United States v. Stephen McFadden , 823 F.3d 217 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4349
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN DOMINICK MCFADDEN, a/k/a Stephen Domin McFadden,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 14-378)
Argued: March 22, 2016 Decided: May 19, 2016
Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Keenan wrote the opinion, in which Chief Judge
Traxler and Judge Wilkinson joined.
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.
BARBARA MILANO KEENAN, Circuit Judge:
In this case, which is before us for a second time, we
consider whether certain erroneous jury instructions given at
trial require us to vacate Stephen D. McFadden’s convictions.
After a jury trial, McFadden was convicted of conspiring to
distribute controlled substance analogues and of distributing
controlled substance analogues in violation of the Controlled
Substance Analogue Enforcement Act of 1986 (the Analogue Act),
21 U.S.C. §§ 802(32)(A), 813, and the Controlled Substances Act
(CSA), 21 U.S.C. §§ 841(a), 846. In McFadden’s initial appeal,
we affirmed the district court’s judgment, and McFadden
petitioned the Supreme Court for certiorari. The Supreme Court
granted certiorari, concluded that the jury instructions given
at trial improperly omitted elements relating to McFadden’s
state of mind, and remanded this case for us to consider whether
the error was harmless.
On remand, we conclude that the erroneous jury instructions
constituted harmless error with respect to McFadden’s
convictions under Counts One, Five, Six, Seven, Eight, and Nine
of the superseding indictment. However, we conclude that the
error was not harmless with respect to McFadden’s convictions
under Counts Two, Three, and Four. We therefore affirm in part,
vacate in part, and remand the case for further proceedings in
the district court.
2
I.
A.
We begin by providing an overview of the relevant federal
statutes and regulations governing controlled substances and
their analogues. The CSA prohibits the distribution of a
“controlled substance,” 21 U.S.C. § 841, and defines “controlled
substance” to mean any drug or substance included in five
schedules, Schedule I through Schedule V, established by the
CSA. 21 U.S.C. §§ 802(6), 812(a). Distribution of controlled
substances listed on Schedule I carries strict criminal
penalties. 21 U.S.C. § 841(b)(1)(C). The Attorney General also
has the authority to add substances to or remove substances from
the CSA schedules by rule. 21 U.S.C. § 811(a). The up-to-date
schedules are codified in the Code of Federal Regulations. See
21 C.F.R. §§ 1308.11–1308.15.
Congress enacted the Analogue Act to prevent the
distribution of newly created drugs, not yet listed on the
schedules but that have similar effects on the human body. See
United States v. Klecker, 348 F.3d 69, 70 (4th Cir. 2003). The
Analogue Act defines a “controlled substance analogue” as any
substance “the chemical structure of which is substantially
similar to [that] of a controlled substance in schedule I or II”
(the chemical structure element), and “which has [an actual,
claimed, or intended] stimulant, depressant, or hallucinogenic
3
effect on the central nervous system that is substantially
similar to or greater than [that] of a controlled substance in
schedule I or II” (the physiological effect element). 21 U.S.C.
§ 802(32)(A).
Under the Analogue Act, controlled substance analogues are
treated as Schedule I controlled substances for purposes of
federal law. 21 U.S.C. § 813. The interaction between the CSA
and the Analogue Act therefore prohibits the distribution of
controlled substance analogues, even if not listed on the CSA
schedules.
B.
The facts of this case are discussed in detail in our
previous opinion in United States v. McFadden, 753 F.3d 432 (4th
Cir. 2014), and in the Supreme Court’s opinion in McFadden v.
United States, 135 S. Ct. 2298 (2015). We will recite here the
facts relevant to the issue presented on remand.
In July 2011, certain law enforcement officials (police
officers) in Charlottesville, Virginia began investigating the
distribution of synthetic stimulants commonly known as “bath
salts.” The investigation revealed that bath salts were being
sold from a video rental store owned and operated by Lois
McDaniel. Under supervision of the police officers, a
confidential informant made two controlled purchases of bath
salts at McDaniel’s video store. On August 24, 2011, the police
4
officers confronted McDaniel with evidence from their
investigation, searched the video store, and solicited
information regarding her supplier.
McDaniel agreed to cooperate with the investigation and to
assist the police in gathering evidence against her supplier,
Stephen McFadden. At the officers’ direction, McDaniel
initiated recorded telephone conversations with McFadden, who
was located in Staten Island, New York. The first of these
telephone conversations occurred on August 25, 2011. In these
recorded conversations, McFadden described the active
ingredients in the bath salts and gave instructions on how the
bath salts were to be consumed. McFadden also described the
stimulant effects of the bath salts and compared the effects to
those of cocaine or methamphetamine. During these telephone
conversations, McDaniel engaged in five separate controlled
purchases of several varieties of bath salts from McFadden.
