US v. Stephen McFadden

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cr-00009-GEC-1. [999827522]. [13-4349]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4349

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN DOMINICK MCFADDEN, a/k/a Stephen Domin McFadden,
Defendant - Appellant.

On Remand from the Supreme Court of the United States.
(S. Ct. No. 14-378)

Argued:

March 22, 2016

Decided:

May 19, 2016

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.

Affirmed in part, vacated in part, and remanded by published
opinion.
Judge Keenan wrote the opinion, in which Chief Judge
Traxler and Judge Wilkinson joined.

ARGUED:
J.
Lloyd
Snook,
III,
SNOOK
&
HAUGHEY,
P.C.,
Charlottesville, Virginia, for Appellant.
Anthony Paul Giorno,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, Ronald M. Huber, Assistant United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.

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BARBARA MILANO KEENAN, Circuit Judge:
In this case, which is before us for a second time, we
consider whether certain erroneous jury instructions given at
trial require us to vacate Stephen D. McFadden’s convictions.
After

a

jury

distribute

trial,

McFadden

controlled

was

substance

convicted

analogues

of

and

conspiring

of

to

distributing

controlled substance analogues in violation of the Controlled
Substance Analogue Enforcement Act of 1986 (the Analogue Act),
21 U.S.C. §§ 802(32)(A), 813, and the Controlled Substances Act
(CSA), 21 U.S.C. §§ 841(a), 846.
we

affirmed

the

district

In McFadden’s initial appeal,

court’s

judgment,

petitioned the Supreme Court for certiorari.

and

McFadden

The Supreme Court

granted certiorari, concluded that the jury instructions given
at

trial

improperly

omitted

elements

relating

to

McFadden’s

state of mind, and remanded this case for us to consider whether
the error was harmless.
On remand, we conclude that the erroneous jury instructions
constituted

harmless

error

with

respect

to

McFadden’s

convictions under Counts One, Five, Six, Seven, Eight, and Nine
of the superseding indictment.

However, we conclude that the

error was not harmless with respect to McFadden’s convictions
under Counts Two, Three, and Four.

We therefore affirm in part,

vacate in part, and remand the case for further proceedings in
the district court.
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I.
A.
We begin by providing an overview of the relevant federal
statutes
their

and

regulations

analogues.

The

governing

CSA

controlled

prohibits

the

substances

distribution

and

of

a

“controlled substance,” 21 U.S.C. § 841, and defines “controlled
substance”

to

mean

any

drug

or

substance

included

in

five

schedules, Schedule I through Schedule V, established by the
CSA.

21 U.S.C. §§ 802(6), 812(a).
on

Schedule

Distribution of controlled

substances

listed

I

carries

penalties.

21 U.S.C. § 841(b)(1)(C).

strict

criminal

The Attorney General also

has the authority to add substances to or remove substances from
the CSA schedules by rule.

21 U.S.C. § 811(a).

The up-to-date

schedules are codified in the Code of Federal Regulations.

See

21 C.F.R. §§ 1308.11–1308.15.
Congress
distribution

enacted
of

newly

the

Analogue

created

drugs,

Act
not

to
yet

prevent
listed

on

the
the

schedules but that have similar effects on the human body.

See

United States v. Klecker, 348 F.3d 69, 70 (4th Cir. 2003).

The

Analogue Act defines a “controlled substance analogue” as any
substance

“the

chemical

structure

of

which

is

substantially

similar to [that] of a controlled substance in schedule I or II”
(the chemical structure element), and “which has [an actual,
claimed, or intended] stimulant, depressant, or hallucinogenic
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effect

on

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the

central

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nervous

system

that

is

substantially

similar to or greater than [that] of a controlled substance in
schedule I or II” (the physiological effect element).

21 U.S.C.

§ 802(32)(A).
Under the Analogue Act, controlled substance analogues are
treated

as

Schedule

federal law.

