United States v. Stephen McFadden ( 2014 )

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.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:12-cr-00009-GEC-1)
Argued: March 19, 2014 Decided: May 21, 2014
Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Chief Judge Traxler and Judge Wilkinson joined.
ARGUED: J. Lloyd Snook, III, SNOOK & HAUGHEY, PC,
Charlottesville, Virginia, for Appellant. Jean Barrett Hudson,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee. ON BRIEF: Timothy J. Heaphy, United States
Attorney, Roanoke, Virginia, Ronald M. Huber, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
This appeal concerns a defendant’s convictions involving
the sale of “designer drugs,” in violation of the Controlled
Substance Analogue Enforcement Act of 1986 (the Act), 21 U.S.C.
§§ 802(32)(A), 813. Stephen D. McFadden was convicted by a jury
of nine charges stemming from his distribution of substances
that the government alleged were prohibited by the Act. On
appeal, McFadden primarily asserts that the Act is
unconstitutionally vague as applied to him, that the district
court abused its discretion in making certain evidentiary
rulings at trial, and that the government failed to prove that
the substances McFadden distributed qualified as controlled
substance analogues under the Act. Upon our review, we affirm
the district court’s judgment.
I.
Before addressing the facts of this case and McFadden’s
challenges to his convictions, we first provide a brief overview
of the Act. Congress enacted the Act to prevent “underground
chemists” from creating new drugs that have similar effects on
the human body as drugs explicitly prohibited under the federal
drug laws. See United States v. Klecker, 348 F.3d 69, 70 (4th
Cir. 2003); see also United States v. Hodge, 321 F.3d 429, 432,
437 (3d Cir. 2003) (purpose of the Act is to “make illegal the
2
production of designer drugs and other chemical variants of
listed controlled substances that otherwise would escape the
reach of the drug laws”). To achieve that purpose, Congress
mandated that a “controlled substance analogue,” when intended
for human consumption, be treated under federal law as a
Schedule I controlled substance. 21 U.S.C. § 813.
Subject to certain exceptions not at issue in this case, a
“controlled substance analogue” is defined under the Act as:
a substance-
(i) the chemical structure of which is substantially
similar to the chemical structure of a controlled
substance in schedule I or II;
(ii) which has a 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
central nervous system of a controlled substance in
schedule I or II; or
(iii) with respect to a particular person, which such
person represents or intends to have a 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 central nervous system of
a controlled substance in schedule I or II.
21 U.S.C. § 802(32)(A).
Accordingly, an individual may be convicted for an offense
involving a controlled substance analogue under 21 U.S.C. § 841
if the government establishes that: (1) the alleged analogue
substance has a chemical structure that is substantially similar
to the chemical structure of a controlled substance classified
3
under Schedule I or Schedule II (the chemical structure
element); 1 (2) the alleged analogue substance has an actual,
intended or claimed stimulant, depressant, or hallucinogenic
effect on the central nervous system that is substantially
similar to or greater than such effect produced by a Schedule I
or Schedule II controlled substance (the pharmacological
similarity element); and (3) the analogue substance is intended
for human consumption (the human consumption element). See
Klecker, 348 F.3d at 71 (construing 21 U.S.C. §§ 802(32)(A),
813).
II.
In July 2011, police investigators in the Charlottesville,
Virginia area began investigating the use and distribution of
certain synthetic stimulants commonly known as “bath salts.”
When ingested into the human body, bath salts are capable of
producing similar effects as certain controlled substances,
including cocaine, methamphetamine, and methcathinone.
The police investigation revealed that bath salts were
being sold from a video rental store in Charlottesville, which
was owned and operated by Lois McDaniel. Using confidential
1
Controlled substances are classified under one of five
schedules, which are set forth in 21 U.S.C. § 812 and 21 C.F.R.
§§ 1308.11 through 1308.15.
