917 F.3d 1035
8th Cir.2019Background
- Palmer and Leinicke ran a scheme importing synthetic drug chemicals from China in mislabeled containers, converting them into sellable products labeled "not for human consumption," and distributing them as "Black Arts," "Devil's Dank," etc.
- Indictment charged conspiracy to distribute Schedule I controlled substances and controlled substance analogues under the Analogue Act, naming six specific analogue compounds and alleging periodic chemical substitutions to evade scheduling.
- Government experts testified at trial that each named compound was chemically and pharmacologically substantially similar to a listed controlled substance; defense expert disagreed.
- Defendants moved to dismiss arguing the Analogue Act is unconstitutionally vague and raised an as-applied vagueness challenge; Palmer additionally argued the indictment failed to allege his knowledge that the chemicals were covered by the Act.
- The district court denied the motion; on appeal the Eighth Circuit reviewed the vagueness challenge de novo and assessed sufficiency of the indictment to allege knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Analogue Act is facially void for vagueness | Act vague because terms like "substantially similar" are indeterminate; Johnson decision requires invalidation | Act is constitutional; scienter requirement and qualitative standards cure vagueness | Act not facially vague; McFadden and circuit precedent control |
| Whether Johnson requires invalidation of the Analogue Act | Johnson's invalidation of ACCA residual clause extends to Analogue Act because of categorical reasoning | Johnson does not apply; Analogue Act uses qualitative real-world inquiry, not categorical residual-clause analysis | Johnson does not undermine McFadden; Analogue Act survives |
| Whether the Act is vague as applied to defendants | A reasonable person cannot tell if a compound's structure or effect is "substantially similar"; statute underinclusive re: effects | Experts established substantial structural and pharmacological similarity for each compound; disagreement among experts insufficient | As-applied challenge fails; defendants did not show lack of notice under the facts |
| Whether the indictment adequately alleged Palmer's knowledge | Palmer lacked notice that chemicals were analogues; indictment insufficiently specific about his knowledge | Indictment alleged importation of specific compounds, deliberate substitution to avoid scheduling, intent for human consumption — supporting knowledge | Indictment sufficiently alleged Palmer's knowing participation and knowledge that conduct violated the Act |
Key Cases Cited
- McFadden v. United States, 135 S. Ct. 2298 (2015) (Analogue Act upheld against vagueness challenge; scienter narrows scope)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause invalidated for vagueness)
- United States v. Carlson, 810 F.3d 544 (8th Cir. 2016) (applies McFadden to reject vagueness challenge to Analogue Act)
- United States v. Berger, 553 F.3d 1107 (8th Cir. 2009) (Analogue Act not unconstitutionally vague)
- United States v. Klecker, 348 F.3d 69 (4th Cir. 2003) (circuits uniformly reject Analogue Act vagueness challenges)