I

controlled

21 U.S.C. § 813.

substances

for

purposes

of

The interaction between the CSA

and the Analogue Act therefore prohibits the distribution of
controlled substance analogues, even if not listed on the CSA
schedules.
B.
The

facts

of

this

case

are

discussed

in

detail

in

our

previous opinion in United States v. McFadden, 753 F.3d 432 (4th
Cir. 2014), and in the Supreme Court’s opinion in McFadden v.
United States, 135 S. Ct. 2298 (2015).

We will recite here the

facts relevant to the issue presented on remand.
In

July

2011,

certain

law

enforcement

officials

(police

officers) in Charlottesville, Virginia began investigating the
distribution
salts.”
sold

of

synthetic

stimulants

commonly

known

as

“bath

The investigation revealed that bath salts were being

from

a

video

rental

McDaniel.

Under

confidential

informant

store

supervision
made

two

salts at McDaniel’s video store.
4

owned
of

the

and

operated

police

controlled

by

Lois

officers,

purchases

of

a

bath

On August 24, 2011, the police

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officers

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confronted

investigation,

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McDaniel

searched

with

the

evidence

video

store,

from
and

their

solicited

information regarding her supplier.
McDaniel agreed to cooperate with the investigation and to
assist the police in gathering evidence against her supplier,
Stephen

McFadden.

initiated

recorded

At

the

telephone

officers’

direction,

conversations

was located in Staten Island, New York.

with

McDaniel

McFadden,

The first of these

telephone conversations occurred on August 25, 2011.
recorded

conversations,

McFadden

who

described

In these

the

active

ingredients in the bath salts and gave instructions on how the
bath salts were to be consumed.

McFadden also described the

stimulant effects of the bath salts and compared the effects to
those of cocaine or methamphetamine.
conversations,
purchases

of

McDaniel
several

engaged

varieties

in
of

During these telephone
five

bath

separate
salts

controlled

from

McFadden.

McFadden shipped packages containing bath salts through FedEx, a
commercial courier, from Staten Island to Charlottesville.
The

United

States

Drug

Enforcement

seized the packages directly from FedEx.

Administration

(DEA)

Inside these packages,

the “vials” and “baggies” containing the bath salts had been
labeled by McFadden, and some labels warned that the contents
were “not for human consumption or illegal use.”
listed

chemical

compounds,

some
5

of

which

were

Other labels
Schedule

I

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controlled

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substances,

and

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stated

that

the

package

contents

“[did] not contain [those] compounds or analogues of [those]
compounds.”
Chemical analysis revealed that the composition of the bath
salts seized in these shipments changed over time.

McFadden’s

five shipments from July 2011 through September 2011 contained
3,4-methylenedioxypyrovalerone

(MDPV),

3,4-

methylenedioxymethcathinone (methylone, or MDMC), and 4-methylN-ethylcathinone (4-MEC).
On October 21, 2011, the government adopted a rule adding
MDPV and methylone to Schedule I.
Substances:

Temporary

Placement

See Schedules of Controlled

of

Three

Synthetic

Cathinones

into Schedule I, 76 Fed. Reg. 65,371, 65,371–75 (Oct. 21, 2011).
Immediately upon learning of the new rule, McFadden destroyed
his inventory of MDPV and methylone.

Although McFadden ceased

distributing MDPV or methylone at this point, he continued to
send shipments containing 4-MEC until his arrest in February
2012.
A
MDPV,

federal

grand

methylone,

Analogue

Act.

jury

indicted

and

4-MEC

in

The

indictment

McFadden

violation
alleged

of

for

distributing

the

CSA

that

and

although

the

MDPV,

methylone, and 4-MEC were not controlled substances at the time
of

McFadden’s

distribution,

these

three

compounds

nonetheless

qualified as controlled substance analogues by virtue of their
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chemical structures and physiological effects.
802(32)(A).

See 21 U.S.C. §

The grand jury charged McFadden with one count of

conspiracy to distribute controlled substance analogues between
June 2011 and February 2012 (Count One), and eight counts of
distribution of controlled substance analogues.

