Analogue substances conviction upheld

US v. McFadden:  Stephen McFadden received nine convictions in connection with his distribution of “bath salts,” in violation of the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. sect. 813.   On appeal, McFadden argued that the statute was unconstitutionally vague as applied to him, that the district court erred in some of its evidentiary decisions during trial, and that the government failed to prove that whatever substance McFadden distributed qualified as an analogue under the Act.  The Fourth Circuit affirmed, finding that included under the rubric of the Act were the bath salts that McFadden distributed.

McFadden’s void for vagueness constitutional challenge was rejected based on the Circuit’s holding in an earlier case, Klecker, which dealt with another designer drug, commonly known as “Foxy.”  In that case, the Fourth Circuit observed that the considerable similarities between Foxy and the Schedule 1 substance DET were sufficient to put a reasonable person on notice of the proscribed conduct, that is, Foxy was a DET analogue.  The Fourth Circuit panel applied the same reasoning to the instant case, finding that expert testimony supported the conclusion that the chemical structures of bath salts were sufficiently similar to the Schedule 1 substances 4-MEC, MDVP, and methylone, and a reasonable person in McFadden’s position would understand that his conduct was prohibited by the Act.  Further, the Fourth Circuit used Klecker as its basis for rejecting McFadden’s challenge to the district court’s refusal to give a specific knowledge instruction to the jury.

The Fourth Circuit also affirmed the district court’s decision to admit a bath salt user’s testimony to prove the effects of the designer substance, as there was sufficient evidence presented to prove that McFadden made the bath salts that he distributed.  The Fourth Circuit affirmed the admission into evidence of taped phone conversations between himself and Lois McDaniel, who had previously sold McFadden’s bath salts in her video rental store.  McDaniel agreed to cooperate with investigators, and worked as a confidential informant, and the Fourth Circuit rejected McFadden’s relevancy challenge to them.  Finally, McFadden’s sufficiency of the evidence and denial of his motion for acquittal arguments failed, because the panel found the government’s expert testimony about the chemical composition of the bath salts and their effects were sufficient evidence here.