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SCOTUS clarifies the knowledge requirement applicable to prosecutions under the federal controlled substance analog law

Stephen McFadden v. United States, USSC No. 14-378, 2015 WL 2473377 (June 18, 2015), reversing and remanding United States v. McFadden, 753 F.3d 432 (4th Cir. 2014); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that in order to convict a defendant of distribution a controlled substance analogue, the government must prove that the defendant knew the substance was controlled under the federal Controlled Substances Act or the Analogue Act, or that the defendant knew the specific features of the substance that make it a controlled substance analogue.

McFadden was convicted of distributing bath salts that are classified as controlled substance analogues. He claimed he didn’t know they were regulated as controlled substances analogs and asked for a jury instruction that told the jury the government had to prove he “knew the substances that he was distributing possessed the characteristics of controlled substance analogues,” including their chemical structures and effects on the central nervous system. The trial court instead instructed the jury that the statute required that “the defendant knowingly and intentionally distributed a mixture or substance that has” substantially similar effects on the nervous system as a controlled substance and “[t]hat the defendant intended for the mixture or substance to be consumed by humans.” (Slip op. at 2-3). This instruction was not sufficient, the Court holds.

The federal CSA requires the defendant know he’s dealing with some substance listed on—that is, controlled by—the federal drug schedules, 21 U.S.C. § 841(a)(1). That requirement may be met by showing the defendant knew he possessed a controlled substance, even if he did not know precisely which substance it was, or (at least in most cases) by showing he knew the identity of the substance—e.g., heroin. (Slip op. at 4-5). Since the Analogue Act, 21 U.S.C. § 813, “extends the framework of the CSA to analogous substances” and directs that analogues be treated as controlled substances, “it follows that the Government must prove that a defendant knew that the substance with which he was dealing was ‘a controlled substance,’ even in prosecutions involving an analogue.” (Slip op. at 6, 7).

That knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance—that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue. The Analogue Act defines a controlled substance analogue by its features, as a substance “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II”; “which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than” the effect of a controlled substance in schedule I or II; or which is represented or intended to have that effect with respect to a particular person. § 802(32)(A). A defendant who possesses a substance with knowledge of those features knows all of the facts that make his conduct illegal, just as a defendant who knows he possesses heroin knows all of the facts that make his conduct illegal. A defendant need not know of the existence of the Analogue Act to know that he was dealing with “a controlled substance.” (Slip op. at 7-8).

Because the lower courts incorrectly concluded that the only mental state requirement for prosecutions involving controlled substance analogues is that the analogues be “intended for human consumption,” the case is remanded to the court of appeals to determine whether instructing the jury with the incorrect knowledge element was harmless error. (Slip op. at 8, 10-11).

A concurrence by Chief Justice Roberts points out that proving the defendant knows the identity of the substance might not always be sufficient to prove the defendant knows it is controlled, so the majority’s statements suggesting otherwise shouldn’t be regarded as controlling. (Concur. at 1-2).

As noted in our post on the cert. grant, the Seventh Circuit had already adopted the approach taken by the Court, United States v. Turcotte, 405 F.3d 515, 524-28 (7th Cir. 2005), so this decision doesn’t change circuit law. As our post also pointed out, Wisconsin’s controlled substances statute is modeled on but not identical to the federal CSA; but in any event, the Jury Instruction Committee has already concluded that a jury in an analogue case should be instructed in essentially the same way the Court directs in this decision. See Wis. J.I.—Criminal 6000 (2009), 6005 (2009), and 6020A, Comment & n.6 (2009).

UPDATE (6/19/15): Rory Little’s Scotusblog post on the opinion offers much more helpful background and analysis.

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