Three counts of

distribution corresponded with three different shipments made on
July 25, 2011 (Count Two), August 11, 2011 (Count Three), and
August

24,

2011

(Count

supervising

telephone

McDaniel

August

on

25,

Four),

before

conversations
2011.

police

officers

between

Five

counts

began

McFadden
of

and

distribution

corresponded with five different shipments made on August 26,
2011 (Count Five), September 16, 2011 (Count Six), October 27,
2011 (Count Seven), January 6, 2012 (Count Eight), and February
2, 2012 (Count Nine), after the police officers began directing
and monitoring McDaniel’s communications with McFadden.
In a motion to dismiss the indictment and in his proposed
jury

instructions,

McFadden

argued

that

the

government

was

required to prove that he knew the substances he distributed
were

controlled

substance

analogues

under

the

Analogue

Act.

Under McFadden’s proposed jury instruction, the government would
have

been

analogues

required
had

to

prove

substantially

that

McFadden

knew

that

the

similar

chemical

structures

and

physiological effects as those of controlled substances.

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The

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district

court

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denied

McFadden’s

motion,

relying

on

this Court’s opinion in United States v. Klecker, 348 F.3d 69,
71 (4th Cir. 2003) (requiring the government to prove only that
a substance had the chemical structure and physiological effects
of an analogue and that the defendant intended the substance be
consumed

by

humans).

During

the

four-day

trial,

McFadden

presented evidence that he was not aware of the Analogue Act, or
that the CSA prohibited the distribution of controlled substance
analogues.

The district court instructed the jury consistent

with the holding in Klecker, and the jury returned a guilty
verdict on all nine counts.
At his sentencing hearing, McFadden argued that he had been
careful

not

substance

to

sell

schedules.

any

substances

McFadden

and

listed
the

on

the

controlled

government

stipulated

that McFadden had consulted the DEA website for the list of
controlled substances, and that the website did not contain any
warning at the time that controlled substance analogues also
were regulated.

Further, McFadden testified that he had ceased

selling MDPV and methylone after those substances were added to
the CSA schedules, even when an undercover DEA agent attempted
to purchase them.
and

sentenced

The district court considered this testimony

McFadden

to

serve

a

term

imprisonment on each count, to run concurrently.

8

of

33

months’

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McFadden

appealed,

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arguing

in

this

Court

that

the

government should have been required to prove his knowledge of
the

bath

salts’

analogue.

illegal

status

as

a

controlled

substance

Relying on our precedent in Klecker, 348 F.3d at 72,

we affirmed the district court’s interpretation of the Analogue
Act as not requiring proof that the defendant knew that the
distributed substances were controlled substance analogues.

See

United States v. McFadden, 753 F.3d 432, 436, 443–44 (4th Cir.
2014). 1
McFadden
Court,

sought

which

government

review

granted

was

of

certiorari

required

to

our
on

prove

decision
the
that

by

issue
he

the

Supreme

whether

knew

that

the
the

substances he distributed were controlled substance analogues.
The Supreme Court held that a conviction under the Analogue Act
requires

proof

of

knowledge

of

either

the

substance’s

legal

status as a controlled substance or of its specific features
that

make

McFadden

the

v.

substance

United

a

States,

controlled
135

S.

Ct.

substance
2298,

analogue.

2305

(2015).

Accordingly, the Supreme Court vacated this Court’s opinion, and
remanded

the

case

to

us

to

determine

1

whether

the

district

In the initial appeal, we also rejected McFadden’s
challenges to the vagueness of the Analogue Act, the district
court’s evidentiary rulings, and the sufficiency of the evidence
at trial. See United States v. McFadden, 753 F.3d 432, 436 (4th
Cir. 2014). McFadden did not seek Supreme Court review on these
other issues, so they are not before us on remand.
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court’s erroneous jury instructions constituted harmless error.
Id. at 2307.