McFadden shipped packages containing bath salts through FedEx, a
commercial courier, from Staten Island to Charlottesville.
The United States Drug Enforcement Administration (DEA)
seized the packages directly from FedEx. Inside these packages,
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.” Other labels
listed chemical compounds, some of which were Schedule I
5
controlled substances, and stated that the package contents
“[did] not contain [those] compounds or analogues of [those]
compounds.”
Chemical analysis revealed that the composition of the bath
salts seized in these shipments changed over time. McFadden’s
five shipments from July 2011 through September 2011 contained
3,4-methylenedioxypyrovalerone (MDPV), 3,4-
methylenedioxymethcathinone (methylone, or MDMC), and 4-methyl-
N-ethylcathinone (4-MEC).
On October 21, 2011, the government adopted a rule adding
MDPV and methylone to Schedule I. See Schedules of Controlled
Substances: Temporary Placement of Three Synthetic Cathinones
into Schedule I, 76 Fed. Reg. 65,371, 65,371–75 (Oct. 21, 2011).
Immediately upon learning of the new rule, McFadden destroyed
his inventory of MDPV and methylone. Although McFadden ceased
distributing MDPV or methylone at this point, he continued to
send shipments containing 4-MEC until his arrest in February
2012.
A federal grand jury indicted McFadden for distributing
MDPV, methylone, and 4-MEC in violation of the CSA and the
Analogue Act. The indictment alleged that although MDPV,
methylone, and 4-MEC were not controlled substances at the time
of McFadden’s distribution, these three compounds nonetheless
qualified as controlled substance analogues by virtue of their
6
chemical structures and physiological effects. See 21 U.S.C. §
802(32)(A). The grand jury charged McFadden with one count of
conspiracy to distribute controlled substance analogues between
June 2011 and February 2012 (Count One), and eight counts of
distribution of controlled substance analogues. Three counts of
distribution corresponded with three different shipments made on
July 25, 2011 (Count Two), August 11, 2011 (Count Three), and
August 24, 2011 (Count Four), before police officers began
supervising telephone conversations between McFadden and
McDaniel on August 25, 2011. Five counts of distribution
corresponded with five different shipments made on August 26,
2011 (Count Five), September 16, 2011 (Count Six), October 27,
2011 (Count Seven), January 6, 2012 (Count Eight), and February
2, 2012 (Count Nine), after the police officers began directing
and monitoring McDaniel’s communications with McFadden.
In a motion to dismiss the indictment and in his proposed
jury instructions, McFadden argued that the government was
required to prove that he knew the substances he distributed
were controlled substance analogues under the Analogue Act.
Under McFadden’s proposed jury instruction, the government would
have been required to prove that McFadden knew that the
analogues had substantially similar chemical structures and
physiological effects as those of controlled substances.
7
The district court denied McFadden’s motion, relying on
this Court’s opinion in United States v. Klecker, 348 F.3d 69,
71 (4th Cir. 2003) (requiring the government to prove only that
a substance had the chemical structure and physiological effects
of an analogue and that the defendant intended the substance be
consumed by humans). During the four-day trial, McFadden
presented evidence that he was not aware of the Analogue Act, or
that the CSA prohibited the distribution of controlled substance
analogues. The district court instructed the jury consistent
with the holding in Klecker, and the jury returned a guilty
verdict on all nine counts.
At his sentencing hearing, McFadden argued that he had been
careful not to sell any substances listed on the controlled
substance schedules. McFadden and the 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. Further, McFadden testified that he had ceased
selling MDPV and methylone after those substances were added to
the CSA schedules, even when an undercover DEA agent attempted
to purchase them. The district court considered this testimony
and sentenced McFadden to serve a term of 33 months’
imprisonment on each count, to run concurrently.
8
McFadden appealed, arguing in this Court that the
government should have been required to prove his knowledge of
the bath salts’ illegal status as a controlled substance
analogue. Relying on our precedent in Klecker, 348 F.3d at 72,
we affirmed the district court’s interpretation of the Analogue
Act as not requiring proof that the defendant knew that the
distributed substances were controlled substance analogues. See
United States v. McFadden, 753 F.3d 432, 436, 443–44 (4th Cir.
