United States v. Bradley

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         After a three-week trial, the jury found Jason Bradley, Nayna Taylor, and Edward Taylor guilty of conspiracy to distribute controlled substances and controlled substance analogues (namely, the synthetic drugs MDPV and a-PVP).^[1] The jury also found Bradley guilty of conspiracies to import drugs and to launder money. In post-trial motions, these Defendants asked the Court to acquit them, to grant them a new trial, and to declare the Federal Analogue Act unconstitutional.^[2] Defendant Bradley also asked for access to the court reporter's personal audio recording of the trial. At a hearing on these motions, the Court denied each and affirmed Defendants' guilt. This opinion explains that order.

         I. Motions for Acquittal

         Courts are required to sustain the jury's verdict “if, viewing the evidence in the light most favorable to the government, substantial evidence supports it.” United States v. Kiza, 855 F.3d 596, 601 (4th Cir. 2017). “Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” United States v. Howard, 773 F.3d 519, 525 (4th Cir. 2014) (internal quotation marks omitted). Inversely, Fed. R. Crim. P. 29 requires a court, on a defendant's motion, to “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” In evaluating the sufficiency of the evidence, the “Court must consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established.” United States v. Cameron, 573 F.3d 179, 183 (4th Cir. 2009) (internal quotation marks omitted). Here Defendants moved for acquittal. Because the Government presented ample evidence to sustain the verdict, the Court denied Defendants' motions. The following sections describe the evidence that supports the jury's verdict and then address Defendants' other specific objections.^[3]

         A. Summary of evidence supporting the verdict

         Jason Bradley and his wife Deborah Ryba moved to Chicago in 2009, where they made a living by selling electronic cigarettes they bought from China. (Dkt. 570 at 17). In late 2010 they decided to cut out the middle man and move to China to buy their own electronic cigarette factory. (Id. at 27-34). They stayed in China over a year, but never were able to find a factory for the right price. (Id.). While they were still in China in early 2011, one of Ryba's cousins reached out to them. This cousin, David Scholz, had heard about synthetic drugs called “bath salts, ” and he wanted Ryba and Bradley to import these drugs into the United States so that he could resell them. (Dkt. 570 at 34-37). Ryba and Bradley agreed to buy the drugs Scholz requested. (Id. at 39). One of these drugs was MDPV. This drug, according to the government's experts, is substantially similar to other controlled substances (like ecstasy) that are scheduled by the federal government. (Dkt. 508-60 at ECF 9-27; dkt. 561 at 33). Bradley investigated the drug's legality and tried the drug himself. (Dkt. 572 at 25-27; dkt. 573 at 80).

         In spite of their knowledge about the drugs, Ryba and Bradley got to work. Ryba contacted a Chinese translator and negotiated MDPV pricing with factories. (Dkt. 570 at 38; dkt. 474 at 25-30). Bradley acquired samples and sent them back to Scholz. (Dkt. 570 at 44). Scholz approved of the samples, and Bradley began sending MDPV back to Scholz in larger quantities. (Id. at 22, 51; dkt. 573 at 28-29). The first order, containing a kilogram of MDPV, arrived in the United States in June 2011. (Dkt. 573 at 41-42). A second order arrived three months later. (Id.). A third order containing four kilograms of MDPV followed in late 2011. (Id. at 49-52). Bradley would open up rice cookers and other consumer goods, put the drugs inside of them, and then reseal the goods in an attempt to avoid law enforcement. (Dkt. 570 at 51-52; dkt. 474 at 31). Bradley would ship the goods through Hong Kong because he believed the United States scrutinized these shipments less than packages arriving directly from China. (Dkt. 570 at 51-52). In return, Scholz wired Bradley money for the drugs. (Dkt. 573 at 28-29).

