case 14378, mcfadden vs. united states. >> the briefing narrow considerably among the authorities. we all agree and folks misconstrue the elements for the controlled substance and a lot act. the instructions given in this case were erroneous, and to produce the government will show the defendant knowingly distributed, the government may do that by showing the defendant knew the substance in question had characteristics that made it and allowed under the statute. weenie disagree if the alternative theory that shows the defendant knew the substance was illegal or regulated. by illegal or regulated under the statute of conviction, the substance would agree the government would simply lose because as it is acknowledge the evidence in the case showed my client did not believe his

conduct violated the psa itself. >> to be sure i understand what you are agreeing on you do agree if the defendant knew the substance was illegal under the control substance act or the analog act even though the defendants didn't know the chemical structure or the particular effect, stated dealer had handed him a box that said this is our new analog which is illegal under the analog act you agree that is sufficient for a conviction. >> we do agree. the rules let the defendant has to no facts to make conduct. he knows in that circumstance only what he needs to know. >> that sounds sensible. what about the expert testimony from chemists. is that still put on in the trial? does the government have to put on an expert to say it is is

chemically modified but substantially similar, or that they don't have to listen to this? >> the government has to prove that it is an analog. >> understand the chemical test? >> the determination that it is chemically and substantially -- a lot to ask of a jury or the defendant to understand. >> show composition of controlled substance or the effects of the drug, with less proof that what we have is -- understand the chemical substance. >> doesn't understand the chemical substance if the government proves the defendant didn't know the substance was illegal under the control substance act itself. the government has given up a

lot in this point. and the chemical substance or controlled substance act, contrary to the population that ignorance of the law is no excuse. i didn't know this was regulated. the position was as all the other cases in the area, a facts that make conduct illegal, you don't have to know it is illegal. >> that is the principal position. whether it is a special exception to that rule with special application. of the government can show they know the substance is illegal under the statute of conviction that sells the basic purpose of the knowledge of fact environment, doesn't know he is innocent. >> he is guilty to ensure the

substance known as the characteristics. and approve the factual knowledge away that this is described and applied in other cases involving prohibited items. and instead of that show he knew this was illegal under the statute. >> under the control substance act itself is that right? that is the analogy, you can either show the person knew it was heroin or the person and know it was heroin but the person did know that it was some drug that was a controlled substance. >> the more we disagree with the government it construes lower court cases that said that as saying of a broader thing which was --

>> you kept saying -- the act is illegal but somewhat personally not going to know what crosses the line. >> the controlled substance act. criminals don't care. there anything is the controlled substance. >> i disagree with that and that is the principal disagreement we have for the government, not enough to show the defendant thinks is illegal generally or that it is unlawful. >> if he is selling it without paying sales tax, at king knows that is illegal enough to convict a month of the controlled substances act. >> an example in the brief about violation of in court battle. chinos in that case is an illegal or controlled substance

than that knowledge, you would not say someone in that case knows he is summoned controlled substance because there were some gusts with marijuana. that is not a role, but he knowingly sold marijuana or have a controlled substance. >> take a case involving a drug that is actually listed in said affects distribute to the person who will make the distribution and said this is an illegal drug good distribute it and that person goes and distributes it and tries to evade law-enforcement is caught. is that evidence sufficient to take the case to the jury so the jury can find and decide whether there's circumstantial evidence the person who distributed the drugs knew that it was a controlled substance under federal law as one of the few things that is illegal under

state law but not federal law. >> that is sufficient evidence to go to the jury, but the jury will have to decide whether to make that. and there is other evidence that he didn't believe it violated federal law or i thought was illegal because i thought was in violation of an import statutes. it is a joy the jury to decide whether to believe it but if it doesn't the senate ought to conclude it wasn't established unless the government can show the defendant knew the characteristics of the substance. >> as substance produces the exact same affect as cocaine. >> enough to satisfy it. there may be evidence the jury to draw inferences that the defendant knew level of control substance under federal law. i don't think they should because it is only partial evidence. >> the chemical makeup the

causes it to be analog, and and it violates the standard. assume he doesn't know it violates the law. he also doesn't know what the chemical makeup is. what he knows what it is it is, that is all the knows. on the controlled substances act, he didn't have to know the makeup of that, he just has to know it is one of the name controlled substances. if in the md 3 is an analog why isn't that enough? what it was is an analog. >> the fact of the gun that makes analog which is its name.

