To obtain a conviction, does the government need to prove that a defendant knew that a substance he was distributing was substantially similar in chemical structure and effect to a controlled substance?
The Supreme Court will determine whether—to obtain a conviction under the Analogue Act—the government must prove the defendant had knowledge that a substance the defendant was distributing was a controlled substance analogue. McFadden claims that under the Analogue Act, the government must prove a defendant's knowledge of the illegal nature of a substance by showing that the defendant knew the substance was substantially similar to a controlled substance. The United States agrees with McFadden in that Analogue Act violations can be proven by demonstrating the defendant's knowledge of the illegal nature of a substance, but the United States counters that knowledge of illegality can be proven through circumstantial evidence. The Supreme Court’s decision will clarify a long-standing circuit split over the mens rea requirement the government must satisfy to prosecute Analogue Act violations, which will have further implications on the government’s ability to target street-level dealers under the Analogue Act.
Questions as Framed for the Court by the Parties
Whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eight Circuits, but rejected by the Fourth and Fifth Circuits.
In July 2011, in Charlottesville, Virginia, Stephen D. McFadden was arrested for illegally distributing a synthetic stimulant known as “bath salts,” whose effect was similar to illegal substances such as “cocaine, methamphetamine, and methcathinone.” Police investigators initially traced the distributed bath salts to the owner of a video rental store, Lois McDaniel, who later informed the police that she purchased the bath salts from McFadden. With McDaniel’s help, investigators received bath salts supplied by McFadden and recorded telephone calls during which McFadden stated that the bath salts produce effects similar to those of other controlled substances. After analyzing the recovered bath salts, the Drug Enforcement Administration found that they “contained controlled substance analogues 4-MEC, MDPV, and methylone.” A grand jury indicted McFadden of nine offenses, which included “conspiracy to distribute” controlled substance analogues under the Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”). The Analogue Act seeks to treat controlled substance analogues the same as the controlled substances listed in the Controlled Substances Act (“CSA”) schedules.
The jury trial primarily focused on the question of “whether 4-MEC, MDPV, and methylone constitute controlled substance analogues under the [Analogue] Act.” At trial, both the government and McFadden presented expert testimony on whether the substance distributed by McFadden was chemically and pharmacologically similar to other controlled substances. Ultimately, McFadden was convicted of all nine counts. McFadden appealed his conviction to the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”).
The Fourth Circuit affirmed the district court’s decision. The Fourth Circuit rejected McFadden’s argument that the Analogue Act’s language was unconstitutionally vague and required the government to prove that defendant knew he was violating the Analogue Act when he distributed bath salts. Specifically, the Fourth Circuit held that based on precedent, trial evidence proving McFadden’s intent to distribute, and the statute’s ordinary meaning, the Analogue Act’s language was sufficiently specific to provide constitutional notice to a defendant and did not require the government to prove a defendant’s knowledge. The Fourth Circuit also rejected McFadden’s argument that he could not have reasonably known that he was selling a prohibited substance, holding that “ignorance of the law is no excuse.” The United States Supreme Court granted certiorari to settle a circuit split over the “scienter requirement for criminal violation” of the Analogue Act.
The Supreme Court of the United States will decide whether, in convicting a defendant of distribution of a controlled substance analogue, the government must prove that the defendant knew that the chemical composition or the effects of the substance were “substantially similar” to those of a controlled substance. McFadden argues that the Analogue Act does so require, and that if conviction under the statute does not impose such burden on the government, then the Analogue Act is unconstitutionally vague. The United States counters that requiring the government to prove that the defendant knew that the chemical composition of a substance was substantially similar to a controlled substance would not only undermine the purpose of the statute, but would also fail to mitigate any of McFadden’s concerns of constitutional vagueness. In particular, the United States submits that the government can fulfill the Analogue Act’s knowledge requirement by showing circumstantial evidence that defendant knew the substance at issue was controlled or regulated.
DOES THE ANALOGUE ACT REQUIRE PROOF OF KNOWLEDGE THAT THE CHEMICAL COMPOSITION OF A SUBSTANCE CONSTITUTED A CONTROLLED SUBSTANCE ANALOGUE?
