United States v. McFadden

• Decision Date: 21 May 2014
• Docket Number: No. 13–4349.,13–4349.
• Citation: 753 F.3d 432
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Stephen Dominick McFADDEN, a/k/a Stephen Domin McFadden, Defendant–Appellant.

753 F.3d 432

UNITED STATES of America, Plaintiff–Appellee,

v.Stephen Dominick McFADDEN, a/k/a Stephen Domin McFadden, Defendant–Appellant.

No. 13–4349.

United States Court of Appeals,Fourth Circuit.

Argued: March 19, 2014.

Decided: May 21, 2014.

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.

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.

BARBARA MILANO KEENAN, Circuit Judge:

This appeal concerns a defendant's convictions involving the sale of “designer drugs,” in violation of the Controlled SubstanceAnalogue 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 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 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 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–methylethylcathinone (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 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. 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 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.

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 enforcementin 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 ...