II.
A.
The

Supreme

Court

has

clarified

the

elements

that

the

government must prove to support a conviction for distribution
of

controlled

substance

analogues.

As

discussed

above,

the

Analogue Act defines a “controlled substance analogue” by its
chemical

structure

and

physiological effects.
human

consumption,

regulated

as

Therefore,

a

distribution

any

CSA’s

of

actual,

claimed,

21 U.S.C. § 802(32)(A).

Schedule

the

its

controlled
I

controlled

prohibition

controlled

of

substances

or

intended

If intended for

substance

analogue

is

substance.

Id.

knowing

intentional

or

extends

to

substance analogues intended for human consumption.

§ 813.

controlled
See id.

§§ 813, 841(a)(1).
The

government

must

also

satisfy

one

of

proof regarding the defendant’s state of mind.
Ct. at 2305.

two

methods

of

McFadden, 135 S.

Under the first method of proof, the government

may establish that “a defendant knew that the substance . . . is
some controlled substance—that is, one actually listed on the
. . . schedules or treated as such by operation of the Analogue
Act—regardless of whether he knew the particular identity of the
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substance.”

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Id.

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Under the second method, the government may

establish that “the defendant knew the specific analogue he was
dealing with, even if he did not know its legal status as an
analogue.”

Id.

Under this second method of proof, knowledge of

the substance’s chemical structure and physiological effects is
sufficient to support a conviction.

Id.

A conviction under the Analogue Act therefore requires the
government

to

prove

that

the

defendant:

(1)

distributed

a

substance that had the chemical structure of an analogue and the
actual,
analogue;

intended,
(2)

consumption;

or

claimed

intended
and

(3)

that
knew

physiological

the

substance

either

the

be

legal

effects
used

of

for

status

an

human

of

the

substance, or the chemical structure and physiological effects
of that substance.

Only the third element is in dispute on

remand in this case.
At

trial,

the

jury

found

that

McFadden

distributed

substances that qualified as controlled substance analogues, and
that

he

district

intended
court

the

substances

instructed

the

for

jury

human
that

consumption.
to

convict

on

distribution counts, the jury must find:
FIRST: That the defendant knowingly and intentionally
distributed a mixture or substance that has an actual,
intended,
or
claimed
stimulant,
depressant,
or
hallucinogenic effect on the central nervous system
that is substantially similar to or greater than the
stimulant, depressant, or hallucinogenic effect on the

11

The
the

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central nervous system of a controlled substance in
Schedule I or II of the Controlled Substances Act;
SECOND: That the chemical structure of the mixture or
substances is substantially similar to the chemical
structure of a controlled substance in Schedule I or
II of the Controlled Substances Act; AND
THIRD: That the defendant intended for the mixture or
substance to be consumed by humans.
By returning a guilty verdict on the distribution counts of the
superseding indictment, the jury necessarily found that McFadden
distributed a substance that had the chemical structure of an
analogue

and

the

actual,

intended,

or

claimed

physiological

effects of an analogue, intending the substance to be consumed
by humans.
McFadden
substances

The jury was not instructed to determine whether

had
as

knowledge

of

controlled

the

legal

substance

classification
analogues

or

of
of

the
the

substances’ chemical structures and physiological effects.
The

jury

instructions

for

the

conspiracy

count

were

essentially identical with respect to the question of McFadden’s
knowledge.

In order to find McFadden guilty of conspiracy, the

jury was required to find that McFadden willingly and knowingly
joined an agreement that existed “beginning in or around June
2011, and continuing until February 15, 2012,” to accomplish the
purpose of distributing substances containing MDPV, methylone,
or 4-MEC.

