13-3410 (L) United States v. Demott 1 UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 2015 4 5 (Argued: March 9, 2016 Decided: October 9, 2018) 6 7 Docket Nos. 13‐3410, 13‐4283, 14‐178 8 9 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. 17 18 CHARLES DEMOTT JR., ROSARIO GAMBUZZA, and ERNEST SNELL, 19 20 Defendants‐Appellants. * 21 _____________________________________ 22 23 Before: 24 25 LEVAL, POOLER, and WESLEY, Circuit Judges. 26 27 Defendants appeal from their convictions in the United States District 28 Court for the Northern District of New York (Glenn T. Suddaby, J.). 29 Defendants were convicted under the Controlled Substance Analogue 30 Enforcement Act of 1986 (the “Analogue Act”), 21 U.S.C. §§ 802(32)(A), 813, of 31 conspiracy to deal in “controlled substance analogues.” Defendants argue the 32 Analogue Act is unconstitutionally vague as applied to these charges; that the 33 evidence at trial was insufficient to support the convictions of Snell and 34 Gambuzza; that the trial of Snell and Gambuzza was prejudiced by improper 35 jury instructions relating to the knowledge element under the Analogue Act; 36 * The Clerk of Court is respectfully directed to amend the caption as set forth above.
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13-3410 (L) United States v. Demott
1
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term, 2015 4
5
(Argued: March 9, 2016 Decided: October 9, 2018) 6
7
Docket Nos. 13‐3410, 13‐4283, 14‐178 8
9
10
_____________________________________ 11
12
UNITED STATES OF AMERICA, 13
14
Appellee, 15
16
v. 17
18
CHARLES DEMOTT JR., ROSARIO GAMBUZZA, and ERNEST SNELL, 19
20
Defendants‐Appellants.* 21
_____________________________________ 22
23 Before: 24 25
LEVAL, POOLER, and WESLEY, Circuit Judges. 26 27 Defendants appeal from their convictions in the United States District 28 Court for the Northern District of New York (Glenn T. Suddaby, J.). 29 Defendants were convicted under the Controlled Substance Analogue 30 Enforcement Act of 1986 (the “Analogue Act”), 21 U.S.C. §§ 802(32)(A), 813, of 31 conspiracy to deal in “controlled substance analogues.” Defendants argue the 32 Analogue Act is unconstitutionally vague as applied to these charges; that the 33 evidence at trial was insufficient to support the convictions of Snell and 34 Gambuzza; that the trial of Snell and Gambuzza was prejudiced by improper 35 jury instructions relating to the knowledge element under the Analogue Act; 36
* The Clerk of Court is respectfully directed to amend the caption as set forth above.
13-3410 (L) United States v. Demott
2
and that Gambuzza’s trial was prejudiced by the receipt of inadmissible 1 hearsay evidence. 2
Held, the Analogue Act is not unconstitutionally vague and the trial 3 evidence was legally sufficient. However, Snell and Gambuzza were 4 prejudiced by improper jury instructions on the knowledge element of the 5 Analogue Act, and Gambuzza was also prejudiced by the receipt of 6 inadmissible hearsay evidence. Accordingly, Demott’s conviction on his 7 guilty plea is AFFIRMED, and the convictions of Snell and Gambuzza are 8 VACATED. Their cases are REMANDED for retrial. 9
Judge Richard C. Wesley concurs in this opinion and in addition by 10 separate opinion. 11 12
13 14
STEVEN D. CLYMER (CARLA B. 15
FREEDMAN, on the brief) for Grant C. 16
Jaquith, UNITED STATES ATTORNEY FOR 17
THE NORTHERN DISTRICT OF NEW YORK, 18
Syracuse, NY. 19
20
JAMES SCOTT PORTER, Seneca Falls, NY 21
for Charles Demott, Jr.; DONALD T. 22
KINSELLA, Albany, NY for Rosario 23
Gambuzza; JAMES P. EGAN (JAMES F. 24
GREENWALD, on the brief), for LISA A. 25
PEEBLES, OFFICE OF THE FEDERAL PUBLIC 26
DEFENDER, Syracuse, NY, for Ernest 27
Snell. 28
29
LEVAL, Circuit Judge: 30
Defendants Rosario Gambuzza, Ernest Snell, and Charles Demott, Jr. 31
appeal from their convictions under a Second Superseding Indictment (the 32
“Indictment”) in the United States District Court for the Northern District of 33
New York (Glenn T. Suddaby, J.). All three were convicted under the 34
13-3410 (L) United States v. Demott
3
Controlled Substance Analogue Enforcement Act of 1986 (the “Analogue Act” 1
