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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4349
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:
Decided:
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.
appeal
concerns
defendants
convictions
involving
On
appeal,
is
McFadden
primarily
asserts
that
the
Act
abused
its
discretion
in
making
certain
evidentiary
substances
McFadden
distributed
qualified
as
controlled
I.
Before addressing the facts of this case and McFaddens
challenges to his convictions, we first provide a brief overview
of the Act.
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
listed
of
designer
controlled
drugs
substances
and
that
other
chemical
otherwise
would
variants
of
escape
the
human
consumption,
be
treated
under
federal
law
as
21 U.S.C. 813.
under
Schedule
or
Schedule
II
(the
chemical
or
on
claimed
the
stimulant,
central
depressant,
nervous
system
has an actual,
or
that
structure
hallucinogenic
is
substantially
Schedule
II
controlled
substance
(the
pharmacological
human
consumption
(the
human
consumption
element).
See
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,
police
investigation
revealed
that
bath
salts
were
Using confidential
informants,
investigators
purchased
bath
salts
from
McDaniel,
showed
that
these
bath
methylenedioxypyrovalerone
salts
contained
(MDPV)
methylenedioxymethcathinone
(methylone,
3,4-
and
or
MDMC).
3,4Government
initiated
recorded
telephone
conversations
with
During
certain
substances,
including
cocaine
and
methamphetamine.
As a result of these transactions, investigators received
bath salts supplied by McFadden on five separate occasions.
DEAs
analysis
showed
that
two
batches
of
these
bath
The
salts
contained
4-MEC,
findings
of
but
this
not
MDPV
or
investigation,
methylone. 2
the
grand
Based
jury
on
issued
the
a
four-day
4-MEC,
substance
jury
MDPV,
analogues
trial
and
under
focused
primarily
methylone
the
Act.
on
constitute
To
prove
the
issue
controlled
the
chemical
an
expert
in
the
field
of
chemical
structures
of
drugs.
Using
chemical
diagrams
as
demonstrative
exhibits,
Dr.
controlled
substance.
Dr.
DiBerardino
further
testified,
establish
the
pharmacological
similarity
element,
the
testified
pharmacological
that
effect
4-MEC
on
and
the
MDPV
each
central
would
nervous
Dr.
have
system
Prioleau
further
testified
that
substantially
similar
pharmacological
methylone
effect
on
would
the
have
central
effects of medication.
criticized
reaching
her
the
conclusions
similarity element.
produce
methodology
similar
with
employed
respect
by
to
Dr.
the
Dr. Lee
Prioleau
in
pharmacological
pharmacological
effects
as
ecstasy,
and
that
finding
McFadden
alleged
in
indictment.
district
the
court
guidelines
found
range
imprisonment.
was
guilty
that
of
At
each
51
the
sentencing
McFaddens
between
of
nine
hearing,
advisory
months
and
counts
the
sentencing
63
months
33
months
concurrently,
and
imprisonment
a
30-month
for
each
period
of
conviction,
supervised
to
run
release.
III.
A.
We
first
consider
McFaddens
argument
theme
ordinary
that
the
intelligence
Act
notice
that
the
Act
is
failed
to
provide
that
the
conduct
the
Act
fails
person
of
at
issue
was
meet
the
unlawful.
McFadden
argues
that
to
of
scheme,
similar
prohibited
employing
and
human
substances;
arbitrary
and
statutory
guidance
concerning
significant
efforts
despite
discriminatory
general
consumption,
(2)
the
enforcement
Act
in
prohibited
on
terms
his
part
and
such
as
lacks
is
subject
to
the
absence
of
conduct;
to
and
learn
(3)
about
This
(8th Cir. 2002) (citing United States v. Natl Dairy Prods., 372
U.S. 29, 32-33 (1963) and Connally v. Gen. Constr. Co., 269 U.S.
385, 391 (1926)).
357-58.
In our decision in Klecker, we rejected a nearly identical
constitutional challenge as that raised by McFadden.
F.3d at 71-72.
See 348
Id.
who
lacked
actual
notice
that
Id. at 72.
substance
was
were
sufficient
to
put
reasonable
Id.
person
on
term
substantially
802(32)(A),
chemical
is
comparing
as
unconstitutionally
compounds
DiBerardino
similar,
at
issue
comprehensively
the
chemical
used
vague
in
when
21
U.S.C.
applied
to
the
of
Dr.
here.