>> this is in fact the analog and controlled -- it is not a proper comparison. >> jimenez that it is the identity of it. that chemical is in fact the characteristics that make it an analog. >> that doesn't tell you if it is analog or not. >> knowing that it is cocaine doesn't prove the note it is a controlled substance. >> the fact you need to know about cocaine for to be controlled substances that it is cocaine. controlled substance schedule. what we need to know based on presumption that you know what you are doing is illegal. >> the distributor gives it to the person who will distribute it, and since you distribute

this, the actual chemical formula on the container, the chemical formula for pcp, whatever that is. that is all a person knows. king knows exactly what is the chemical formula. has king not committed a crime then under the control substances that? >> i think the schedule might miss the chemical name but if it does was the chemical name. >> if you do know the effect it is unlawful which is a known. >> a person just arrived from mars and has no idea whether it is legal or not. >> the assumption is that people know what the lot is, they know what is in the schedules and if you know the schedule and you know the fact that is king of. >> the actual effect of this

case, because what is listed, this is supposed to be done but the best fought in the world about tech. so advertising this to be up at a price of a controlled substance. >> we could find a drug like that of the truth of the matted is under the federal drug policy that is something not on the schedules even if it had unlike affects and could sell whatever price the market would bear. government 10 point to that

evidence and suggest conduct on the controlled substances act. >> that kind of evidence was enough to get to would jury. or that he sold these for incredibly inflated prices as well as that is not the same its of benevolence of of what the government is trying to prove. >> it doesn't prove the government has to be reasonable. >> if i could understand. tell me if i'm wrong, the only thing that is separating you and the government we will see if it is, this question of what happens if the defendant knew it was illegal under something other hand the analog act and that is the only point of potential difference between you and the government. >> it is true with respect to a legal interpretation. and also you ought not to reach it because the regulated status was ready from the first time.

>> you do differ with the government on that but assuming the government cannot prove any belief in illegality the government would not say it therefore must prove that you knew the chemical composition of what you were selling. in you say you have to know the chemical composition. >> let's be clear about my position. i think the only disagreement about the meaning of the law between the government and us is the question of whether it is sufficient for the government to show the defendant believed it was unlawful under some law other than the t s a. we think it is not sufficient. >> what skills does the government have to prove? we differ on that. i don't think the government agrees there is one way to prove, to show that the defendant knew the

characteristics of the substance that may is an analog. >> between the chemical composition. >> who would that reach other than the chemist? being the position to know that. the ordinary person would not. >> i acknowledge that given the statute, it is a pretty straight forward traditional -- it does make it harder for the government to prove an organic way person. >> mine understanding of government is it would be announced if the defendant knew the name of the drug. and if indeed that drug is chemical composition. >> i am confident about that.

>> to instruct the jury that if the defendant knows that this is an illegal drug because of its effect. >> i don't think the critical question is illegal drug. by that you mean illegal drug. >> an illegal drug because of its homeless in the janet effect, maybe that is incorrect because there chemically the same but it seems to me it should suffice. >> just to be clear, it is shown that this is similar. >> the court would have to tell the jury take into account the defendant's knowledge of its hallucinogenic affect and deciding whether he knew it was illegal under the control substances act itself. the unadorned word illegal, it is not sufficient if the jury

thought it was a hallucinogenic affect illegal under state law. if a jury believed that, when is established unless it was under factual knowledge the ordinary way in which knowledge in this item is proven. >> instructions on page 14 of your brief, can you say that. >> beyond hope. >> to support the elements, the element is the defendant has to know that is disturbing in an analog and questions about ways in which to prove that. and this is an analog a

characteristic that makes it an analog. had the government asked for instruction it could have given instructions, and conduct was on lawful generally and make that unlawful under the esa itself and if you reach that based on circumstantial evidence including evidence concerning the defendant's knowledge of the drug's effect, there's a world of difference between saying this is relevant circumstantial evidence when did the defendant knew he was violating the statute of conviction and what the government's position is, once you prove the defendant knows it is illegal at all, you are done and the jury is compelled to include it is simply wrong. >> i understand your understanding that there is a big difference, you have to know is illegal under any law, you say no. the other way in which you