McFadden contends that the plain text of the Analogue Act, as reinforced by legal tradition, requires proof of a defendant’s knowledge that a substance was substantially similar in chemical composition to a controlled substance. McFadden asserts the following premises: the Analogue Act merely defines a controlled substance analogue; a separate statute contains the relevant mental state that the government is required to prove in a prosecution under the Analogue Act; and a requisite mental state—knowledge or intent—applies to every element of an offense under the Analogue Act. In support, McFadden claims that plain grammar dictates that the requisite knowledge applies to each element of a crime, and that this is even more important in prosecutions for possession. Furthermore, McFadden argues that, because prosecutions for possession or distribution of controlled substance analogues effectively treat these substances as controlled substances, the same burden of proof should apply to both controlled substance analogues and controlled substances. Moreover, McFadden argues that, as a matter of tradition, the criminal common law imposes mens rea requirements to avoid potentially over-inclusive definitions of offenses, and that express mens rea requirements are presumptively applicable to every element of a crime. On this point, McFadden also asserts that the rule of lenity applies to statutes that are ambiguous, which requires a higher burden of proof in this case. Lastly, McFadden contends that not requiring the government to prove knowledge of a substantial similarity in chemical substance would result in reading the Analogue Act as imposing strict liability for offenses thereunder.
The United States concedes that the government can prove guilt under the Analogue Act by proving that a defendant knowingly possessed a controlled substance analogue but argues that proof that a defendant knew of the chemical structure of a controlled substance is not the only means of satisfying its burden of proof. First, the United States disputes McFadden’s textual argument, asserting that the Analogue Act, textually and structurally, does not require expanding the Controlled Substances Act’s requirement of knowledge to apply to the Analogue Act. The United States points out that the mental state requirement that McFadden attempts to apply to the Analogue Act is not contained within the Analogue Act itself, and other sections of the same code contain different mental state requirements Moreover, the United States asserts that the government may satisfy its burden of proving the defendant’s knowledge merely as to the “illegal or regulated status” of a substance rather than its specific chemical structure. To satisfy this burden, the United States contends, the government may utilize circumstantial evidence, such as furtive conduct or concealment tending to show that the defendant knew that a substance was illegal.
IS THE ANALOGUE ACT UNCONSTITUTIONALLY VAGUE?
McFadden contends that if the Analogue Act does not require proof of knowledge that the chemical composition of a substance constitutes a controlled substance analogue, then the Analogue Act would be rendered unconstitutionally vague as applied. Specifically, McFadden claims that this reading of the statute violates the requirement under the Due Process Clause that a criminal statute must be sufficiently definite such that “ordinary people can understand what conduct is prohibited.” On this point, McFadden asserts that an ordinary person would not be able to know whether a given substance was “substantially similar” to a controlled substance. McFadden explains that this would require knowledge of hundreds of controlled substances that the substance in question might be an analogue to.
In contrast, the United States asserts that not only did McFadden not properly raise the constitutional vagueness argument in his petition for certiorari, but also that McFadden’s argument on this point is incongruent with his main argument that the government should be required to prove knowledge of chemical structure. To begin, the United States notes that McFadden argues that the Analogue Act fails to provide notice of illegality because it uses the words “substantially similar.” But, as the United States explains, the “concept of similarity” is often used in legislation, and has been proven workable at trials, where jurors as well as experts have understood the concept without problems. Thus, the United States argues, just because people may disagree as to how to interpret the concept once it is applied to a particular set of facts, does not make the concept vague. Furthermore, the United States contends that even if the statute did pose risks of unconstitutional vagueness, applying the government’s asserted standard—requiring knowledge of illegality or regulated status—would mitigate these concerns.
WOULD PROOF OF KNOWLEDGE THAT THE CHEMICAL COMPOSITION OF A SUBSTANCE CONSTITUTED A CONTROLLED SUBSTANCE ANALOGUE FURTHER THE PURPOSE OF THE ANALOGUE ACT?
McFadden asserts that requiring proof of knowledge that the chemical composition of a substance constitutes a controlled substance analogue would not frustrate the purpose of the Analogue Act. To this end, McFadden points out that the government has been able to successfully prosecute the intended “targets” of the Analogue Act. Specifically, McFadden asserts that the legislative history behind the act reveals that these intended “targets” were the “underground chemists” responsible for manufacturing controlled substance analogues along with their employers. Because of this, McFadden contends that his reading of the statute is necessary to avoid an over-inclusiveness that would include prosecutions of legitimate chemists whom are merely investigating what may turn out to be controlled substance analogues. Furthermore, McFadden contends that the government may take steps towards making their prosecutorial burden of showing a defendant’s knowledge easier in this context; for example, by notifying individuals that they are selling analogues and then prosecuting them if they continue to do so. On this point, McFadden also notes that the Drug Enforcement Administration may publicize the currently secret lists of analogues as an alternative to providing individual notice, or promulgate schedules containing new controlled substances.
