                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4349


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

STEPHEN DOMINICK MCFADDEN, a/k/a Stephen Domin McFadden,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                       (S. Ct. No. 14-378)


Argued:   March 22, 2016                   Decided:   May 19, 2016


Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by published
opinion.   Judge Keenan wrote the opinion, in which Chief Judge
Traxler and Judge Wilkinson joined.


ARGUED:   J.   Lloyd  Snook,  III,   SNOOK   &   HAUGHEY,  P.C.,
Charlottesville, Virginia, for Appellant.   Anthony Paul Giorno,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee. ON BRIEF: Timothy J. Heaphy, United States Attorney,
Roanoke, Virginia, Ronald M. Huber, Assistant United States
Attorney, Jean B. Hudson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

      In this case, which is before us for a second time, we

consider whether certain erroneous jury instructions given at

trial require us to vacate Stephen D. McFadden’s convictions.

After   a    jury    trial,    McFadden    was    convicted      of    conspiring   to

distribute     controlled      substance       analogues   and    of       distributing

controlled substance analogues in violation of the Controlled

Substance Analogue Enforcement Act of 1986 (the Analogue Act),

21 U.S.C. §§ 802(32)(A), 813, and the Controlled Substances Act

(CSA), 21 U.S.C. §§ 841(a), 846.                In McFadden’s initial appeal,

we   affirmed       the   district        court’s    judgment,         and    McFadden

petitioned the Supreme Court for certiorari.                   The Supreme Court

granted certiorari, concluded that the jury instructions given

at   trial    improperly       omitted    elements    relating         to    McFadden’s

state of mind, and remanded this case for us to consider whether

the error was harmless.

      On remand, we conclude that the erroneous jury instructions

constituted         harmless     error      with     respect          to     McFadden’s

convictions under Counts One, Five, Six, Seven, Eight, and Nine

of the superseding indictment.                 However, we conclude that the

error was not harmless with respect to McFadden’s convictions

under Counts Two, Three, and Four.               We therefore affirm in part,

vacate in part, and remand the case for further proceedings in

the district court.

                                           2
                                           I.

                                           A.

       We begin by providing an overview of the relevant federal

statutes    and    regulations      governing        controlled          substances     and

their   analogues.         The    CSA    prohibits         the    distribution         of   a

“controlled substance,” 21 U.S.C. § 841, and defines “controlled

substance”    to    mean    any    drug    or     substance        included       in    five

schedules, Schedule I through Schedule V, established by the

CSA.    21 U.S.C. §§ 802(6), 812(a).                 Distribution of controlled

substances     listed      on     Schedule       I      carries     strict        criminal

penalties.     21 U.S.C. § 841(b)(1)(C).                  The Attorney General also

has the authority to add substances to or remove substances from

the CSA schedules by rule.              21 U.S.C. § 811(a).              The up-to-date

schedules are codified in the Code of Federal Regulations.                              See

21 C.F.R. §§ 1308.11–1308.15.

       Congress     enacted       the     Analogue          Act    to      prevent       the

distribution      of   newly     created       drugs,      not    yet    listed    on    the

schedules but that have similar effects on the human body.                               See

United States v. Klecker, 348 F.3d 69, 70 (4th Cir. 2003).                              The

Analogue Act defines a “controlled substance analogue” as any

substance    “the      chemical    structure         of    which    is    substantially

similar to [that] of a controlled substance in schedule I or II”

(the chemical structure element), and “which has [an actual,

claimed, or intended] stimulant, depressant, or hallucinogenic

                                           3
effect      on    the      central      nervous       system       that    is    substantially

similar to or greater than [that] of a controlled substance in

schedule I or II” (the physiological effect element).                                  21 U.S.C.

§ 802(32)(A).

       Under the Analogue Act, controlled substance analogues are

treated      as   Schedule        I    controlled          substances      for    purposes       of

federal law.          21 U.S.C. § 813.               The interaction between the CSA

and the Analogue Act therefore prohibits the distribution of

controlled substance analogues, even if not listed on the CSA

schedules.

                                                B.

       The   facts         of   this    case    are    discussed          in    detail    in    our

previous opinion in United States v. McFadden, 753 F.3d 432 (4th

Cir. 2014), and in the Supreme Court’s opinion in McFadden v.

United States, 135 S. Ct. 2298 (2015).                         We will recite here the

facts relevant to the issue presented on remand.

