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United States v. McFadden

United States Court of Appeals, Fourth Circuit

May 19, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
STEPHEN DOMINICK MCFADDEN, a/k/a Stephen Domin McFadden, Defendant - Appellant

         Argued March 22, 2016

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          On Remand from the Supreme Court of the United States. (S.Ct. No. 14-378).


         J. Lloyd Snook, III, SNOOK & HAUGHEY, P.C., Charlottesville, Virginia, for Appellant.

         Anthony Paul Giorno, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

         ON BRIEF:

         Timothy 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.

         Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit Judges. Judge Keenan wrote the opinion, in which Chief Judge Traxler and Judge Wilkinson joined.


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          BARBARA MILANO KEENAN, Circuit Judge

         In this 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.

         On remand, we conclude that the erroneous jury instructions constituted harmless

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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.



         We 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. § 802(32)(A).

          Under 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 schedules.


         The 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.

         In July 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.

         McDaniel 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

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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 Charlottesville.

         The 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 ...

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