Author: Chris Gant, Associate Member, University of Cincinnati Law Review
Advancements in chemistry and technology have lead to unprecedented innovation in the drug market. Some criminal-minded people have circumvented federal drug laws by creating so-called “designer drugs” like bath salts. The law’s treatment of those manufacturing and distributing designer drugs has led to a contentious circuit split. The split hinges on whether the government must prove that these “underground chemists” knew that they were dealing drugs analogous[1] to controlled substances in order to be convicted of a crime. The courts have interpreted the statute differently as to the scienter requirement applied to analogue substances. Of the circuits that have decided this issue, the majority, led by the Seventh Circuit, has concluded that the prosecution must prove that the defendant knew of the similarities between the controlled substance and the analogue. The minority, in contrast, has determined that the government only needs to prove that the substance was intended for human consumption. Given the plain language of the statute, the majority’s stance is the more reasonable, logical approach, and so should be adopted by the Supreme Court when it reviews this issue later this Term.
Designer Drugs—A Legal High?
A “designer drug” is a substance created to mimic the effects of drugs that are explicitly prohibited under federal drug laws, but were not themselves expressly covered by federal law.[2] In response to the influx of designer drugs, Congress passed the Control Substance Analogue Enforcement Act (CSAEA) in 1986.[3] Under the Act, an individual may be convicted for an offense involving a controlled substance analogue under 21 U.S.C. § 841 if the government establishes that: (1) the alleged analogue substance has a chemical structure that is substantially similar to a controlled substance classified under schedule I or schedule II;[4] (2) the alleged analogue substance has an actual, intended, or claimed stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the effect produced by a schedule I or schedule II controlled substance; and (3) the analogue substance is intended for human consumption.[5] Furthermore, the Controlled Substance Act (CSA) provides that dealing in scheduled drugs is unlawful only if a person does so knowingly or intentionally.[6] However, the exact contours of this scienter requirement—as applied to a controlled substance analogue—are uncertain, and this uncertainty has resulted in a divide among federal circuit courts.[7]
On one hand, the Seventh, Second, and Eighth Circuits require the government to prove that a defendant knew that the substance he was dealing constituted a controlled substance analogue (i.e., that he met the scienter requirement). On the other hand, the Fourth and Fifth Circuits have rejected this knowledge requirement and have discarded the mens rea component of the law.[8] The Fourth Circuit did so in United States v. McFadden, which directly contradicted the Seventh Circuit’s ruling in United States v. Turcotte, and is currently under review by the Supreme Court.[9] When it hears McFadden, the Supreme Court should adopt the Seventh Circuit’s holding from Turcotte because it is the most fair and logical interpretation of the CSAEA.
United States v. Turcotte: The Majority Rule
In United States v. Turcotte, the defendant was arrested for selling a GHB analogue.[10] GHB is gamma hydroxybutyric acid, a schedule I controlled substance under federal regulations that is used recreationally for many different reasons. It can produce effects similar to that of ecstasy, has been found to produce human growth hormone, and is sometimes used as a date rape drug.[11] Turcotte was arrested, convicted after a jury trial, and appealed his conviction.[12] On appeal, the Seventh Circuit held that the government had to prove that the defendant knew the substance in question was a controlled substance analogue.[13] The court warned that “discarding the scienter requirement would essentially mean that individuals deal in narcotics substitutes at their own risk, removing a primary mens rea element of the possession and distribution offenses.”[14] Without a mens rea requirement, an individual engaged in seemingly innocent conduct could be convicted of a federal crime.[15] For example, someone could be selling a substance innocently, without knowing the substance has an effect analogous to that of a controlled substance. Without a scienter (mens rea) requirement, he or she could still be convicted under the CSAEA. While acknowledging the prosecutorial burden imposed by the scienter requirement, the court added that a jury could infer that the defendant possessed knowledge of the chemical similarities of the analogue by showing that the defendant had knowledge of the drugs’ similar physiological effects.[16] The Second and Eighth Circuits have agreed with the Seventh Circuit’s ruling.[17]
Fourth & Fifth Circuits: The Minority Rule
