United States v. Stephen McFadden
753 F.3d 432
4th Cir.2014Background
- Stephen D. McFadden was indicted and convicted by a jury on one count of conspiracy and eight counts of distribution for selling "bath salts" (mixtures containing 4‑MEC, MDPV, and methylone) alleged to be controlled substance analogues under the Controlled Substance Analogue Enforcement Act (21 U.S.C. §§ 802(32)(A), 813).
- DEA chemical analyses found MDPV, methylone, and 4‑MEC in batches seized from a Charlottesville video store supplied by McFadden; some batches contained only 4‑MEC.
- Government experts (a DEA chemist and a DEA pharmacologist) testified that 4‑MEC and MDPV are substantially similar in chemical structure and pharmacological effect to methcathinone, and methylone is substantially similar to MDMA (ecstasy).
- Defense expert disputed the government experts’ methodologies and conclusions; the jury credited the government experts and convicted McFadden on all counts.
- District court sentenced McFadden to 33 months’ imprisonment (below Guidelines). McFadden appealed arguing vagueness of the Act as applied, several evidentiary rulings, a requested scienter jury instruction, and insufficiency of the evidence that the substances were analogues.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (McFadden) | Held |
|---|---|---|---|
| Constitutional vagueness of the Act ("substantially similar" and "human consumption") | Statute provides workable standards; expert comparisons and defendant’s statements demonstrate notice | Terms are standards‑based and vague; lack of a list of prohibited substances and website confusion left him without notice | Rejected: statute not vague as applied; chemical diagrams, intent to supply for human use, and ordinary meaning of "human consumption" provide notice (Klecker controlling) |
| Admissibility of user testimony (Toby Sykes) about bath salts’ effects | Testimony is relevant to pharmacological similarity; packaging/time overlap links purchases to McFadden’s supply | Testimony irrelevant because uncertainty whether salts Sykes used were McFadden’s or in same form/dose | Admitted: district court did not abuse discretion; foundation (packaging, overlapping time) made testimony relevant; weight for jury |
| Admission of recorded calls between McFadden and store operator | Recordings relevant to human consumption and pharmacological similarity; show intent and comparisons to controlled drugs | Comparisons in calls were irrelevant to chemical‑structure comparisons used by the government | Affirmed: even if not relevant to pharmacological similarity, recordings were independently relevant to human consumption element |
| Jury instruction on knowledge scienter (asked to instruct government must prove defendant knew or strongly suspected substances were analogues) | (Gov’t) Statute requires only intent for human consumption; no circuit rule imposing knowledge that substance is an analogue | McFadden sought instruction requiring proof he knew or strongly suspected the substance had the essential characteristics of an analogue | Denied: Fourth Circuit requires intent for human consumption but not a specific knowledge‑of‑analogue requirement; requested instruction incorrect in this circuit |
| Sufficiency of evidence that substances were controlled substance analogues | Expert testimony and supporting evidence establish chemical and pharmacological similarity (esp. 4‑MEC, MDPV to methcathinone) | Government experts unreliable; defense expert undermines conclusions so evidence insufficient | Affirmed: viewing evidence in government’s favor, substantial evidence supports convictions for 4‑MEC and MDPV analogues; methylone need not be resolved because counts alleged conjunctive alternatives |
Key Cases Cited
- United States v. Klecker, 348 F.3d 69 (4th Cir. 2003) (upholding application of the Analogue Act and rejecting similar vagueness challenge)
- Kolender v. Lawson, 461 U.S. 352 (1983) (vagueness doctrine: statutes must give ordinary people notice and avoid arbitrary enforcement)
- Chapman v. United States, 500 U.S. 453 (1991) (statute not void for vagueness merely because it lacks definitions for every term)
- United States v. Hodge, 321 F.3d 429 (3d Cir. 2003) (describing Act’s purpose to reach designer drugs)
- United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005) (contrasting circuit rule that imposes a knowledge requirement for analogue convictions; discussed and declined by Fourth Circuit in this case)