       In    July     2011,      certain       law    enforcement         officials      (police

officers) in Charlottesville, Virginia began investigating the

distribution          of    synthetic      stimulants         commonly         known   as     “bath

salts.”      The investigation revealed that bath salts were being

sold   from       a   video      rental       store    owned       and    operated       by    Lois

McDaniel.             Under      supervision          of     the    police        officers,      a

confidential          informant        made    two    controlled          purchases      of    bath

salts at McDaniel’s video store.                      On August 24, 2011, the police

                                                 4
officers     confronted         McDaniel        with        evidence        from     their

investigation,        searched     the         video       store,        and     solicited

information regarding her supplier.

     McDaniel agreed to cooperate with the investigation and to

assist the police in gathering evidence against her supplier,

Stephen     McFadden.       At     the         officers’         direction,        McDaniel

initiated    recorded    telephone       conversations            with    McFadden,       who

was located in Staten Island, New York.                          The first of these

telephone conversations occurred on August 25, 2011.                             In these

recorded      conversations,        McFadden              described        the      active

ingredients in the bath salts and gave instructions on how the

bath salts were to be consumed.                     McFadden also described the

stimulant effects of the bath salts and compared the effects to

those of cocaine or methamphetamine.                       During these telephone

conversations,       McDaniel     engaged       in       five    separate       controlled

purchases    of   several   varieties          of    bath       salts    from    McFadden.

McFadden shipped packages containing bath salts through FedEx, a

commercial courier, from Staten Island to Charlottesville.

     The    United    States     Drug    Enforcement            Administration       (DEA)

seized the packages directly from FedEx.                    Inside these packages,

the “vials” and “baggies” containing the bath salts had been

labeled by McFadden, and some labels warned that the contents

were “not for human consumption or illegal use.”                           Other labels

listed     chemical    compounds,       some        of    which     were       Schedule    I

                                           5
controlled     substances,     and    stated        that     the     package     contents

“[did] not contain [those] compounds or analogues of [those]

compounds.”

      Chemical analysis revealed that the composition of the bath

salts seized in these shipments changed over time.                           McFadden’s

five shipments from July 2011 through September 2011 contained

3,4-methylenedioxypyrovalerone                              (MDPV),                    3,4-

methylenedioxymethcathinone (methylone, or MDMC), and 4-methyl-

N-ethylcathinone (4-MEC).

      On October 21, 2011, the government adopted a rule adding

MDPV and methylone to Schedule I.                   See Schedules of Controlled

Substances:    Temporary      Placement        of    Three    Synthetic      Cathinones

into Schedule I, 76 Fed. Reg. 65,371, 65,371–75 (Oct. 21, 2011).

Immediately upon learning of the new rule, McFadden destroyed

his inventory of MDPV and methylone.                   Although McFadden ceased

distributing MDPV or methylone at this point, he continued to

send shipments containing 4-MEC until his arrest in February

2012.

      A    federal    grand   jury    indicted       McFadden        for   distributing

MDPV,     methylone,    and   4-MEC   in       violation      of   the     CSA   and   the

Analogue     Act.      The    indictment        alleged       that    although     MDPV,

methylone, and 4-MEC were not controlled substances at the time

of   McFadden’s      distribution,     these        three    compounds      nonetheless

qualified as controlled substance analogues by virtue of their

                                           6
chemical structures and physiological effects.                       See 21 U.S.C. §

802(32)(A).       The grand jury charged McFadden with one count of

conspiracy to distribute controlled substance analogues between

June 2011 and February 2012 (Count One), and eight counts of

distribution of controlled substance analogues.                      Three counts of

distribution corresponded with three different shipments made on

July 25, 2011 (Count Two), August 11, 2011 (Count Three), and

August    24,    2011   (Count    Four),      before    police       officers       began

supervising       telephone       conversations        between           McFadden     and

McDaniel    on    August    25,   2011.        Five    counts       of    distribution

corresponded with five different shipments made on August 26,

2011 (Count Five), September 16, 2011 (Count Six), October 27,

2011 (Count Seven), January 6, 2012 (Count Eight), and February

2, 2012 (Count Nine), after the police officers began directing

and monitoring McDaniel’s communications with McFadden.

       In a motion to dismiss the indictment and in his proposed

jury   instructions,        McFadden   argued        that     the    government       was

required to prove that he knew the substances he distributed

were   controlled       substance   analogues         under    the       Analogue    Act.