In contrast to Turcotte, in United States v. McFadden, the Fourth Circuit did not require the jury to find that the defendant knew that the drug in question was a controlled substance analogue. McFadden was arrested and convicted under the CSAEA for selling “bath salts,” a drug similar to methcathinone and ecstasy, both schedule I controlled substances.[18] The Fourth Circuit stated that the government needed to prove only that the defendant intended the substance to be consumed by humans.[19] Moreover, the court added that the Act “may be applied to a defendant who lacks actual notice that the substance at issue could be a controlled substance analogue.”[20] Similarly, in United States v. Desurra, the Fifth Circuit rejected reading a strict scienter requirement into the CSAEA.[21] In Desurra, the court held that the defendant did not need to know that the drug was a controlled substance analogue in order to be convicted. Rather, the court held that the defendant only need know what drug he possessed and that it was possessed with a “statutorily bad purpose.”[22] Both decisions rely on a reading of the statute that does not require a defendant to have knowledge that the analogue substance has effects similar to a controlled substance. Rather, these courts hold that statute only requires that the defendant possess the substance and intend for humans to consume it. The problem with this interpretation is that it is actually within the province of the jury to determine that the defendant knew of the similarities between the controlled substance and the controlled substance analogue.[23]
The Scienter Requirement
The CSA criminalizes individuals who “knowingly or intentionally” possess or distribute a controlled substance.[24] While 21 U.S.C. § 841(a) does not specifically address controlled substance analogues, 21 U.S.C. § 813 states 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.”[25] Because a controlled substance analogue is to be treated as a controlled substance under the law, and because the law governing controlled substances has a scienter requirement, it follows that to be convicted under § 841 (the CSAEA), the defendant must know or intend to possess an analogue drug. Furthermore, Supreme Court precedent clearly states that a law’s “knowingly” requirement is to apply to all subsequent elements of a crime, which bolsters the idea that the CSA’s scienter requirement should be read into its subpart—the CSAEA.[26]
It is also worth noting that application of the Seventh Circuit’s majority rule does not place an onerous burden on the prosecution. As discussed in Turcotte, the prosecution would merely need to prove that the defendant knew or represented that the drug had similar physiological effects as a controlled substance.[27] For example, in United States v. Sullivan, the defendant was pulled over and asked if he had anything illegal in the vehicle to which he responded, “bath powder.”[28] The label on the bath salts indicated that the user could obtain a legal “high”—referring to the fact that the user could feel the effects of an illegal substance with a seemingly legal product.[29] All of these facts could lead a reasonable juror to conclude that the defendant had knowledge of the chemical similarities between the analogue and the controlled substance.[30] Similarly, in McFadden, the defendant discussed the potency and duration of the “high” of the substance he was distributing on several occasions.[31] From this, a reasonable jury could conclude that the defendant possessed the requisite knowledge of the similarity between the analogue and the controlled substance to convict him.
Finally, the majority interpretation of the CSAEA simply allows the jury to confront the question of whether representations of physiological effects create a presumption that the defendant knew of the similarities between the two drugs. As explained earlier, a prosecutor should be able to overcome the issue of the jury confronting this question with relative ease if the defendant was in fact using an analogue substance to circumvent the controlled substance laws. In contrast, the minority position of the Fourth Circuit essentially reads strict liability into the law: as long as the substance is chemically similar to a controlled substance and is intended for human consumption, essentially the defendant is guilty. However, strict liability is disfavored for drug charges, as demonstrated by a general mens rea component in every drug possession and trafficking statute. Thus, the Supreme Court should reject the Fourth Circuit’s approach to the CSAEA.[32]
A Scienter Requirement Is Required
An analysis of the statutory language of the CSA and CSAEA demonstrates that a mens rea requirement should be applied to the prosecution of a defendant for manufacturing or distributing controlled substance analogues. The majority rule in the current circuit split is not so arduous a burden on the prosecutor as to eliminate the efficacy of the law; it merely allows the defendant to rebut a jury’s inference that he was aware of the chemical similarities of the controlled substance and the analogue. The prosecutor must meet the burden of proof under the statute as intended by Congress. Thus, the Seventh Circuit’s holding in Turcotte is a more accurate and logical interpretation of the law, and for all these reasons, the Supreme Court should adopt the majority ruling of the Second, Seventh, and Eighth Circuits and hold that the CSAEA imposes a scienter requirement.