or the “Act”), 21 U.S.C. §§ 802(32)(A), 813, of conspiracy to deal in “controlled 2
substance analogues.” Demott pleaded guilty to Count 1, which charged 3
conspiracy to distribute and to possess with intent to distribute a controlled 4
substance analogue, reserving his right to challenge the constitutionality of 5
the Analogue Act on appeal. Gambuzza and Snell were tried before a jury 6
and convicted on Count 1, as well as on Count 2, which charged conspiracy to 7
import a controlled substance analogue in violation of 21 U.S.C. §§ 813, 8
960(a)(1) and (b)(3), and 963, and, in Gambuzza’s case, on 19 counts of money 9
laundering, in violation of 18 U.S.C. §§ 1956(a)(2)(A) and 2(b). 10
Defendants’ principal contentions are that the Analogue Act is 11
unconstitutionally vague as applied to these charges; that the evidence at the 12
trial was insufficient to support the convictions of Snell and Gambuzza for the 13
drug offense; that the trial Defendants were prejudiced by improper jury 14
instructions relating to the element of knowledge under the Analogue Act; 15
and that Gambuzza’s trial was prejudiced by the receipt of inadmissible 16
hearsay evidence. We agree with the latter two contentions and therefore 17
vacate the convictions of Gambuzza and Snell by reason of errors in the jury 18
13-3410 (L) United States v. Demott
4
instructions and the receipt of prejudicial, inadmissible hearsay evidence. 1
Otherwise, we reject Defendants’ arguments. We therefore affirm Demott’s 2
conviction on his guilty plea and remand for retrial of Snell and Gambuzza. 3
BACKGROUND 4
The Indictment charged Defendants with conspiring in and around 5
Syracuse, New York between January 2010 and April 2011 to import from 6
China and deal in two “controlled substance analogues”: 4‐7
methylmethcathinone (known as “4‐MMC” or “mephedrone”) and 4‐methyl‐8
n‐ethylcathinone (known as “4‐MEC”).1 The term “controlled substance 9
analogues” refers to substances that are similar to those listed as “controlled 10
substances” in Schedule I or II of the CSA, 21 U.S.C. § 812. “Controlled 11
substance analogues” are statutorily defined (as further discussed below) as 12
substances that are “substantially similar” to Schedule I or II controlled 13
substances—both in their chemical structure and in their actual, intended, or 14
represented effect on the central nervous system (or “pharmacological 15
1 While at the time of the conspiracy neither substance was listed in the
schedules of controlled substances set forth in the CSA, 21 U.S.C. § 812,
subsequently both have been added to Schedule I, so that, if the same conduct
were repeated today, the charges would directly allege violation of the CSA,
without reference to the Analogue Act.
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5
effect”). See Id. § 802(32)(A).2 Pursuant to § 813, “controlled substance 1
analogue[s],” when intended for human consumption, are treated for the 2
purposes of federal law as “controlled substance[s] in Schedule I” regulated 3
by the CSA. 4
In the trial of Snell and Gambuzza, the evidence showed a scheme that 5
originated with importations from China by co‐conspirator Vincent Cizenski 6
(who cooperated with the Government and testified against Snell and 7
Gambuzza at trial). Cizenski had previously used MDMA (3,4‐ 8
methylenedioxy‐N‐methamphetamine, also known as “Molly” or “ecstasy”), 9
which is a controlled substance listed in Schedule I. In the course of searching 10
the Internet for a similar drug, he came across a seller in China named Eric 11
Chang (also known as Lei Zhang) who offered 4‐MMC, a chemical compound 12
that was not, at the time, listed in the schedules of the CSA. 13
2 Although the wording of the statutory definition in § 802(32)(A) is arguably
unclear on this point, we assume for purposes of this opinion, as have all the
parties, that the requirement of substantial similarity in pharmacological
effect is in addition to the requirement of substantial similarity in chemical
structure. See United States v. Roberts, 363 F.3d 118, 121 (2d Cir. 2004)
(assuming that these elements are conjunctive, rather than disjunctive,
requirements).