4
informants, investigators purchased bath salts from McDaniel,
which later were analyzed by the United States Drug Enforcement
Administration (DEA). The chemical analysis performed by the
DEA showed that these bath salts contained 3,4-
methylenedioxypyrovalerone (MDPV) and 3,4-
methylenedioxymethcathinone (methylone, or MDMC). Government
agents later seized from McDaniel’s store additional bath salts
that contained a combination of MDPV, methylone, and 4-methyl-
ethylcathinone (4-MEC).
McDaniel agreed to cooperate with the investigators, and
informed them that the bath salts she distributed from her store
were supplied by McFadden. At the investigators’ direction,
McDaniel initiated recorded telephone conversations with
McFadden in which she placed orders for bath salts. During
these conversations, McFadden discussed the potency and duration
of the “high” experienced by users of the substances he was
distributing. He also compared the effects of those substances
to certain controlled substances, including cocaine and
methamphetamine.
As a result of these transactions, investigators received
bath salts supplied by McFadden on five separate occasions. The
DEA’s analysis showed that two batches of these bath salts
contained 4-MEC, MDPV, and methylone. The three other batches
5
contained 4-MEC, but not MDPV or methylone. 2 Based on the
findings of this investigation, the grand jury issued a
superseding indictment in November 2012, charging McFadden with
nine offenses, including one count of conspiracy to distribute
substances containing the alleged controlled substance analogues
4-MEC, MDPV, and methylone (collectively, the alleged CSAs), and
eight additional counts of distributing these substances. 3
The four-day jury trial focused primarily on the issue
whether 4-MEC, MDPV, and methylone constitute controlled
substance analogues under the Act. To prove the chemical
structure element, the government presented the testimony of Dr.
Thomas DiBerardino, a chemist employed by the DEA, who qualified
as an expert in the field of chemical structures of drugs.
2
During the course of the government’s investigation, the
DEA, under its emergency temporary scheduling powers in 21
U.S.C. § 811(h), classified MDPV and methylone as Schedule I
controlled substances. Schedules of Controlled Substances, 76
Fed. Reg. 65371, 65372 (amending 21 C.F.R. § 1308.11) (Oct. 21,
2011). The government did not allege that McFadden distributed
MDPV or methylone after this classification.
3
The indictment contained the following charges: conspiracy
to distribute a substance or mixture containing the controlled
substance analogues 4-MEC, MDPV, and methylone, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(c) and 846 (Count One); two
counts of distribution of a substance or mixture containing MDPV
and methylone, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(c) (Counts Two and Three); three counts of distribution
of a substance or mixture containing 4-MEC, MDPV, and methylone,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c) (Counts
Four, Five, and Six); and three counts of distribution of a
substance or mixture containing 4-MEC, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(c) (Counts Seven, Eight, and Nine).
6
Using chemical diagrams as demonstrative exhibits, Dr.
DiBerardino testified that the chemical structures of 4-MEC and
MDPV are each substantially similar to methcathinone, a Schedule
I controlled substance. Dr. DiBerardino further testified,
based on the chemical diagrams, that the chemical structure of
methylone is substantially similar to ecstasy, which also is a
Schedule I controlled substance.
To establish the pharmacological similarity element, the
government presented the testimony of Dr. Cassandra Prioleau, a
drug science specialist employed by the DEA, who qualified as an
expert in the field of pharmacological effects of drugs. Dr.
Prioleau testified that 4-MEC and MDPV each would have a
pharmacological effect on the central nervous system
substantially similar to the effect produced by methcathinone.
Dr. Prioleau further testified that methylone would have a
substantially similar pharmacological effect on the central
nervous system as ecstasy. 4
In his defense, McFadden presented the testimony of Dr.
Matthew C. Lee, a primary care physician and pharmacist, who
qualified as an expert in the field of pharmacology and the
4
Dr. Prioleau acknowledged during cross-examination that
methylone generally produced only about one-half the stimulant
effect of ecstasy, but also noted that at a “maximum dosage”
level methylone and ecstasy would have equivalent stimulant
effects.