Under McFadden’s proposed jury instruction, the government would

have     been    required    to   prove       that    McFadden       knew    that     the

analogues       had   substantially    similar        chemical       structures       and

physiological effects as those of controlled substances.



                                          7
      The    district    court      denied       McFadden’s     motion,         relying    on

this Court’s opinion in United States v. Klecker, 348 F.3d 69,

71 (4th Cir. 2003) (requiring the government to prove only that

a substance had the chemical structure and physiological effects

of an analogue and that the defendant intended the substance be

consumed     by   humans).          During       the   four-day          trial,      McFadden

presented evidence that he was not aware of the Analogue Act, or

that the CSA prohibited the distribution of controlled substance

analogues.        The district court instructed the jury consistent

with the holding in Klecker, and the jury returned a guilty

verdict on all nine counts.

      At his sentencing hearing, McFadden argued that he had been

careful     not   to   sell   any    substances        listed       on    the     controlled

substance     schedules.       McFadden          and   the   government           stipulated

that McFadden had consulted the DEA website for the list of

controlled substances, and that the website did not contain any

warning at the time that controlled substance analogues also

were regulated.        Further, McFadden testified that he had ceased

selling MDPV and methylone after those substances were added to

the CSA schedules, even when an undercover DEA agent attempted

to purchase them.         The district court considered this testimony

and   sentenced        McFadden      to   serve        a     term        of     33   months’

imprisonment on each count, to run concurrently.



                                             8
       McFadden          appealed,         arguing        in     this        Court       that    the

government should have been required to prove his knowledge of

the    bath       salts’       illegal      status        as    a     controlled         substance

analogue.         Relying on our precedent in Klecker, 348 F.3d at 72,

we affirmed the district court’s interpretation of the Analogue

Act as not requiring proof that the defendant knew that the

distributed substances were controlled substance analogues.                                      See

United States v. McFadden, 753 F.3d 432, 436, 443–44 (4th Cir.

2014). 1

       McFadden       sought         review       of    our    decision       by     the    Supreme

Court,      which        granted      certiorari          on    the       issue      whether     the

government         was     required        to      prove       that     he    knew       that    the

substances he distributed were controlled substance analogues.

The Supreme Court held that a conviction under the Analogue Act

requires      proof       of   knowledge          of    either      the    substance’s          legal

status as a controlled substance or of its specific features

that       make    the     substance          a    controlled          substance         analogue.

McFadden      v.    United       States,          135    S.    Ct.     2298,       2305    (2015).

Accordingly, the Supreme Court vacated this Court’s opinion, and

remanded      the     case      to    us    to     determine          whether      the     district

       1In the initial appeal, we also rejected McFadden’s
challenges to the vagueness of the Analogue Act, the district
court’s evidentiary rulings, and the sufficiency of the evidence
at trial. See United States v. McFadden, 753 F.3d 432, 436 (4th
Cir. 2014). McFadden did not seek Supreme Court review on these
other issues, so they are not before us on remand.


                                                   9
court’s erroneous jury instructions constituted harmless error.

Id. at 2307.



                                             II.

                                             A.

      The   Supreme      Court       has    clarified    the     elements         that   the

government must prove to support a conviction for distribution

of   controlled       substance      analogues.         As    discussed      above,      the

Analogue Act defines a “controlled substance analogue” by its

chemical     structure      and       its     actual,        claimed,       or     intended

physiological effects.           21 U.S.C. § 802(32)(A).               If intended for

human   consumption,           any        controlled     substance          analogue      is

regulated    as   a    Schedule       I    controlled    substance.           Id.    § 813.

Therefore,     the     CSA’s     prohibition       of    knowing       or    intentional

distribution      of    controlled          substances       extends    to       controlled

substance analogues intended for human consumption.                                 See id.

§§ 813, 841(a)(1).

      The   government     must       also    satisfy    one     of    two    methods     of

proof regarding the defendant’s state of mind.                        McFadden, 135 S.

Ct. at 2305.          Under the first method of proof, the government

may establish that “a defendant knew that the substance . . . is

some controlled substance—that is, one actually listed on the

. . . schedules or treated as such by operation of the Analogue

Act—regardless of whether he knew the particular identity of the

                                             10
substance.”        Id.     Under the second method, the government may

establish that “the defendant knew the specific analogue he was

dealing with, even if he did not know its legal status as an

analogue.”     Id.       Under this second method of proof, knowledge of

the substance’s chemical structure and physiological effects is

sufficient to support a conviction.                Id.

