United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 18-2535
      ___________________________

           United States of America

      lllllllllllllllllllllPlaintiff - Appellee

                         v.

 Charles Wolfe, also known as Chuck Wolfe

    lllllllllllllllllllllDefendant - Appellant
      ___________________________

              No. 18-2536
      ___________________________

           United States of America

      lllllllllllllllllllllPlaintiff - Appellee

                         v.

 Charles Wolfe, also known as Chuck Wolfe

    lllllllllllllllllllllDefendant - Appellant
                    ____________

  Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
                ____________
                             Submitted: June 13, 2019
                              Filed: August 6, 2019
                                  [Unpublished]
                                  ____________

Before GRUENDER, STRAS, and KOBES, Circuit Judges.
                          ____________

PER CURIAM.

      Charles Wolfe appeals the district court’s1 denial of his motions to dismiss
indictments for conspiracy, see 21 U.S.C. § 846, to violate the Controlled Substance
Analogue Act (“Analogue Act”), see id. §§ 802 and 841. He also appeals the district
court’s grant of a motion in limine preventing him from presenting an advice-of-
counsel defense at trial. We affirm.

       Wolfe claims that the district court should have dismissed the indictments
because the Analogue Act is unconstitutionally vague. We review the denial of a
motion to dismiss an indictment de novo. United States v. Askia, 893 F.3d 1110,
1116 (8th Cir. 2018). The Analogue Act states that “[a] controlled substance
analogue shall, to the extent intended for human consumption, be treated, for the
purposes of any Federal law as a controlled substance in schedule I.” 21 U.S.C.
§ 813. A controlled substance analogue is a substance that is “substantially similar”
to a controlled substance in schedule I or II with respect to either its chemical
structure or its “stimulant, depressant, or hallucinogenic effect.” 21 U.S.C.
§ 802(32)(A).




      1
        The Honorable Audrey J. Fleissig, Unites States District Judge for the Eastern
District of Missouri.

                                         -2-
       Wolfe contends that the phrase “substantially similar” renders the act
unconstitutionally vague because it “lends itself to arbitrary enforcement and does not
put an individual of average intelligence on notice of what substances are illegal.”
He relies on United States v. Johnson, in which the Supreme Court voided the
residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally
vague. 135 S. Ct. 2551, 2556-57 (2015). “The same vagueness and arbitrariness, the
same inability to discern what the ordinary version of an offense looks like that
plagues the [ACCA],” he argues, “exists within the Analogue Act.” But we rejected
this very argument in an appeal brought by Wolfe’s co-conspirators. United States
v. Palmer, 917 F.3d 1035, 1038 (8th Cir. 2019). In Palmer, we determined that
Johnson did not affect prior precedent upholding the constitutionality of the
Analogue Act. Id.; see also McFadden v. United States, 135 S. Ct. 2298, 2306-07
(2015) (holding that the Analogue Act is not unconstitutionally vague); United States
v. Carlson, 810 F.3d 544, 550 (8th Cir. 2016) (rejecting the argument that “the
Analogue Act is unconstitutional because it does not provide notice of which acts are
criminal and permits arbitrary enforcement contrary to the Due Process Clause”). The
district court therefore properly denied Wolfe’s motions to dismiss.

        Wolfe also claims that he should have been permitted to present an advice-of-
counsel defense at trial. “We review the district court’s denial of a proffered legal
defense de novo.” United States v. Yan Naing, 820 F.3d 1006, 1011 (8th Cir. 2016).
“A defendant is entitled to a jury instruction on an affirmative defense if he can
demonstrate an underlying evidentiary foundation for each of its elements.” Id.
(internal quotation marks omitted). “The evidence of each element must be sufficient
for a reasonable jury to find in the defendant’s favor.” Id. “[T]o rely upon the advice
of counsel in his defense, a defendant must show that he: (i) fully disclosed all
material facts to his attorney before seeking advice; and (ii) actually relied on his
counsel’s advice in the good faith belief that his conduct was legal.” United States
v. Rice, 449 F.3d 887, 897 (8th Cir. 2006).



                                         -3-
       In support of his proffered defense, Wolfe submitted to the district court letters
from his former attorney analyzing whether the substances Wolfe conspired to
distribute were considered controlled substances “under the varying legal parameters
used by each individual state in defining Scheduled substances.” He claims that his
reliance on those letters, which indicated that the substances were legal in some states
and under some federal laws, should have entitled him to an advice-of-counsel
defense.

       But a reasonable jury could not have found that Wolfe both (1) fully disclosed
all material facts to his attorney before seeking the legal opinion and (2) relied on that
opinion in “the good faith belief that his conduct was legal.” Each letter, for instance,
stated that it did not offer an opinion about the “safety or efficacy” of the substances
or “recommend them for human consumption.” Nevertheless, the conspiracy
depended on people purchasing the substances for human consumption. Thus, either
Wolfe failed to disclose to his attorney that the substances would be used for human
consumption or Wolfe failed to rely on his attorney’s recommendation not to
distribute the substances for the purpose of human consumption. The letters also do
not mention the Analogue Act and say nothing about what information Wolfe
provided to his attorney in connection with his request for the letters. Even when the
district court gave Wolfe the opportunity to provide a “full proffer of evidence to be
offered, including the testimony of [his former attorney] and the information provided
to counsel in connection with the opinion,” Wolfe offered no additional evidence.
The district court therefore properly granted the Government’s motion in limine to
prohibit Wolfe from raising an advice-of-counsel defense at trial.2


      2
        Wolfe also claims that he “should have been allowed to present evidence of
the advice he received and what impact that [advice] had on his mens rea for the
crime alleged.” To the extent that this is an argument for admission of the letters into
evidence unrelated to his proffered advice-of-counsel defense, our review is for an
abuse of discretion. See United States v. Jirak, 728 F.3d 806, 813 (8th Cir. 2013).
The district court concluded that the probative value of the letters was “far

                                           -4-
      For these reasons, we affirm.
                      ______________________________




outweighed by their prejudicial impact and the risk of misleading the jury.” This
conclusion supports the exclusion of the letters from evidence, see Fed. R. Evid. 403,
and is one that we accord “great deference” to the district court when reviewing. See
United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009). Applying this
deferential standard and considering our above discussion about the many evidentiary
issues presented by the letters, we conclude that the district court did not abuse its
discretion by excluding them from evidence.


                                         -5-