7
effects of medication. Dr. Lee criticized the methodology used
by Dr. DiBerardino in reaching his conclusions regarding the
chemical structure element, and further stated that MDPV and
methcathinone are not similar in chemical structure. 5 Dr. Lee
also criticized the methodology employed by Dr. Prioleau in
reaching her conclusions with respect to the pharmacological
similarity element. Dr. Lee testified that methylone did not
produce similar pharmacological effects as ecstasy, and that
there was insufficient scientific data to draw a conclusion that
4-MEC and MDPV produce similar pharmacological effects in humans
as methcathinone.
After hearing this and other evidence, the jury returned a
verdict finding McFadden guilty of each of the nine counts
alleged in the indictment. At a sentencing hearing, the
district court found that McFadden’s advisory sentencing
guidelines range was between 51 months’ and 63 months’
imprisonment. After considering the factors set forth in 18
U.S.C. § 3553(a), the court imposed a below-guidelines sentence
of 33 months’ imprisonment for each conviction, to run
concurrently, and a 30-month period of supervised release.
McFadden filed a timely notice of appeal.
5
Dr. Lee did not make an explicit conclusion during his
testimony about whether 4-MEC and methcathinone, or methylone
and ecstasy, were substantially similar in their respective
chemical structures.
8
III.
A.
We first consider McFadden’s argument that the Act is
unconstitutional as applied to him. This argument presents the
central theme that the Act failed to provide a person of
ordinary intelligence notice that the conduct at issue was
unlawful.
McFadden argues that the Act fails to meet the
constitutional requirement of notice because: (1) the Act uses a
“standards-based” scheme, employing general terms such as
“substantially similar” and “human consumption,” and lacks a
list of prohibited substances; (2) the Act is subject to
arbitrary and discriminatory enforcement in the absence of
statutory guidance concerning prohibited conduct; and (3)
despite significant efforts on his part to learn about
prohibited conduct, McFadden was unable to determine “what he
can and cannot do,” and was unaware that the distribution of
controlled substance analogues is prohibited under federal law.
We review de novo a challenge to the constitutionality of a
federal statute. United States v. Gibert, 677 F.3d 613, 618
(4th Cir. 2012). As a general matter, a criminal statute is
unconstitutionally vague if it does not sufficiently define an
offense such that ordinary people can understand what conduct is
prohibited. Kolender v. Lawson, 461 U.S. 352, 357 (1983). This
9
inquiry generally requires an examination of what a person of
“common intelligence” would reasonably understand the statute to
prohibit, rather than what a particular defendant understood the
statute to mean. See United States v. Washam, 312 F.3d 926, 930
(8th Cir. 2002) (citing United States v. Nat’l Dairy Prods., 372
U.S. 29, 32-33 (1963) and Connally v. Gen. Constr. Co., 269 U.S.
385, 391 (1926)). Additionally, a statute is unconstitutionally
vague if its definition of the prohibited conduct encourages
arbitrary and discriminatory enforcement. Kolender, 461 U.S. at
357-58.
In our decision in Klecker, we rejected a nearly identical
constitutional challenge as that raised by McFadden. See 348
F.3d at 71-72. There, a defendant challenged his convictions
for distributing a chemical compound commonly known as “Foxy.”
Id. at 71. The government alleged that Foxy was an analogue of
a Schedule 1 controlled substance, diethyltryptamine (DET). Id.
at 70. We held that the Act was not unconstitutionally vague in
its use of the term “substantially similar” with respect to a
defendant who lacked actual notice that a substance was a
controlled substance analogue. Id. at 72. We observed that the
considerable similarities, found from a comparison of chemical
diagrams of the alleged analogue substance and the controlled
substance, were sufficient to “put a reasonable person on
notice” of Foxy’s composition as a DET analogue. Id.
10
This holding in Klecker defeats McFadden’s argument that
the term “substantially similar,” as used in 21 U.S.C. §
802(32)(A), is unconstitutionally vague when applied to the
chemical compounds at issue here. The testimony of Dr.
DiBerardino comprehensively addressed the chemical diagrams
comparing the chemical structures of 4-MEC and MDPV with
methcathinone, and methylone with ecstasy.
Presenting two-dimensional diagrams in which the chemical
structures of 4-MEC and MDPV were displayed in an overlapping
manner with the chemical structure of methcathinone, Dr.