         Back in the United States, Scholz joined with Robert Schroeder and Ryan Buchanan to distribute MDPV to smoke shops and other retailers. (Dkt. 532 at 35-36). Schroeder and Buchanan had prior experience selling MDPV. (Dkt. 573 at 18-22). Scholz, Schroeder, and Buchanan incorporated their enterprise as “Modern Day Prophets” in June 2011 and then hired Nick Purintun and Brian Lister as salesmen. (Dkt. 532 at 36). Together, these five individuals worked to sell MDPV throughout the United States. MDPV was sold in unique packages as “Crystal Bubbly Hookah Cleaner, ” a recognizable brand created by Ryba and Bradley. (Dkt. 533 at 21-22; dkt. 572 at 31-33; dkt. 573 at 51-52). The salesmen phoned smoke shops throughout the country and discretely asked whether they carried “party powder” or “hookah cleaner.” (Dkt. 533 at 30-31). If the stores responded positively, Modern Day Prophets would send samples and look to build a relationship. (Id.). The salesmen would tell these retailers what traditional drugs the synthetic drugs mimicked and how to ingest the drugs. (Id. at 34, 44). These smoke shops passed that information on to their end users. (Id.).

         But even as the enterprise took off, legal issues loomed large. In July 2011, Bradley sent Ryba an email about a DEA bust of a bath salts ring that was selling MDPV. (Dkt. 570 at 61; dkt. 507-14). At this point Bradley had been sending shipments of MDPV to Scholz for two months. (Dkt. 570 at 63). The article noted how MDPV was designed to mimic the illegal drug ecstasy. (Dkt. 507-14). Ryba forwarded the article to Scholz because she was worried that he would get arrested too. (Dkt. 570 at 65-67). Bradley also knew that customs officers had stopped some of their packages. (Dkt. 533 at 69). Scholz and others were all using “burner” phones and treating the enterprise like an illegal drug dealing business. (Dkt. 573 at 67). When four kilograms of MDPV arrived in late 2011, the group attempted to get it to customers quickly because they believed that MDPV was or would soon become illegal. (Id.).^[4]

         Still, the flow of drugs back to the United States only increased. Bradley started investigating a different drug, a-PVP, in January of 2012. (Dkt. 508-4). This drug, again according to the Government's experts, is substantially similar to MDPV. (Dkt. 508-60 at ECF 9-27; dkt. 561 at 33). In February 2012, the co-conspirators purchased twelve kilograms of a-PVP in one order and seventeen kilograms in another. (Dkt. 508-20; dkt. 572 at 24-25, 37-38; dkt. 573 at 70-74). A fifty kilogram order came in March. (Dkt. 531 at 28; dkt. 572 at 36). And another order for twenty kilograms of a-PVP followed. (Dkt. 531 at 31; dkt. 573 at 81-83; dkt. 574 at 29-30). Ryba and Bradley exchanged emails during this time period acknowledging that the police were prosecuting individuals for distributing bath salts. Bradley and Ryba changed their shipping practices to avoid arrest. (Dkt. 507-24; dkt. 474 at 43; dkt. 572 at 9). Bradley timed shipments so that they would go through customs on the weekends, when he believed customs would be staffed leanly. (Dkt. 572 at 24-25). Bradley and Ryba continued putting the drugs inside purses and rice cookers. (Dkt. 570 at 95-103). Bradley also instructed Scholz to lie to his bank to disguise wire transfers. (Dkt. 573 at 57-58). Bradley and Scholz addressed packages to fake names and companies to protect themselves. (Dkt. 570 at 89).

         Bradley and Ryba returned to the United States in June 2012. (Dkt. 570 at 114; dkt. 572 at 27). But selling a-PVP had become too lucrative to stop altogether, and so Scholz and two other co-conspirators met with Bradley in June and July of 2012 to plan a trip to China. (Dkt. 572 at 45; dkt. 574 at 38-39). Scholz and Schroeder later visited Bradley's apartment where they gave him $30, 000 in cash. (Dkt. 532 at 17-21; dkt. 574 at 40). Bradley instructed Ryba to get updated pricing on the drugs. (Dkt. 572 at 45; dkt. 574 at 50-51, 88). Scholz traveled to China in July 2012. (Dkt. 570 at 115; dkt. 574 at 45). During this time period, Bradley and Ryba were worried that Scholz would get caught by the DEA. (Dkt. 474 at 48-49). They circulated articles where individuals were being arrested for trafficking bath salts. (Dkt. 507-27; dkt. 570 at 119-121). They became aware of DEA raids on smoke shops in June 2012. (Dkt. 574 at 34-35).