Conviction on the conspiracy count also required a

jury finding that MDPV, methylone, or 4-MEC have the chemical
structures and the actual, intended, or claimed physiological
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of

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controlled

verdict,

the

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substance
jury

analogues.

therefore

By

returning

necessarily

found

a

that

McFadden conspired to distribute certain substances, and that
those

substances

analogues.

had

However,

the
the

features
guilty

of

controlled

verdict

did

not

substance
necessarily

reflect that the jury found that McFadden knew the legal status
of those substances or that those substances had the chemical
structures

and

physiological

effects

of

controlled

substance

counts,

therefore,

the

jury

McFadden

knew

analogues.
With

respect

instructions
either

to

omitted

that

the

all
the

bath

nine

required
salts

element

were

that

regulated

as

controlled

substances or that the bath salts had the features of controlled
substance analogues.
the

failure

to

Accordingly, we turn to consider whether

instruct

the

jury

on

this

knowledge

element

constituted harmless error.
B.
A court commits a constitutional error subject to harmless
error analysis when it omits an element of an offense from its
jury instructions.
(1999).

To

Neder v. United States, 527 U.S. 1, 8–9

establish

harmless

error

in

such

a

case,

the

government must show “beyond a reasonable doubt that the error
complained

of

did

not

contribute

to

the

verdict

obtained.”

Chapman v. California, 386 U.S. 18, 24 (1967); United States v.
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Brown, 202 F.3d 691, 699 (4th Cir. 2000).

The reviewing court

must “conduct a thorough examination of the record,” and if “the
court cannot conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error . . .[,] it
should not find the error harmless.”

Neder, 527 U.S. at 19;

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (requiring the
reviewing court to ensure that the guilty verdict rendered at
trial was “surely unattributable to the error”).
Both the Supreme Court and this Court have held that an
erroneously
error

if

omitted
the

jury

omitted

instruction

element

evidence admitted at trial. 2
Brown, 202 F.3d at 700–01.

is

may

be

supported

deemed
by

harmless

overwhelming

See Neder, 527 U.S. at 16, 18;
In Neder, the jury found that a

taxpayer had knowingly filed false statements in a tax return by
underreporting his income by $5 million, but did not determine
whether the false statement was material to the taxpayer’s tax
liability.

527 U.S. at 16.

The Supreme Court held that the

omission of this element from the jury instruction was harmless
beyond a reasonable doubt, because the taxpayer had contested

2

The government may also prove harmless error by showing
that the jury necessarily found facts that would satisfy the
omitted element, such as when the omitted element overlaps with
an element in another count of conviction. See Brown, 202 F.3d
at 699–700.
However, the government does not argue that this
type of harmless error applies in this case, because the same
element was erroneously omitted in all nine counts.
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only the classification, but not the calculated amount, of the
$5 million, and that any reasonable jury would find that $5
million in unreported income is material to tax liability.

Id.

Additionally, in United States v. Davis, 202 F.3d 212 (4th
Cir. 2000), we considered the omission of a jury instruction in
a case that would have required the jury to determine whether
the defendant fired gunshots into a “dwelling.”
held

that

because

overwhelming

evidence

Id. at 217.

established

that

We
the

building in question was a family residence with six occupants,
the

district

court’s

failure

to

instruct

on

the

element was harmless beyond a reasonable doubt.

“dwelling”

Id.

On the other hand, we have held that evidence of an element
omitted from jury instructions will not be deemed overwhelming
if the defendant had “genuinely contested” the omitted element
with evidence that could have caused “disagreement among the
jurors about” the contested element.
702.

See Brown, 202 F.3d at

In Brown, the jury was not instructed that it must find

unanimously

that

the

defendant

had

participated

in

specific

predicate violations before finding that he had participated in
a “continuing criminal enterprise.”

Id. at 698.

had

predicate

presented

witnesses

evidence

whose

of

several

credibility

had

been

The government

offenses

impeached

testimony had been countered by other evidence.

and

through
whose

Id. at 701–02.

We held that the error was not harmless beyond a reasonable
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doubt,

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because

instructions

the

could

omission
have

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of

the

allowed

the

element
jury

to

from

the

return

a

jury
guilty

verdict without unanimous agreement on which predicate offenses
occurred.