DiBerardino explained that these substances share a core
chemical structure, namely that of a compound called
phenethylamine. Although the overlapping diagrams showed that
the substances each have some unique features in their
respective chemical compositions, Dr. DiBerardino testified that
these unique features do not affect the chemical core of the
substances. Rather, he stated that the diagrams reflected that
“[e]verything that’s different is on the periphery” of the
respective chemical structures. Dr. DiBerardino made the same
type of comparison examining the chemical structures of
methylone and ecstasy, during which he explained that those
substances share the same core chemical structure,
phenethylamine, and that the structural differences between
methylone and ecstasy are insignificant.
11
Based on his evaluation of these diagrams of the chemical
compounds at issue, Dr. DiBerardino concluded that the
controlled substances and the respective alleged CSAs have
substantially similar chemical structures. Thus, Dr.
DiBerardino applied the statutory term “substantially similar”
in evaluating the core chemical structures of the substances at
issue, and was able to distinguish the differences in those
structures as peripheral and inconsequential. After reviewing
these chemical diagrams, we agree with the district court’s
conclusion that for purposes of satisfying the constitutional
requirement of notice, there are substantial similarities in the
chemical structures between the alleged CSAs and their
controlled substance counterparts.
We also view the chemical diagrams and Dr. DiBerardino’s
testimony in light of the evidence concerning McFadden’s intent
that the alleged CSAs be consumed by humans to produce a
stimulant effect. See Klecker, 348 F.3d at 72 (observing that
defendant’s intent that Foxy be ingested as a hallucinogen
reinforced the conclusion that the defendant had adequate notice
that Foxy would be regarded as a DET analogue). As stated
above, McFadden informed McDaniel during recorded telephone
conversations that the substances he was distributing produced
12
effects similar to certain controlled substances. 6 The fact that
McFadden intended that the substances he was distributing be
used as alternatives to controlled substances further
demonstrates that a reasonable person in his position would
understand that his conduct was prohibited by the Act. See id.
In view of this evidence, the district court did not err in
concluding that the statutory term “substantially similar,” as
applied here, would put a reasonable person on notice concerning
the proscribed conduct.
We further disagree with McFadden’s argument that the
statutory term “human consumption” is unconstitutionally vague.
See 21 U.S.C. § 813. Although McFadden notes correctly that
this term is not defined in the Act, the lack of a statutory
definition does not render the Act unconstitutional per se. See
Chapman v. United States, 500 U.S. 453, 462, 467-68 (1991)
(holding that 21 U.S.C. § 841(b)(1)(B) is not unconstitutionally
vague despite lack of statutory definition of the terms
“mixture” and “substance”). A statute need not contain a
definition of every term within its text, and, in the absence of
a statutory definition, courts will give terms their ordinary
6
As discussed later in this opinion, we disagree with
McFadden’s argument that the district court erred in admitting
the recorded telephone conversations into evidence. See infra
at 20-21.
13
meaning. See United States v. Day, 700 F.3d 713, 725 (4th Cir.
2012) (citing Chapman, 500 U.S. at 462, 467-68).
We agree with the district court that, in the context of
the Act, the ordinary meaning of the term “human consumption”
plainly encompasses the use of a substance by a human being in a
manner that introduces the substance into the body. See Black’s
Law Dictionary 359 (9th ed. 2009) (defining “consumption” as
“the use of a thing in a way that exhausts it”). We therefore
conclude that there is no ambiguity or vagueness in the Act’s
use of the term “human consumption.”
Additionally, we reject McFadden’s argument that the Act is
unconstitutionally vague because it does not provide a list of
substances that qualify as controlled substance analogues.
Because the Act provides for the comparison of different
chemical compounds to determine whether they are “substantially
similar,” a list of particular chemical compounds could not
encapsulate the variety of substances potentially covered by the
Act. Moreover, such a requirement would undermine the very
purpose of the Act, which is to prevent individuals from
creating slightly modified versions of controlled substances
that produce similar effects and entail similar dangers as those
controlled substances. See Klecker, 348 F.3d at 70; Hodge, 321
F.3d at 432, 437.
