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United States

United States District Court, W.D. Virginia, Big Stone Gap Division

August 3, 2015

UNITED STATES OF AMERICA
v.
CECIL A. McCONNELL, JR., Defendant.

Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States; Brian J. Beck, Assistant Federal Public Defendant, Abingdon, Virginia, for Defendant.

OPINION AND ORDER

JAMES P. JONES, District Judge.

Following his conviction by a jury, defendant Cecil A. McConnell, Jr., seeks a new trial based upon a subsequent decision by the Supreme Court, McFadden v. United States, 135 S.Ct. 2298 (2015), construing the mens rea requirement under the Controlled Substance Analogue Enforcement Act of 1986 ("CSAEA"), 21 U.S.C. §§ 802(32), 813. The Supreme Court's decision reversed a ruling on this issue by the Fourth Circuit, United States v. McFadden, 753 F.3d 432 (4th Cir. 2014), upon which this court had relied in certain evidentiary rulings and jury instructions in McConnell's case. McConnell also moves for a judgment of acquittal or a new trial on his separate conviction for fraudulently misbranding drugs in violation of the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 331(a), 333(a)(2).

For the following reasons, I will grant McConnell's motion for a new trial on his CSAEA convictions, and deny the motion for judgment of acquittal or a new trial as to his FDCA conviction.

I.

On February 25, 2014, McConnell was indicted along with eight codefendants for conspiring to possess and distribute synthetic marijuana in violation of the CSAEA, and other related offenses.[1] On October 22, 2014, after a seven-day jury trial, McConnell was convicted of conspiracy to possess with the intent to distribute controlled substance analogues (Count One), possession with the intent to distribute controlled substance analogues 5F-PB-22 and XLR-11 (Counts Five and Six), maintaining a place for the purpose of distributing controlled substance analogues (Count Ten), and misbranding a drug with the intent to defraud or mislead (Count Sixteen).[2] Following the verdict, McConnell and his codefendant Stephens timely moved for a new trial on a Brady issue, [3] which motion was denied. United States v. Stephens, No. 2:14CR00001, 2014 WL 6902053 (W.D. Va. Dec. 8, 2014).

On May 7, 2015, the date fixed for his sentencing, McConnell moved pursuant to Federal Rule of Criminal Procedure 45(b) for an extension of time to file a motion for a new trial in light of the Supreme Court's soon-to-be-expected McFadden mens rea decision. I granted McConnell's motion on the ground that McConnell's failure to timely move for a new trial on this ground constituted excusable neglect. United States v. McConnell, No. 2:14CR00001-009, 2015 WL 2365628 (W.D. Va. May 18, 2015); see Fed. R. Crim. P. 45(b)(1)(B).

Soon thereafter, on July 1, 2015, following the Supreme Court's June 18, 2015, decision in McFadden, McConnell filed his present Motion for New Trial. The motion has been fully briefed and is ripe for decision.[4]

II.

Federal Rule of Criminal Procedure 33(a) provides that, "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Courts have "widely agreed that Rule 33's interest of justice' standard allows the grant of a new trial where substantial legal error has occurred." United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). Moreover, "any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial." United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004) (quoting 3 Charles Alan Wright et al., Federal Practice and Procedure § 556 (3d ed. 2004)).

The court's charge to the jury in this case as to the appropriate mens rea relating to the CSAEA counts was required by the Fourth Circuit's decision in United States v. McFadden , which held that the "intent element [under the CSAEA] requires that the government prove that the defendant meant for the substance at issue to be consumed by humans." 753 F.3d at 441.

McConnell contested the mens rea issue pretrial, pointing to other circuits that have interpreted the CSAEA to require the government to prove that the defendant knew that the substances he was selling had chemical structures and effects similar to controlled substances. See, e.g., United States v. Turcotte, 405 F.3d 515, 527 (7th Cir. 2005). The Fourth Circuit in McFadden, however, rejected the "strict knowledge requirement" imposed in Turcotte, and held that the CSAEA "may be applied to a defendant who lacks actual notice that the substance at issue could be a controlled substance analogue." McFadden, 753 F.3d at 444. A petition for certiorari to the Supreme Court in the McFadden case, based on this circuit split, was filed October 2, 2014. In the meantime, this court was bound by the Fourth Circuit's decision.

The Fourth Circuit's McFadden ruling affected the proceedings in this case in several ways. First, under McFadden 's precedent, I granted the government's motions in limine to exclude the defendant's evidence showing that he did not know that the substances he sold were controlled substance analogues or that it was illegal to distribute them from the retail outlet where he worked, Cecil's Variety Store. United States v. Hoyt, No. 2:14CR00001, 2014 WL 5023093, at *7 (W.D. Va. Oct. 8, 2014). This excluded evidence included information provided to the defendant from vendors claiming that the products were legal substances. Further, the defense would have presented a video recording of a controlled buy in which the defendant told a confidential informant that the products were legal in every state.

I reasoned that to prove a violation of the CSAEA, the government did not need to show that the defendants had "actual notice that the substances at issue were controlled substance analogues." Id. Therefore, any evidence from the defendants that they lacked knowledge as to the statutory elements, apart from intending that the substance be consumed by humans, was irrelevant and inadmissible at trial. Id. at *6-7.

In addition, I excluded evidence relating to the government's failure to notify the defendants that they were violating the CSAEA, in spite of cease-and-desist letters sent to other retailers in this district for selling the same substances. Citing McFadden, I noted that any argument that the defendant reasonably believed that the substances were legal would flout the principle that ignorance of the law is no excuse. Id. at *7.

Finally, the McFadden decision informed this court's jury instructions as to the mens rea element of the CSAEA charges. Of relevance, the court gave the following instructions to the jury:

Under federal law, a controlled substance analogue is to be treated the same as a controlled substance if it is intended for human consumption. Therefore, in addition to the above definition, the government must also prove beyond a reasonable doubt that a defendant intended for the substance to be consumed by humans. Human consumption means the ...

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