Id. at 702.

In accord with these decisions, we must examine the record
for evidence of McFadden’s knowledge regarding either the legal
status or the relevant characteristics of the bath salts.

See

McFadden,

the

135

government
evidence

has

S.

Ct.

met

established

at

its

2305.

burden

We

of

McFadden’s

consider

showing
knowledge

whether

that
on

overwhelming
this

issue,

rendering the failure to instruct the jury on that knowledge
element harmless beyond a reasonable doubt.

III.
The

government

argues

that

the

evidence

at

trial

established McFadden’s knowledge under either method of proof
articulated by the Supreme Court.

According to the government,

the evidence overwhelmingly proved that McFadden knew that the
bath salts were regulated as controlled substances, and that the
bath

salts

had

chemical

structures

and

physiological

effects

similar to those of controlled substances.
In response, McFadden asserts that his conduct showed that
he thought that his actions were lawful, and argues that he is
entitled

to

a

jury

determination
16

of

his

credibility

on

this

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Relying

on

the

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Seventh

Circuit’s

decision

in

United

States v. Turcotte, 405 F.3d 515, 527 (7th Cir. 2005), he also
argues that under proper instructions, the jury would have been
permitted, but would not have been required, to infer from the
evidence that he had any knowledge of the chemical structures of
the substances that he sold.

We disagree with certain parts of

both parties’ arguments.
A.
We address the parties’ arguments in the context of the two
methods

of

proof

identified

by

establishing the knowledge element.

the

Supreme

Court

for

The government argues that

the first method of proof was satisfied in this case, because
overwhelming evidence established that McFadden knew that the
bath salts were regulated or controlled under the CSA or the
Analogue Act.

The government highlights the fact that McFadden

distributed the bath salts using packaging, prices, and names
consistent

with

illicit

drug

distribution.

Further,

in

the

recorded telephone conversations, McFadden compared his products
to cocaine and methamphetamine.

The government also argues that

McFadden’s attempts to conceal his activity and the nature of
his business showed that he was conscious of his own wrongdoing.
We disagree with the government’s argument regarding the extent
of evidence supporting this first method of proof.

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Although

the

jury

could

Pg: 18 of 25

have

inferred

from

McFadden’s

evasive behavior and the “disclaimer” labeling of the packages
and vials that he knew that the bath salts were treated as
controlled

substances,

McFadden,

135

S.

Ct.

at

2304

n.1,

we

agree with McFadden that such an inference would not have been
compelled.

McFadden countered the government’s evidence of his

guilty knowledge by presenting evidence that he tried to comply
with the law and intentionally avoided selling substances listed
on the CSA schedules.

McFadden affixed labels to his packages

that disclaimed the inclusion of specific Schedule I substances,
and

he

ceased

learning

of

conclude

that

selling

their

MDPV

listing

McFadden’s

and

in

methylone

the

efforts

CSA

to

immediately

schedules.

avoid

selling

after

Thus,

we

substances

listed in the CSA schedules is the type of “genuinely contested”
evidence

we

discussed

in

Brown

that

could

have

caused

“disagreement among the jurors” about whether McFadden knew that
the bath salts were regulated or controlled under the CSA or the
Analogue Act.
We

See Brown, 202 F.3d at 702.

therefore

hold

that

the

evidence

was

sufficient

to

permit, but not so overwhelming to compel, the jury to find that
McFadden

knew

that

federal

controlled substances.

law

regulated

the

bath

salts

as

Instead, the jury could have concluded

from the evidence that McFadden erroneously thought that it was
not a crime to sell MDPV, methylone, and 4-MEC.
18

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government has not shown that overwhelming evidence established
McFadden’s knowledge under the first method of proof.
B.
The

government

may

also

prove

McFadden’s

knowledge

by

showing that McFadden knew “the specific analogue he was dealing
with.”

