Bath saltsTuesday’s argument in McFadden v. United States was conducted at such a high level of abstraction that it is hard to know how it will translate into specifics in trial courts and real-world cases. What was clear is that the Court will reverse and remand, likely for a new trial based on clearer jury instructions regarding the requisite mens rea in federal drug cases. But it also seemed to be clear that the government is asking for a general rule far broader than the Court is likely to endorse. Ultimately this is a case where we have to wait for the opinion to know more precisely what proper jury instructions should specifically say.

Facts of this case and the jury instruction question they present

As previewed here, McFadden sold “bath salts” which (as Justice Antonin Scalia put it at argument) “he knew would give you a high.” He also knew that the federal Controlled Substances Act (“CSA”) prohibits distribution of “controlled substances” that are on a statutory list of banned or regulated drugs – but that his bath salts weren’t on that list. The evidence also showed that McFadden acted “furtively” in conducting his business, and that he charged very high prices for bath salts – sometimes $450 an ounce, which is more than people might normally pay for things that (as the government put it) “you would actually put into a bathtub.” (Or, as Justice Ruth Bader Ginsburg said, “there’s no bath salts in the world that cost” this much.) Although Justice Scalia jokingly asked the government, to laughter, “don’t you believe in the free market?”

In McFadden’s favor, the evidence also tended to show that McFadden actually checked the list of specified controlled substances and took steps to sell only bath salts that were not on the list. When he found that one of his substances might be on the list, he flushed it down the toilet. As Kevin Russell (an experienced Supreme Court advocate who also clerked for Justice Stephen Breyer) argued for McFadden yesterday, “the evidence doesn’t show that he believed it was unlawful under the CSA because he looked at the schedules and he quite reasonably believed that if they weren’t on the schedules, they weren’t illegal.” In fact (perhaps like a good tax lawyer?), “he thought he had found a loophole in the federal drug laws.”

The problem for McFadden was that Congress has also enacted a statute (which is now part of the CSA) that bans distribution of substances that are “analogues” of any substance that is on the controlled substances list. Section 802(32)(A) of federal Title 21 defines a “controlled substance analogue” as a substance that has a “chemical structure” and an “effect” that is “substantially similar” to that of a listed controlled substance. McFadden was prosecuted, and convicted, under this statute.

Importantly, the analogue statute also incorporates the general CSA requirement that, for conviction, the federal government must prove “knowing” distribution. The Fourth Circuit affirmed McFadden’s conviction on a jury instruction which only required that he “knew” his bath salts would be consumed by humans. Upon briefing in the Supreme Court, it emerged that the government agrees with McFadden that the Fourth Circuit’s jury instruction was inadequate, and that to convict under the Analogue Act the government must also prove that a defendant “knew” he was distributing an analogue.

However, the Supreme Court’s normal role in the cases it hears is not simply to reverse and remand. It is to provide guidance, useful guidance if possible, for the thousands of federal CSA prosecutions that occur annually across the country. So the question for the Court now is, what more precisely does the government have to prove, to convict under the Analogue Act? Significantly, as Justice Ruth Bader Ginsburg noted yesterday, the question the Court will try to answer here is what should a proper jury instruction say is specifically “necessary” to convict – which is different, perhaps, from saying what evidence or what kinds of evidence might be sufficient to convict.

The government pushes a broad argument

Russell strategically chose to begin his argument by stressing how much the government agrees with him on large portions of the case. The government agrees that it must prove that the defendant knew he was distributing an analogue, and that the Fourth Circuit’s instruction was in error. The government and McFadden also agree that it is sufficient to prove that the defendant knew the chemical structure of his substance (and that it causes the requisite effect), or that he knew that the substance was illegal to distribute under the Analogue Act even if he did not know its chemical structure. McFadden also agrees that the government’s evidence in his case would be sufficient to go to a jury if the jury were properly instructed. So outright acquittal as a matter of law does not appear to be an option here.

Russell astutely debated at a high level of abstraction with the Justices for much of his argument. Although some Justices (Justices Anthony Kennedy and Antonin Scalia, for example) expressed mild disagreement with some of Russell’s nuances, there appeared to be no real fireworks. He appeared to gently maneuver the Justices into a surprisingly tight, defense-friendly view of specific mens rea rules for analogue prosecutions. Perhaps this view is simply a product of the statutory language and precedents. But it also looks like good Supreme Court advocacy.