disagree -- >> the only way we disagree about the meaning of the statute. >> we disagree about names and characteristics. >> i think they said in their brief under the knowledge identity approach they have to show the defendant knows the chemical structure in effect of the analog because it is not enough to simply know its name. i don't think we disagree with each other and that point. >> the difference as to whether it is under this statute or under any statute. if you look at the instructions that are given just under the psa not analogs, some of the instructions say you need to find that the defendant knew he was distributing some kind of prohibited drug, they don't say a drug prohibited under the sea as a. you use that as the analogy

here that would suggest the jury wouldn't need to find the analog prohibited under the csa and analog act, just that they knew it was prohibited by something. >> ambiguity in those instructions whether it is referring to one lawfulness generally, what it really means is under the csa but when the defendant has come forward saying it was illegal under some other statute. three of the seven cases, the court has said no that is not good enough and that makes complete sense. it could be in a lot of cases the government will present evidence the defendant thinks it is a controlled substance generally and the jury can in further evidence that it was only illegal under ec as a itself. you leave open the possibility that a jury can in a case like

this, the evidence doesn't show that he believed it was something unlawful under the csa but looked at the schedule and quite recently believed they weren't on the schedule they weren't illegal. the only reason they are illegal is the existence of the analog act. i can know about the analog act and a lot of people didn't. in the community where we were selling these, they result openly in gas stations being advertised in local newspapers and magazines and that is consistent with the fact the lots of people entertain the incorrect notion that if something is not on the schedule is legal to sell and someone who is ignorant -- >> you don't defend that. ignores of the law is no excuse. even though you are totally ignorant on the analog act if you know the chemical composition and it happens to be on the -- covered by the analog act they have got you. >> let me make clear my

position. we agreed that if the government can prove you have factual knowledge that the chemical has characteristics that make it analogue, ignorance of the law is no excuse. >> what does that mean? >> i know all the chemical characteristics, those characteristics make it an analog? >> no. >> when you proposed by know the name. they know the substance is chemically, substantially similar to a controlled substance and they know the fact that -- it is substantially represented in actual fact. >> i am not a chemist. i don't know if it is substantially similar but i know what the chemical composition is. to know that chemical

composition is substantially similar. i know the chemical composition and in fact it is substantially similar. >> we disagree about that but we still win this case. or to know anything about the chemical structure. >> the argument is simply a kind of coincidence. you have to know the substance is analog and there are two ways to know that. 1-way you could know it is you could know what the chemical composition of this is and what the chemical composition is. very few people of if and chemists know that. then there is a second way you could no. second way you could know is if you know it is forbidden by a law that gives the title of forbidding analogs. if you know it falls within that. you know it is and a lot because it falls within it. those are the two ways, no one

has been able to think of a third. ignorance of the law is no excuse has nothing to do with this case. this is just a coincidence, those of the ways you could know it was analog. >> the only ways you can know it is an analog, i don't think the government can argue it satisfied that burden in this case much less that the jury would be compelled to. >> you say the government has knowledge of two chemical compositions, the chemical composition of what is being sold the chemical composition of one of the items on the list of controlled substances that is our position. >> only if that is the government's theory or if the government does that, saying he knew it was luck. >> that is correct. i will acknowledge that going the knowledge of identity in an

analog case will be part of it for non chemists. it is difficult for reasons that it is difficult for somebody to know. knowing what they are doing whether it is illegal or not. the vagueness problems we think are inherent in this. >> they are not evidence to go to the jury ended the instruction that you want. >> yes. the only question here is whether there should be a new trial under which we can have another discussion with the district court about what popular instructions are we won't have a lot of disagreement but whether the court should instead do that. and they did that in this case on the ground the petitioner didn't prevent sufficient evidence to rebut the theory the government wasn't making a trial. that is why we enforce

forfeiture rules. to easily resolve this case with the legal rule there are two ways in which this can be proven but the government in this case, the extended especial needs about illegal under another law. >> thank you counsel. >> may it please the court mr. russell is almost correct about the extent of the disagreement in this case. opposition is not we can prevail if we prove the defendant's conduct was illegal under some law under the analog act. if we prove a defendant knowing -- noaa wikipedia distributed a drug and he knew the distribution of the drug was illegal generally and -- >> my question is for you. >> i will try.