2014). 1
McFadden sought review of our decision by the Supreme
Court, which granted certiorari on the issue whether the
government was required to prove that he knew that the
substances he distributed were controlled substance analogues.
The Supreme Court held that a conviction under the Analogue Act
requires proof of knowledge of either the substance’s legal
status as a controlled substance or of its specific features
that make the substance a controlled substance analogue.
McFadden v. United States, 135 S. Ct. 2298, 2305 (2015).
Accordingly, the Supreme Court vacated this Court’s opinion, and
remanded the case to us to determine whether the district
1In the initial appeal, we also rejected McFadden’s
challenges to the vagueness of the Analogue Act, the district
court’s evidentiary rulings, and the sufficiency of the evidence
at trial. See United States v. McFadden, 753 F.3d 432, 436 (4th
Cir. 2014). McFadden did not seek Supreme Court review on these
other issues, so they are not before us on remand.
9
court’s erroneous jury instructions constituted harmless error.
Id. at 2307.
II.
A.
The Supreme Court has clarified the elements that the
government must prove to support a conviction for distribution
of controlled substance analogues. As discussed above, the
Analogue Act defines a “controlled substance analogue” by its
chemical structure and its actual, claimed, or intended
physiological effects. 21 U.S.C. § 802(32)(A). If intended for
human consumption, any controlled substance analogue is
regulated as a Schedule I controlled substance. Id. § 813.
Therefore, the CSA’s prohibition of knowing or intentional
distribution of controlled substances extends to controlled
substance analogues intended for human consumption. See id.
§§ 813, 841(a)(1).
The government must also satisfy one of two methods of
proof regarding the defendant’s state of mind. McFadden, 135 S.
Ct. at 2305. Under the first method of proof, the government
may establish that “a defendant knew that the substance . . . is
some controlled substance—that is, one actually listed on the
. . . schedules or treated as such by operation of the Analogue
Act—regardless of whether he knew the particular identity of the
10
substance.” Id. Under the second method, the government may
establish that “the defendant knew the specific analogue he was
dealing with, even if he did not know its legal status as an
analogue.” Id. Under this second method of proof, knowledge of
the substance’s chemical structure and physiological effects is
sufficient to support a conviction. Id.
A conviction under the Analogue Act therefore requires the
government to prove that the defendant: (1) distributed a
substance that had the chemical structure of an analogue and the
actual, intended, or claimed physiological effects of an
analogue; (2) intended that the substance be used for human
consumption; and (3) knew either the legal status of the
substance, or the chemical structure and physiological effects
of that substance. Only the third element is in dispute on
remand in this case.
At trial, the jury found that McFadden distributed
substances that qualified as controlled substance analogues, and
that he intended the substances for human consumption. The
district court instructed the jury that to convict on the
distribution counts, the jury must find:
FIRST: That the defendant knowingly and intentionally
distributed a mixture or substance that has an actual,
intended, or claimed stimulant, depressant, or
hallucinogenic effect on the central nervous system
that is substantially similar to or greater than the
stimulant, depressant, or hallucinogenic effect on the
11
central nervous system of a controlled substance in
Schedule I or II of the Controlled Substances Act;
SECOND: That the chemical structure of the mixture or
substances is substantially similar to the chemical
structure of a controlled substance in Schedule I or
II of the Controlled Substances Act; AND
THIRD: That the defendant intended for the mixture or
substance to be consumed by humans.
By returning a guilty verdict on the distribution counts of the
superseding indictment, the jury necessarily found that McFadden
distributed a substance that had the chemical structure of an
analogue and the actual, intended, or claimed physiological
effects of an analogue, intending the substance to be consumed
by humans. The jury was not instructed to determine whether
McFadden had knowledge of the legal classification of the
substances as controlled substance analogues or of the
substances’ chemical structures and physiological effects.
The jury instructions for the conspiracy count were
essentially identical with respect to the question of McFadden’s
knowledge. In order to find McFadden guilty of conspiracy, the
jury was required to find that McFadden willingly and knowingly
joined an agreement that existed “beginning in or around June
2011, and continuing until February 15, 2012,” to accomplish the
purpose of distributing substances containing MDPV, methylone,
or 4-MEC. Conviction on the conspiracy count also required a
jury finding that MDPV, methylone, or 4-MEC have the chemical
structures and the actual, intended, or claimed physiological
12
effects of controlled substance analogues. By returning a
guilty verdict, the jury therefore necessarily found that
McFadden conspired to distribute certain substances, and that
those substances had the features of controlled substance
analogues. However, the guilty verdict did not 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
analogues.