McFadden, 135 S. Ct. at 2305.

proof,

the

telephone

government

relies

conversations

on

recorded

For this second method of
McFadden’s

between

statements

August

25,

in

2011

and

February 1, 2012 to show that McFadden had knowledge of the
analogues’ chemical structures and physiological effects.
As we discuss below, we agree with the government that the
recorded telephone conversations overwhelmingly establish that
McFadden

knew

the

bath

physiological effects.
conversation

occurred

salts’

chemical

structures

and

However, the first recorded telephone
on

August

25,

2011,

after

McFadden’s

conduct giving rise to Count Two (July 11–25, 2011), Count Three
(July 29–August 11, 2011), and Count Four (August 10–24, 2011)
of the superseding indictment.
nor

were

we

able

to

find,

The government does not cite,
any

earlier

direct

evidence

of

McFadden’s state of mind.
Although

the

jury

reasonably

could

have

inferred

from

McFadden’s discussions in the August 25, 2011 phone call that he
had possessed the required knowledge before his first shipment
to Charlottesville, the evidence on this point cannot in any
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view be termed “overwhelming.”

See Brown, 202 F.3d at 701–02.

McFadden’s brother, a federal law enforcement agent, testified
at

trial

after

that

seeing

McFadden

similar

Staten Island.

began

selling

products

for

“aromatherapy”

sale

in

plain

products

view

around

Based on this and the other evidence before us,

the jury reasonably could have concluded that McFadden began
selling

his

products

before

knowing

their

identity,

chemical

structures, or physiological effects when ingested.

The jury

therefore reasonably could have concluded from the evidence that
McFadden’s guilty knowledge had not been established at the time
he made the shipments corresponding with Counts Two, Three, and
Four.

Accordingly, we conclude that the government has not met

its burden of establishing harmless error with respect to Counts
Two, Three, and Four.
Any

reasonable

uncertainty

however, evaporated

with

about

McFadden’s

McFadden’s

recorded

knowledge,

participation

in

telephone conversations that demonstrated his full knowledge of
the

chemical

products.

structures

McFadden

does

and

physiological

not

dispute

the

effects

of

his

accuracy

of

the

recordings and transcripts admitted at trial, nor does he point
to

evidence

that

would

contradict

20

the

contents

of

those

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conversations. 3

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In the first recorded substantive conversation,

on August 25, 2011, McFadden discussed the composition of his
products,

characterizing

a

mixture

called

“Alpha”

as

“the

straight chemical” and “the replacement for the MDPV.”
asked

for

further

details

about

a

mixture

labeled

“No

When
Speed

Limit,” McFadden represented that “Alpha mixed with the 4-MEC
gives you a No Speed Limit–like feeling, just not as intense.”
McFadden also explicitly compared these mixtures to “cocaine”
and “crystal meth.”
distributing

a

In later conversations, McFadden discussed

“4-MEC”

blend

called

“New

Sheens,”

adding

“a

little extra kick” to a blend called “Hardball,” and describing
“Hardball” as a blend with “five active chemicals in it” or
“five ingredients.”
McFadden

nevertheless

argues

that

his

statements

to

McDaniel were mere “sales talk,” completely unconnected with any
actual

knowledge

he

might

have.

McFadden,

a

construction

foreman and furniture salesman, asserts that he obviously lacked
the

experience

or

training

to

have

scientific,

chemical,

pharmacological knowledge about the products he sold.

3

or

We are

In his initial appeal, McFadden challenged the relevance
of the recordings and the transcripts, but did not challenge
their accuracy.
United States v. McFadden, 753 F.3d 432, 443
(4th Cir. 2014). We held that the district court did not abuse
its discretion in admitting the recordings and transcripts,
because they were relevant to prove that McFadden intended the
bath salts to be used for human consumption. Id.
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not persuaded by this argument, or by McFadden’s assertion that
under the holding of United States v. Turcotte, 405 F.3d 515,
527 (7th Cir. 2005), he is entitled to have the jury judge his
credibility

on

the

knowledge

issue

rather

than

have

this

question be reviewed on appeal for harmless error.
McFadden correctly states the principle from Turcotte, that
even

if

a

defendant

is

proved

to

have

had

knowledge

of

an

analogue’s physiological effects, a jury is permitted, but is
not required, to infer that a defendant had knowledge of the
analogue’s relevant chemical similarities.
However,