       A conviction under the Analogue Act therefore requires the

government     to    prove       that    the    defendant:       (1)    distributed        a

substance that had the chemical structure of an analogue and the

actual,     intended,       or    claimed       physiological          effects       of   an

analogue;    (2)     intended     that    the    substance       be    used    for    human

consumption;       and    (3)    knew     either       the   legal     status    of       the

substance, or the chemical structure and physiological effects

of that substance.              Only the third element is in dispute on

remand in this case.

       At   trial,       the     jury    found     that        McFadden       distributed

substances that qualified as controlled substance analogues, and

that   he   intended      the    substances      for     human    consumption.            The

district    court     instructed        the     jury    that     to    convict    on      the

distribution counts, the jury must find:

       FIRST: That the defendant knowingly and intentionally
       distributed a mixture or substance that has an actual,
       intended,   or  claimed   stimulant,   depressant,  or
       hallucinogenic effect on the central nervous system
       that is substantially similar to or greater than the
       stimulant, depressant, or hallucinogenic effect on the


                                           11
     central nervous system of a controlled substance in
     Schedule I or II of the Controlled Substances Act;

     SECOND: That the chemical structure of the mixture or
     substances is substantially similar to the chemical
     structure of a controlled substance in Schedule I or
     II of the Controlled Substances Act; AND

     THIRD: That the defendant intended for the mixture or
     substance to be consumed by humans.

By returning a guilty verdict on the distribution counts of the

superseding indictment, the jury necessarily found that McFadden

distributed a substance that had the chemical structure of an

analogue    and     the   actual,    intended,      or    claimed     physiological

effects of an analogue, intending the substance to be consumed

by humans.         The jury was not instructed to determine whether

McFadden     had    knowledge   of    the    legal       classification    of    the

substances     as     controlled      substance          analogues    or   of    the

substances’ chemical structures and physiological effects.

     The     jury    instructions      for    the        conspiracy    count    were

essentially identical with respect to the question of McFadden’s

knowledge.     In order to find McFadden guilty of conspiracy, the

jury was required to find that McFadden willingly and knowingly

joined an agreement that existed “beginning in or around June

2011, and continuing until February 15, 2012,” to accomplish the

purpose of distributing substances containing MDPV, methylone,

or 4-MEC.      Conviction on the conspiracy count also required a

jury finding that MDPV, methylone, or 4-MEC have the chemical

structures and the actual, intended, or claimed physiological
                                        12
effects    of     controlled         substance        analogues.               By     returning     a

guilty     verdict,        the      jury     therefore          necessarily             found    that

McFadden conspired to distribute certain substances, and that

those     substances         had     the     features          of    controlled           substance

analogues.        However,         the     guilty     verdict            did   not      necessarily

reflect that the jury found that McFadden knew the legal status

of those substances or that those substances had the chemical

structures      and    physiological             effects       of    controlled           substance

analogues.

      With      respect      to     all     nine      counts,        therefore,           the    jury

instructions      omitted          the    required      element           that      McFadden     knew

either     that      the     bath        salts     were        regulated         as      controlled

substances or that the bath salts had the features of controlled

substance analogues.               Accordingly, we turn to consider whether

the   failure     to    instruct          the    jury     on    this       knowledge        element

constituted harmless error.

                                                 B.

      A court commits a constitutional error subject to harmless

error analysis when it omits an element of an offense from its

jury instructions.               Neder v. United States, 527 U.S. 1, 8–9

(1999).      To      establish           harmless     error         in    such      a    case,    the

government must show “beyond a reasonable doubt that the error

complained      of     did    not        contribute       to    the       verdict        obtained.”

Chapman v. California, 386 U.S. 18, 24 (1967); United States v.

                                                 13
Brown, 202 F.3d 691, 699 (4th Cir. 2000).             The reviewing court

must “conduct a thorough examination of the record,” and if “the

court cannot conclude beyond a reasonable doubt that the jury

verdict would have been the same absent the error . . .[,] it

should not find the error harmless.”             Neder, 527 U.S. at 19;

Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (requiring the

reviewing court to ensure that the guilty verdict rendered at

trial was “surely unattributable to the error”).

