United States v. Stephen McFadden
2016 U.S. App. LEXIS 9150
| 4th Cir. | 2016Background
- McFadden was convicted at trial of one count of conspiracy and eight counts of distributing "bath salts" alleged to be controlled substance analogues (MDPV, methylone, 4‑MEC) under the Analogue Act and CSA; he appealed and the Supreme Court granted certiorari.
- The Supreme Court held that a conviction under the Analogue Act requires proof that the defendant knew either the substance’s legal status or the specific features (chemical structure/physiological effects) that make it an analogue, and remanded for harmless‑error review.
- At trial the jury was instructed on the chemical‑structure and physiological‑effect elements and intent for human consumption, but was not instructed to find McFadden’s knowledge of legal status or knowledge of those specific features.
- The record includes recorded phone calls beginning August 25, 2011 in which McFadden discusses chemical names (MDPV, 4‑MEC), blends, and compares effects to cocaine/meth; laboratory analysis matched those descriptions.
- McFadden presented evidence that he consulted the DEA schedule list, labeled packages disclaiming Schedule I compounds, and stopped selling MDPV/methylone after they were scheduled—evidence he claimed showed he believed his conduct lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of the knowledge element from jury instructions was harmless error | Gov: Error harmless because overwhelming evidence showed McFadden knew either legal status or specific features | McFadden: Jury should have decided his credibility; evidence was contestable so error was not harmless | Partial harmless error: harmless for some counts but not others |
| Whether overwhelming evidence showed McFadden knew the substances were regulated (knew legal status) | Gov: Packaging, sales methods, disclaimers, comparisons to cocaine/meth and attempts to conceal show knowledge of illegality | McFadden: He took steps to avoid selling scheduled drugs and believed his products were lawful | Not overwhelming; evidence was genuinely contested, so cannot establish harmlessness under this method |
| Whether overwhelming evidence showed McFadden knew the specific analogue identities or features (chemical structure/effects) | Gov: Recorded calls and lab tests show he knew chemical names, blends, and effects — knowledge established by Aug 25, 2011 | McFadden: Claims calls are sales talk and he lacks scientific training; jury should assess credibility | Overwhelming as of Aug 25, 2011; harmless error for counts after that date (Conspiracy and Counts Five–Nine) |
| Remedy for counts shipped before Aug 25, 2011 (Counts Two–Four) | Gov: Same evidence should suffice to affirm all counts | McFadden: No direct evidence of knowledge before Aug 25; jury could have found no knowledge earlier | Error not harmless as to Counts Two–Four; convictions vacated and remanded; other convictions affirmed and remanded for resentencing |
Key Cases Cited
- Neder v. United States, 527 U.S. 1 (1999) (omission of an element from jury instructions requires harmless‑error review)
- Chapman v. California, 386 U.S. 18 (1967) (government must show error did not contribute to verdict beyond a reasonable doubt)
- Sullivan v. Louisiana, 508 U.S. 275 (1993) (guilty verdict must be shown "surely unattributable" to instructional error)
- McFadden v. United States, 135 S. Ct. 2298 (2015) (Analogue Act requires proof of knowledge of legal status or specific analogue features)
- United States v. Klecker, 348 F.3d 69 (4th Cir. 2003) (prior Fourth Circuit interpretation of Analogue Act at trial)
- United States v. Brown, 202 F.3d 691 (4th Cir. 2000) (error not harmless where omitted element was genuinely contested)
- United States v. Davis, 202 F.3d 212 (4th Cir. 2000) (omitted element may be harmless where evidence of that element is overwhelming)
- United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005) (jury may, but is not required to, infer knowledge of chemical similarity from evidence of knowledge of effects)