In response, the United States contends that requiring proof that a defendant knew that the chemical composition of a substance constituted a controlled substance would undermine the purpose of the Analogue Act, which is specifically to prosecute drug producers that design drugs with the intent to evade the Controlled Substances Act. With this legislative intent in mind, the United States argues that McFadden’s narrow reading of the Analogue Act would frustrate the congressional effort to combat dangerous drugs. The United States explains that this is because under such view, drug manufacturers would be able to mitigate the likelihood of street-level prosecutions by withholding information regarding chemical composition to street-level drug dealers. Conversely, the United States asserts that its reading of the statute would not be over inclusive, because it would be limited to prosecuting defendants that either knew that a substance contained a controlled substance analogue, or contained a regulated or illegal substance.
The Supreme Court will determine whether the government, when bringing a prosecution under the Analogue Act, must prove that the defendant knew that the distributed substance was substantially similar to a controlled substance. McFadden argues that based on a reading of the plain-meaning of the Analogue Act, to successfully prosecute a defendant, the government must prove that the defendant knew the distributed substance was illegal by showing that the defendant knew the distributed substance was substantially similar to a controlled substance. The United States counters that although McFadden is correct in arguing that the government needs to prove that defendant knew of the illegality of the distributed substance, showing knowledge of the substantial similarity between the distributed substance and other controlled substances is not the only way to satisfy that standard. Specifically, the United States argues that the knowledge requirement is satisfied by showing that defendant knew the substance at issue was controlled or regulated through circumstantial evidence of such knowledge. The Supreme Court’s decision may implicate the government’s ability to prosecute dealers under the Analogue Act.
ARBITRARY AND INCONSISTENT APPLICATION?
McFadden argues that the requirement that the defendant possess knowledge that the distributed substance was substantially similar to a controlled substance inevitably invites arbitrariness to an inherently scientific question of fact. McFadden points out that because substantial disagreements and debate still exist in the scientific community about chemical similarities in different drugs, the Analogue Act’s requirement that the government prove substantial similarity between different drugs exposes defendants to arbitrary and inconsistent determinations by ill-informed jurors. Similarly, amici supporting McFadden argue that the knowledge standard is generally confusing and unreliable because the judicial and scientific communities cannot come to a consensus as to how to determine whether a drug is substantially similar to another drug.
The United States responds that such a risk of arbitrary and inconsistent adjudication simply does not exist under the government’s interpretation of the Analogue Act’s knowledge standard. The United States explains that even if it is next to impossible for an innocent actor to determine whether a substance is substantially similar to a controlled substance, if it is established—through circumstantial evidence—that the actor did not have knowledge of the substance’s illegal nature, the innocent actor would not be prosecuted under the Analogue Act for distributing the substance at issue.
WHO FALLS UNDER THE ANALOGUE ACT?
McFadden argues that by looking at the relevant legislative history, it becomes clear that the government intended to limit the scope of the Analogue Act to underground chemists who have a clear understanding of the chemical structure of the drugs they are creating, not to street-level dealers who may not have any knowledge of the chemical nature of the substances they are selling. Specifically, McFadden argues that Congress, in the Analogue Act, intended to exclude those who may not have a precise understanding about the substance, or those who were deceived into selling an illegal substance.
On the contrary, the United States argues that although illicit chemists indeed were targeted through the Analogue Act, Congress’s purpose was much broader, intending to stem the trafficking of illegal drugs and to protect public health. The United States argues that adopting McFadden’s limitation on the Analogue Act’s scope would severely limit the government’s ability to counteract the distribution of altered designer drugs by exempting street-level dealers, and thus would hinder investigations targeting those chemists.
In this case, the Supreme Court will determine whether the government, to prosecute an Analogue Act violation, must prove that the defendant knew that the distributed substance was a controlled substance analogue, or substantially similar to one. McFadden contends that to satisfy the mens rea standard of the Analogue Act, the government must prove a defendant’s knowledge of the distributed substance’s similarity to a controlled substance. In contrast, the United States argues that even if knowledge of substantial similarity to a controlled substance cannot be proven, the knowledge standard can still be satisfied through circumstantial evidence showing that defendant knew that the distributed substance was illegal. The Court’s determination will clarify the applicable mens rea standard for Analogue Act prosecutions, which will curb the risk of prosecuting innocent conduct that may or may not be covered under the statute and affect the government’s ability to prosecute street-level dealers.
- Devlin Barrett: ‘Bath Salts’ Pose a Hurdle for Prosecutors, The Wall Street Journal (Aug. 14, 2013).
- K. Burnell Evans: Man convicted in only second federal bath salts case to go to trial, The Daily Progress (Jan. 11, 2013).
- Charly Himmel: Justices to Assess Drug Charges Over Bath Salts, Courthouse News Service (Jan. 20, 2015).