A defendant convicted under the Controlled Substance Analogue Enforcement Act of 1986 is
entitled to a new trial based on the U.S. Supreme Court decision in McFadden v. U.S., construing the mens rea requirement under the Act, says a Big Stone Gap U.S. District Court.
The U.S. Supreme Court case reversed a ruling on the mens rea requirement by the 4th Circuit, U.S. v. McFadden, 753 F.2d 432 (4th Cit. 2014), upon which this court had relied in certain evidentiary rulings and jury instructions in defendant’s case.
The court’s jury charge as to the appropriate mens rea relating to the CSAEA counts was required by the earlier 4th Circuit decision in U.S. v. McFadden, which held that the intent element under the CSAEA requires that the government prove that the defendant meant for the substance at issue to be consumed by humans. Defendant contested the mens rea issue pretrial, pointing to other circuits that have interpreted the CSAEA to require the government to prove the defendant knew the substances he was selling had chemical structures and effects similar to controlled substances.
The 4th Circuit’s McFadden ruling affected the proceedings in this case in several ways. First, under that precedent, I granted the government’s motions in limine to exclude the defendant’s evidence showing that he did not know the substances he sold were controlled substance analogues or that it was illegal to distribute them from the retail outlet where he worked. This excluded evidence included information provided to the defendant from vendors claiming the products were legal substances. The defense would have presented a video recording of a controlled buy in which the defendant told a confidential informant that the products were legal in every state.
Any evidence from defendants that they lacked knowledge as to the statutory elements, apart from intending that the substance be consumed by humans, was irrelevant and inadmissible at trial. I also excluded evidence relating to the government’s failure to notify defendants that they were violating the CSAEA, in spite of cease-and-desist letters sent to other retailers in this district for selling the same substances.
The jury found defendant guilty of multiple offenses related to distribution of controlled substance analogues, as well as misbranding a drug with the intent to defraud or mislead.
In light of the Supreme Court decision, there is no question that this court’s decision to exclude evidence regarding defendant’s lack of knowledge of the substances’ regulated status, and its jury instructions on the mens rea element – each of which explicitly relied on the 4th Circuit’s reasoning in McFadden – were in error. It also was error for the court to exclude the cease-and-desist letters sent by the U.S. Attorney’s Office to other retailers in this district.
It is not clear beyond a reasonable doubt that the court’s evidentiary rulings and jury instruction – now erroneous in light of the Supreme Court decision – did not influence the jury’s guilty verdict. The error was not harmless and defendant is entitled to a new trial on these charges.
FDCA conviction upheld
However, the court denies judgment of acquittal and denies a new trial on the charges under the Federal Food, Drug and Cosmetic Act.
Procedural hurdles prevent this court from entering a judgment of acquittal and in any event the motion lacks merit. It is undisputed that the products in defendant’s variety store were purchased from out-of-state vendors, including a codefendant who resided in Florida. The evidence overwhelmingly supports the notion that defendant “introduced” the products into interstate commerce. Defendant himself requested jury instructions which stated that it is not necessary for the government to prove, however, that the act or omission actually influenced or misled, and that it was not necessary to prove that any one was, in fact defrauded, as long as it was established that the defendant acted with the intent to defraud or mislead.
There was no error as to defendant’s FDCA conviction, much less prejudicial error. Even if defendant is correct that he did not consciously mislead consumers, who apparently knowingly purchased the “potpourri” in order to consume it, his conduct was undoubtedly designed to mislead drug regulatory authorities such as the FDA or a similar governmental agency. The evidence overwhelmingly showed that defendant acted with intent to defraud or mislead and the jury so concluded in finding him guilty on the FDCA count.
U.S. v. McConnell (Jones) No. 2:14cr01, Aug. 3, 2015; Zachary T. Lee, AUSA, for U.S.; Brian J. Beck, AFPD, for appellee. VLW 015-3-382, 22 pp.