United States v. Wheat, 1:17-cr-00229

Background

Grand jury returned an 18-count superseding indictment against Jared Wheat, Hi‑Tech Pharmaceuticals, and one other; Counts 10–18 (challenged here) allege FDCA and CSA violations tied to Hi‑Tech products (Choledrene and five “Prohormone Products”).
Counts 10–11 allege Choledrene contained lovastatin making it a misbranded drug; Count 10 charges a §371 conspiracy to introduce misbranded drugs into interstate commerce.
Count 12 alleges a conspiracy to manufacture/distribute Schedule III anabolic steroids; Counts 13–18 charge specific FDCA and CSA violations related to five Prohormone Products allegedly containing anabolic steroids.
Defendants moved to dismiss: (1) Counts 10–18 for selective prosecution, arguing other similar manufacturers aren’t prosecuted; (2) Counts 12–18 for failure to allege a criminal drug quantity (only trace amounts detected); and (3) Count 10 for failure to allege a conspiracy with at least two human actors.
The magistrate judge reviewed legal standards (selective prosecution two‑prong test; indictment sufficiency limit on pretrial evidentiary review) and denied all three dismissal motions, recommending the government produce names of known unindicted co‑conspirators.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Selective prosecution of Counts 10–18	Gov’t properly exercised discretion to prosecute alleged FDCA/CSA violations	Wheat/Hi‑Tech: others sell similar red yeast rice/DHEA products but only they were prosecuted; prosecution retaliatory for contesting FDA	Denied — defendants failed to show similarly situated comparators or clear evidence of discriminatory motive; speculative assertions insufficient
Whether indictment must allege drug quantity for CSA counts (12–18)	Government: penalties here not quantity‑dependent; indictment language tracks statutes	Defendants: only trace amounts found, quantity is element (citing Alleyne/Apprendi) and thus must be alleged	Denied — quantity not an element where penalties don’t vary by amount; court may not resolve evidentiary sufficiency pretrial; indictment is facially sufficient
Sufficiency of conspiracy pleading in Count 10 (need two human actors)	Gov’t: indictment alleges defendants conspired with “other persons known and unknown”	Defendants: only Wheat and Hi‑Tech named; a conspiracy requires two human minds	Denied — naming unknown coconspirators is permissible; indictment alleges agreement among two or more persons; proof at trial is a separate question
Requests for discovery/grand jury materials on selective prosecution/quantity	Gov’t: no obligation absent particularized need	Defendants: seek evidentiary hearing, discovery, grand jury transcript	Denied — defendants failed to satisfy heavy burden for discovery/hearing or particularized need for grand jury materials

Key Cases Cited

United States v. Armstrong, 517 U.S. 456 (prosecutorial charging discretion is presumed regular; selective prosecution requires clear evidence)
Wayte v. United States, 470 U.S. 598 (exercise of protected rights is a forbidden basis for prosecution selection)
United States v. Brantley, 803 F.3d 1265 (11th Cir.) (describing narrow judicial role reviewing prosecutorial discretion)
United States v. Smith, 231 F.3d 800 (11th Cir.) (defines similarly situated comparator test)
United States v. Jordan, 635 F.3d 1181 (11th Cir.) (demanding evidentiary showing required for selective prosecution discovery/hearing)
United States v. Sharpe, 438 F.3d 1257 (11th Cir.) (limit on pretrial dismissal: court reviews face of indictment only)
United States v. Critzer, 951 F.2d 306 (11th Cir.) (district court may not dismiss indictment based on evidentiary insufficiency pretrial)
Apprendi v. New Jersey, 530 U.S. 466 (facts increasing statutory maximum must be submitted to jury)
Alleyne v. United States, 570 U.S. 99 (facts that increase mandatory minimum must be submitted to jury)
United States v. Sanchez, 269 F.3d 1250 (11th Cir.) (indictment need not allege specific drug quantity when penalties aren’t quantity‑dependent)