McFadden’s

argument

on

this

See 405 F.3d at 527.

point,

as

well

as

his

contention that he was engaged in mere “sales talk,” grossly
understates the evidence of his knowledge of the substances’
chemical structures and physiological effects.
The

nine

recorded

telephone

conversations,

beginning

on

August 25, 2011, established McFadden’s thorough and detailed
knowledge of chemicals identified in Count One and Counts Five
through

Nine,

their

chemical

structures,

their

their similarity to other controlled substances.

effects,

and

On August 25,

2011, McFadden explicitly referenced “MDPV” and “4-MEC” by name
and described blends of different chemicals.
confirmed

that

McFadden’s

statements

chemical composition of his products.

Laboratory tests

accurately

described

the

In addition, McFadden’s

evidence that he consulted the CSA schedules on the DEA website,
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although effective to raise a question whether he knew the bath
salts were regulated as controlled substances, demonstrated that
he

had

sufficient

knowledge

about

his

products’

chemical

structures to be able to compare them to the list of chemical
names

on

Therefore,

the

CSA

the

schedules.

record

shows

See

far

more

21

C.F.R.

evidence

§ 1308.11.

than

the

mere

knowledge or representation of physiological effects referenced
in Turcotte.

See 405 F.3d at 527.

The telephone conversations also established that McFadden
knew the physiological effects of the products.
2011,

McFadden

blends,

described

comparing

“feeling”

their

effects

The

methamphetamine.
McFadden’s

the

government

descriptions

to

of

the

accurately

physiological

those

of

presented

physiological effects of the blends.
descriptions

caused

On August 25,
by

different

cocaine

and

evidence

reflected

the

that
actual

And, even if McFadden’s

effects

were

merely

“sales

talk,” the Analogue Act defines analogues to include substances
merely represented to have the relevant physiological effects.
See 21 U.S.C. § 802(32)(A)(iii).
Therefore, the recorded telephone conversations demonstrate
overwhelmingly
chemical

that

identities

by

August

and

the

25,

2011,

McFadden

physiological

effects

knew

the

of

the

substances he was selling.

As the Supreme Court has held, “[a]

defendant

substance

who

possesses

a

23

with

knowledge

of

those

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features knows all of the facts that make his conduct illegal.”
McFadden, 135 S. Ct. at 2305.

Accordingly, we conclude that

because overwhelming evidence established that McFadden knew, as
of August 25, 2011, the specific features of the substances he
was

selling,

element

from

the

district

the

jury

court’s

omission

instructions

was

of

the

harmless

knowledge

error

with

regard to McFadden’s convictions under Counts Five through Nine.
For the same reason, we affirm McFadden’s conviction under Count
One for conspiracy to distribute controlled substance analogues,
which is supported by overwhelming evidence of his state of mind
beginning

with

the

date

of

to

Counts

Two,

those

recorded

Three,

and

telephone

conversations.
With

respect

Four,

however,

because the erroneous omission of the knowledge element from the
jury instructions was not harmless beyond a reasonable doubt, we
vacate and remand those counts for further proceedings in the
district court consistent with the principles expressed in this
opinion.
Counts

We
Five

also

remand

through

the

Nine,

convictions
to

the

on

Count

district

One,

court

and
for

resentencing.

IV.
For these reasons, we affirm the district court’s judgment
of conviction on Counts One, Five, Six, Seven, Eight, and Nine,
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and vacate the court’s sentence on those counts and remand for
resentencing.
Two,

Three,

We vacate the district court’s judgment on Counts
and

Four,

and

remand

those

counts

for

further

proceedings in the district court.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

25