         But business was booming through the first half of 2012. One of the salesmen, Brian Lister, was selling hundreds of packets a week during April, May, and June of 2012. (Dkt. 533 at 45). In June 2012, some of the Modern Day Prophet co-conspirators reorganized under the name “Platinum Prophet” and moved to Atlanta. (Id. at 55-60; dkt. 474 at 49). One customer in Atlanta made three purchases for a combined $150, 000. (Dkt. 533 at 55). Another, Chris Kaestner in Harrisonburg was buying a-PVP in bulk throughout this period. (Dkt. 573 at 61-64). One substantial client was Queen City Smokes and Novelties in Charlotte. This smoke shop was owned by Nayna Taylor. (Dkt. 533 at 44-53). Brian Lister, the salesman, talked to her on the phone between fifteen and twenty times. (Id. at 72). Between one and two thousand of the packets of Crystal Bubbly Hookah Cleaner went to her store. (Id. at 46-48). One order in May 2012 was for 100 packets of a-PVP. (Dkt. 508-44 at 2; dkt. 574 at 25-26). She had another order in June 2012 and traveled to Atlanta three or four times to purchase a-PVP, at least twice by helicopter. (Dkt. 574 at 26, 47, 52). Scholz and Schroeder returned to Chicago and repaid Bradley from the money they had earned in Atlanta. (Id. at 58).

         Business slowed after the conspirators returned from Atlanta. They no longer had a-PVP to sell. (Dkt. 531 at 42). Schroeder tried to find other suppliers without luck. (Dkt. 574 at 61-62). While they struggled to import more a-PVP, the massive amount of a-PVP that they had pushed out to their distributors (like Nayna Taylor in Charlotte) was being sold to end users throughout 2013. The DEA organized a controlled buy at Queen City Smokes and Novelties in Charlotte because they suspected it was selling a-PVP. (Dkt. 534 at 7-8). During the ensuing search, the DEA found Crystal Bubbly Hookah Cleaner packets for sale in the store. (Id. at 35).

         Schroeder and Scholz reinitiated contact with Bradley in 2014. (Dkt. 534 at 63-64; dkt. 570 at 126-128). They set up a meeting to talk about acquiring more a-PVP in August or September of 2014.^[5] (Dkt. 574 at 66). Schroeder, Scholz, and Bradley researched the law together and decided to move forward in October. (Dkt. 474 at 55-56; dkt. 532 at 22-28; dkt. 574 at 80-84). Bradley and Ryba returned to Asia to buy a-PVP in November 2014. (Dkt. 570 at 129-130). One package was stopped in customs, but Schroeder and Scholz received two kilograms of a-PVP from Bradley. (Dkt. 532 at 29-30; dkt. 570 at 137; dkt. 574 at 90). Schroeder and Scholz distributed this a-PVP to Nayna and Edward Taylor in Charlotte, Chris Kaestner in Harrisonburg, and others. (Dkt. 574 at 94). The smoke shops then resold this a-PVP. In June 2015, an informant contacted Nayna Taylor to buy 200 packets of a-PVP. (Dkt. 535 at 7). Nayna and Edward Taylor arrived at the controlled buy and sold the a-PVP packets to the informant. (Id. at 15-20). The Taylors were then arrested again. (Id.). Shortly thereafter, law enforcement arrested all of the other co-conspirators. (Dkt. 510 at 143). The conspiracy was over.

         B. Analysis of the sufficiency of the evidence

         Despite this mass of evidence, Defendants argued generally that the evidence was insufficient for the jury to convict them. Defendants also argued more specifically that there was insufficient evidence: (1) that they agreed to form a conspiracy to distribute controlled substances, (2) that they knew they were distributing controlled substances, and (3) that they had committed a crime in the Western District of Virginia. I take each argument in turn, but find that the jury's verdict is amply supported by the evidence. After reviewing the evidence and the crimes charged, I also reject Defendants' more general argument for acquittal.