14
Given the creativity of individuals manufacturing these
analogue substances, see United States v. Hofstatter, 8 F.3d
316, 322 (6th Cir. 1993), there is genuine potential that the
creation of such substances could outpace any efforts by
authorities to identify and catalog them. Thus, we decline to
extend our holding in Klecker by imposing a constitutional
notice requirement that the Act contain a list of prohibited
substances. See United States v. Fisher, 289 F.3d 1329, 1337
n.11 (11th Cir. 2002) (rejecting vagueness challenge and noting
that “[n]o list of controlled substance analogues is
necessary”).
We also find no merit in McFadden’s argument that the Act
is subject to arbitrary and discriminatory enforcement. We held
in Klecker that the Act’s “intent requirement alone tends to
defeat any vagueness challenge based on the potential for
arbitrary enforcement.” 348 F.3d at 71. We explained that this
intent element requires that the government prove that the
defendant meant for the substance at issue to be consumed by
humans. Id.; see also United States v. Roberts, 363 F.3d 118,
126 (2d Cir. 2004) (holding that the “intended for human
consumption” element protects against arbitrary enforcement).
Arbitrary and discriminatory enforcement further is prevented by
the additional statutory requirements that the government prove
(1) substantial chemical similarity between the alleged analogue
15
substance and the controlled substance, and (2) actual,
intended, or claimed pharmacological similarity of the alleged
analogue substance and the controlled substance. See Klecker,
348 F.3d at 71. Accordingly, we reject McFadden’s arguments
that the Act failed to provide him adequate notice of the
prohibited conduct and was subject to arbitrary and
discriminatory enforcement.
We likewise find no merit in McFadden’s argument that the
Act is unconstitutional as applied because he “took reasonable
steps to inform himself as to the legality of the chemicals that
he was selling,” and did not find any information indicating
that his actions were illegal. In support of this argument,
McFadden relies on the fact that he visited the DEA’s website to
determine whether the substances at issue were prohibited, but
that he did not see the disclaimers on the website discussing
the Act and controlled substance analogues.
McFadden’s argument fails because it flouts the well-
settled general principle that “ignorance of the law is no
excuse.” See United States v. Mitchell, 209 F.3d 319, 323 (4th
Cir. 2000) (citation omitted). Moreover, McFadden provides no
authority supporting his novel proposition that we should depart
from this general rule because he unsuccessfully sought to
determine whether his conduct was lawful. Accordingly, we
reject McFadden’s argument that the Act is unconstitutional
16
because he lacked notice that the distribution of controlled
substance analogues is prohibited under federal law.
B.
We next address McFadden’s arguments concerning certain
rulings made by the district court during the trial. McFadden
contends that the district court erred: (1) in permitting the
testimony of Toby Sykes, an individual who purchased bath salts
from McDaniel; (2) in admitting into evidence recordings of
McFadden’s telephone conversations with McDaniel; and (3) in
declining to instruct the jury that the government was required
to prove that McFadden effectively knew that the substances at
issue had the essential characteristics of controlled substance
analogues.
1.
The government offered the testimony of Toby Sykes as
evidence supporting the pharmacological similarity element.
Sykes testified that he was a former methamphetamine addict who
purchased bath salts from McDaniel, and that his use of these
bath salts produced a far more potent effect on his body than
his use of methamphetamine. 7
7
Although Sykes compared the bath salts to methamphetamine
rather than methcathinone, Dr. Prioleau testified that various
studies showed that MDPV and methylone produce a similar
pharmacological effect in laboratory animals as the effect
generated by methamphetamine. Accordingly, as the district
(Continued)
17
McFadden objected to Sykes’ testimony on the ground of
relevance, because it was uncertain whether the bath salts that
Sykes consumed had been supplied by McFadden or were in the same
form and doses as those delivered to McDaniel. The district
court overruled McFadden’s objection, but granted him “great
latitude” to cross-examine Sykes concerning whether he could
state that the substances he purchased were distributed by
McFadden. 8
We review for abuse of discretion a district court’s ruling
concerning the admissibility of evidence. United States v.