With respect to all nine counts, therefore, the jury
instructions omitted the required element that McFadden knew
either that the bath salts were regulated as controlled
substances or that the bath salts had the features of controlled
substance analogues. Accordingly, we turn to consider whether
the failure to instruct the jury on this knowledge element
constituted harmless error.
B.
A court commits a constitutional error subject to harmless
error analysis when it omits an element of an offense from its
jury instructions. Neder v. United States, 527 U.S. 1, 8–9
(1999). To establish harmless error in such a case, the
government must show “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”
Chapman v. California, 386 U.S. 18, 24 (1967); United States v.
13
Brown, 202 F.3d 691, 699 (4th Cir. 2000). The reviewing court
must “conduct a thorough examination of the record,” and if “the
court cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error . . .[,] it
should not find the error harmless.” Neder, 527 U.S. at 19;
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (requiring the
reviewing court to ensure that the guilty verdict rendered at
trial was “surely unattributable to the error”).
Both the Supreme Court and this Court have held that an
erroneously omitted jury instruction may be deemed harmless
error if the omitted element is supported by overwhelming
evidence admitted at trial. 2 See Neder, 527 U.S. at 16, 18;
Brown, 202 F.3d at 700–01. In Neder, the jury found that a
taxpayer had knowingly filed false statements in a tax return by
underreporting his income by $5 million, but did not determine
whether the false statement was material to the taxpayer’s tax
liability. 527 U.S. at 16. The Supreme Court held that the
omission of this element from the jury instruction was harmless
beyond a reasonable doubt, because the taxpayer had contested
2 The government may also prove harmless error by showing
that the jury necessarily found facts that would satisfy the
omitted element, such as when the omitted element overlaps with
an element in another count of conviction. See Brown, 202 F.3d
at 699–700. However, the government does not argue that this
type of harmless error applies in this case, because the same
element was erroneously omitted in all nine counts.
14
only the classification, but not the calculated amount, of the
$5 million, and that any reasonable jury would find that $5
million in unreported income is material to tax liability. Id.
Additionally, in United States v. Davis, 202 F.3d 212 (4th
Cir. 2000), we considered the omission of a jury instruction in
a case that would have required the jury to determine whether
the defendant fired gunshots into a “dwelling.” Id. at 217. We
held that because overwhelming evidence established that the
building in question was a family residence with six occupants,
the district court’s failure to instruct on the “dwelling”
element was harmless beyond a reasonable doubt. Id.
On the other hand, we have held that evidence of an element
omitted from jury instructions will not be deemed overwhelming
if the defendant had “genuinely contested” the omitted element
with evidence that could have caused “disagreement among the
jurors about” the contested element. See Brown, 202 F.3d at
702. In Brown, the jury was not instructed that it must find
unanimously that the defendant had participated in specific
predicate violations before finding that he had participated in
a “continuing criminal enterprise.” Id. at 698. The government
had presented evidence of several predicate offenses through
witnesses whose credibility had been impeached and whose
testimony had been countered by other evidence. Id. at 701–02.
We held that the error was not harmless beyond a reasonable
15
doubt, because the omission of the element from the jury
instructions could have allowed the jury to return a guilty
verdict without unanimous agreement on which predicate offenses
occurred. Id. at 702.
In accord with these decisions, we must examine the record
for evidence of McFadden’s knowledge regarding either the legal
status or the relevant characteristics of the bath salts. See
McFadden, 135 S. Ct. at 2305. We consider whether the
government has met its burden of showing that overwhelming
evidence established McFadden’s knowledge on this issue,
rendering the failure to instruct the jury on that knowledge
element harmless beyond a reasonable doubt.
III.
The government argues that the evidence at trial
established McFadden’s knowledge under either method of proof
articulated by the Supreme Court. According to the government,
the evidence overwhelmingly proved that McFadden knew that the
bath salts were regulated as controlled substances, and that the
bath salts had chemical structures and physiological effects
similar to those of controlled substances.
In response, McFadden asserts that his conduct showed that
he thought that his actions were lawful, and argues that he is
entitled to a jury determination of his credibility on this
16
issue. Relying on the Seventh Circuit’s 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. We disagree with certain parts of
both parties’ arguments.
A.