suppose you have to show and i think you'd do that the defendant did know it is an analog. there are two ways to do that. the first way is to show this defendant being a graduate in chemistry knows what the chemical composition is, knows what the chemical composition of the substance is and that they are the same. you won't be able to do that very often. another possibility is you could show that he knows this particular substance is banned by law that is called the analog act because obviously if he knows that it is banned by the act that bans analogs it must be an analog. those are two ways you could prove knowledge. to prove that it is banned by the anti turkey shoot act approves nothing about his knowledge that this is an analog and therefore wants you say as

you are trying to say, i think, that some other illegality is enough to convict, and i no longer a understand the argument. >> it is a way i pointed out in the real world defendants don't tend to no provisions of federal law or state law but they tend to know whether what they're doing is illegal or not. be intentional standard indeed 41 describes culpable state of mind and one way to prove couples state of mind is to prove the defendant knowingly or intentionally engaged in the act. >> you are saying the defendant does not have to know it is an analog and that i think you don't want to say because you could think it was banned by some other act and that would make you know that it is that thing that the other act bans and doesn't show it is and a lot. >> defendants tend to believe what they're doing is illegal, not under any particular

provision but generally they believe it is illegal. >> the statute doesn't say knowingly be a bad guy. it says knowingly manufacture or dispense a controlled substance. that is what the knowingly applies to so you have to know that it violates that law, not just that you are a bad guy. >> in almost every context the easiest way to prove knowledge of the statute, that the defendant knew the facts that made his conduct illegal. just to prove the fact there are not many remnants of the briefing to know the facts or knowledge of chemical structure and pharmacological effects, that is the easiest way to proof knowledge under this statute. in this context that is not the easiest way and there's another way. we think knowing port describing culpable mental states and this court has said prove knowledge, you don't always have to prove

the defendant -- >> cubans got it. and -- >> it is sufficient if the government proves the defendant distributed the drug and doing so was illegal under some drug law that he knew was an illegal drug and -- >> and if you didn't say this before i don't think it has to be illegal under some other drug law. >> the reason there's not as much explication in a brief is there's a fundamental disagreement that the king clear the we disagree with the petitioner about what the court of appeals have done. we think certainly it is sufficient if the defendant believes what he is illegal under the drug law that he is distributing an illegal drug would be consistent with broader principles of the court tells more broadly that he believes his conduct was illegal generally or in this case that hasn't been fully briefed. >> that highlights what i think is the practical difference

here. you have the defendant who is obviously -- knows something out there he is trying not to do something not to violate the csa or anything, you just want to show the jury something is bothering him. you know something is afoot. if that is all you want to prove as opposed to he knows he is violating the csa or drug law. i don't know how that works. i understand how that works in this case because you say to the jury he is checking the scheduled every day doing this or that. i am concerned about extending that as a general matter, it doesn't have to be -- i think usually is not a question whether you know anything about the law, but the facts and whether that happens to bring it under the law. i don't know how broad the principle is that you have to know what you are doing, it would raise doubt in the jury's mind whether it was legal or not.

>> i will point out so i can come back to get through them all. this court has held there are other ways to prove knowledge other than a defendant to a critical fact. for example the government can prove willful blindness and the court has explained, being willfully blind to affect is the same as knowing the facts. a person who is willfully blind to the fact has the same state of mind as someone who knows the fact. and more culpable than the person who knows the facts to make conduct illegal. >> this sales tax law, 15 years. is just as culpable? >> we don't think so in this case. is sufficient if the government can prove the defendant

knowingly distributed a drug knowing it to be illegal whether or not he knew. >> it is illegal because it is bad for animals and the law prevents that -- from using this kind of drug for animal treatment. that is all he knows. that is all he thinks. is guilty of the statute? that doesn't show after all. the knowledge king knows it is analog. in your view because he feels guilty as perhaps he should, he is guilty of violating this. >> that would establish the culpable state of mind but the court doesn't -- >> give me any authority for that. >> your example of willful blindness is an example of where in example with respect to this law he knows there is a risk he is violating with the conduct, in knows there is a serious risk and he pays no attention to that. >> that is not very strong

