UNITED STATES of America, Plaintiff-Appellee v. Steven Miles SULLIVAN, Defendant-Appellant.
No. 12-1754.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 13, 2012. Filed: May 20, 2013.
Rehearing Denied July 9, 2013.
714 F.3d 1104
Because the district court previously had adjudicated the issue of subject matter jurisdiction and Sandy Lake did not appeal from that decision or exhaust its administrative remedies, we do not reach the merits of Sandy Lake‘s appeal. We also do not pass judgment on whether the district court‘s decision in Sandy Lake I was correct, for “issue preclusion prevents relitigation of wrong decisions just as much as right ones.” Ginters v. Frazier, 614 F.3d 822, 830 (8th Cir.2010) (Colloton, J., dissenting) (citing Clark v. Clark, 984 F.2d 272, 273 (8th Cir.1993)). We affirm, modifying the dismissal to be without prejudice. We deny the motion of the Mille Lacs Band of Ojibwe for leave to file an amicus brief and appendix.
Nancy A. Svoboda, AUSA, argued, Omaha, NE, for Appellee.
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
BYE, Circuit Judge.
Stephen Miles Sullivan was convicted by a jury of possession with intent to distribute a controlled substance analogue in violation of
I
After police seized powder containing 4-methylmethcathinone (mephedrone) from Sullivan‘s vehicle during a traffic stop, the government charged Sullivan with possession with intent to distribute a controlled substance analogue.
At trial, Officer Jason Parsons, who had arrested Sullivan, testified about the stop. According to Parsons, he had asked during the stop if there was anything illegal in the vehicle and Sullivan had responded that the vehicle contained bath powder. Trial Tr. 183. During a subsequent search of the
The white powder contained mephedrone, a chemical analogue of methcathinone. Trial Tr. 48. Methcathinone was at the time of the arrest and remains a Schedule I controlled substance.2 Id. At the time of the arrest, Nebraska state law did not prohibit the sale of mephedrone. Id. at 148. Mephedrone was, however, illegal at the time as a controlled substance analogue under the Controlled Substance Analogue Enforcement Act (CSAEA) to the extent distributors intended it for human consumption. Id. at 40, 53, 90.
At trial, Drug Enforcement Agency (DEA) unit chief Liqun Wong testified about the DEA‘s knowledge regarding mephedrone. According to Wong, at the time of the arrest, mephedrone had been an emerging drug which was widely distributed and abused on the illicit market. Id. at 50. Distributors purchased powder containing mephedrone in bulk and repackaged it into ready-to-use packages. Id. at 51. The packages were misleadingly labeled as bath salts and commonly sold in head shops.3 Id. According to Wong, “no one” had purchased the mephedrone powder with the intent of using it in baths. Id. at 52. People consumed the mephedrone powder to obtain a pharmacological “high.” Id. at 49.
Wong also testified that even though mephedrone powder had been sold labeled as bath salts, the packaging indicated the powder had not been intended for use in baths. Id. at 52. Labeling on mephedrone powder packages indicated the user could obtain a legal “high.” Id. In addition, manufacturers had not been required to list the ingredients of mephedrone powder on the package label. Id. at 42.
Officer Christopher Vigil, an undercover narcotics officer, also testified. According to Vigil, the Lincoln Police Department had received information that increasing numbers of people were ingesting bath salts to obtain a pharmacological “high.” Id. at 141. Vigil had investigated the sale of bath salts in head shops in the Lincoln area. Id. The head shops sold two types of products labeled as bath salts, large crystals and white powders. Id. at 141-42. Vigil believed the powder bath salts were being consumed to obtain a pharmacological “high.” Id. at 141. The head shops sold the powder bath salts in 2“x2” sealable plastic bags bearing vague labels which did not list the ingredients of the contents. Id. at 142, 147.
The jury ultimately convicted Sullivan and this appeal followed.
II
On appeal, Sullivan challenges the sufficiency of the evidence supporting
To convict Sullivan of possession of a controlled substance analogue with intent to distribute, the jury was required to find (1) Sullivan possessed mephedrone, a controlled substance analogue, (2) Sullivan knew he was in possession of a controlled substance analogue, and (3) Sullivan intended to distribute some or all of the controlled substance analogue for human consumption. Appellee‘s Add. 6. Sullivan does not challenge the sufficiency of the evidence that mephedrone was a controlled substance analogue, that he possessed it, or that he intended to distribute it.
Sullivan contends the evidence was insufficient to prove he knew mephedrone was a controlled substance analogue. Sullivan argues it was impossible for him to have known mephedrone was a controlled substance analogue at the time he was arrested because the DEA had not yet classified it as a controlled substance analogue.4 The CSAEA does not, however,
A reasonable juror could find Sullivan knew he was in possession of a controlled substance analogue. When Parsons asked Sullivan whether the vehicle contained anything illegal, Sullivan told him the vehicle contained bath powder. Trial Tr. 183. At the time of the arrest, the mephedrone in the powder was illegal only under the CSAEA as a controlled substance analogue. Id. at 40, 53, 90. Accordingly, Sullivan indicating the bath powder was illegal supports a reasonable inference he knew the powder contained a controlled substance analogue.
Sullivan also contends the evidence was insufficient to prove he intended the mephedrone for human consumption, arguing the labels stated the bath powder was not for human consumption. A label indicating a substance is not for human consumption is not dispositive evidence of the distributor‘s intent. See United States v. Washam, 312 F.3d 926, 930 (8th Cir.2002) (affirming a conviction for distributing a controlled substance analogue even though the label on the analogue said not to ingest it, where there were other indicators the defendant intended the analogue for human consumption).
Sullivan indicating to Parsons the bath powder was illegal also supports a reasonable inference he intended the powder for human consumption. As discussed above, at the time of Sullivan‘s arrest, the mephedrone in the powder was illegal only under the CSAEA as a controlled substance analogue. However, the CSAEA expressly excludes substances to the extent the substances are not intended for human consumption.
The labels seized from Sullivan‘s vehicle also support the inference. The labels advertised a feeling of bliss from using the mephedrone powder and did not contain a list of ingredients. See Appellee‘s Add. 5. As such, the labels bore significant similarities to those described by Wong as being on packages of mephedrone powder purchased for human consumption. The labels also bore significant similarities to those described by Vigil as being on packages which, in his opinion, were being purchased for human consumption.
Based on the foregoing, we cannot conclude that no reasonable jury could have found Sullivan guilty beyond a reasonable doubt.
III
We therefore affirm the judgment of conviction.