Summers, 666 F.3d 192, 197 (4th Cir. 2011). Under Rule 402 of
the Federal Rules of Evidence, all “relevant” evidence is
admissible unless specifically prohibited by the Constitution, a
federal statute, or another evidentiary rule. Evidence is
relevant if it has a tendency to make a fact pertinent to the
case “more or less probable than [the fact] would be without the
evidence.” Fed R. Evid. 401; United States v. Powers, 59 F.3d
1460, 1465 (4th Cir. 1995). We have observed that the
determination of relevance “presents a low barrier to
court found, Sykes’ comparison of the bath salts to
methamphetamine was consistent with Dr. Prioleau’s testimony.
8
On appeal, McFadden bases his argument concerning Sykes’
testimony on relevancy grounds, and does not argue that the
testimony should have been struck under Federal Rule of Evidence
403 as having a probative value substantially outweighed by the
danger of unfair prejudice.
18
admissibility,” and that evidence need only be “worth
consideration by the jury” to be admissible. United States v.
Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (citation omitted).
Accordingly, a district court has broad discretion in
determining whether certain evidence is relevant. United States
v. Queen, 132 F.3d 991, 998 (4th Cir. 1997).
Applying this deferential standard of review, we conclude
that the district court did not abuse its discretion in
admitting Sykes’ testimony. As McFadden concedes, there was
some overlap between the period in which Sykes purchased bath
salts from McDaniel and the period in which McFadden supplied
McDaniel with such substances. Also, importantly, Sykes’
description of the packaging of the bath salts he purchased from
McDaniel matched the description of the packaging used by
McFadden in distributing the substances. Sykes was shown
several exhibits of “blue baggies” containing substances that
the government agents had purchased from McDaniel and, on at
least one occasion, directly from McFadden. Sykes testified
that he recognized the packaging of those exhibits because he
had purchased bath salts from McDaniel in similar blue baggies. 9
9
McDaniel was also shown these exhibits during her
testimony, during which she stated that she recognized those
items as originating from McFadden because of their distinctive
packaging.
19
Given this foundation evidence tending to show that some of
the bath salts consumed by Sykes were supplied by McFadden,
Sykes’ testimony concerning the bath salts’ effect on his body
properly was submitted to the jury for purposes of establishing
the pharmacological similarity element. Although there were
flaws in Sykes’ testimony relating to the time period at issue
and whether McDaniel altered the substances after receiving them
from McFadden, such flaws were explored during cross-examination
and were relevant to the weight to be given Sykes’ testimony,
not to its admissibility. See Ziskie v. Mineta, 547 F.3d 220,
225 (4th Cir. 2008) (noting that determining the weight of
evidence entails a different inquiry than the relevance inquiry
required by Rules 401 and 402 of the Federal Rules of Evidence).
2.
We next consider McFadden’s challenge to the admission of
evidence of recorded telephone conversations between him and
McDaniel. In the district court, McFadden objected to this
evidence on the ground that the comparisons he made during these
conversations were irrelevant to the crimes charged, because he
claimed that 4-MEC produced effects similar to cocaine and
methamphetamine, controlled substances not used for comparison
under the chemical structure element. The district court
overruled McFadden’s objection, finding that this evidence was
20
relevant to both the pharmacological similarity element and the
human consumption element.
On appeal, McFadden argues solely that the district court
erred in concluding that the recordings were relevant to the
pharmacological similarity element. McFadden does not address
the district court’s separate conclusion that this evidence was
relevant to the human consumption element, nor does he raise an
argument that admission of this evidence was unduly prejudicial
under Rule 403. Because the human consumption element was an
independent basis for the district court’s admission of this
evidence, we affirm the court’s ruling on that basis and do not
address McFadden’s argument whether the recordings were relevant
to proof of the pharmacological similarity element. See United
States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001)
(holding defendant waived argument concerning district court’s
ruling on admissibility of evidence by failing to challenge on
appeal one of two independent grounds for court’s ruling).