analogy i don't think. >> what this shows is you don't have to prove actual knowledge to satisfy a knowledge stated in the statute indeed would be perfectly sufficient to the court told in this case when the government proves the defendant is distributing an illicit drug for human consumption and believes what he's doing is illegal and is correct about that that is not enough to satisfy the csa or the analog act. >> there is evidence in this case of what you are saying. he checked according to his brother, a controlled substance act and also he was told something was illegal. she questioned the toilet. why don't we eat leave this to the court for below to figure out given the absence of the case. >> that is the court had usual practice, application of that and we wouldn't have problems with the court doing that.

we think the evidence you point to shows he did not believe he was violating the csa specifically and plenty of evidence shows he knew and believed what he was doing was illegal. he sold his products in little vials. >> that is a controlled substance. >> the controlled substance, we differ on how you know that. >> say people itself things thinking maybe cocaine and in fact it is crack or they sell something else and it is a different drug at. >> 100% on the same page. >> you keep seeing it is analog and that is wrong. he has to know it is a controlled substance. >> by controlled substance, this is where we differ, we don't mean he has to know is illegal under the control substance act.

that is not our position. >> real-world problem, sounds to me like most artificial distinction i have heard a long time. does virginia have an analog act? this is from virginia. regina have an analog act different from the federal analogue act? >> i do not know that. >> do states typically have analog acts period or do they have analog acts different from state analog acts? unless this case involves a chemist, prove that the person knew it was analogue is kind of engage in all kinds of further but to hide it from law enforcement and it will be for the jury to determine based on circumstantial evidence whether the person knew that this thing was illegal under some law and if it is not federal controlled substances act i don't know what act it is going to be. the defense is going to be i knew it was illegal but i

thought it was illegal under the state analog act, it wasn't legal under the federal controlled substances act. is that what we are worrying about? >> it gets to the point. the way you characterize the right instruction that you have to prove the defendant believed it was illegal under some drug law, we are fine with that. and to improve the defendant knew was illegal under the control substance act for the analog act. >> the question i am asking, practical question, with the federal controlled substances act, the analog provision what is this other body of law that might coming to play. >> our point is the defendant most defendants are not aware of anybody they know what they're doing is illegal so we shouldn't have to prove a specific conviction in his mind. >> i take your point this is going to have a small practical effect in terms of what the prosecutor or the defense

attorney is putting on but it seems to me to be a real theoretical difference which has implications far beyond this case. what mr. russell has suggested is two ways of showing the defendant knew a fact that the fact he was distributing an analog. you might know it because you know the chemical structure and its properties or you might know it because you know someone has given you a box and said this is an analog prohibited under the analog act a you know it is an analog. those are two ways of knowing a fact but you are saying that in addition to knowing facts, you can just show the defendant knew he was acting culpable be in violation of some law. that it seems to me is the theory that could be put on to any law that in addition to knowing all the facts that a statute says you have to know, the government has an

alternative way of proving its case which is just to say you were acting culpable. you knew you were doing something wrong. >> we would embrace that narrower articulation in this case of your knowledge of illegality has to be if you are violating u.s. drug law or distributing illegal drugs. >> there was a labeling law violating the labeling law. there is no labeling law but it violates analog act. >> that would be sufficient. to reach that in this case there is no suggestion that his belief in illegality was using anything but distributing or violating -- >> to clarify, you are saying it is not just any illegality. it has to be a drug law. that is a qualification. >> that is sufficient. >> what do you mean for purposes of this case?

