March 22, 2016
Remand from the Supreme Court of the United States. (S.Ct.
Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville,
Virginia, for Appellant.
Paul Giorno, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
J. Heaphy, United States Attorney, Roanoke, Virginia, Ronald
M. Huber, Assistant United States Attorney, Jean B. Hudson,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges. Judge Keenan wrote the opinion, in which Chief Judge
Traxler and Judge Wilkinson joined.
BARBARA MILANO KEENAN, Circuit Judge
case, which is before us for a second time, we consider
whether certain erroneous jury instructions given at trial
require us to vacate Stephen D. McFadden's convictions.
After a jury trial, McFadden was convicted of conspiring to
distribute controlled substance analogues and of distributing
controlled substance analogues in violation of the Controlled
Substance Analogue Enforcement Act of 1986 (the Analogue
Act), 21 U.S.C. § § 802(32)(A), 813, and the
Controlled Substances Act (CSA), 21 U.S.C. § §
841(a), 846. In McFadden's initial appeal, we affirmed
the district court's judgment, and McFadden petitioned
the Supreme Court for certiorari. The Supreme Court granted
certiorari, concluded that the jury instructions given at
trial improperly omitted elements relating to McFadden's
state of mind, and remanded this case for us to consider
whether the error was harmless.
remand, we conclude that the erroneous jury instructions
error with respect to McFadden's convictions under Counts
One, Five, Six, Seven, Eight, and Nine of the superseding
indictment. However, we conclude that the error was not
harmless with respect to McFadden's convictions under
Counts Two, Three, and Four. We therefore affirm in part,
vacate in part, and remand the case for further proceedings
in the district court.
begin by providing an overview of the relevant federal
statutes and regulations governing controlled substances and
their analogues. The CSA prohibits the distribution of a
" controlled substance," 21 U.S.C. § 841, and
defines " controlled substance" to mean any drug or
substance included in five schedules, Schedule I through
Schedule V, established by the CSA. 21 U.S.C. § §
802(6), 812(a). Distribution of controlled substances listed
on Schedule I carries strict criminal penalties. 21 U.S.C.
§ 841(b)(1)(C). The Attorney General also has the
authority to add substances to or remove substances from the
CSA schedules by rule. 21 U.S.C. § 811(a). The
up-to-date schedules are codified in the Code of Federal
Regulations. See 21 C.F.R. § § 1308.11-1308.15.
Congress enacted the Analogue Act to prevent the distribution
of newly created drugs, not yet listed on the schedules but
that have similar effects on the human body. See United
States v. Klecker, 348 F.3d 69, 70 (4th Cir. 2003). The
Analogue Act defines a " controlled substance
analogue" as any substance " the chemical structure
of which is substantially similar to [that] of a controlled
substance in schedule I or II" (the chemical structure
element), and " which has [an actual, claimed, or
intended] stimulant, depressant, or hallucinogenic effect on
the central nervous system that is substantially similar to
or greater than [that] of a controlled substance in schedule
I or II" (the physiological effect element). 21 U.S.C.
the Analogue Act, controlled substance analogues are treated
as Schedule I controlled substances for purposes of federal
law. 21 U.S.C. § 813. The interaction between the CSA
and the Analogue Act therefore prohibits the distribution of
controlled substance analogues, even if not listed on the CSA
facts of this case are discussed in detail in our previous
opinion in United States v. McFadden, 753 F.3d 432
(4th Cir. 2014), and in the Supreme Court's opinion in
McFadden v. United States, 135 S.Ct. 2298, 192
L.Ed.2d 260 (2015). We will recite here the facts relevant to
the issue presented on remand.
2011, certain law enforcement officials (police officers) in
Charlottesville, Virginia began investigating the
distribution of synthetic stimulants commonly known as "
bath salts." The investigation revealed that bath salts
were being sold from a video rental store owned and operated
by Lois McDaniel. Under supervision of the police officers, a
confidential informant made two controlled purchases of bath
salts at McDaniel's video store. On August 24, 2011, the
police officers confronted McDaniel with evidence from their
investigation, searched the video store, and solicited
information regarding her supplier.
agreed to cooperate with the investigation and to assist the
police in gathering evidence against her supplier, Stephen
McFadden. At the officers' direction, McDaniel initiated
recorded telephone conversations with McFadden, who
was located in Staten Island, New York. The first of these
telephone conversations occurred on August 25, 2011. In these
recorded conversations, McFadden described the active
ingredients in the bath salts and gave instructions on how
the bath salts were to be consumed. McFadden also described
the stimulant effects of the bath salts and compared the
effects to those of cocaine or methamphetamine. During these
telephone conversations, McDaniel engaged in five separate
controlled purchases of several varieties of bath salts from
McFadden. McFadden shipped packages containing bath salts
through FedEx, a commercial courier, from Staten Island to
United States Drug Enforcement Administration (DEA) seized
the packages directly from FedEx. Inside these packages, the
" vials" and " baggies" containing the
bath salts had been labeled by McFadden, and some labels
warned that the contents were " not for human
consumption or illegal use." Other labels listed
chemical compounds, some of which were Schedule I controlled
substances, and stated that the package ...