Opinion analysis: The required mens rea for federal narcotics offenses is getting clearer
on Jun 19, 2015 at 8:31 am
In a short, straightforward, and almost entirely unanimous opinion on Thursday, the Court in McFadden v. United States offered helpful guidance about what and how the government must prove about “mens rea” – the defendant’s mental state – in a federal narcotics prosecution. With only a small (but not unimportant) disagreement laid out in Chief Justice John Roberts’s partial concurrence, the Court unanimously agreed, in an opinion authored by Justice Clarence Thomas, on some specific mens rea rules.
More specifically, the Court addressed “analogue” drugs, statutorily defined as substances that are “substantially similar,” in chemical structure as well as effect on humans, to other “controlled substances” banned from distribution under federal law. If a substance meets the federal “analogue” definition, then anyone who “knowingly” possesses it with the intent to distribute it is guilty of a federal offense, just the same as if the substance were specifically listed on the federal statutory list. That is, not all mind-altering substances can be precisely listed in a statute. The federal Analogue Act, a statute providing a generalizable definition, is necessary because chemists will always stay one step ahead of the specific substances listed on the federal narcotics schedule.
Yesterday’s decision will likely resonate with “twenty-somethings,” who today may use analogue substances like “spice” or “bath salts” for intoxicating highs, rather than the old-fashioned drugs with which aging baby-boomers may be familiar. Indeed, in a reportedly light-hearted moment yesterday morning, Justice Thomas paused after saying that his opinion for the Court addressed “bath salts,” and was heard to remark that this was “a sentence which I completely do not understand.” Aging baby-boomers may well understand nicknames like “speed,” “coke,” “crack,” “dope” and “weed.” But bath salts and spice? Ah, the Supreme Court – constantly on the leading edge!
The mens rea result
Yesterday’s decision went as predicted: the Court not only rejected the mens rea jury instruction that the Fourth Circuit had upheld (and that the government did not defend), but it also rejected the government’s overly “broad” view. A quick summary:
The federal Controlled Substances Act (“CSA”) makes it an offense to “knowingly” possess a “controlled substance” with intent to distribute it. The Court first explained that “the word ‘knowingly’ [in this statute] applies not just to the statute’s verbs but also to the object of those verbs – ‘a controlled substance.’” Because an analogue drug is “treated as a controlled substance” under the statutes – and because the government must always prove the element of mens rea in a criminal case beyond reasonable doubt — this means the government must prove that an analogue defendant “knew” that he possessed an “analogue” substance. He does not need to know “which substance it was” — and “because ignorance of the law is typically no defense,” he need not know that the substance is statutorily prohibited. But he must know the substance was an “analogue.”
The Court then ruled that the analogue “knowledge requirement can be established in two ways” – and because mens rea jury instructions are always tricky and precise, it serves to simply quote how the Court defined these two ways: “First, … that a defendant knew that the substance with which he was dealing is some controlled substance – that is, one … treated as such by the Analogue Act.” So, for example, a person who is told by the DEA that “those bath salts are illegal analogues” might be convicted this first way. Or, “second, … that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.” The Court made clear that this second way of proving knowledge refers to the statutory “substantially similar” chemical structure and effect requirements noted above. “A defendant who possesses a substance with knowledge of those features knows all of the facts that make his conduct illegal,” even if he does not know that it is the federal Analogue Act (or any other statute) that makes it illegal.
Significant to this point, for us federal criminal law nerds, is that the Court relies on a precedent called Bryan v. United States (1998), more than Staples v. United States (1994), to explain its conclusion. Justice Thomas was the author of Staples, which had to do with how to prove that a defendant “knew” his weapon was a prohibited machine-gun, but the Court noted “an important textual distinction” between Staples and the analogue statute. Interested readers (all three of you) are directed to the opinion for further detail.
In stating its “two ways” holding, the Court rejected as too “broad” the government’s argument that a defendant can be guilty if he knew that his substance was regulated “by any law,” state, federal, or otherwise. An analogue defendant’s mens rea in a federal prosecution must meet the federal statute’s requirements. At the same time, McFadden’s over-precise argument in the other direction was also rejected: the government need not prove that the defendant knew the chemical structure of the substance, but only that he knew that it met the definition of an “analogue” as federally defined.
The Chief Justice’s “pop quiz” concurrence
The Chief Justice’s five-paragraph partial concurrence should be noted at this point. Joining the bulk of the Court’s opinion, the Chief noted that Justice Thomas at one point said that “knowledge” can be proved “by showing that the defendant knew the identity of the substance he possessed.” But the Chief Justice suggested that “a defendant needs to know more than the identity of the substance; he needs to know that the substance is controlled.” The Chief explained that when “well-known drugs such as heroin” are involved, knowledge of identity may self-evidently prove knowledge that the substance is “controlled.” But for “lesser known drugs” the same is “not necessarily true.” And then the Chief Justice, who was well known for his piercing appellate advocacy before his judicial appointment, offered a succinct “pop quiz for any reader who doubts the point: Two drugs – dextromethorphan and hydrocodone – are both used as cough suppressants. They are also both used as recreational drugs. Which one is a controlled substance?” This reader certainly did not know the answer, which was provided in a footnote: hydrocodone.
The Chief Justice’s pop quiz is fun as well as insightful. But he did not go on to detail how his suggestion would play out. And this level of detail has always been a conundrum when I teach federal criminal law: if “ignorance of the law is no defense,” but you also cannot be convicted of a federal crime unless you know a substance is “controlled,” then how can the government ever prevail without proving that the defendant knew his substance was “on the list” – that is, was aware of the federal statute and what it lists as controlled? But would that not provide an “ignorance of the law” defense that is generally denied? Consideration of mens rea at this level of specificity usually becomes a mental “Mobius strip” or “infinite loop” – a metaphysical discussion with no end, and one that the Court (and academics) has never fully resolved. The Court’s opinion deserves credit for not chasing down this rabbit hole, and thereby confusing the overwhelming number of narcotics prosecutions that do not present it. But the Chief is probably correct that “if this issue arises in a future case,” yesterday’s decision does not decisively resolve it.
Two other important aspects of yesterday’s decision
Two questions remain: what happens in future federal drug prosecutions after yesterday’s decision; and what happens to McFadden? The latter question required a remand to the Fourth Circuit, for consideration of whether the faulty mens rea jury instruction in his case requires a new trial. While it seems difficult to imagine a “harmless error” here, especially in light of Sixth Amendment Apprendi theory, the government argued it and the Court remanded the case expressly for its consideration. If not harmless, the error would lead to a new trial (or plea) for McFadden — and Justice Thomas’s brief description of the facts suggests that the Court has little sympathy for McFadden as an innocent bath salts salesman.
Similarly, for future cases generally, the Court carefully notes in not one but two footnotes (notes 1 and 3), that “circumstantial” as well as direct evidence can be used to prove a defendant’s “mental state,” and that “the Government presented such circumstantial evidence in this case.” “Concealment …, evasive behavior,” knowledge that a substance “produces a ‘high’,” or that it is “subject to seizure at customs” – all these facts can help prove knowledge beyond a reasonable doubt. It seems clear that the Court has no interest in interfering with the routine proving of “knowledge” in federal cases – it simply ruled that the government must prove it and does not get a pass on that requirement just because it is a drug case. Justice Thomas noted that after such evidence is introduced, “it will be left to the trier of fact to determine” whether the requisite knowledge has been sufficiently proved. It is (as usual) left to the lower courts to determine how, exactly, this last idea can be meshed with the “harmless error” remand which the Court also endorses here. Such are the Mobius strips of mens rea litigation that make lawyering fun.