Argument preview: The tricky mens rea requirements for federal narcotics cases
on Apr 17, 2015 at 1:51 pm
The question for the Court in McFadden v. United States, scheduled for oral argument next Tuesday, is not whether the court of appeals below got it wrong – even the government concedes that it did. No, the question for the Court on Tuesday is, instead, what is the right answer. And the mind-bending intricacies of mens rea doctrine raised by the case are likely to lead the Court into nuanced and difficult-to-understand questions – and ultimately to division. (Recall the mens rea arguments and divided opinions in Rosemond v. United States last Term.)
The mens rea required for a federal narcotics prosecution is deceptively simple: 21 U.S.C. §841(a) provides that “it shall be unlawful for any person knowingly … to distribute … a controlled substance” (my emphasis). But because the criminalization of controlled substances is controversial in many quarters, and the penalties are viewed by some as harsh – and because the human appetite for psychotropic substances seems inexhaustible — every legal nuance tends to be hard-fought in a narcotics prosecution case. Thus it is with Section 841 mens rea: what exactly does the government have to prove a defendant “knew,” in order for a jury to convict? The exact chemical formula of the substance distributed? That the substance is actually on the statutory list? That the substance is a “narcotic” drug? Or just that he was distributing something people enjoy consuming? (Which, as alcohol demonstrates, can’t be the case.)
Now add to these questions the creativity of a chemist. That is, by twisting one molecule, or substituting one similar chemical for another, chemists who are so inclined can create substances that “mimic” the narcotic effects of a controlled substance, but are different. Thus drugs can be created that authorities view as dangerous, but they are “not on the list” of controlled substances banned by the federal statutes. (Elders among us will recall Dr. Timothy Leary, the famed Harvard psychologist, and his compatriots, who created LSD and shared it at “be-ins” around the country before Congress put it on the controlled list.)
To try to stay one step ahead of (or at least not too far behind) the chemists, Congress in 1986 enacted the Controlled Substance Analogue Enforcement Act, which criminalizes the distribution of “analogues” to controlled substances. 21 U.S.C. § 802(32) defines prohibited analogues as substances whose chemical structure, or whose effect on consumers, is “substantially similar” to listed controlled substances. Section 813 then provides that analogues shall be “treated as a controlled substance” for purposes of federal prosecution.
With this background, we can turn to Tuesday’s argument. McFadden was convicted under the Analogue Act, for distributing “bath salts” through a video rental store in Charlottesville, Virginia. In recorded conversations, he described various bath salts that he was selling as “like” cocaine or methamphetamine. But at his jury trial, he vigorously defended (1) whether the bath salts were, in fact, banned “analogues,” and if so, (2) whether he “knew” that they were. More specifically, McFadden requested a mens rea instruction that would have required the jury to find that he knew that (1) the chemical structure of the substances was substantially similar to a controlled substance, and (2) the substances had a “substantially similar effect” to controlled substances on intended human consumers. But the district court did not give McFadden’s instruction, and instead gave a “compromise” of its own. (McFadden says he would now be content to allow the government to prove knowledge also by proving “deliberate ignorance,” but that further intricate wrinkle is, thankfully, not central to this argument.)
It turns out that the circuits are pretty clearly split on the question of what, specifically, the government must prove to prove “knowledge” under the Analogue Act. In affirming McFadden’s conviction, the Fourth Circuit ruled that merely an “intent for … the substance to be consumed by humans” is sufficient. The government now acknowledges that this was “erroneous” because it “eliminates the requirement that the defendant knowingly distributed a controlled substance analogue.” But that concession does not, of course, provide an affirmative answer to the question: what, specifically, does the government have to prove, regarding mens rea, to convict under the Analogue Act?