[1] An analogue is defined as a substance that has “the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II.” 21 U.S.C. 802(32)(A)(i).
[2] United States v. McFadden, 753 F.3d 432, 436 (4th Cir. 2014).
[3] The CSAEA is a subsection of the Controlled Substance Act. Id. at 436.
[4] See 21 U.S.C. § 812 and 21 C.F.R. §§ 1308.11 and 1308.12. A schedule I or II substance is a substance that is explicitly forbidden by Congress and includes drugs like cocaine and methamphetamines.
[5] McFadden, 753 F.3d 432 at 436 (construing 21 U.S.C. § 802(32)(A), 813).
[6] 21 U.S.C. § 841(a) (“It shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”).
[7] United States v. Turcotte, 405 F.3d 515, 525 (7th Cir. 2005).
[8] See United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005), McFadden, 753 F.3d 432. See also United States v. Roberts, 363 F.3d 118 (2nd Cir. 2004); United States v. Sullivan, 714 F.3d 1104 (8th Cir. 2013). Compare United States v. Desurra, 865 F.2d 651 (5th Cir. 1989).
[9] McFadden v. United States, 135 S.Ct. 1039 (2015). Oral argument is scheduled for April 21, 2015.
[10] Turcotte, 405 F.3d at 519, n. 1.
[11] “GHB,” StreetDrugs.Org, http://www.streetdrugs.org/html%20files/GHB.html (Last visited March 11, 2015). See also “Athletics GHB”, ProjectGHB.org, http://www.projectghb.org/athletics-ghb (Last visited March 11, 2015).
[12] Turcotte, 405 F.3d at 520.
[13] Id. at 527.
[14] Id.
[15] Id.
[16] Id.
[17] See United States v. Roberts, 363 F.3d 118 (2nd Cir. 2004) (The government must show that the defendants knew they possessed a controlled substance); United States v. Sullivan, 714 F.3d 1104 (8th Cir. 2013) (Defendant must know that he was in possession of a controlled substance analogue).
[18] United States v. McFadden, 753 F.3d 432, 438 (4th Cir. 2014)..
[19] Id. at 444.
[20] Id.
[21] United States v. Desurra, 865 F.2d 651 (5th Cir. 1989).
[22] Id. at 653. A statutorily bad purpose, as opposed to a mens rea requirement, just means that someone is trying to sell the drugs for an illegal purpose, i.e. to get someone high. Mens rea requires the defendant to know of the similarities between the two drugs.
[23] Turcotte, 405 F.3d 515 at 528.
[24] 21 U.S.C. § 841(a).
[25] Id. at § 813.
[26] U.S. v. X-Citement Video, 513 U.S. 64, 77 (1994) (Holding that knowingly applies to different clauses of the law).
[27] United States v. Turcotte, 405 F.3d 515, 527 (7th Cir. 2005).
[28] United States v. Sullivan, 714 F.3d 1104, 1115 (8th Cir. 2013).
[29] Id. at 1106.
[30] Id. at 1107.
[31] United States v. McFadden, 753 F.3d 432, 437 (4th Cir. 2014).
[32] See, e.g., ORC Ann. 2925.11(A) (Lexis 2015); Ky. Rev. Stat. Ann. § 218A.1415(1) (Lexis 2015); Mich. Comp. Laws Ann. § 333.7403 (Lexis 2015).
