On Thursday the Supreme Court issued an opinion in McFadden v. United States that clarifies the mental state required to convict someone under the federal Analogue Act that criminalize drug “analogues.” The Court held that the government must establish that a defendant at least knew facts proving that he was dealing with a “controlled substance.” In effect, this means that a defendant has to know that he is possessing/manufacturing/distributing an analogue to a controlled substance to be convicted of distributing an analogue to a controlled substance.
The Court’s decision was 9-0 for the defendant, with Justice Thomas writing for the Court and 7 other justices. Chief Justice Roberts wrote a separate opinion partially concurring and concurring in the judgment. As I’ll explain below, though, the lopsided win illustrates the need for a federal statute defining the default mens rea (guilty mind) to be proven in criminal cases.
Prosecutions under the Analogue Act require the government to prove facts supporting two mens reas. The one most relevant to this case is stated in the text of the Controlled Substances Act, which requires proof that the defendant “knowingly or intentionally” did “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]”
The government successfully argued below that the defendant had to have knowingly or intentionally distributed a substance that, whether he knew it or not, would have substantially similar effects on the central nervous system as a controlled substance. In other words, the “knowingly or intentionally” applied to the conduct element, the distribution of the substance, not the nature of the substance. The defense argued that the defendant had to have known/intended that the nature of the substance was covered by the Controlled Substances Act.
On appeal, the Fourth Circuit sided with the government under circuit precedent, solidifying its agreement with the Fifth Circuit against several other circuits that sided with the defense theory. The Supreme Court resolved the circuit split by adopting the defense’s argument that a defendant has to know the nature of the substance, i.e., that the substance was a “controlled substance” as defined by the statute. Although this is a higher standard than the government argued for, the defendant could still be convicted by simply knowing facts that define a substance as a “controlled substance,” such as that the substance is on one of the lists of illegal analogues. Since ignorance of the law is no excuse, a defendant need not know that a substance is illegal as long as the defendant knows what the substance is.
Here’s where it gets interesting. Some criminal statutes attach a mens rea to a crime’s attendant circumstances that either aggravate or mitigate the offense. Jurisdictional facts are another sort of attendant circumstances, but it’s rare for courts to require a mens rea for jurisdictional facts. This is especially true for federal law, since the limitations on Congress’s powers under the Constitution (as distinguished from the criminal offenses it defines) do not depend on any particular defendant’s mental state.
But if the act of designating a substance as “controlled” confers federal jurisdiction, as the Court apparently concluded in Gonzales v. Raich (2005) (which said that enacting a “comprehensive regulatory statute” allows federal jurisdiction over all controlled substances), then McFadden is implicitly applying a mens rea to a jurisdictional element. Although clearly correct in McFadden, I’m less optimistic about its application in other areas of federal law. It’s only a matter of time until we see defendants citing McFadden for the proposition that courts should presume that a mens rea element applies to jurisdictional elements.
Thankfully, Congress has an opportunity to clarify this question by passing a default mens rea statute. If you’re interested in reading more about this issue, I recommend these resources.