Here the parties plainly disagree. (They also disagree about whether the Court could still affirm, despite the Fourth Circuit’s mistaken view, on a “harmless error” theory, an argument that is obviously important to McFadden but somewhat tail-end to the case.) McFadden argues that the government must prove the defendant knew the “characteristics” of an analogue substance – that is, that the defendant knew (or was willfully blind) that the substance had a chemical structure, as well as effect, that is “substantially similar” to a controlled substance. These requirements are drawn, argues McFadden, from the statute that defines “analogue” (21 U.S.C. § 802(32)). McFadden draws support from a 1994 decision (Staples v. United States) in which the Court ruled that a person cannot be convicted of unlawfully possessing a machine gun unless the government proves the defendant is aware of the “characteristics” that make it a machine gun (in that case, whether Staples was aware that the gun fired automatically instead of semi-automatically, a distinction made in the federal statute).
The federal government disagrees. It argues, first, that the statutory definitions of “analogue” do not “carry over” to define the mens rea requirement (“knowingly”) of Section 841(a). Instead, argues the government, it need prove only that a defendant “knew that he was dealing with some sort of regulated, controlled, or illegal drug.” In addition, the government appears to argue that the statute requires the defendant to “intend” the substance to have “a stimulant, depressant, or hallucinogenic effect” on people that is “substantially similar” to the effects of listed controlled substances. But, the government staunchly contends, the defendant need not know the “chemical structure” of his substance, let alone that it is similar to the chemical structure of listed controlled substances.
(The government describes its theory of analogue mens rea as a “knowledge-of-regulated-status approach.” McFadden contends that this argument was never presented in this form until now, and so should be considered “waived.” But waiver arguments are seldom attractive once the Court has invested time and energy into examining a difficult question for which no court of appeals seems to have provided a perfect answer. We’ll see on Tuesday if any Justice bites at this bait.)
McFadden argues that his more detailed “chemical structure” knowledge is required not just because Section 802(32) suggests it, but also because it is necessary to prevent innocent substance sellers (say, vitamin store owners or Girl Scouts) from being convicted when they do not know exactly what they are selling. The government responds that the federal statute
“does not punish innocent conduct” and that innocents will be protected by the inferential nature of proof that often is used to prove mens rea in criminal cases. (Here another old firearms decision might be relevant: Bryan v. United States, in which a defendant’s criminal mens rea could be inferred, the Court agreed, from his surreptitious conduct of selling firearms under a raincoat on a New York street corner.) Thus the government suggests that the vitamin store owner could be convicted only if “he told customers that the supplement would make them feel as if they had ingested cocaine.”
But here is where mens rea arguments, and perhaps oral argument on Tuesday, can descend into an endless whirlpool of swirling hypotheticals and nuances. Why, for example, should a vitamin store owner be convicted if, in a moment of rhetorical enthusiasm, he tells a customer that his vitamins are great and “give you an energetic rush like I haven’t felt since I did cocaine back in the 90s”? Certainly the statute does not criminalize using drug metaphors in speech, even if we find them distasteful. Perhaps the government goes too far when it suggests that a person can be convicted of a substantial drug felony by surreptitious conduct alone.
But on the other hand, it seems unlikely that Congress intended for the government to have to prove a detailed chemist’s knowledge of chemical structures in every analogue case. Otherwise, only chemists could be convicted. So the Court is left with a difficult case: a statute that is terse and opaque on specific mens rea requirements, and a wide universe of hypothetical cases that can be discussed ad infinitum.
Indeed, the specifics of mens rea – proving what was in a defendant’s mind and what, exactly, is sufficient to criminally convict beyond reasonable doubt — has bedeviled jurists and scholars for … ever. As one criminal law treatise wrote some fifty years ago, quoting a Massachusetts court from 1891, “‘Absolute knowledge can be had of very few things,’ and the philosopher might add, ‘if any.’” Justice Kennedy quoted this aphorism almost forty years ago while on the Ninth Circuit – one imagines that even he must be tired of the mental gymnastics of mens rea by now! But because mens rea is central to the criminal law, where the stakes and consequences are so high, the struggle never seems to end. On Tuesday, the Justices will struggle with the issues for sixty minutes. With experienced advocates on both sides, it may well be an entertaining, and one hopes elucidating, show. Let’s hope it generates light, as well as heat, on the tricky questions presented.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.