As Russell put it toward the end of his argument, at this point “the only question here is whether there should be a new trial.” That is a question because, it turns out, the government is pushing for an extremely broad view of what a “knowing” mens rea should mean under the CSA — a view that no member of the Court appeared to be ready to accept. Sarah Harrington, an experienced assistant to the Solicitor General, began by saying that Russell was “almost correct about the extent of disagreement that’s left in this case.” She then revealed the government’s broad view: “we can prevail if we can prove that a defendant … believed that … his distribution of the drug was illegal generally.”

The word “generally” set the Justices off. And now I will summarize a number of transcript pages. Justice Breyer opened the charge. He asked Harrington whether she meant a defendant could be guilty if he thought his conduct was legal under drug laws but illegal under, say, “the Anti-Turkey Shoot Act.” Yes, Harrington essentially responded. Even if the defendant thought he was violating Cuban import laws, asked (and I am summarizing) Justice Ginsburg? Yes, Harrington again indicated. “I’m concerned about extending that,” said Chief Justice John Roberts. “Sales tax law[s],” asked Justice Scalia? Yes, again. State laws, Justice Alito asked? Yes. “[T]hat … is a theory that could be put onto any law” said Justice Kagan with concern. After which Justice Scalia finally asked “why don’t you give it up, Ms. Harrington?” When she responded, “let me try just one more time,” the transcript indicates “laughter.”

To Harrington’s credit, she did also calmly advance a “narrower articulation”: that a defendant could be convicted even if he did not know the chemical structure but he evinced knowledge that he was violating federal drug laws generally. A number of Justices appeared to embrace that view. A general belief, however, that one is violating a criminal law somewhere but not a law relating to drugs seems insufficient to prove “knowing distribution of a prohibited analogue.”

Although there was no mention of it at argument, presumably everyone in the room knew that Justice Scalia had dissented on this very point back in 1998 in Bryan v. United States. There the Court ruled that to prove that a defendant “willfully” sold guns illegally, only a general knowledge of illegality was required. But Justice Scalia contended in dissent that at the very least an “offense-specific knowledge of illegality” was required. He noted, for example, that someone who believes he is selling firearms legally, but also knows he is criminally double-parked, ought not be convicted of a federal firearms offense. This specific point was not really at issue in Bryan (at least not as I teach it), and Justice Stevens, the author of Bryan, is gone from the Court. His successor, Justice Sonia Sotomayor, seemed to indicate that she would agree with the government’s “narrower” view (and, indeed, I think Justice Stevens would too, had it been necessary to the question presented in Bryan). Justice Scalia’s long-ago view in Bryan was undoubtedly floating above the advocates during Tuesday’s argument.


Reversal here seems inevitable because the government agrees that the jury instruction was wrong. And because it has now considered the case, the Court will hopefully also provide useful guidance for jury instructions in federal analogue prosecutions. It seems clear that Congress’s goal was to convict not only chemists, but also others who knowingly distribute chemicals they know produce drug-like effects. How precisely to write such jury instructions is a tricky question, and it will probably remain difficult for trial courts even after the opinion in this case is filed. But a carefully written majority opinion should help.

But what about McFadden personally? The government argued in its brief that the Court should affirm his conviction on a “harmless error” theory. Russell disagreed, arguing that that “would be exceedingly unfair” when the legal theory that the government now presents “wasn’t ma[de] at trial.” Justice Sotomayor asked on Tuesday why the Court shouldn’t “leave this to the court below to figure out,” and by the time she asked, Harrington seemed happy to answer that “we wouldn’t have any problem with the Court doing that.” Russell, however, would prefer a ruling from the Supreme Court, now, that he must be given a new trial (if not acquitted as a matter of law), because the government’s theory and the jury instructions were wrong and McFadden’s defense case and arguments were structured around them. How the Court handles this final question may be as interesting as the manner in which it describes the proper jury instructions for the country.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. However, the author of this post is not affiliated with the law firm.]

Posted in McFadden v. U.S., Featured, Merits Cases

Recommended Citation: Rory Little, Argument analysis: Is the government pushing a bridge too far regarding federal drug prosecutions?, SCOTUSblog (Apr. 23, 2015, 10:07 AM),