The
testimony
addressed
the
chemical
structures
of
4-MEC
and
diagrams
MDPV
with
with
DiBerardino
chemical
the
chemical
explained
structure
that
structure,
these
namely
of
methcathinone,
substances
that
of
share
Dr.
compound
core
called
phenethylamine.
the
each
substances
have
some
unique
features
in
their
[e]verything
thats
different
is
on
the
periphery
of
the
type
the
of
methylone
substances
comparison
and
ecstasy,
share
phenethylamine,
examining
and
during
the
that
which
same
the
chemical
he
core
structural
structures
explained
chemical
that
of
those
structure,
differences
between
at
controlled
substances
substantially
issue,
Dr.
and
similar
DiBerardino
the
concluded
respective
chemical
that
the
CSAs
have
Thus,
Dr.
alleged
structures.
and
was
able
to
distinguish
the
differences
chemical
diagrams,
we
agree
with
in
those
After reviewing
the
district
courts
structures
between
the
alleged
CSAs
and
their
the
alleged
CSAs
stimulant effect.
defendants
be
consumed
by
humans
to
produce
intent
that
Foxy
be
ingested
as
hallucinogen
McFadden
informed
McDaniel
during
recorded
As stated
telephone
12
as
alternatives
demonstrates
that
to
controlled
reasonable
person
in
substances
his
further
position
would
See id.
further
disagree
with
McFaddens
argument
that
the
v.
United
States,
500
U.S.
453,
462,
467-68
See
(1991)
despite
mixture
and
lack
of
statutory
substance).
definition
statute
need
of
the
terms
not
contain
meaning.
See United States v. Day, 700 F.3d 713, 725 (4th Cir.
See Blacks
We therefore
that
the
Act
qualify
as
provides
controlled
for
the
substance
comparison
of
analogues.
different
list
of
particular
chemical
compounds
could
not
Moreover,
purpose
creating
of
the
slightly
such
requirement
Act,
which
modified
is
to
versions
would
undermine
prevent
of
the
very
individuals
from
controlled
substances
14
Given
the
creativity
of
individuals
manufacturing
these
of
such
substances
could
outpace
our
holding
in
Klecker
by
any
efforts
by
Thus, we decline to
imposing
constitutional
[n]o
list
of
controlled
substance
analogues
is
necessary).
We also find no merit in McFaddens argument that the Act
is subject to arbitrary and discriminatory enforcement.
We held
any
vagueness
challenge
arbitrary enforcement.
intent
element
requires
based
on
the
the
potential
for
government
prove
that
the
126
Cir.
(2d
consumption
2004)
(holding
element
protects
that
the
against
intended
arbitrary
for
human
enforcement).
substance
and
the
controlled
substance,
and
(2)
actual,
the
prohibited
Act
See Klecker,
failed
conduct
to
provide
and
was
him
adequate
subject
to
notice
of
arbitrary
the
and
discriminatory enforcement.
We likewise find no merit in McFaddens 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.
general
excuse.
argument
fails
principle
because
that
it
flouts
ignorance
of
the
the
law
wellis
no
this
determine
reject
general
whether
McFaddens
rule
his
because
conduct
argument
he
was
that
16
unsuccessfully
lawful.
the
Act
is
sought
to
Accordingly,
we
unconstitutional
next
address
McFaddens
arguments
concerning
certain
McFadden
McDaniel;
McFaddens
(2)
telephone
in
admitting
conversations
into
evidence
with
recordings
McDaniel;
and
(3)
of
in
government
evidence
supporting
offered
the
the
testimony
pharmacological
of
Toby
similarity
Sykes
as
element.
McFadden
objected
to
Sykes
testimony
on
the
ground
of
overruled
latitude
state
to
that
McFaddens
cross-examine
the
objection,
Sykes
substances
he
but
The district
granted
concerning
purchased
him
whether
were
great
he
could
distributed
by
McFadden. 8
We review for abuse of discretion a district courts ruling
concerning
the
admissibility
of
evidence.
United
Federal
Rules
of
Evidence,
all
States
v.
relevant
evidence
is
statute,
or
another
evidentiary
rule.
Evidence
is
1465
determination
(4th
of
Cir.