         1. Evidence establishing Defendants conspired to distribute controlled substances

         Defendants challenged whether there was sufficient evidence for the jury to find that they conspired to distribute controlled substances under the Controlled Substances Act and the Controlled Substances Analogue Enforcement Act (the Analogue Act). Under either act, the Government must establish beyond a reasonable doubt that: “(1) an agreement to distribute and possess [the controlled substance or controlled substance analogue] with intent to distribute existed between two or more persons; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of this conspiracy.” United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008) (internal quotation marks omitted). When proving the first element under the Analogue Act, the Government must additionally prove that the relevant substance is a controlled substance analogue.^[6] Under the second element, knowledge of the conspiracy requires the Defendants' knowledge that they were dealing with “controlled substances.” See McFadden v. United States, 135 S.Ct. 2298, 2302 (2015). Evidence establishing this knowledge is reviewed in the next section. This section focuses on the first and third elements-whether a conspiracy existed and whether Defendants entered into that conspiracy.

         Direct evidence of conspiracies is rare; the elements are usually proven by circumstantial evidence. Yearwood, 518 F.3d at 26. “Circumstantial evidence tending to prove a conspiracy may consist of a defendant's relationship with other members of the conspiracy, the length of this association, the defendant's attitude and conduct, and the nature of the conspiracy.” United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (internal quotation marks and alterations omitted). A defendant's intent to form a conspiracy can be inferred from “the regularity and volume of dealings” even if that defendant engages in “similar large scale distribution functions in separate localities without specific knowledge of the existence or numbers of such other persons and localities.” United States v. Burman, 584 F.2d 1354, 1356-57 (4th Cir. 1978).

         The Government presented ample evidence that Bradley conspired to distribute controlled substances and controlled substance analogues.^[7] As recounted above, Bradley repeatedly sent MDPV into the United States with the knowledge that Scholz and others would redistribute it to end users. The shipments of MDPV occurred in 2011, both before and after MDPV was scheduled. (Dkt. 570 at 66; dkt. 572 at 21; dkt. 573 at 67). In 2012, Bradley also worked with his co-conspirators to import a-PVP with the understanding that they would resell it to their customers, and that he would be paid. Bradley specifically objects that there was insufficient evidence that he was involved in the conspiracy's operations in late 2014. But Bradley met with co-conspirators Schroeder and Scholz to discuss obtaining controlled substances from China in this period. (Dkt. 532 at 22-28; dkt. 534 at 63-64; dkt. 574 at 55-56, 80-84). The Government presented evidence that Bradley was paid by the co-conspirators for his help in connecting them with translators and producers in China. (Dkt. 570 at 129-130).

         More generally, conspiracy is a “continuing offense” and “a defendant who has joined a conspiracy continues to violate the law ‘through every moment of [the conspiracy's] existence, ' and he becomes responsible for the acts of his co-conspirators in pursuit of their common plot.” Smith v. United States, 568 U.S. 106, 111 (2013) (internal citations omitted)). And Bradley never withdrew from this continuing enterprise. See United States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986) (“Withdrawal must be shown by evidence that the former conspirator acted to defeat or disavow the purposes of the conspiracy.”). The Government presented sufficient evidence for the jury to find that Bradley was part of a conspiracy to import and distribute MDPV and a-PVP before and after they were scheduled.