13-3410 (L) United States v. Demott
6
Cizenski began to order 4‐MMC from Chang and to sell the product to 1
others, including another co‐conspirator named William Harper, who also 2
cooperated with the Government and testified at trial. Harper sold the drug 3
to Gambuzza, and both Harper and Gambuzza subsequently ordered it 4
directly from Chang. Snell and Demott both purchased the drug from Harper, 5
with Snell at times giving Harper cocaine in exchange. 6
Chang initially sent the co‐conspirators 4‐MMC. He later began to fill 7
their orders with 4‐MEC instead. 4‐MEC, like 4‐MMC, was not listed in the 8
CSA schedules at the time of the conspiracy. A controlled purchase from 9
Harper for “Molly” in July 2010 was filled with 4‐MMC. In contrast, 10
controlled purchases from Harper in September and November 2010 were 11
filled with 4‐MEC. Similarly, packages shipped from Chang’s company, CEC 12
Limited, to Harper and Gambuzza in December 2010 were found, when 13
seized by United States Customs and Border Protection (“Customs”) at the 14
border, to contain 4‐MEC. 15
When placing orders with Chang, the co‐conspirators (who paid with 16
Western Union money orders) referred to 4‐MMC as “Mp,” signifying 17
“mephedrone.” Joint Appendix (“App.”) 316‐17. In shipping the substances, 18
13-3410 (L) United States v. Demott
7
Chang deceptively labeled them as “metal corrosion inhibitor” or “camphanic 1
acid.” Id. at 320. He usually included invoices reflecting false prices. The 2
conspirators, including Snell and Gambuzza, used coded language in 3
communicating with each other about the substances. For example, on one 4
intercepted phone call, Gambuzza asked Harper if he had any “extra tanning 5
sessions.” Id. at 378. Harper testified that this was code for 4‐MMC. On 6
another call, Harper told Gambuzza that the “stuff that we like is now 7
officially illegal in China,” referring again to the 4‐MMC they received from 8
Chang, which had recently been made illegal by Chinese law. Id. at 379. 9
On April 12, 2011, law enforcement officials executed search warrants 10
at the residences of Snell and Gambuzza. At Snell’s residence, they found 11
plastic bags containing 4‐MEC and cocaine in the kitchen cabinets and in a 12
Klondike ice cream bar box in the freezer. They also found a digital scale, a 13
Tupperware dish, and a measuring spoon. At Gambuzza’s residence, they 14
found a digital scale, small plastic baggies, a shipping receipt from CEC 15
Limited, a receipt for a money transfer to CEC Limited, and a sender’s copy of 16
a FedEx Ground order form for a shipment addressed to a co‐conspirator in 17
California. 18
13-3410 (L) United States v. Demott
8
With respect to the status of 4‐MMC and 4‐MEC as controlled 1
substance analogues, the government submitted expert testimony that both 2
substances are substantially similar in chemical structure to methcathinone, 3
which is listed in Schedule I, and that their pharmacological effect is 4
substantially similar to that of methcathinone and MDMA, which is also 5
listed in Schedule I. 6
In August 2011, a federal grand jury returned a six‐count indictment 7
naming Demott, Gambuzza, and Snell, as well as 19 others. In June 2012, that 8
indictment was replaced with a two‐count superseding indictment, which 9
charged a conspiracy to distribute, to possess with intent to distribute, and to 10
import a controlled substance analogue. All three Defendants moved to 11
dismiss the superseding indictment on the ground that the Analogue Act is 12
unconstitutionally vague. The district court denied the motions. 13
The Second Superseding Indictment (described above), under which 14
Defendants were convicted, was filed in January 2013. Demott and Snell each 15
renewed their motions to dismiss it. The district court again denied the 16
motions. Demott then pleaded guilty pursuant to a written agreement, 17
reserving his right to appeal the denial of his motion to dismiss. Snell and 18
13-3410 (L) United States v. Demott
9
Gambuzza were tried before a jury and were convicted on all counts. All 1
three now appeal. 2
DISCUSSION 3
I. Vagueness 4
All three Defendants assert on this appeal that the Analogue Act is 5
unconstitutionally vague as applied to the facts of this case. Precedents 6
establish that a statute is unconstitutionally vague if it fails to define the 7
unlawful conduct with “sufficient definiteness that ordinary people can 8