1995).
relevance
We
have
presents
observed
a
low
that
the
barrier
to
court
found,
Sykes
comparison
of
the
bath
salts
to
methamphetamine was consistent with Dr. Prioleaus 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
United States v.
Leftenant, 341 F.3d 338, 346 (4th Cir. 2003) (citation omitted).
Accordingly,
district
court
has
broad
discretion
in
United States
the
district
court
did
not
abuse
its
discretion
in
with
such
substances.
Also,
importantly,
Sykes
matched
McFadden
in
the
description
distributing
the
of
the
packaging
substances.
Sykes
used
was
by
shown
Sykes testified
bath
salts
consumed
by
Sykes
were
supplied
by
McFadden,
pharmacological
similarity
element.
Although
there
were
(4th
Cir.
2008)
(noting
that
determining
the
weight
of
of
McDaniel.
recorded
In
the
telephone
district
conversations
court,
McFadden
between
him
objected
to
and
this
that
4-MEC
produced
effects
similar
to
cocaine
and
the
chemical
structure
element.
The
district
court
20
v.
Hatchett,
245
F.3d
625,
644-45
(7th
See United
Cir.
2001)
next
asserts,
on
the
basis
of
out-of-circuit
alleged
CSAs
possessed
substance analogues.
the
characteristics
of
controlled
of
proffered
discretion,
defendant
instruction:
substantially
actually
gave
covered
to
by
the
must
(1)
was
the
charge
jury,
and
(3)
United
To show an
establish
that
the
was
not
correct,
(2)
that
district
the
involved
some
court
point
so
Id.
The instruction he
to
prove
to
obtain
conviction
under
the
Act,
We
further
stated
that
the
Act
may
be
348 F.3d at
applied
to
Id. at 72.
In its decision in
the
defendant
knew
the
substance
22
in
question
was
not
included
imposed
the
such
concepts
a
of
knowledge
strong
requirement,
suspicion
Because we
and
or
have
not
deliberate
that
the
district
court
properly
denied
McFaddens
we
address
McFaddens
argument
challenging
the
McFaddens sufficiency
does
not
otherwise
contest
the
jurys
verdict
with
in
the
record
to
support
23
the
verdict.
Id.
could
accept
as
adequate
and
sufficient
to
support
because
it
is
the
jurys
province
to
weigh
the
2012)
(citation
omitted).
Accordingly,
defendant
burden,
insufficient
and
we
evidence
will
only
reverse
in
the
rare
conviction
for
case
the
when
ease
distribution
of
review,
offenses
for
we
restate
which
the
McFadden
elements
was
of
the
convicted.
In
the
government
was
required
to
prove
that
those
Schedule
or
II
controlled
substance;
(2)
have
which
represented
by
the
effect
was
defendant;
either
and
24
(3)
actual,
were
intended,
intended
by
or
the
71.
As stated above, the government presented the testimony of
Dr.
DiBerardino,
who
concluded
that
4-MEC
and
MDPV
are
the testimony of Dr. Prioleau, who concluded that 4-MEC and MDPV
produce
substantially
methcathinone.
similar
pharmacological
effect
as
inadequate
to
reach
their
respective
conclusions,
with
proper
forum
to
refight
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).
court in this case, and the jury chose to accept the conclusions
of Dr. DiBerardino and Dr. Prioleau, despite defense counsels
vigorous cross-examination of those witnesses and the opposing
testimony of Dr. Lee.
25
It
would
be
improper
under
our
standard
of
review
to
testimony,
and
to
resolve
conflicts
in
the
evidence.
We further conclude
produce
actual
pharmacological
effects
on
the
central
pharmacological
similarity,
we
need
not
address
McFaddens
intended
that
4-MEC
and
MDPV
would
have
substantially
See
10
Klecker,
348
F.3d
at
71
(government
may
establish
the
the
record
controlled
to
substance
conclude
that
analogue.
methylone
Each
of
qualified
the
charges
as
in
a
the
Accordingly,
even
if
we
agreed
with
McFaddens
420
(1970)
(reaffirming
the
general
rule
that
if
an
n.14
(4th
charged
Cir.
in
statements,
the
2001)
(in
conjunctive
holding
that
case
involving
pertaining
Court
need
perjury
to
not
two
allegation
alleged
reach
false
arguments
jury
verdict
relating
to
the
second
alleged
false
statement).
IV.
For these reasons, we affirm the district courts judgment.
AFFIRMED
28