what does the law generally must it be a drug law or can it be any law? >> give that up, ms. harrington. >> let me try one more time. it would be consistent with the way the court treated other issues such as willful standard. >> not willful. the problem is not articulation. we are sitting here thinking of examples like the anti bird hunting statute you cannot hunt the green i'd turkeys and the guy's never heard of that and you say ok don't know if this is a green i'd turkey and don't know if it violates the green i'd turkey statute but maybe it violates something. it sounds like an odd principle even if you limit it to all laws concerning birds. you see the problem? skulking around in the bushes. we could go around like this but i'd better not. >> that is a real-world problem and i understand the questions,

i am not trying to avoid answering it but the willful context, that has sufficiency if the defendant believes what he's doing is illegal he doesn't have to have a sense what what he is violating, and the higher standard than knowing what is intentional and the court never addressed the penal code and embraced the idea to satisfy higher standards, you necessarily satisfy the lower ones. i don't mean to interrupt you the narrower articulation. >> you are embracing the narrower articulation but that is the case specifically, it is hard to see how that would make a difference. it would make a world of difference expanding to other cases and when you get to that point it is ignorance of the law question. in all the cases involving this we do not ask if you have any

idea if it violates the law or not. your position makes it much easier to convict people because you don't have to show that they knew the facts that made their conduct illegal. all you have to do is -- illegal under the law they are charged. all you have to do is say they did something that makes it look like they knew they did something that makes it look like they were suspicious indeed we can find any law in the united states code that makes it illegal we can't prosecute them for what we want to prosecute some for even though they didn't know the facts:that provision. >> for the actions they took that broke the law. >> part of the prosecution is you must show what they had as we can show that simply by showing a jury if they were acting suspiciously. >> not quite correct. we have to convince the jury the

defendant in any case believes that the relevant conduct, distributing the drug violated the law was legal. if it proves that the other reasonable doubt adjusting to the jury that won't get the job done in those cases. in most contexts it is easier to prove the defendant knows facts that make his conduct illegal van that he knew what he was doing was illegal. >> what is the best case? the defendant didn't know that the showcasing belongs to the government and was exonerate it because he had to have intent. suppose he didn't know they belonged to the government but that it was an illegal casing because it was dangerous. he was wrong about that. could he be prosecuted? >> we think he could be. all the cases in that line

involve defendants who claim they genuinely believe what they were doing was innocent so the problem was to figure out a way to construe the statute for people who were innocent. >> is there a case you have? >> the easier case where the defendant believes what he's doing is illegal and those cases don't come to this court. there are statements, o'brien was a case of willful standard but also the knowledge standard and the government doesn't necessarily have to prove a defendant knew what he was doing was illegal and necessarily suggests opening the possibility that the government did prove that it would be sufficient the court also said, the court also said the defendant, the government, to prove knowledge of the facts of conduct suggesting that is easier standard to meet. >> to follow up on justice kennedy's hypothetical, what if he knew he was trespassing?

and took the case in. you have to show he knew what he was doing was illegal. the sign said government property so we can convict him for taking the shell casings. >> we would tie it directly to the conduct that violates the law. if he needs to know the taking of shell casings is illegal, not the demands of larry conduct brought in to the shell casings was illegal so here the defendant needs to know the distribution of the drug is what is illegal. if you look at -- we are on the same page suggesting standards should govern both cases, we disagree about how the courts of appeals -- >> let me try this out. a drug that is on the list, the defendant knows the chemical composition of the drug on the list. the defendant has no idea that this is on the list. it is distributed intentionally,

that person has violated the law, the person's ignorance of the fact that this is a controlled substance is irrelevant. am i right? >> the identity of the drug. >> he knows what it is. king as the chemical composition and knows the name but as soon we have a list of analogs. it is the same thing. if the defendant knows the thing is on the list, the chemical composition of it and it turns out this is an analog that is sufficient. that won't be approved in most cases. maybe the confusion is a defendant's knowledge of the illegality of what he or she is doing is not something that has to be proven. it is circumstantial evidence that the person knows that the thing that is being distributed is something that is on the list. >> there is no mystery in analog context. >> makes it easier to understand

if we imagine a risk. >> our position is if we can prove the defendant knew what he was saying was illegal that as a way of proving he knew he was distributing a controlled substance and a lot. >> not something you have to prove . >> not something you have to prove alogue . >> not something you have to prove . >> not something you have to prove that it constitutes an analogue but the fact that he knows it is illegal under federal law is circumstantial evidence that he knew that it was something that fell within the definition. >> real-world example of the court of appeals, the number of cases in the court of appeals dealing with a substance a plant that is grown in the word of africa where you pick the leaves up and it has a stimulant of fact because fresh leaves

