Maged Muthanna Saleh Qasoon v. State of Mississippi
2016-KA-01330-COA
| Miss. Ct. App. | Dec 12, 2017Background
- Defendant Maged Qasoon sold ~8 grams of synthetic “spice” to a confidential informant; the transaction was video-recorded.
- Lab analysis identified the sample as “AB‑FUBINACA or a related isomer.”
- Indictment charged sale of “AB‑FUBINACA, a Schedule I controlled substance,” and cited § 41‑29‑113(c)(L) (scrivener’s error omitted (55)).
- Defense at trial: defendant lacked knowledge that the substance was illegal and emphasized novelty of the drug and its recent scheduling.
- On appeal Qasoon raised: (1) statute is unconstitutionally vague; (2) indictment insufficient for using the code/trade name and omitting “or a related isomer”; (3) insufficiency of evidence/variance between indictment and proof.
Issues
| Issue | Qasoon’s Argument | State’s Argument | Held |
|---|---|---|---|
| Vagueness of controlled‑substances schedule | Statute is vague because it controls isomers and analogues, so a person cannot know whether an innocuous compound might be proscribed | Claim waived and, on merits, no plausible vagueness here given facts showing psychoactive product and contextual indicia of illicit drug | Waived for inadequate briefing; meritless on facts — not vague as applied |
| Indictment sufficiency (naming substance) | Indictment erroneously used the name “AB‑FUBINACA” instead of the statute’s chemical description | Using common/code name is acceptable; indictment gave reasonable notice and defense was not prejudiced; subsection citation error was minor | Barred by failure to object at trial; in any event not defective — name was adequate notice |
| Indictment/Proof variance (omitted “or a related isomer”) | Proof showed AB‑FUBINACA or a related isomer, but indictment alleged only AB‑FUBINACA, creating fatal variance | Variance was immaterial because statute criminalizes isomers and the difference did not affect defense preparation | Procedurally waived; substantively not a material variance — conviction supported |
| Sufficiency of evidence (as distinct from variance) | Jury instruction and proof did not perfectly match lab wording, so evidence insufficient | Evidence (recording, sale context, lab result, statements about potency) supported conviction regardless of isomer wording | Insufficient‑challenge fails: evidence legally sufficient for jury; conviction affirmed |
Key Cases Cited
- Fulgham v. State, 47 So. 3d 698 (Miss. 2010) (vagueness claims may be raised on appeal)
- Nolan v. State, 182 So. 3d 484 (Miss. Ct. App. 2016) (void‑for‑vagueness test and application)
- Gilmer v. State, 955 So. 2d 829 (Miss. 2007) (trade/code names may substitute for chemical descriptions in indictments)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (sufficiency review assesses whether evidence was legally sufficient to go to jury)
- Burrows v. State, 961 So. 2d 701 (Miss. 2007) (variance is material only if it affects defendant’s substantive rights)
- Roney v. State, 120 So. 445 (Miss. 1929) (illustrative older precedent that nonidentical proof may still satisfy indictment when same offense is shown)