We address the parties’ arguments in the context of the two
methods of proof identified by the Supreme Court for
establishing the knowledge element. The government argues that
the first method of proof was satisfied in this case, because
overwhelming evidence established that McFadden knew that the
bath salts were regulated or controlled under the CSA or the
Analogue Act. The government highlights the fact that McFadden
distributed the bath salts using packaging, prices, and names
consistent with illicit drug distribution. Further, in the
recorded telephone conversations, McFadden compared his products
to cocaine and methamphetamine. The government also argues that
McFadden’s attempts to conceal his activity and the nature of
his business showed that he was conscious of his own wrongdoing.
We disagree with the government’s argument regarding the extent
of evidence supporting this first method of proof.
17
Although the jury could have inferred from McFadden’s
evasive behavior and the “disclaimer” labeling of the packages
and vials that he knew that the bath salts were treated as
controlled substances, McFadden, 135 S. Ct. at 2304 n.1, we
agree with McFadden that such an inference would not have been
compelled. McFadden countered the government’s evidence of his
guilty knowledge by presenting evidence that he tried to comply
with the law and intentionally avoided selling substances listed
on the CSA schedules. McFadden affixed labels to his packages
that disclaimed the inclusion of specific Schedule I substances,
and he ceased selling MDPV and methylone immediately after
learning of their listing in the CSA schedules. Thus, we
conclude that McFadden’s efforts to avoid selling substances
listed in the CSA schedules is the type of “genuinely contested”
evidence we discussed in Brown that could have caused
“disagreement among the jurors” about whether McFadden knew that
the bath salts were regulated or controlled under the CSA or the
Analogue Act. See Brown, 202 F.3d at 702.
We therefore hold that the evidence was sufficient to
permit, but not so overwhelming to compel, the jury to find that
McFadden knew that federal law regulated the bath salts as
controlled substances. Instead, the jury could have concluded
from the evidence that McFadden erroneously thought that it was
not a crime to sell MDPV, methylone, and 4-MEC. Therefore, the
18
government has not shown that overwhelming evidence established
McFadden’s knowledge under the first method of proof.
B.
The government may also prove McFadden’s knowledge by
showing that McFadden knew “the specific analogue he was dealing
with.” McFadden, 135 S. Ct. at 2305. For this second method of
proof, the government relies on McFadden’s statements in
telephone conversations recorded between August 25, 2011 and
February 1, 2012 to show that McFadden had knowledge of the
analogues’ chemical structures and physiological effects.
As we discuss below, we agree with the government that the
recorded telephone conversations overwhelmingly establish that
McFadden knew the bath salts’ chemical structures and
physiological effects. However, the first recorded telephone
conversation occurred on August 25, 2011, after McFadden’s
conduct giving rise to Count Two (July 11–25, 2011), Count Three
(July 29–August 11, 2011), and Count Four (August 10–24, 2011)
of the superseding indictment. The government does not cite,
nor were we able to find, any earlier direct evidence of
McFadden’s state of mind.
Although the jury reasonably could have inferred from
McFadden’s discussions in the August 25, 2011 phone call that he
had possessed the required knowledge before his first shipment
to Charlottesville, the evidence on this point cannot in any
19
view be termed “overwhelming.” See Brown, 202 F.3d at 701–02.
McFadden’s brother, a federal law enforcement agent, testified
at trial that McFadden began selling “aromatherapy” products
after seeing similar products for sale in plain view around
Staten Island. Based on this and the other evidence before us,
the jury reasonably could have concluded that McFadden began
selling his products before knowing their identity, chemical
structures, or physiological effects when ingested. The jury
therefore reasonably could have concluded from the evidence that
McFadden’s guilty knowledge had not been established at the time
he made the shipments corresponding with Counts Two, Three, and
Four. Accordingly, we conclude that the government has not met
its burden of establishing harmless error with respect to Counts
Two, Three, and Four.
Any reasonable uncertainty about McFadden’s knowledge,
however, evaporated with McFadden’s recorded participation in
telephone conversations that demonstrated his full knowledge of
the chemical structures and physiological effects of his
products. McFadden does not dispute the accuracy of the
recordings and transcripts admitted at trial, nor does he point
to evidence that would contradict the contents of those
20
conversations. 3 In the first recorded substantive conversation,
on August 25, 2011, McFadden discussed the composition of his
products, characterizing a mixture called “Alpha” as “the
straight chemical” and “the replacement for the MDPV.” When
asked for further details about a mixture labeled “No Speed
Limit,” McFadden represented that “Alpha mixed with the 4-MEC
gives you a No Speed Limit–like feeling, just not as intense.”
McFadden also explicitly compared these mixtures to “cocaine”
and “crystal meth.” In later conversations, McFadden discussed
distributing a “4-MEC” blend called “New Sheens,” adding “a
little extra kick” to a blend called “Hardball,” and describing
“Hardball” as a blend with “five active chemicals in it” or
“five ingredients.”