     Both the Supreme Court and this Court have held that an

erroneously    omitted   jury   instruction     may   be   deemed   harmless

error    if   the   omitted   element    is   supported    by   overwhelming

evidence admitted at trial. 2           See Neder, 527 U.S. at 16, 18;

Brown, 202 F.3d at 700–01.          In Neder, the jury found that a

taxpayer had knowingly filed false statements in a tax return by

underreporting his income by $5 million, but did not determine

whether the false statement was material to the taxpayer’s tax

liability.     527 U.S. at 16.      The Supreme Court held that the

omission of this element from the jury instruction was harmless

beyond a reasonable doubt, because the taxpayer had contested


     2 The government may also prove harmless error by showing
that the jury necessarily found facts that would satisfy the
omitted element, such as when the omitted element overlaps with
an element in another count of conviction. See Brown, 202 F.3d
at 699–700.   However, the government does not argue that this
type of harmless error applies in this case, because the same
element was erroneously omitted in all nine counts.


                                    14
only the classification, but not the calculated amount, of the

$5 million, and that any reasonable jury would find that $5

million in unreported income is material to tax liability.                       Id.

       Additionally, in United States v. Davis, 202 F.3d 212 (4th

Cir. 2000), we considered the omission of a jury instruction in

a case that would have required the jury to determine whether

the defendant fired gunshots into a “dwelling.”                   Id. at 217.          We

held    that   because    overwhelming        evidence    established         that   the

building in question was a family residence with six occupants,

the    district    court’s     failure   to     instruct    on     the    “dwelling”

element was harmless beyond a reasonable doubt.                   Id.

       On the other hand, we have held that evidence of an element

omitted from jury instructions will not be deemed overwhelming

if the defendant had “genuinely contested” the omitted element

with evidence that could have caused “disagreement among the

jurors about” the contested element.                   See Brown, 202 F.3d at

702.    In Brown, the jury was not instructed that it must find

unanimously     that     the   defendant      had    participated        in   specific

predicate violations before finding that he had participated in

a “continuing criminal enterprise.”                 Id. at 698.    The government

had    presented   evidence     of   several        predicate    offenses       through

witnesses      whose     credibility     had     been    impeached        and    whose

testimony had been countered by other evidence.                    Id. at 701–02.

We held that the error was not harmless beyond a reasonable

                                         15
doubt,       because     the     omission        of     the       element    from    the       jury

instructions        could       have    allowed        the    jury    to    return    a    guilty

verdict without unanimous agreement on which predicate offenses

occurred.       Id. at 702.

       In accord with these decisions, we must examine the record

for evidence of McFadden’s knowledge regarding either the legal

status or the relevant characteristics of the bath salts.                                       See

McFadden,       135      S.     Ct.    at      2305.         We    consider       whether       the

government         has   met     its     burden       of     showing       that   overwhelming

evidence       established            McFadden’s           knowledge        on    this     issue,

rendering the failure to instruct the jury on that knowledge

element harmless beyond a reasonable doubt.



                                                III.

       The     government             argues     that        the     evidence        at        trial

established McFadden’s knowledge under either method of proof

articulated by the Supreme Court.                       According to the government,

the evidence overwhelmingly proved that McFadden knew that the

bath salts were regulated as controlled substances, and that the

bath   salts       had    chemical       structures          and    physiological         effects

similar to those of controlled substances.

       In response, McFadden asserts that his conduct showed that

he thought that his actions were lawful, and argues that he is

entitled      to    a    jury    determination          of    his    credibility          on   this

                                                 16
issue.    Relying     on   the   Seventh      Circuit’s   decision   in   United

States v. Turcotte, 405 F.3d 515, 527 (7th Cir. 2005), he also

argues that under proper instructions, the jury would have been

permitted, but would not have been required, to infer from the

evidence that he had any knowledge of the chemical structures of

the substances that he sold.            We disagree with certain parts of

both parties’ arguments.

                                        A.

     We address the parties’ arguments in the context of the two

methods   of     proof     identified        by   the     Supreme    Court     for

establishing the knowledge element.               The government argues that

the first method of proof was satisfied in this case, because

overwhelming evidence established that McFadden knew that the

bath salts were regulated or controlled under the CSA or the

Analogue Act.     The government highlights the fact that McFadden

distributed the bath salts using packaging, prices, and names

consistent     with   illicit    drug   distribution.        Further,     in   the

recorded telephone conversations, McFadden compared his products

to cocaine and methamphetamine.              The government also argues that

McFadden’s attempts to conceal his activity and the nature of

his business showed that he was conscious of his own wrongdoing.