contain a substance which is illegal under the csa sort of producing an impediment like perfect. it is illegal in many places in the world, illegal to distribute in this country because it contains a controlled substance of what number of cases where the government prosecuted people for distributing it defendants have said i was distributing it where i come from my have no idea what the chemical is and the court of appeals generally upheld those convictions based on when there's prove the defendant knew distributing was illegal even if he didn't know why it was illegal or -- >> the life is dawning slightly don't say i am saying your argument correctly because i am not. you are saying -- he doesn't know the chemistry. he has to know it is an analogue but doesn't know the chemistry.

he is saying if he knows that it is illegal under the analogue act that is good enough because he knows it is an analogue. now you are saying if he knows it is illegal generally ended the drug law that should be evidence of the fact that he knows is an analogue because let's ask him why do you think it is illegal and the analogue or the drug law? it is not a listed substance. how could it be? he doesn't want to say it is a lot like cocaine. it is -- of far out example. what it should be, the fact that he knows it is illegal under drug laws, is it self-evident he knows it is analogue but he is free to come up with some kind of basis for saying even though

he thought it was illegal under the drug laws he thought was illegal under some other law that had to do with postage stamps or something, that should be -- the jury believes that in a moment and i got it basically right. >> if we can prove the defendant believed what he was doing violated some drug law that is enough to prove he knowingly distributed and analogue. >> what would a drug law be other than the csa and analogue act? >> there will be but the point is the defendant generally does not have a specific -- he knew he was violating the statute of conviction of a higher burden. the only time to do that is if you have vote willful standard and general knowledge of illegality and gauging in a

prohibited act. >> the illegality must relate to drugs. >> that is sufficient when the government proves the legality relates to drugs. >> not just evidence that he knew it was an analogue. it is conclusive evidence. >> we think that is correct. >> the court even if he comes back and says i thought what i was doing was wrong, it wasn't because i thought this was an analogue but some other reason. >> if he thought it violated virginia controlled substance act or not some stage controlled more drugs than the federal schedule, but i didn't know it violated federal drug law. that would not be an offense. >> symbology of violating the drug law is sufficient. >> is insufficient but necessary necessary if the drug if the law that he thinks as a drug law is

that necessary? >> we think a broader view would be correct but we are happy and willing in this case but it would be sufficient. we don't think there's a basis for a limited knowledge of illegality as long as you tie the conduct of this believe in illegality that is in but definitely sufficient for this case to hold when the government proves a belief on violating a drug law is enough. >> the conduct is related illegality. >> there are areas where criminal defendants do try to tailor their conduct to fall within if they are captured and caught particular laws but not others. i recall cases where that is true and hypothetically they know this much marijuana or cocaine is a misdemeanor. if they get this budget is 15 years mandatory minimum and they structure their activities to fall within the lower level.

he would be able to prosecute the according to your theory for the 15 year mandatory if they happen to go beyond the misdemeanor of known. >> if the defendant believed he was distributing one pound of cocaine and turned out i don't know what the right numbers are but disturbing one pound of cocaine or distributing 5 pounds of cocaine and the difference engine supplies for five account if you ted purdy distributed the 5 pounds of cocaine that would be sufficient. >> what does that do to your theory that what they have to know is it is illegal under the drug laws. what was illegal, what they knew was the misdemeanor amount and it doesn't matter that it doesn't matter if they didn't know they were distributing a larger amount. >> he knew what he was doing was illegal. >> what he was doing was the misdemeanor because of the amount. he didn't know when would be a felony because he didn't know he had that much of the drug.