understand what conduct is prohibited,” or if its vagueness makes the law 9
unacceptably vulnerable to “arbitrary enforcement.” See Kolender v. Lawson, 10
461 U.S. 352, 357‐58 (1983). 11
We recognize that making criminality depend on the “substantial 12
similarity” of a substance to an expressly prohibited substance inevitably 13
involves a degree of uncertainty. Accord United States v. Makkar, 810 F.3d 1139, 14
1143 (10th Cir. 2015) (“It’s an open question, after all, what exactly it means 15
for chemicals to have a ‘substantially similar’ chemical structure—or effect.”). 16
However, as the Supreme Court has recently explained, such “non‐numeric,” 17
“qualitative standard[s]” abound in our law, and are not so inherently 18
13-3410 (L) United States v. Demott
10
problematic as to independently render a statute void for vagueness. Sessions 1
v. Dimaya, 138 S. Ct. 1204, 1215 (2018) (internal quotation marks omitted). 2
Further, the viability of Defendants’ argument is substantially undercut by 3
the fact that the Supreme Court, our court, and other circuits have upheld the 4
Analogue Act against vagueness challenges. 5
In McFadden v. United States, the Supreme Court rejected a vagueness 6
challenge to the Analogue Act, characterizing the statute as “unambiguous.” 7
135 S. Ct. 2298, 2307 (2015). This court, as well, has upheld the Analogue Act 8
against similar vagueness challenges. See Roberts, 363 F.3d at 125‐26; United 9
States v. Ansaldi, 372 F.3d 118, 123‐24 (2d Cir. 2004). Other circuits have 10
reached the same conclusion.33 See United States v. Turcotte, 405 F.3d 515, 531‐11
3 Although the wording of the statutory definition in § 802(32)(A) is arguably
unclear on this point, we assume for purposes of this opinion, as have all the
parties, that the requirement of substantial similarity in pharmacological
effect is in addition to the requirement of substantial similarity in chemical
structure. See United States v. Roberts, 363 F.3d 118, 121 (2d Cir. 2004)
(assuming that these elements are conjunctive, rather than disjunctive,
requirements). Concern for whether a criminal statute gives adequate notice
of what conduct is prohibited is alleviated if a conviction is sustainable only if
the defendant knows that his conduct is illegal. See id. at 123 (“Because the
statute at issue here contains a scienter requirement, the defendants’
vagueness challenge must be met with some measure of skepticism.” (citation
omitted)). In light of the Supreme Court’s explanation of the Act’s knowledge
requirement in McFadden, however, the persuasiveness of that proposition is
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32 (7th Cir. 2005) (collecting cases), abrogated on other grounds by United States 1
v. Novak, 841 F.3d 721, 729 (7th Cir. 2016). 2
Defendants seek to distance their case from those precedents by 3
arguing that the Analogue Act is unconstitutionally vague as applied to their 4
case because, at the time of the alleged conspiracy, there had been no 5
controlled, published human testing of 4‐MMC and 4‐MEC. They contend for 6
that reason that they had no notice that 4‐MMC and 4‐MEC were 7
substantially similar in pharmacological effect to any scheduled controlled 8
substance and that the statute was susceptible to an arbitrary, guesswork 9
approach to enforcement. The argument is not persuasive. Controlled human 10
testing is not required for an ordinary person to understand the similarity in 11
open to question. As described more fully below, according to McFadden’s
explanation of the Act’s knowledge requirement, it appears that a conviction
under the Analogue Act could be sustained notwithstanding a finding that
the defendant reasonably believed his conduct was lawful. McFadden
explained that the Analogue Act would be satisfied if a jury found the
defendant knew of the substantial similarity of his drug to a listed substance
in chemical structure and pharmacological effect, even if he also believed his
substance was legal. 135 S. Ct. at 2305. Thus, the Act’s knowledge
requirement, at least in some circumstances, is arguably not the sort of
“scienter requirement” that tends to “mitigate a law’s vagueness.” See Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499‐500 (1982)
(relying in part on an ordinance’s scienter requirement that an item be
“marketed for use with illegal cannabis or drugs” to uphold the ordinance
against a vagueness challenge).