3.
McFadden next asserts, on the basis of out-of-circuit
precedent, that the district court erred in refusing to instruct
the jury that the government was required to prove that he knew,
had a strong suspicion, or deliberately avoided knowledge that
the alleged CSAs possessed the characteristics of controlled
substance analogues. See United States v. Turcotte, 405 F.3d
21
515, 527 (7th Cir. 2005). We review for abuse of discretion the
district court’s denial of the requested instruction. United
States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013). To show an
abuse of discretion, a defendant must establish that the
proffered instruction: “(1) was correct, (2) was not
substantially covered by the charge that the district court
actually gave to the jury, and (3) involved some point so
important that the failure to give the instruction seriously
impaired the defendant’s defense.” Id.
McFadden’s argument fails at the outset because he cannot
satisfy the first requirement of this test. The instruction he
proposed is not a correct statement of the law in this Circuit.
In Klecker, we set forth the elements that the government was
required to prove to obtain a conviction under the Act,
including the scienter requirement that the defendant intended
that the substance at issue be consumed by humans. 348 F.3d at
71. We further stated that the Act may be applied to a
defendant who lacks actual notice that the substance at issue
could be a controlled substance analogue. Id. at 72.
In contrast to our decision in Klecker, the Seventh Circuit
has imposed a strict knowledge requirement before a defendant
may be convicted of violating the Act. In its decision in
Turcotte, the court stated that “our precedents demand a showing
that the defendant knew the substance in question was a
22
controlled substance analogue.” 405 F.3d at 527. Because we
have not imposed such a knowledge requirement, and have not
included the concepts of “strong suspicion” or “deliberate
avoidance” in framing the scienter requirement under the Act, we
hold that the district court properly denied McFadden’s
requested jury instruction.
C.
Finally, we address McFadden’s argument challenging the
sufficiency of the evidence and the district court’s denial of
his motion for judgment of acquittal. McFadden’s sufficiency
argument is limited to his contention that the government failed
to satisfy its evidentiary burden of demonstrating that 4-MEC,
MDPV, and methylone qualify as controlled substance analogues.
McFadden does not otherwise contest the jury’s verdict with
respect to the conspiracy offense and the substantive counts of
distributing controlled substance analogues in violation of the
Act.
We review de novo the district court’s denial of a motion
for judgment of acquittal. United States v. Hamilton, 699 F.3d
356, 361 (4th Cir. 2012). In considering a defendant’s argument
that the evidence was insufficient to support his convictions,
we will uphold a jury’s verdict if, viewing the evidence in the
light most favorable to the government, there is substantial
evidence in the record to support the verdict. Id.
23
“Substantial evidence” is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).
In conducting this review, we afford the jury’s verdict
deference because “it is the jury’s province to weigh the
credibility of the witnesses, and to resolve any conflicts in
the evidence.” United States v. Dinkins, 691 F.3d 358, 387 (4th
Cir. 2012) (citation omitted). Accordingly, a defendant
challenging the sufficiency of the evidence on appeal bears a
“heavy burden,” and we will reverse a conviction for
insufficient evidence “only in the rare case when the
prosecution’s failure is clear.” Hamilton, 699 F.3d at 361-62
(citation and internal quotation marks omitted).
For ease of review, we restate the elements of the
distribution offenses for which McFadden was convicted. In
addition to proving that McFadden distributed the substances at
issue, the government was required to prove that those
substances: (1) have a substantially similar chemical structure
as a Schedule I or II controlled substance; (2) have a
substantially similar or greater pharmacological effect on the
human central nervous system as a Schedule I or II controlled
substance, which effect was either actual, intended, or
represented by the defendant; and (3) were intended by the
24
defendant to be consumed by humans. See Klecker, 348 F.3d at
71.
