In McFadden vs United States, the Supreme Court found that the word “knowingly” in 21 U. S. C. §841(a)(1) of the Controlled Substances Act must apply not only to the verbs “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” but also the object of those verbs, “a controlled substance.” This becomes the crux of the issue, because the Analogue Act in 21 U. S. C. §813 does not contain the “knowingly” mental state requirement. Critically, however the Justices found that §813 states that a controlled substance analogue shall be treated for the purposes of any Federal law as a controlled substance, thus extending the §841(a)(1) requirement to analogues. You can find the opinion here, with pages 7, 8 and 9 of the .pdf holding much of the relevant discussion. The opinion includes a relevant and specific discussion on how the government can prove the actions of a defendant were knowingly performed, including by showing the defendant knew he possessed a substance even if he did not know which substance it was, or if he knew the identity of the substance but was unaware it was controlled.
The petitioner was convicted on eight counts of distribution of controlled substance analogues; specifically, bath salts. In his appeal, he insisted that the district court had “erred in refusing to instruct the jury that the government was required to prove that he knew, had a strong suspicion, or deliberately avoided knowledge that the [substances] possessed the characteristics of controlled substance analogues.” The government would later argue that any rational jury would have found him guilty, even with the proper jury instructions, and thus it was a harmless error. The Supreme Court would find that the jury instructions did not fully convey the “knowingly” requirement. However, they remanded to the Court of Appeals the first instance of harmless-error analysis. It would seem unlikely that the conviction will be overturned by the Circuit Court, because the petitioner had marketed his product to his customers as being similar to cocaine and crystal meth and that may meet the requirements of the law as to his mental state.