McFadden v. United States

The Supreme Court of the United States will decide whether, in convicting a defendant of distribution of a controlled substance analogue, the government must prove that the defendant knew that the chemical composition or the effects of the substance were “substantially similar” to those of a controlled substance. McFadden argues that the Analogue Act does so require, and that if conviction under the statute does not impose such burden on the government, then the Analogue Act is unconstitutionally vague. The United States counters that requiring the government to prove that the defendant knew that the chemical composition of a substance was substantially similar to a controlled substance would not only undermine the purpose of the statute, but would also fail to mitigate any of McFadden’s concerns of constitutional vagueness. In particular, the United States submits that the government can fulfill the Analogue Act’s knowledge requirement by showing circumstantial evidence that defendant knew the substance at issue was controlled or regulated.

DOES THE ANALOGUE ACT REQUIRE PROOF OF KNOWLEDGE THAT THE CHEMICAL COMPOSITION OF A SUBSTANCE CONSTITUTED A CONTROLLED SUBSTANCE ANALOGUE?

McFadden contends that the plain text of the Analogue Act, as reinforced by legal tradition, requires proof of a defendant’s knowledge that a substance was substantially similar in chemical composition to a controlled substance. McFadden asserts the following premises: the Analogue Act merely defines a controlled substance analogue; a separate statute contains the relevant mental state that the government is required to prove in a prosecution under the Analogue Act; and a requisite mental state—knowledge or intent—applies to every element of an offense under the Analogue Act. In support, McFadden claims that plain grammar dictates that the requisite knowledge applies to each element of a crime, and that this is even more important in prosecutions for possession. Furthermore, McFadden argues that, because prosecutions for possession or distribution of controlled substance analogues effectively treat these substances as controlled substances, the same burden of proof should apply to both controlled substance analogues and controlled substances. Moreover, McFadden argues that, as a matter of tradition, the criminal common law imposes mens rea requirements to avoid potentially over-inclusive definitions of offenses, and that express mens rea requirements are presumptively applicable to every element of a crime. On this point, McFadden also asserts that the rule of lenity applies to statutes that are ambiguous, which requires a higher burden of proof in this case. Lastly, McFadden contends that not requiring the government to prove knowledge of a substantial similarity in chemical substance would result in reading the Analogue Act as imposing strict liability for offenses thereunder.

The United States concedes that the government can prove guilt under the Analogue Act by proving that a defendant knowingly possessed a controlled substance analogue but argues that proof that a defendant knew of the chemical structure of a controlled substance is not the only means of satisfying its burden of proof. First, the United States disputes McFadden’s textual argument, asserting that the Analogue Act, textually and structurally, does not require expanding the Controlled Substances Act’s requirement of knowledge to apply to the Analogue Act. The United States points out that the mental state requirement that McFadden attempts to apply to the Analogue Act is not contained within the Analogue Act itself, and other sections of the same code contain different mental state requirements Moreover, the United States asserts that the government may satisfy its burden of proving the defendant’s knowledge merely as to the “illegal or regulated status” of a substance rather than its specific chemical structure. To satisfy this burden, the United States contends, the government may utilize circumstantial evidence, such as furtive conduct or concealment tending to show that the defendant knew that a substance was illegal.

IS THE ANALOGUE ACT UNCONSTITUTIONALLY VAGUE?

McFadden contends that if the Analogue Act does not require proof of knowledge that the chemical composition of a substance constitutes a controlled substance analogue, then the Analogue Act would be rendered unconstitutionally vague as applied. Specifically, McFadden claims that this reading of the statute violates the requirement under the Due Process Clause that a criminal statute must be sufficiently definite such that “ordinary people can understand what conduct is prohibited.” On this point, McFadden asserts that an ordinary person would not be able to know whether a given substance was “substantially similar” to a controlled substance. McFadden explains that this would require knowledge of hundreds of controlled substances that the substance in question might be an analogue to.

In contrast, the United States asserts that not only did McFadden not properly raise the constitutional vagueness argument in his petition for certiorari, but also that McFadden’s argument on this point is incongruent with his main argument that the government should be required to prove knowledge of chemical structure. To begin, the United States notes that McFadden argues that the Analogue Act fails to provide notice of illegality because it uses the words “substantially similar.” But, as the United States explains, the “concept of similarity” is often used in legislation, and has been proven workable at trials, where jurors as well as experts have understood the concept without problems. Thus, the United States argues, just because people may disagree as to how to interpret the concept once it is applied to a particular set of facts, does not make the concept vague. Furthermore, the United States contends that even if the statute did pose risks of unconstitutional vagueness, applying the government’s asserted standard—requiring knowledge of illegality or regulated status—would mitigate these concerns.

WOULD PROOF OF KNOWLEDGE THAT THE CHEMICAL COMPOSITION OF A SUBSTANCE CONSTITUTED A CONTROLLED SUBSTANCE ANALOGUE FURTHER THE PURPOSE OF THE ANALOGUE ACT?

McFadden asserts that requiring proof of knowledge that the chemical composition of a substance constitutes a controlled substance analogue would not frustrate the purpose of the Analogue Act. To this end, McFadden points out that the government has been able to successfully prosecute the intended “targets” of the Analogue Act. Specifically, McFadden asserts that the legislative history behind the act reveals that these intended “targets” were the “underground chemists” responsible for manufacturing controlled substance analogues along with their employers. Because of this, McFadden contends that his reading of the statute is necessary to avoid an over-inclusiveness that would include prosecutions of legitimate chemists whom are merely investigating what may turn out to be controlled substance analogues. Furthermore, McFadden contends that the government may take steps towards making their prosecutorial burden of showing a defendant’s knowledge easier in this context; for example, by notifying individuals that they are selling analogues and then prosecuting them if they continue to do so. On this point, McFadden also notes that the Drug Enforcement Administration may publicize the currently secret lists of analogues as an alternative to providing individual notice, or promulgate schedules containing new controlled substances.

In response, the United States contends that requiring proof that a defendant knew that the chemical composition of a substance constituted a controlled substance would undermine the purpose of the Analogue Act, which is specifically to prosecute drug producers that design drugs with the intent to evade the Controlled Substances Act. With this legislative intent in mind, the United States argues that McFadden’s narrow reading of the Analogue Act would frustrate the congressional effort to combat dangerous drugs. The United States explains that this is because under such view, drug manufacturers would be able to mitigate the likelihood of street-level prosecutions by withholding information regarding chemical composition to street-level drug dealers. Conversely, the United States asserts that its reading of the statute would not be over inclusive, because it would be limited to prosecuting defendants that either knew that a substance contained a controlled substance analogue, or contained a regulated or illegal substance.