People generally know that cocaine, methamphetamine, and heroin are illegal to distribute. But chemists have the ability to make substances that are very similar, but not exactly chemically identical, to these and other illegal drugs, and these synthetic substances can have effects similar to illegal drugs on people who take them. 21 U.S.C. § 802(32) says that a “controlled substance analogue” is a substance “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II” and “which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than” the controlled substance. Furthermore, 21 U.S.C. § 813 says that a “controlled substance analogue” is, “to the extent intended for human consumption,” prosecuted as a Schedule I controlled substance.

(For the curious, 21 U.S.C. § 812 is the original list, from 1970, of all illegal drugs, and it explains the different schedules in which they are listed. A shorter list of the more common illegal drugs can be found in the U.S. Sentencing Guidelines.)

The Supreme Court recently made a ruling in the case of McFadden v. United States on what the Government has to prove and what the Judge in such a case must tell the jury in order to convict someone for distributing an analogue of a controlled substance.

What was the issue in this case?

Stephen McFadden was selling “bath salts” which he said were “like” cocaine and methamphetamine but did not actually contain any drugs that are forbidden under the Controlled Substances Act. The Government arrested him and charged him under the laws mentioned above (which are also referred to as the Controlled Substance Analogue Enforcement Act). McFadden’s defense was that he did not know his “bath salts” were regulated by the Analogue Act.

At McFadden’s trial, the prosecutor and defendant did not agree upon what the Judge had to tell the jury. What the Judge told the jury was that the prosecution had only to show 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 that the defendant intended for the mixture or substance to be consumed by humans” (quoting page 6 in the attached PDF). The jury convicted him, and McFadden appealed. The Fourth Circuit Court of Appeals agreed with the Government that the jury instruction was sufficient. McFadden appealed to the Supreme Court, which has now ruled that the jury instruction was incorrect.

What did the Supreme Court say?

The Supreme Court ruled that in order to convict someone under the Controlled Substance Analogue Enforcement Act, the prosecution must show that the defendant knew either:
(a) That the substance in question is controlled by the Controlled Substances Act or the Controlled Substance Analogue Enforcement Act, even if the defendant isn’t sure exactly what the substance is (e.g., its chemical formula);
(b) That the defendant knew what the substance in question was, even if he didn’t know it was regulated by the Analogue Act. (This makes sense according to the logic that if one knows what a chemical is, then one is able to research the chemical, its known effects, and any controlled substances it is similar to. That is, if one knows what it is, one ought to figure out it’s an analogue to a controlled substance.)

What happens next in this case?

The Supreme Court said that the Fourth Circuit Court of Appeals must rule on the case again. The first time the Fourth Circuit heard the case, they ruled simply that the jury instruction was good enough. Now that the Supreme Court has ruled that the jury was not properly instructed, the Fourth Circuit will look at the evidence presented at trial to see what it shows about what McFadden knew. Since the Government presented circumstantial evidence that McFadden advertised that his “bath salts” produced a high similar to a cocaine high and that McFadden was conducting his business in a furtive manner, the Fourth Circuit may rule that there is sufficient evidence to show that McFadden has no excuses and he is guilty.

Will this affect my case?

McFadden’s case is most helpful for those facing drug charges (and not yet convicted) under the Controlled Substance Analogue Enforcement Act because the Supreme Court’s ruling makes clear what the Judge has to tell the jury and, thus, what the Government has to prove to get a conviction.

If you or your loved one has been convicted under the Analogue Act, this ruling only applies if there was a jury trial. If the defendant pleaded guilty, this ruling has no effect on the case.

But if there was a conviction by a jury and the appeal is still pending (or if the sentencing has yet to take place), then the defendant may use this new ruling as part of the grounds for appeal.

If you or your loved one was convicted by a jury under the Analogue Act and you believe that the instructions to the jury were incorrect, you could file a 2255 motion. A 2255 motion based on the McFadden ruling must be filed by June 17, 2016 (that is, within a year after the Supreme Court’s ruling). This is a difficult path with little promise of success, but if you want to pursue that route, we have more information about 2255 motions here.


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