Saturday, January 17, 2015

Controlled Substance Analogues

Manufacture and distribution of controlled substance analogues are a primary trend in federal drug prosecutions. Analogues are synthetic substances that try to mimic organic drugs, like marijuana. 

There are a number of these large prosecutions ongoing -- large in number of defendants, geography, timeline, drug amounts, and scope of conspiracy. And because it is a rather unexplored frontier, there are a number of unresolved legal issues. Yesterday, the Court granted cert on one such question:

Issue: Whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

The case is McFadden v. United States, out of the Fourth Circuit. Argument is not yet scheduled.

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