Thread Rating:
  • 0 Vote(s) - 0 Average
  • 1
  • 2
  • 3
  • 4
  • 5
McFadden v. U.S., 576 US _______ - Supreme Ct decision re knowledge of status of RC
#1
Hey guys, since everyone might have missed this I figure this is something interesting for some people. It doesn't directly deal with the issue of whether the Analogue Act requires all 3 elements to be fulfilled or just one in order to obtain a conviction, although nearly all precedent have stated such. This one clears up as to whether the seller of the RC needs to know as to whether the RC they're selling is a "controlled substance". Obviously, this only applies to the US.

Also, I realize that this really only applies to Schedule I and II substances, but since emergency scheduling is popular now as proving all 3 elements has been difficult for AUSAs, you never know and it'd be good to know.

http://www.supremecourt.gov/opinions/14p...8_k537.pdf

"The question in this case is how the mental state requirement under the CSA for knowingly manufacturing, distributing, or possessing with intent to distribute “a controlled substance” applies when the controlled substance is in fact an analogue. The answer begins with §841(a)(1), which expressly requires the Government to prove that a defendant knew he was dealing with “a controlled substance.” The Analogue Act does not alter that provision, but rather instructs courts to treat controlled —————— subject to seizure at customs. United States v. Ali, 735 F. 3d 176, 188– 189 (CA4 2013). The Government presented such circumstantial evidence in this case, and neither party disputes that this was proper. Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court substance analogues “as . . . controlled substance[s] in schedule I.” §813. Applying this statutory command, it follows that the Government must prove that a defendant knew that the substance with which he was dealing was “a controlled substance,” even in prosecutions involving an analogue."

What does this mean for you? Not much, yet, but essentially the Supreme Court reaffirmed the scienter element of the Analogue Act - the state needs to prove that you knowingly possessed or sold a substance that is scheduled I or II or an analogue which is treated as such, instead of just the effects. The Analogue Act generally (but not in all circuits) state that the state needs to prove: 

a) Drug is chemically similar to a Schedule I and II substance
b) Drug has similar or great effect than its Schedule I or II analogue
c) Drug needs to have been made with intent to imitate the effects of a scheduled substance. (Almost all j/x requires all 3, so it's incredibly hard to convict non-vendors).

The decision makes c more stringent: the defendent has to know the item is scheduled either by knowledge or action. The government will be more acitive on posting more emergency temp schedule I orders, but of course  But this does mean that vendors would need to not only know and intend the effects but also that it is an analogue for the US to secure a conviction. He doesn't need to know what it is, just that it's scheduled Previously, just reasonably can infer that it is trugs,   to know what it does.

This could easily be precedent about a case against our situation by expanding the Analogues Act (which is almost impossible to enforce on individuals, but they did reschedule some Schedule IIIs to IIs so really watch out ) or just do a lot more temp schedules. If you use RCs or anything that's not blister backed, check federalregister.gov. You'll have a chance to comment on it before they make a final ruling. 


Most importantly, make sure whoever you're dealing with knows what they're doing. Hope all goes well for everyone.
Reply
#2
Plausible deniability, two words that not only work for politicians. instantaneous ignorance drives the "big Bust" of your small order of minor meds right to the da's shredder.
Reply
#3
Thanks for this update, very interesting
Do not put off till tomorrow what can be put off till day-after-tomorrow just as well. - Mark Twain
Reply
#4
(07-26-2015, 04:35 AM)jimtje Wrote: this really only applies to Schedule I and II substances, but since emergency scheduling is popular now as proving all 3 elements has been difficult for AUSAs, you never know and it'd be good to know.

...

This could easily be precedent about a case against our situation by expanding the Analogues Act (which is almost impossible to enforce on individuals, but they did reschedule some Schedule IIIs to IIs so really watch out) or just do a lot more temp schedules.

It is very much in the realm of possibiity. Just this month, the feds charged a redditor for violating the federal analog act by selling a schedule III analog. I think it was a ketamne analog. I feel bad for the kid. Seems like they're gonna crucify him to set some legal precedents.

http://www.nj.com/monmouth/index.ssf/201...uthor.html
Reply
#5
Ah, SDNY. Here's what's going to happen:

AUSA will argue that MXE is a PCP analogue.

Defense will bring an expert saying that to define it as such is broad. Occam's Razor, effectively.

The fact is manufacturing probably had a whole lot to do with it. Go ahead, make a batch of something Schedule V for sale and you still can't get away with it. The analogue act is added on because the elements fit and gives the feds more options. It's almost certain this will plead out, because there's no point arguing analogues when you're manufacturing anything scheduled.

This year, the focus so far has been on cannabonoids (spice) and fentynal analogues. The rules re: this - is still one that the feds will push - as it is their job - but the whole thing is, after all, a circus.

For reference:

Quote:Title 21 United States Code (USC) Controlled Substances Act
SUBCHAPTER I — CONTROL AND ENFORCEMENT

Part B — Authority to Control; Standards and Schedules

§813. Treatment of controlled substance analogues

A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.

(Pub. L. 91–513, title II, §203, as added Pub. L. 99–570, title I, §1202, Oct. 27, 1986, 100 Stat. 3207–13; amended Pub. L. 100–690, title VI, §6470©, Nov. 18, 1988, 102 Stat. 4378.)

References in Text

Schedule I, referred to in text, is set out in section 812© of this title.

Amendments

1988—Pub. L. 100–690 substituted "any Federal law" for "this subchapter and subchapter II of this chapter".

No changes so far. regulations.gov is your best source to see if anything is on the table.
Reply
#6
Well thank u so much our fledgling Attorney at law. We missed you. You will achieve your goals my friend.
Angel  It is Well with My Soul  Angel
Reply
#7
Jimtje!! Man it's so very good to see you friend! Hope you can find time to pass by here more often ... Good members such as yourself are always a pleasure to read ...

Ice
A true friend, freely advises,
justly assists readily, 
adventures boldly, 
takes all patiently,
defends courageously
and continues a friend unchangeably.


William Penn


Reply


Forum Jump:


Users browsing this thread: 1 Guest(s)