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United States v. Dau

United States District Court, W.D. Virginia, Roanoke Division

August 22, 2014

UNITED STATES OF AMERICA,
v.
CHOL MAKUACH DAU, Defendant.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

Defendant Chol Makuach Dau is charged in a three count superseding indictment[1] with conspiracy and possession with intent to distribute various controlled substances and controlled substance analogues. In anticipation of trial, [2] the parties filed numerous motions that were addressed at a June 10, 2014 hearing. Two of those motions, Dkt. #s 42 and 64, concern defendant's knowledge as regards the charged offenses. The court took these motions under advisement pending issuance of a written opinion. The issues raised are addressed herein. For the reasons stated below, the government's motions in limine (Dkt. #s 42 & 64) will be GRANTED.

I.

Congress enacted the Controlled Substance Analogue Enforcement Act of 1986, 21 U.S.C. §§ 802(32)(A), 813, "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." United States v. McFadden, 753 F.3d 432, 436 (4th Cir. 2014) (citing United States v. Klecker , 348 F.3d 69, 70 (4th Cir. 2003) and United States v. Hodge , 321 F.3d 429, 432 (3d Cir. 2003)). The Analogue Act treats a controlled substance analogue, to the extent it is intended for human consumption, as a schedule I controlled substance for purposes of federal law. 21 U.S.C. § 813. "Controlled substance analogue" is defined in § 802(32)(A) 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.

Thus, as the Fourth Circuit stated in McFadden:

[A]n 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 ); (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).

753 F.3d at 436.

In this case, Dau is charged in Count One (subsection (1)) of the superseding indictment with conspiracy to distribute and possess with intent to distribute various controlled substance analogues, and in Count One (subsection (2)) with conspiracy to distribute and possess with intent to distribute a schedule I controlled substance. Count Two charges Dau with possession with the intent to distribute various controlled substance analogues, and Count Three charges possession with the intent to distribute a schedule I controlled substance. The two pending motions in limine concern the mens rea required to prove the Analogue Act violations charged in Counts One (subsection (1)) and Two.

II.

A.

In its first motion in limine, the government asks the court to preclude Dau from arguing at trial that he did not know it was illegal to distribute the controlled substance analogues charged in the indictment (Dkt. # 42). Argument along these lines, according to the government, would be tantamount to a mistake or ignorance of the law defense, neither of which is a permissible defense to the federal drug crimes charged here. To be sure, "[t]he general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.'" United States v. Fuller , 162 F.3d 256, 262 (4th Cir. 1998) (quoting Cheek v. United States , 498 U.S. 192, 199 (1991), and citing United States v. Wilson , 133 F.3d 251, 261 (4th Cir. 1997)). ...


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