13-3410 (L) United States v. Demott
12
“stimulant, depressant, or hallucinogenic effect,” 21 U.S.C. § 802(32)(A)(ii), of 1
one substance to another. 2
Defendants argue further that their theory of the susceptibility of the 3
statute to arbitrary enforcement is borne out by the Government’s assertion in 4
this case that a substance can satisfy the statutory definition of an analogue if 5
its chemical structure is substantially similar to the chemical structure of one 6
scheduled drug, while its pharmacological effect is substantially similar to the 7
pharmacological effect of another scheduled drug. The Government’s theory 8
of the case allowed for a finding that 4‐MMC and 4‐MEC were controlled 9
substance analogues because they were substantially similar in chemical 10
structure to one listed drug (methcathinone) and substantially similar in 11
pharmacological effect to another listed drug (MDMA). Defendants contend 12
that such a hybrid basis is not permissible under the terms of the statute and 13
that the Government’s use of it shows that the vagueness of the statute invites 14
arbitrary prosecution. 15
We disagree. What Defendants characterize pejoratively as a “hybrid” 16
theory of interpretation of the Act is clearly contemplated by the statute’s 17
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words. The Analogue Act defines a “controlled substance analogue” in 1
§ 802(32)(A). It states: 2
Except as provided in subparagraph (C) [listing exceptions not 3
here relevant], the term “controlled substance analogue” means a 4
substance— 5
(i) the chemical structure of which is substantially similar to the 6
chemical structure of a controlled substance in schedule I or II; 7
(ii) which has a stimulant, depressant, or hallucinogenic effect on 8
the central nervous system that is substantially similar to or 9
greater than the stimulant, depressant, or hallucinogenic effect on 10
the central nervous system of a controlled substance in schedule I 11
or II; or 12
(iii) with respect to a particular person, which such person 13
represents or intends to have a stimulant, depressant, or 14
hallucinogenic effect on the central nervous system that is 15
substantially similar to or greater than the stimulant, depressant, 16
or hallucinogenic effect on the central nervous system of a 17
controlled substance in schedule I or II. 18
19
The statute addresses chemical structure and pharmacological effect in 20
separate provisions. Clause (i), the provision referring to chemical structure, 21
instructs that the chemical structure of the substance must be substantially 22
similar to the chemical structure of a controlled substance in Schedule I or II. 23
Clauses (ii) and (iii) relate to pharmacological effect—the stimulant, 24
depressant, or hallucinogenic effect of the substance on the central nervous 25
system. They state that the stimulant, depressant, or hallucinogenic effect on 26
13-3410 (L) United States v. Demott
14
the central nervous system, either actual, or as intended or represented, must 1
be substantially similar to or greater than the stimulant, depressant, or 2
hallucinogenic effect on the central nervous system of a controlled substance 3
in Schedule I or II. Nothing in the language of the Act suggests that the drug 4
listed in Schedule I or II that is substantially similar in chemical structure to 5
the analogue must be the same listed drug that is substantially similar to the 6
analogue in pharmacological effect. Accord United States v. Carlson, 810 F.3d 7
544, 553 (8th Cir. 2016) (“While an analogue substance must have a similar 8
chemical structure as a controlled substance, its physiological effects may be 9
similar to a different controlled substance.”). Defendants’ argument that this 10
aspect of their prosecution showed unacceptable vagueness of the Analogue 11
Act is not persuasive. 12
II. Whether the Government Proved the Substances were Controlled 13
Substance Analogues 14
15
Snell and Gambuzza next argue that the evidence was insufficient for 16
the jury to conclude that 4‐MMC and 4‐MEC were controlled substance 17
analogues. Conceding that the evidence established the chemical similarity of 18
the substances to methcathinone, Defendants argue that the evidence was 19
insufficient to establish their similarity in pharmacological effect to a 20
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15
Schedule I or II controlled substance. To succeed, Snell and Gambuzza must 1
meet the “heavy burden” of “show[ing] that no rational trier of fact could 2
have found all of the elements of the crime beyond a reasonable doubt.” 3
United States v. Caracappa, 614 F.3d 30, 43 (2d Cir. 2010) (internal quotation 4
marks omitted). 5
We reject the argument. The Government presented evidence from 6
which a reasonable juror could have concluded that 4‐MMC and 4‐MEC were 7
substantially similar in pharmacological effect to a Schedule I or II controlled 8
substance, as well as that the conspirators represented this to be so. First, 9
there was expert testimony that 4‐MMC and 4‐MEC produced a stimulant 10
