Convictions for Violating the Controlled Substance Analogue Enforcement Act Reversed

U.S. v. Makkar, 2015 WL 7422599 (11/23/15) (Okla.) - Reversal of two defendants' convictions for violating Controlled Substance Analogue Enforcement Act, conspiracy, and money laundering, based on selling incense at a convenience store, because of a defective mens rea instruction and improper exclusion of defense evidence. In McFadden, the Court decided that the government must prove that the defendant knew either that the drug in question (1) had both a chemical structure substantially similar to a drug controlled under the Controlled Substances Act (CSA) and a central nervous system effect substantially similar to that of a schedule I or II CSA-controlled drug, or (2) was outlawed by the CSA or Analogue Act. The government opted for option one, but introduced no evidence at trial about defendants' knowledge of the chemical structure of the incense. It persuaded the court to instruct the jury that it could infer knowledge that the incense had a substantially similar chemical structure to JWH-18 from the fact defendants knew the incense had an effect substantially similar to marijuana. This was illogical and so wrong it meets the plain error standard. Two drugs with a dissimilar chemical structure can create similar effects; the instruction wrongly permitted the collapsing of two mens rea requirements into one. The government cannot "take an Olympian leap over the first essential element and touch down only on the second." In a footnote, the court explains that it does not decide whether it is permissible to prove knowledge of a chemical structure similar to one drug and an effect similar to a different drug. The district court also erred by disallowing hugely relevant defense evidence that defendants offered to allow testing by state law enforcement officers who came calling on them to determine the legality of the incense and to stop selling it until the results were in.