McFadden was convicted under the federal “designer drugs” statute, 21 USC 813, for creating and distributing “bath salts.” The panel affirmed. It rejected his constitutional challenge holding that “substantial similarity” in the statute required a core chemical identity with a scheduled controlled substance and “human consumption” meant ingestion into the body. Thus, McFadden had sufficient notice that his actions were illegal and the vagueness challenge failed. It also affirmed the admission of a “salts” user’s testimony to prove the effects of the drugs as there was sufficient foundation to believe the “salts” ingested were made by McFadden. The panel rejected a challenge to the refusal to give a specific knowledge instruction holding that 4th Circuit precedent rejects this requirement. Finally, the panel affirmed the convictions holding that the government expert testimony about the composition and effects of the “salts” were sufficient for the jury to convict.
Ferguson was found to have violated his supervised release based in part on a forensic report from a crime lab introduced with the analyst who conducted the test testifying. The panel, 2-1, reversed and remanded for a new hearing. The majority held that under circuit precedent, the government must either put the analyst on the stand or present evidence of good cause to allow a balancing test by the district court. Here, there was no evidence of good cause and thus it was per se error to allow the report into evidence. Applying the substantial and injurious test for harmless error, the majority held that because the drug trafficking violation was the most serious alleged and cross examination is key right for defendants, plus the higher than guideline sentence all combined to render the error harmful and thus remand was necessary. The majority concluded with a rebuke to the government for not following precedent and putting the analyst on the stand or provide evidence of good cause. One judge added a concurrence arguing that the high stakes of revocation proceedings and the fact that this very issue had already been decided in a published opinion justify reversal here. The dissent argued that the more stringent beyond a reasonable doubt standard applied in the harmless error analysis as the denial of cross examination is a due process violation. However, the dissent argued that because the officer smelled marijuana in the car, found what appeared to be marijuana packaged for sale in the car and Fergusson admitted to selling drugs, any error was harmless. The dissent joined the concurrence’s call for government attorneys to follow circuit precedent in revocation hearings.