled substance analogues also
were regulated.
sentenced
McFadden
to
serve
term
of
33
months
McFadden
appealed,
arguing
in
this
Court
that
the
bath
salts
analogue.
illegal
status
as
controlled
substance
See
United States v. McFadden, 753 F.3d 432, 436, 44344 (4th Cir.
2014). 1
McFadden
Court,
sought
which
government
review
granted
was
of
certiorari
required
to
our
on
prove
decision
the
that
by
issue
he
the
Supreme
whether
knew
that
the
the
proof
of
knowledge
of
either
the
substances
legal
make
McFadden
the
v.
substance
United
States,
controlled
135
S.
Ct.
substance
2298,
analogue.
2305
(2015).
the
case
to
us
to
determine
whether
the
district
II.
A.
The
Supreme
Court
has
clarified
the
elements
that
the
controlled
substance
analogues.
As
discussed
above,
the
structure
and
physiological effects.
human
consumption,
regulated
as
Therefore,
distribution
any
CSAs
of
actual,
claimed,
21 U.S.C. 802(32)(A).
Schedule
the
its
controlled
I
controlled
prohibition
controlled
of
substances
or
intended
If intended for
substance
analogue
is
substance.
Id.
knowing
intentional
or
extends
to
813.
controlled
See id.
813, 841(a)(1).
The
government
must
also
satisfy
one
of
two
methods
of
McFadden, 135 S.
substance.
Id.
Id.
Id.
to
prove
that
the
defendant:
(1)
distributed
intended,
(2)
consumption;
or
claimed
intended
and
(3)
that
knew
physiological
the
substance
either
the
be
legal
effects
used
of
for
status
an
human
of
the
trial,
the
jury
found
that
McFadden
distributed
he
district
intended
court
the
substances
instructed
the
for
jury
human
that
consumption.
to
convict
on
11
The
the
and
the
actual,
intended,
or
claimed
physiological
had
as
knowledge
of
controlled
the
legal
substance
classification
analogues
or
of
of
the
the
jury
instructions
for
the
conspiracy
count
were
effects
guilty
of
controlled
verdict,
the
substance
jury
analogues.
therefore
By
returning
necessarily
found
that
substances
analogues.
had
However,
the
the
features
guilty
of
controlled
verdict
did
not
substance
necessarily
reflect that the jury found that McFadden knew the legal status
of those substances or that those substances had the chemical
structures
and
physiological
effects
of
controlled
substance
counts,
therefore,
the
jury
McFadden
knew
analogues.
With
respect
instructions
either
to
omitted
that
the
all
the
bath
nine
required
salts
element
were
that
regulated
as
controlled
failure
to
instruct
the
jury
on
this
knowledge
element
To
establish
harmless
error
in
such
case,
the
of
did
not
contribute
to
the
verdict
obtained.
if
omitted
the
jury
omitted
instruction
element
is
may
be
supported
deemed
by
harmless
overwhelming
Id.
that
because
overwhelming
evidence
Id. at 217.
established
that
We
the
district
courts
failure
to
instruct
on
the
dwelling
Id.
unanimously
that
the
defendant
had
participated
in
specific
Id. at 698.
had
predicate
presented
witnesses
evidence
whose
of
several
credibility
had
been
The government
offenses
impeached
and
through
whose
Id. at 70102.
doubt,
because
instructions
the
could
omission
have
of
the
allowed
the
element
jury
to
from
the
return
jury
guilty
Id. at 702.
See
McFadden,
the
135
government
evidence
has
S.
Ct.
met
established
at
its
2305.
burden
We
of
McFaddens
consider
showing
knowledge
whether
that
on
overwhelming
this
issue,
III.
The
government
argues
that
the
evidence
at
trial
salts
had
chemical
structures
and
physiological
effects
to
jury
determination
16
of
his
credibility
on
this
issue.
Relying
on
the
Seventh
Circuits
decision
in
United
States v. Turcotte, 405 F.3d 515, 527 (7th Cir. 2005), he also
argues that under proper instructions, the jury would have been
permitted, but would not have been required, to infer from the
evidence that he had any knowledge of the chemical structures of
the substances that he sold.
of
proof
identified
by
the
Supreme
Court
for
with
illicit
drug
distribution.