McFadden nevertheless argues that his statements to
McDaniel were mere “sales talk,” completely unconnected with any
actual knowledge he might have. McFadden, a construction
foreman and furniture salesman, asserts that he obviously lacked
the experience or training to have scientific, chemical, or
pharmacological knowledge about the products he sold. We are
3In his initial appeal, McFadden challenged the relevance
of the recordings and the transcripts, but did not challenge
their accuracy. United States v. McFadden, 753 F.3d 432, 443
(4th Cir. 2014). We held that the district court did not abuse
its discretion in admitting the recordings and transcripts,
because they were relevant to prove that McFadden intended the
bath salts to be used for human consumption. Id.
21
not persuaded by this argument, or by McFadden’s assertion that
under the holding of United States v. Turcotte, 405 F.3d 515,
527 (7th Cir. 2005), he is entitled to have the jury judge his
credibility on the knowledge issue rather than have this
question be reviewed on appeal for harmless error.
McFadden correctly states the principle from Turcotte, that
even if a defendant is proved to have had knowledge of an
analogue’s physiological effects, a jury is permitted, but is
not required, to infer that a defendant had knowledge of the
analogue’s relevant chemical similarities. See 405 F.3d at 527.
However, McFadden’s argument on this point, as well as his
contention that he was engaged in mere “sales talk,” grossly
understates the evidence of his knowledge of the substances’
chemical structures and physiological effects.
The nine recorded telephone conversations, beginning on
August 25, 2011, established McFadden’s thorough and detailed
knowledge of chemicals identified in Count One and Counts Five
through Nine, their chemical structures, their effects, and
their similarity to other controlled substances. On August 25,
2011, McFadden explicitly referenced “MDPV” and “4-MEC” by name
and described blends of different chemicals. Laboratory tests
confirmed that McFadden’s statements accurately described the
chemical composition of his products. In addition, McFadden’s
evidence that he consulted the CSA schedules on the DEA website,
22
although effective to raise a question whether he knew the bath
salts were regulated as controlled substances, demonstrated that
he had sufficient knowledge about his products’ chemical
structures to be able to compare them to the list of chemical
names on the CSA schedules. See 21 C.F.R. § 1308.11.
Therefore, the record shows far more evidence than the mere
knowledge or representation of physiological effects referenced
in Turcotte. See 405 F.3d at 527.
The telephone conversations also established that McFadden
knew the physiological effects of the products. On August 25,
2011, McFadden described the “feeling” caused by different
blends, comparing their effects to those of cocaine and
methamphetamine. The government presented evidence that
McFadden’s descriptions accurately reflected the actual
physiological effects of the blends. And, even if McFadden’s
descriptions of the physiological effects were merely “sales
talk,” the Analogue Act defines analogues to include substances
merely represented to have the relevant physiological effects.
See 21 U.S.C. § 802(32)(A)(iii).
Therefore, the recorded telephone conversations demonstrate
overwhelmingly that by August 25, 2011, McFadden knew the
chemical identities and the physiological effects of the
substances he was selling. As the Supreme Court has held, “[a]
defendant who possesses a substance with knowledge of those
23
features knows all of the facts that make his conduct illegal.”
McFadden, 135 S. Ct. at 2305. Accordingly, we conclude that
because overwhelming evidence established that McFadden knew, as
of August 25, 2011, the specific features of the substances he
was selling, the district court’s omission of the knowledge
element from the jury instructions was harmless error with
regard to McFadden’s convictions under Counts Five through Nine.
For the same reason, we affirm McFadden’s conviction under Count
One for conspiracy to distribute controlled substance analogues,
which is supported by overwhelming evidence of his state of mind
beginning with the date of those recorded telephone
conversations.
With respect to Counts Two, Three, and Four, however,
because the erroneous omission of the knowledge element from the
jury instructions was not harmless beyond a reasonable doubt, we
vacate and remand those counts for further proceedings in the
district court consistent with the principles expressed in this
opinion. We also remand the convictions on Count One, and
Counts Five through Nine, to the district court for
resentencing.
IV.
For these reasons, we affirm the district court’s judgment
of conviction on Counts One, Five, Six, Seven, Eight, and Nine,
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and vacate the court’s sentence on those counts and remand for
resentencing. We vacate the district court’s judgment on Counts
Two, Three, and Four, and remand those counts for further
proceedings in the district court.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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