         The evidence that the Taylors conspired to distribute a-PVP is also substantial. Brian Lister testified about the fifteen to twenty conversations about bath salts he had with Nayna Taylor starting in late 2011. (Dkt. 533 at 72). Between one and two thousand of the packets went to her store. (Id. at 46-48). Emails showed orders in May 2012 for 100 packets of a-PVP. (Dkt. 508-44 at 2; dkt. 574 at 25-26). She had a follow up order in June 2012. (Dkt. 574 at 26). She traveled to Atlanta three or four times to purchase a-PVP, at least twice by helicopter. (Id. at 47, 52). In 2013, the DEA set up a controlled buy at Queen City Smokes and Novelties in Charlotte because they suspected that Nayna Taylor was selling bath salts. (Dkt. 534 at 7-8). After the controlled buy, the DEA tested the products, found that they contained a-PVP, and got search warrants. (Id. at 8). During the ensuing search, the DEA found more Crystal Bubbly Hookah Cleaner packets. (Id. at 35). Nayna Taylor, even after this arrest, continued selling a-PVP. Schroeder sent Nayna Taylor more a-PVP in 2014. (Dkt. 574 at 94). The smoke shop continued selling it, and in June 2015 a confidential informant placed a call to Nayna Taylor to buy 200 packets of a-PVP for a biker rally. (Dkt. 535 at 7). Edward Taylor confirmed the location of this purchase and the quantity of a-PVP packets to be sold. (Gov't Exhibit 101). Nayna and Edward Taylor arrived at the controlled buy and exchanged the Crystal Bubbly Hookah Cleaner packets to the informant. (Dkt. 535 at 15-20). They were then arrested. (Id.). This was sufficient evidence for the jury to find that Nayna Taylor trafficked a-PVP both before and after it was scheduled. And this was also sufficient evidence for the jury to find that Edward Taylor trafficked a-PVP after it was scheduled (although not before).^[8]

         Additionally, there was sufficient evidence for the jury to find that Nayna Taylor conspired to traffic MDPV. Robert Schroeder testified Nayna Taylor bought Crystal Bubbly Hookah Cleaner as early as the end of 2011. (Dkt. 574 at 51). Modern Day Prophet was still selling MDPV in Crystal Bubbly Hookah Cleaner packets at the end of 2011. (Dkt. 573 at 67). While there was insufficient evidence for the jury to find that Edward Taylor conspired to distribute MDPV, his conviction, as stated above, was amply supported the a-PVP conspiracy.

         The Taylors separately argue that they were not part of the same conspiracy as their co-defendants and that they had a mere “buyer-seller” relationship with the conspirators. One conspiracy exists when there is “one overall agreement.” United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). “Whether there is a single conspiracy or multiple conspiracies depends upon the overlap of key actors, methods, and goals.” Id.; United States v. Jones, 858 F.3d 221, 226 (4th Cir. 2017) (“[W]e look to the degree of overlap not the degree of similarity to determine whether two charges are in reality a single offense.”). And the scope of dealings with a co-conspirator can be sufficient to alert a defendant to the scope of a conspiracy beyond their immediate dealings. United States v. Richards, 737 F.2d 1307, 1309 (4th Cir. 1984). This principle is considered alongside the “buyer-seller” defense, which is valid when “there was no agreement to participate in the drug distribution operation, ” and “the defendant's participation was limited to fulfilling and facilitating his or her own personal drug consumption needs.” United States v. Leonard, 777 F.Supp.2d 1025, 1034 (W.D. Va. 2011).

         Nayna Taylor's repeated purchases of Crystal Bubbly Hookah Cleaner and the Taylors' 2015 sale of a-PVP created sufficient overlap with the general conspiracy. Nayna Taylor repeatedly bought large quantities of Crystal Bubbly Hookah Cleaner and then resold these drugs from her smoke shop. (Dkt. 533 at 44; dkt. 574 at 94). She continued doing this even after her store and home were raided in 2013. (Dkt. 535 at 7). Likewise, Edward Taylor assisted Nayna Taylor with the 2015 sale after the 2013 raid. (Dkt. 534 at 7-9). He drove her to resell Crystal Bubbly Hookah Cleaner to the government informant. (Dkt. 535 at 7). On the way to the sale, Edward Taylor spoke to the informant and confirmed location of the sale and quantity of packets to be sold. (Gov't Exhibit 101). After he had been arrested, he nevertheless invented a story about making the trip to sell glass jewelry cases. (Dkt. 535 at 34). The jury was entitled to infer that Edward Taylor knew what he was doing; this fabrication provided further evidence of his intent to join the conspiracy.

