Whether, to convict a defendant of distribution of a controlled substance analogue, the government must prove the defendant knew that the substance constituted a controlled substance analog, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.
Lower court decision: United States v. McFadden, 753 F.3d 432 (4th Cir. 2014)
The question presented pretty much says it all, with a succinct statement of the issue and the circuit split. The Seventh Circuit’s decision requiring the government to prove the defendant knew the substance was a controlled substance analogue is United States v. Turcotte, 405 F.3d 515, 524-28 (7th Cir. 2005). The Court’s decision in this case will either confirm or overrule the Seventh Circuit’s rule.
As for state law: Wisconsin’s controlled substance law also regulates controlled substance analogs, as defined in § 961.01(4m), in 1995 Wis. Act 448. No Wisconsin case addresses the issue presented in this case, but the Criminal Jury Instruction Committee has concluded that “since regular controlled substance offenses require a knowledge element, a similar element should be included” for offenses relating to analogs, Wis. J.I.—Criminal 6020A, Comment & n.6 (2009). See also Wis. J.I.—Criminal 6000 (2009) and 6005 (2009). Thus, like the Seventh Circuit in Turcotte, 405 F.3d at 527, the Committee concluded the jury should be instructed that the state must prove two things: first, that the defendant knew or believed that the chemical structure of the substance was substantially similar to a controlled substance; and, second, that the defendant either knew or believed that the physiological effect of the substance was substantially similar to the effect of that controlled substance, or that he represented or intended it to have that effect. Wis. J.I.—Criminal 6020A.
The source for the general scienter requirement for controlled substances crimes is based on case law in Wisconsin (see, e.g., State v. Sartin, 200 Wis. 2d 47, 546 N.W.2d 499 (1996)), while under federal law it is based on statute (21 U.S.C. § 841(a)). Nonetheless, the Court’s decision in this case would no doubt guide our courts’ interpretation of the analog regulations under ch. 961, should anyone ever challenge the Jury Instruction Committee’s conclusions.
