In McFadden v. United States, decided June 18, the U.S. Supreme Court ruled on the mental state the Government must prove to convict under the federal Controlled Substance Analogue Enforcement Act.

Stephen McFadden marketed various “bath salts” with names such as “Alpha,” “No Speed,” and “Up.” 

The products were labeled with language borrowed from the federal Analogue Act that they were “not for human consumption,” or that they did not contain various compounds or analogues.

McFadden had compared the products to cocaine and methamphetamine.

McFadden was charged and convicted of distribution of controlled substance analogues.

The case reached the Supreme Court on the issue of whether the district court’s jury instruction correctly stated the knowledge requirement under the Analogue Act.


The Analogue Act identifies substances substantially similar to those listed on the federal controlled substances schedules, 21 U.S.C. Sec. 802(32)(A), and then treats those analogues as controlled substances if they are intended for human consumption, Sec. 813. 

The Controlled Substances Act, 21 U.S. C. Sec. 841(a)(1), in turn, makes it “unlawful for any person knowingly or intentionally … to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”

“The question presented in this case concerns the knowledge necessary for conviction under Sec. 841(a)(1) when the controlled substance at issue is in fact an analogue,” the Court said. 

“Under the most natural reading of this provision, the word ‘knowingly’ applies not just to the statute’s verbs but also the object of those verbs – ‘a controlled substance,’” the Court said.

The Court ruled that the knowledge requirement may be met in two different ways.

The “knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was.”   An example, the Court explained, would be a defendant in a drug organization who distributes a white powder listed on the schedules, even if he does not know precisely what substance it is.

 Alternatively, the “knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed.”  The Court said an example would be a defendant who knows he is distributing heroin but does not know that heroin is listed on the schedules.  “Because ignorance of the law is typically no defense,” the Court said, “this defendant would … be guilty of knowingly distributing ‘a controlled substance.’”

 Applying these principles to analogues, the Court held that knowledge can be established, first, “by evidence that a defendant knew that the substance with which he was dealing is some controlled substance – that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act – regardless of whether he knew the particular identity of the substance,” or, second, “by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.” 

 The Analogue Act, Sec. 802(32)(A), further defines an analogue by its features as a substance “substantially similar to the chemical structure of a controlled substance in schedule I or II;” “which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than” the effect of schedule I or II controlled substances; or which is represented or intended to have that effect. 

 “A defendant who possesses a substance with knowledge of [these] features knows all of the facts that make his conduct illegal,” the Court ruled.

 The Court concluded that the district court’s jury instruction failed to fully set forth the required mental state.  The jury was instructed only that McFadden had to knowingly distribute a substance that has an actual, intended or claimed simulant, depressant, or hallucinogenic effect similar to that of a controlled substance.
 The Court remanded the case to determine whether the error was harmless.

 Concurring Opinion Raises Future Question

 Chief Justice Roberts concurred with the Court’s opinion “except to the extent that it says the Government can satisfy the mental state requirement … ‘by showing that the defendant knew the identity of the substance he possessed.’”

 “A defendant needs to know more than the identity of the substance,” Roberts said.  “[H]e needs to know that the substance is controlled.”

 Roberts said that in cases of “well-known” drugs like heroin, a defendant’s knowledge that the drug is heroin can be compelling evidence that he knows the substance is controlled.  But this is not necessarily true for lesser drugs, Roberts said.

 “A pop quiz for any reader who doubts the point:  Two drugs – dextromethorphan and hydrocodone – are both used as cough suppressants.   They are also both used as recreational drugs.  Which one is the controlled substance?” Roberts asked.  Answer, hydrocodone.

 Roberts said that although it is typically true that ignorance of the law is no defense, “when ‘there is a legal element in the definition of the offense,’ a person’s lack of knowledge can be a defense.”

 Here, Roberts said there is “arguably a legal element” that the substance be “controlled.”  If true, “it is no defense that a defendant did not know it was illegal to possess a controlled substance, but it is a defense that he did not know the substance was controlled,” Roberts said.

 Such questions may arise in a future case, Roberts said.