>> if you knew what he was doing violated a drug law which would not be the case in the hypothetical but if he thought he was distributing was oregano and for that to the marijuana it wouldn't be sufficient because he would have believed what he was doing was innocent and whatever know what made his conduct illegal. in this case plenty of facts showed what he was doing was illegal and she was correct. instead of serving more traditional commercial packaging the charge $450 an ounce for these products under his believe he thought they were aromatherapy products that you would pour into a bathtub. he knew -- >> and what will the market bear unless it has the same affect if it has the same effect as cocaine even if it is perfectly legal you should charge -- don't you believe in the free-market? >> the free market and illegal drug contexts like everywhere

else but it is evidence that he knew what he was selling was a drug and an illicit drugs and -- >> shows that he knew it would give you a high and so on and he was charging what people are willing to pay for that. >> he did his product on his web site and wouldn't answer direct questions from his customers about which side is most likely for the controlled substances so we think there's sufficient evidence to show the petition of the leave -- >> the council agrees there's sufficient evidence to convict. >> but the proper instruction is. i understand the court remands applications and that would be appropriate in this case particularly because the government did not for this instruction because it was following a presidential low and the vending harsher instruction that was given in the case. >> in justin is enough.

he has to intend, not to put in the bathtub but to in jest. that was only mention. >> that was the instruction the government requested because that is what the president said was enough. >> mr. russell, four minutes left. >> let me start with the instruction. even under government interpretation of jury instructions as requiring the jury find the defendant knew about a similar effect the government acknowledges it didn't require any knowledge about the similarity in the structures of the government has acknowledged the instruction was inadequate even under the government's new view of the law and so the question is simply

whether or not they are entitled to take advantage they stunned the theory they developed in this court and this position, as brian nestande and now, premised on the thought that all the statute requires is culpable state of mind but it doesn't say distribute and analogue culpable the but distribute knowingly. this court repeatedly said knowing distribution of the item requires knowledge of the facts and what we discussed by showing there is knowledge under the law and conviction itself but it gives prosecutors the option that proving the facts the defendant knew the facts or simply that he acted publicly or that conduct was unlawful under small. with respect to their fallback position that it has to be illegal under a drug law we are getting closer.

we would agree if they were to say as some have said to feature prominently it is the federal anti-drug abuse law. the tricky matter is not one of those, the value of that articulation makes clear the defendant doesn't have to know the name of the statute but if the position is it is enough to be under state drug abuse laws and lots of state analogue, lots of states got ahold of the government and putting on their schedules things like substance is in this case but that is not what this court has in mind interpreting the statute it is up to congress to decide what is culpable and if it uses the word knowingly it is entitled to know that word is going to get the same interpretation as in the past. the government points to cases like bryant in which the court has said in addition to knowing

the fact must know something about the law, willfulness is enough to establish knowing distribution but in those cases it is not simply general knowledge but also the fact to make conduct unlawful. >> knowingly distributing heroin, knows it is fair when but doesn't have any idea it is illegal nevertheless violated the law. i don't see why the rules should be different with respect analogue. >> i don't say that it is. >> the defendant doesn't have to know the legal status of the drug. >> we are talking about the government's alternative, the government always has the option. >> he knows he is violating state law. >> she knew he was violating a state analogue act with the same definition under federal law he could act to violate federal law but most of the time as my colleague said the government's evans's they knew the conduct

was unlawful somehow and -- >> the question is -- >> the government never has to prove the defendant's knowledge about the law at all is it proves king knows the facts that make the conduct unlawful. what we are objecting to is the government's alternative and we agree with them up to the point of the fact that they think it is enough to show the defendant knew he was violating state law or a provision of the fda which regulates substances independent of moral substance act. there is conduct that indicate he knew the substances were illegally if the defendant comes forward as a reason for the jury to think that in fact he had in mind that it violated some other law or that he looked and came to the conclusion it doesn't violate the world substance is

act and it is established and we have no problem with that. to finally address the facts, the fact that my client was distributing things in bags shows the he was doing this from his home business charging large prices shows that he thought he had found a loophole in federal drug laws. no reason in the world he would have, if i could finish the sentence, why he would have pledged his product down the toilet and when he discovered if in fact he knew the other products were illegal and didn't care. >> thank you, counsel, the case is submitted. >> 54 years old an invalid when she was thrust into the role of first lady, determined to be a helpmate to her husband andrew johnson as he navigated the tenants end of the civil war. reconstruction in the south and his don't impeachment. elisa johnson this sunday night at 8:00 p.m. eastern on c-span original series' first ladies

influence and damage, examine the public and private lives of the women who fill the position of first lady and their influence on the presidency from martha washington to michelle obama sundays at 8:00 p.m. eastern on american history tv on c-span3. ..