As stated above, the government presented the testimony of
Dr. DiBerardino, who concluded that 4-MEC and MDPV are
substantially similar in chemical structure as methcathinone, a
Schedule I controlled substance. The government also presented
the testimony of Dr. Prioleau, who concluded that 4-MEC and MDPV
produce a substantially similar pharmacological effect as
methcathinone. McFadden asks us to cast aside Dr. DiBerardino
and Dr. Prioleau’s opinions and adopt the conflicting views of
McFadden’s expert witness, Dr. Lee. According to Dr. Lee, the
scientific methods employed by Dr. DiBerardino and Dr. Prioleau
were inadequate to reach their respective conclusions, with
which Dr. Lee disagreed.
We recognized long ago that “[a]n appellate court is not
the proper forum to refight a battle of expert witnesses.”
Connorton v. Harbor Towing Corp., 352 F.2d 517, 518 (4th Cir.
1965) (per curiam), quoted in United States v. Wood, 741 F.3d
417, 425 (4th Cir. 2013). That fight was waged in the district
court in this case, and the jury chose to accept the conclusions
of Dr. DiBerardino and Dr. Prioleau, despite defense counsel’s
vigorous cross-examination of those witnesses and the opposing
testimony of Dr. Lee.
25
It would be improper under our standard of review to
elevate Dr. Lee’s opinion over the opinions of Dr. DiBerardino
and Dr. Prioleau, because it is the jury’s function to weigh
witnesses’ credibility, to determine the weight to be accorded
their testimony, and to resolve conflicts in the evidence.
Dinkins, 691 F.3d at 387; United States v. Maceo, 873 F.2d 1, 7
(4th Cir. 1989). Therefore, based on the record before us, we
conclude that the government presented sufficient evidence that
4-MEC and MDPV are substantially similar in chemical structure
as methcathinone, a Schedule 1 substance. We further conclude
that the government presented sufficient evidence that 4-MEC and
MDPV produce actual pharmacological effects on the central
nervous system substantially similar to the effects produced by
methcathinone. 10 In light of this conclusion concerning “actual”
pharmacological similarity, we need not address McFadden’s
argument that there was insufficient proof that he “represented
or intended” that 4-MEC and MDPV would have substantially
similar pharmacological effects as a controlled substance. 11 See
10
We note that because the jury’s verdict is well-supported
by Dr. DiBerardino and Dr. Prioleau’s testimony, we need not
consider Sykes’ testimony in determining whether the government
proved actual pharmacological similarity of these substances at
issue.
11
We therefore need not reach McFadden’s arguments
concerning his statements to McDaniel that 4-MEC and mixtures
containing 4-MEC have an effect similar to substances other than
(Continued)
26
Klecker, 348 F.3d at 71 (government may establish the
pharmacological similarity element by showing “actual, intended,
or claimed” similarity) (emphasis added).
Having reached this conclusion with respect to 4-MEC and
MDPV, we need not address whether there was sufficient evidence
in the record to conclude that methylone qualified as a
controlled substance analogue. Each of the charges in the
superseding indictment relating to methylone also alleged in the
conjunctive that McFadden distributed MDPV or 4-MEC with respect
to those counts. In other words, none of the charges hinged on
a finding that methylone qualified as a controlled substance
analogue. 12 Accordingly, even if we agreed with McFadden’s
arguments relating to methylone, we nevertheless would affirm
each of his convictions. See Turner v. United States, 396 U.S.
398, 420 (1970) (reaffirming the general rule that if an
indictment charges several acts in the conjunctive, a guilty
verdict stands if the evidence is sufficient with respect to any
one of the acts); United States v. Bollin, 264 F.3d 391, 412
methcathinone, and do not decide whether the pharmacological
similarity element may be established by comparing the alleged
analogue substance to a different controlled substance than used
for comparison under the chemical structure element.
12
We further observe that because the government agreed to
remove methylone from the calculation of drug weight for
purposes of determining McFadden’s advisory sentencing
guidelines range, methylone was not a factor in the court’s
determination of McFadden’s sentence.
27
n.14 (4th Cir. 2001) (in case involving perjury allegation
charged in the conjunctive pertaining to two alleged false
statements, holding that Court need not reach arguments
pertaining to the first alleged false statement because evidence
supported jury verdict relating to the second alleged false
statement).
IV.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
28