         The Taylors were more than mere buyers acquiring Crystal Bubbly Hookah Cleaner for their “own personal drug consumption needs.” Leonard, 777 F.Supp.2d at 1034. Instead, they were sophisticated distributors of the drug, evidenced by the detailed records of sales and large amount of money involved. (Dkt. 534 at 18-20 and 25-27). Furthermore, a buyer-seller relationship can still be sufficient to sustain a conspiracy charge when combined with other factors. See United States v. Yearwood, 518 F.3d 220, 226 (4th Cir. 2008) (“[E]vidence of such a relationship, when combined with evidence of a substantial quantity of drugs-as here- ‘would support a reasonable inference that the parties were coconspirators.'”). The overarching conspiracy involving Bradley, Ryba, and Modern Day Prophet required smoke shops to sell the imported drugs to end users. Edward and Nayna Taylor joined this overarching conspiracy by buying and distributing large volumes of drugs.^[9]

         In summary, the evidence was sufficient to establish that Jason Bradley and Nayna Taylor entered into a conspiracy to distribute both scheduled controlled substances and controlled substance analogues. The evidence was also sufficient to establish that Edward Bradley entered into a conspiracy to distribute scheduled controlled substances. Accordingly, the motions for acquittal on these grounds were denied.

         2. Evidence of knowledge that a-PVP and MDPV were controlled substances

         Defendants argue that there was insufficient evidence for the jury to find that Defendants knew they were dealing with “controlled substances.” The requisite mental state for conspiracy to distribute controlled substances and controlled substance analogues was recently addressed in McFadden v. United States, 135 S.Ct. 2298 (2015). The Supreme Court held that “the Government must prove that a defendant knew that the substance with which he was dealing was ‘a controlled substance, ' even in prosecutions involving an analogue.” 135 S.Ct. at 2305. This “knowledge requirement can be established in two ways.” Id. “First, it can be established 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.” Id. “Second, it can be established 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.” Id. “Under this second method of proof, knowledge of the substance's chemical structure and physiological effects is sufficient to support a conviction.” United States v. McFadden, 823 F.3d 217, 223 (4th Cir. 2016), cert. denied, 137 S.Ct. 1434 (2017).

         Unlike the defendants in McFadden, Defendants here were convicted of violations based on both the Controlled Substance Act and the Analogue Act.^[10] The Government presented sufficient evidence that Defendants possessed the requisite knowledge by establishing that each “defendant knew that the substance with which he was dealing [was] some controlled substance-that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act . . . .” McFadden, 135 S.Ct. at 2305. On remand in McFadden, the Fourth Circuit stated that a “jury could have inferred from McFadden's evasive behavior and the ‘disclaimer' labeling of the packages and vials that he knew that the bath salts were treated as controlled substances.” 823 F.3d 217, 226 (4th Cir. 2016), cert. denied, 137 S.Ct. 1434 (2017). All three Defendants here engaged in similarly evasive behavior that provided the jury with enough evidence to make the inference that Defendants knew the bath salts were treated as controlled substances.

         The evidence of Bradley's knowledge that MDPV and a-PVP were controlled substances is substantial. Bradley engaged in evasive behavior to hide these drugs from law enforcement. Bradley put the drugs in rice cookers and commercial goods before shipping them in an attempt to hide them from customs officials. (Dkt. 474 at 31; dkt. 572 at 23-24; dkt. 573 at 32-33). Bradley sent the packages to fabricated names and businesses to further avoid law enforcement. (Dkt. 474 at 41; dkt. 570 at 89; dkt. 572 at 42; dkt. 573 at 50). He told his co-conspirators to falsify electronic transfers of money to avoid suspicion. (Dkt. 573 at 58). He prevented his co-conspirators from bringing their cell phones near him out of a fear of wiretaps. (Dkt. 574 at 40-41). He required one co-conspirator to only talk to him on a “burner” phone. (Id. at 89). He put “not for human ...