Further,
in
the
17
Although
the
jury
could
have
inferred
from
McFaddens
substances,
McFadden,
135
S.
Ct.
at
2304
n.1,
we
agree with McFadden that such an inference would not have been
compelled.
he
ceased
learning
of
conclude
that
selling
their
MDPV
listing
McFaddens
and
in
methylone
the
efforts
CSA
to
immediately
schedules.
avoid
selling
after
Thus,
we
substances
we
discussed
in
Brown
that
could
have
caused
therefore
hold
that
the
evidence
was
sufficient
to
knew
that
federal
controlled substances.
law
regulated
the
bath
salts
as
Therefore, the
government
may
also
prove
McFaddens
knowledge
by
proof,
the
telephone
government
relies
conversations
on
recorded
between
statements
August
25,
in
2011
and
knew
the
bath
physiological effects.
conversation
occurred
salts
chemical
structures
and
August
25,
2011,
after
McFaddens
conduct giving rise to Count Two (July 1125, 2011), Count Three
(July 29August 11, 2011), and Count Four (August 1024, 2011)
of the superseding indictment.
nor
were
we
able
to
find,
earlier
direct
evidence
of
the
jury
reasonably
could
have
inferred
from
trial
after
that
seeing
McFadden
similar
Staten Island.
began
selling
products
for
aromatherapy
sale
in
plain
products
view
around
his
products
before
knowing
their
identity,
chemical
The jury
reasonable
uncertainty
however, evaporated
with
about
McFaddens
McFaddens
recorded
knowledge,
participation
in
chemical
products.
structures
McFadden
does
and
physiological
not
dispute
the
effects
of
his
accuracy
of
the
evidence
that
would
contradict
20
the
contents
of
those
conversations. 3
characterizing
mixture
called
Alpha
as
the
for
further
details
about
mixture
labeled
No
When
Speed
4-MEC
blend
called
New
Sheens,
adding
nevertheless
argues
that
his
statements
to
knowledge
he
might
have.
McFadden,
construction
experience
or
training
to
have
scientific,
chemical,
or
We are
on
the
knowledge
issue
rather
than
have
this
if
defendant
is
proved
to
have
had
knowledge
of
an
McFaddens
argument
on
this
point,
as
well
as
his
nine
recorded
telephone
conversations,
beginning
on
Nine,
their
chemical
structures,
their
effects,
and
On August 25,
that
McFaddens
statements
Laboratory tests
accurately
described
the
In addition, McFaddens
had
sufficient
knowledge
about
his
products
chemical
on
Therefore,
the
CSA
the
schedules.
record
shows
See
far
more
21
C.F.R.
evidence
1308.11.
than
the
mere
McFadden
blends,
described
comparing
methamphetamine.
McFaddens
the
feeling
their
effects
The
government
descriptions
to
of
the
accurately
physiological
those
of
presented
caused
On August 25,
by
different
cocaine
and
evidence
reflected
the
that
actual
effects
were
merely
sales
that
identities
by
August
and
the
25,
2011,
McFadden
physiological
effects
knew
the
of
the
defendant
substance
who
possesses
23
with
knowledge
of
those
features knows all of the facts that make his conduct illegal.
McFadden, 135 S. Ct. at 2305.
selling,
element
from
the
district
the
jury
courts
omission
instructions
was
of
the
harmless
knowledge
error
with
with
the
date
of
to
Counts
Two,
those
recorded
Three,
and
telephone
conversations.
With
respect
Four,
however,
We
Five
also
remand
through
the
Nine,
convictions
to
the
on
Count
district
One,
court
and
for
resentencing.
IV.
For these reasons, we affirm the district courts judgment
of conviction on Counts One, Five, Six, Seven, Eight, and Nine,
24
and vacate the courts sentence on those counts and remand for
resentencing.
Two,
Three,
Four,
and
remand
those
counts
for
further
25