effect similar to methcathinone and MDMA (both Schedule I controlled 11
substances). Second, there was testimony from cooperating co‐conspirators 12
that the experience of using 4‐MMC and 4‐MEC was similar to the experience 13
of using MDMA. In addition, cooperating co‐conspirators testified that while 14
selling 4‐MMC and 4‐MEC, they would “pass it off as Molly,” App. 260, or 15
would tell customers it was “just like E [meaning ecstasy],” id. at 586‐87, 16
referring to street names for MDMA. The evidence amply supported a finding 17
that the pharmacological effects of 4‐MMC and 4‐MEC were, and were 18
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16
represented by the conspirators to be, substantially similar to the effects of 1
methcathinone or MDMA. 2
III. Sufficiency of Evidence of Gambuzza’s Involvement in the 3
Conspiracy 4
5
Gambuzza also challenges the sufficiency of the evidence with respect 6
to his involvement in the conspiracy. He argues that the evidence showed 7
only that he purchased from Chang, not that he ever sold. The argument is 8
frivolous. There was ample evidence from which a rational jury could have 9
concluded that Gambuzza conspired with named co‐conspirators to import 10
the analogues, distribute them, and possess them with intent to distribute. 11
Harper testified that he and Gambuzza had used the substance together. 12
When Gambuzza required increasingly large quantities of it, he taught 13
Gambuzza how to order the substance directly from Chang. There was ample 14
evidence of distribution by Gambuzza, including the large volume of his 15
importations from Chang (multi‐kilo quantities for which he paid $72,800 in a 16
one‐year period) and the seizure by law enforcement authorities at his 17
residence of a shipping receipt for a package sent to a co‐conspirator, a digital 18
scale, and baggies. Furthermore, there was substantial evidence of his 19
conspiratorial undertaking with Chang, who was also a charged co‐20
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17
conspirator, to import and distribute the analogue substances. This evidence, 1
considered together, was sufficient for a rational jury to conclude that 2
Gambuzza was a participating member of the charged conspiracy. 3
IV. Jury Instructions on Knowledge 4
Defendants argue their convictions must be set aside because of two 5
alleged errors in the jury instructions:4 6
(1) They contend that under McFadden, courts must give a jury 7
instruction that requires the jury to find that a defendant knew that 8
the substances were controlled “under the CSA or Analogue Act, as 9
opposed to any other federal or state laws,” 135 S Ct. at 2306 n.3, 10
and that the district court here failed to so instruct. 11
(2) They contend the district court violated the requirements of 12
McFadden by telling the jury that “knowledge of, or intent to violate 13
the law is not an element of the offense.” App. 978. 14
4 This court considers a jury instruction erroneous “if it misleads the
jury as to the correct legal standard or does not adequately inform the jury of
the law. When conducting this review, we examine the charges as a whole to
see if the entire charge delivered a correct interpretation of the law.” United
States v. Silver, 864 F.3d 102, 118 (2d Cir. 2017) (citations, footnote, and internal
quotation marks omitted).
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18
We address each in turn. 1
i. The District Court’s Failure to Charge that Defendants Needed to 2
Know the Substances were Controlled “under the CSA or Analogue 3
Act.” 4
5
In McFadden, the Supreme Court rejected the conclusion of the Court of 6
Appeals that the sole knowledge requirement for conviction under the 7
Analogue Act was the “inten[t] for human consumption.” 135 S. Ct. at 2306 8
(internal quotation marks omitted). The Court held that “the Government 9
must prove that a defendant knew that the substance with which he was 10
dealing was ‘a controlled substance,’ even in prosecutions involving an 11
analogue.” Id. at 2305. Accordingly, the Court held that the jury charge at 12
issue in that case (“McFadden had to knowingly and intentionally distribute a 13
mixture or substance that has an actual, intended, or claimed 14
[pharmacological effect] substantially similar to that of a controlled 15
substance”) failed to “fully convey the mental state required by the Analogue 16
Act.” Id. at 2307 (internal quotation marks and brackets omitted). 17
The Court explained that the Analogue Act requires that an analogue 18
intended for human consumption “be treated, for the purposes of any Federal 19
law as a controlled substance in schedule I,” 21 U.S.C. § 813, so that the 20
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19
knowledge requirement for prosecutions under the Analogue Act is derived 1
from the CSA. McFadden, 135 S. Ct. at 2304‐05. The CSA, in 21 U.S.C. 2
§ 841(a)(1), makes it unlawful “for any person knowingly or intentionally to 3
manufacture, distribute, or dispense, or possess with intent to manufacture, 4
distribute, or dispense, a controlled substance,” and other provisions prohibit 5