Bath Salts, Ignorance of the Law, and the "Knowingly a Bad Guy" Theory

We’ve all heard the expression that “ignorance of the law is no excuse.” It means that a person cannot escape punishment for violating criminal laws regardless of whether he or she knew of their existence. Being well versed in the laws doesn’t provide an avenue for relieve for criminals either.

The case of Stephen McFadden, (McFadden v. United States, Docket No. 14-378), a petitioner whose case is pending decision from our nation’s highest court, elucidates this point. McFadden may fairly be viewed as many things (e.g. entrepreneurial for sure, and seemingly well-intended), but ignorant of the law is not one of them (in my view, at least). But as conscious of the federal drug laws as McFadden was, he has yet evade criminal liability for his actions.

Sidenote: The Supreme Court of the United States is often criticized for being behind the times. Even though it’s been three years since the bath-salt zombie episode in Miami, the simple fact remains: in 2014 the Supreme Court granted certiorari in a case dealing with the selling of bath salts (a relative newbie on the drug scene). So, at least for this case, let’s give the High Court (pun intended) credit.

In early 2011, McFadden, a construction worker, began to notice that a variety of businesses in his Staten Island neighborhood were openly selling products referred to as “bath salts,” which he believed to be aroma therapy products that, when burned, produced a stimulating vapor. Ever the entrepreneur, McFadden endeavored to get a piece of the action. But he was no fool. Before getting involved, he talked to a federal agent about the legality of “bath salts”; the agent, who happened to be his brother, advised him to search the online list of the controlled substances of the DEA’s website. In the course of his due diligence, McFadden found nothing to suggest bath salts were illegal, so he began to sell them. (Ignorant of the law? Hardly). Some time later, when two of his products found themselves listed on the controlled substances schedule, they also found themselves being flushed down the toilet by McFadden—literally. (Ongoing ignorance of the law? Quite the opposite). Moreover, when an undercover DEA Agent tried to purchase these newly-banned “bath salts” from McFadden, he was refused. Why? Because they were illegal. (Ignorance of the… Ok, at this point, you get it. McFadden was hyper-sensitive to the legality of “bath salts”).

The case ended up before the Supreme Court so I think most of you figured out how the story ends for McFadden by now. Just in case, here’s the highlights:

In 2012, McFadden is indicted by a grand jury for selling “bath salts” that, get this, were NOT even on the Controlled Substances schedules. Huh? That’s right, what the Government did is insist that the “bath salts” being sold had compounds that were “substantially similar” to controlled substances, and therefore McFadden had violated the Controlled Substances Analogue Enforcement Act of 1986. At trial, McFadden requested that the jury be instructed that the Government was “required to prove that he knew, had a strong suspicion, or deliberately avoided knowledge that the [substances at issue] possessed the characteristics of controlled substance analogues.” Instead, over his objection, the court gave a jury instruction under which the only state of mind requirement relating to the nature of the substance was that petitioner “intended for the mixture or substance to be consumed by humans.” He was found guilty on all main counts.

On appeal, the issue became whether, to convict someone under the Controlled Substances Analogue Act, the government needs to prove that the defendant knew the substance was an analogue to a controlled substance. On January 16, 2015, the Supreme Court decided to take on this issue; on April 21, 2015, the High Court heard oral argument.

To give you some context, the Circuits were split 3-1-1 on this issue (McFadden said it was a 3-2, but I disagree).

The Second, Seventh, and Eighth Circuits hold that the defendant must know that the substance in question is a controlled substance analogue (and thus, by definition, a controlled substance). See United States v. Roberts, 363 F.3d 118, 123 n.1 (2d Cir. 2004); United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005); United States v. Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013). The Analogue Act itself does not directly criminalize sale of analogues; instead, it reads that a “controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.” 21 U.S.C. § 813.

The Fourth and Fifth Circuits have rejected the majority’s approach. According to the Fourth Circuit, the statute’s only scienter element going to the nature of the substances was the requirement that the defendant intend the substance to be consumed by humans. The Fifth Circuit held that “[i]f a defendant possesses an analogue, with intent to distribute or import, the defendant need not know that the drug he possesses is an analogue.” United States v. Desurra, 865 F.2d 651 (5th Cir. 1989). Instead, it “suffices that he know what drug he possesses and that he possess it with the statutorily defined bad purpose”; for example, with intent to distribute or import it. Id.

By the time the case reached oral argument, the Federal Government had agreed that, first, the Fourth Circuit got it wrong when it comes to the mens rea requirement, and second, the jury instructions provided were erroneous. The crux of the issue before the Court then became as follows:

Both parties agree that these cases can be proven in two ways. First, the Government proves McFadden knew the substances he sold (by nature, even if not by chemical makeup) were regulated under either the Controlled Substances or the Analogue Act, it would have satisfied the mens rea element. Second, the Government proves that McFadden knew the chemical makeup of the substance, which happened to make it an analogue, but as to this latter point, that was something that McFadden was ignorant or unaware of. (Justice Breyer rightfully pointed out that this method is almost never going to arise). As to these ideas, Chief Justice Roberts took the view that both would seem to be “contrary to the proposition that ignorance of the law is no excuse.” If that were the law, then every defendant could claim they didn’t know and they’d be innocent. When he pressed McFadden’s counsel, he didn’t seem to get the clarification he wanted, at one point plainly saying: “If he’s ignorant of the law, he’s not guilty.” Justice Scalia also pressed McFadden’s counsel on this point.

However, it’s was the third way of prosecuting these cases, one the Government posed and McFadden disagrees with, that will become the crucial holding of this case once decided.

Whether the Government can also prove the mens rea requirement by merely proving knowledge that sale of the substance is, in fact, regulated in some way, by some law. Justice Scalia framed this as the “Knowingly a Bad Guy” Theory.

In response, McFadden’s counsel tried to show the absurdity with that legal argument by posing a hypo. It goes like this: If the government wins, then, in any Analogue case, the government need only say, for example, “A sold substance X (an analogue) without knowing it was an analogue or chemically similar to an actual controlled substance; however, A didn’t pay sales tax, which he knew was illegal. Therefore, knowing the sale was illegal under some act or law (here, a import/export or tax law), it’s also prosecutable under the CSA.

To sum it all up, I strongly disagree that the Government’s third theory of prosecution is a valid one, and I’m hoping the Court sees it the same way. There’s some hope, at least based on Justice Scalia’s comments, but one never knows. This will be an interesting, and important, opinion for sure.

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