United States v. Demott, 906 F.3d 231

Background

Defendants Gambuzza, Snell, and Demott were charged under the Controlled Substance Analogue Enforcement Act for conspiring to import and distribute two designer cathinones (4‑MMC "mephedrone" and 4‑MEC) imported from China and sold in the Syracuse area.
Evidence included intercepted communications using code words, shipments mislabelled as benign chemicals, Western Union payments, seized packages containing 4‑MEC/4‑MMC, scales/baggies, and expert testimony that the substances were chemically and pharmacologically similar to Schedule I drugs (methcathinone and MDMA).
Demott pleaded guilty and reserved a vagueness challenge; Gambuzza and Snell were tried and convicted on conspiracy and import counts (Gambuzza also convicted on money‑laundering counts).
On appeal defendants raised (1) vagueness of the Analogue Act as applied, (2) insufficiency of evidence that the substances were analogues, (3) erroneous jury instructions about the knowledge element after McFadden, and (4) prejudicial hearsay admitted through a detective's recounting of an informant's tip.
The panel affirmed Demott's conviction, rejected the vagueness and most sufficiency arguments, but vacated Gambuzza's and Snell's convictions and remanded for retrial because the district court both misinstructed the jury on the knowledge element and admitted prejudicial hearsay as to Gambuzza.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness of Analogue Act	Gov't: Act is a valid qualitative standard; precedents uphold it	Defs: statute vague as applied because no human testing and hybrid chemical/effect theory invites arbitrary enforcement	Rejected: court follows McFadden and circuit precedent; Act not unconstitutionally vague as applied here
Sufficiency that substances were "analogues"	Gov't: expert and cooperator testimony established substantial similarity in structure and pharmacological effect; conspirators represented substances as "Molly"	Defs: chemical similarity conceded but pharmacological similarity not proven	Rejected: reasonable juror could find similarity and representations sufficed
Jury instructions on mens rea (knowledge) after McFadden	Defs: court failed to instruct jury that knowledge the substance was controlled under the CSA/Analogue Act and additionally told jury "knowledge of the law is not an element"	Gov't: earlier instruction that defendants knew substances were "controlled or regulated by federal drug abuse laws" sufficient; some circumstantial proof allowed	Partial error: instruction that defendants knew substances were "controlled or regulated by federal drug abuse laws" was acceptable, but explicit statements that "knowledge of the law is not an element" were inconsistent with McFadden and prejudicial — requires new trial for Gambuzza and Snell
Admission of informant hearsay	Gov't: testimony explained investigator's background for investigation, not offered for truth	Defs: detective relayed informant's statements that Gambuzza was a primary distributor and implicated him in a planned robbery — highly prejudicial hearsay	Error and prejudicial as to Gambuzza: statements should not have been admitted for their truth; cannot conclude harmlessness; conviction vacated for retrial

Key Cases Cited

McFadden v. United States, 135 S. Ct. 2298 (Sup. Ct. 2015) (analogue prosecutions require proof defendant knew he was dealing in a "controlled substance")
Kolender v. Lawson, 461 U.S. 352 (U.S. 1983) (vagueness test: fair notice and protection against arbitrary enforcement)
Sessions v. Dimaya, 138 S. Ct. 1204 (U.S. 2018) (qualitative criminal standards can be constitutional)
United States v. Roberts, 363 F.3d 118 (2d Cir. 2004) (upholding Analogue Act against vagueness challenges)
United States v. Ansaldi, 372 F.3d 118 (2d Cir. 2004) (interpretive discussion of knowledge element under the Analogue Act)
Neder v. United States, 527 U.S. 1 (U.S. 1999) (harmless error standard for instructional error)