We disagree with the government’s argument regarding the extent

of evidence supporting this first method of proof.



                                        17
      Although      the    jury    could       have       inferred        from     McFadden’s

evasive behavior and the “disclaimer” labeling of the packages

and vials that he knew that the bath salts were treated as

controlled    substances,         McFadden,         135    S.    Ct.   at    2304    n.1,   we

agree with McFadden that such an inference would not have been

compelled.       McFadden countered the government’s evidence of his

guilty knowledge by presenting evidence that he tried to comply

with the law and intentionally avoided selling substances listed

on the CSA schedules.             McFadden affixed labels to his packages

that disclaimed the inclusion of specific Schedule I substances,

and   he   ceased    selling       MDPV       and    methylone         immediately     after

learning    of    their    listing       in    the    CSA        schedules.         Thus,   we

conclude   that     McFadden’s      efforts         to     avoid    selling        substances

listed in the CSA schedules is the type of “genuinely contested”

evidence     we     discussed       in    Brown           that     could      have     caused

“disagreement among the jurors” about whether McFadden knew that

the bath salts were regulated or controlled under the CSA or the

Analogue Act.       See Brown, 202 F.3d at 702.

      We   therefore       hold    that       the    evidence       was     sufficient      to

permit, but not so overwhelming to compel, the jury to find that

McFadden    knew    that    federal       law       regulated       the     bath    salts   as

controlled substances.            Instead, the jury could have concluded

from the evidence that McFadden erroneously thought that it was

not a crime to sell MDPV, methylone, and 4-MEC.                             Therefore, the

                                              18
government has not shown that overwhelming evidence established

McFadden’s knowledge under the first method of proof.

                                              B.

      The    government       may      also    prove       McFadden’s       knowledge      by

showing that McFadden knew “the specific analogue he was dealing

with.”      McFadden, 135 S. Ct. at 2305.                  For this second method of

proof,      the    government       relies         on     McFadden’s       statements      in

telephone     conversations         recorded        between       August    25,    2011    and

February 1, 2012 to show that McFadden had knowledge of the

analogues’ chemical structures and physiological effects.

      As we discuss below, we agree with the government that the

recorded telephone conversations overwhelmingly establish that

McFadden      knew     the        bath     salts’         chemical        structures       and

physiological effects.              However, the first recorded telephone

conversation       occurred       on     August     25,     2011,     after       McFadden’s

conduct giving rise to Count Two (July 11–25, 2011), Count Three

(July 29–August 11, 2011), and Count Four (August 10–24, 2011)

of the superseding indictment.                     The government does not cite,

nor   were    we    able     to    find,      any       earlier    direct     evidence     of

McFadden’s state of mind.

      Although       the   jury        reasonably        could     have    inferred       from

McFadden’s discussions in the August 25, 2011 phone call that he

had possessed the required knowledge before his first shipment

to Charlottesville, the evidence on this point cannot in any

                                              19
view be termed “overwhelming.”                  See Brown, 202 F.3d at 701–02.

McFadden’s brother, a federal law enforcement agent, testified

at    trial    that    McFadden       began    selling       “aromatherapy”      products

after    seeing      similar    products       for    sale    in    plain   view      around

Staten Island.          Based on this and the other evidence before us,

the jury reasonably could have concluded that McFadden began

selling       his   products    before        knowing    their      identity,    chemical

structures, or physiological effects when ingested.                             The jury

therefore reasonably could have concluded from the evidence that

McFadden’s guilty knowledge had not been established at the time

he made the shipments corresponding with Counts Two, Three, and

Four.        Accordingly, we conclude that the government has not met

its burden of establishing harmless error with respect to Counts

Two, Three, and Four.

       Any     reasonable       uncertainty         about     McFadden’s      knowledge,

however, evaporated            with    McFadden’s       recorded      participation          in

telephone conversations that demonstrated his full knowledge of

the     chemical       structures      and      physiological         effects      of      his

products.           McFadden    does     not       dispute    the    accuracy        of    the

recordings and transcripts admitted at trial, nor does he point

to    evidence        that   would      contradict       the       contents     of        those




                                              20
conversations. 3       In the first recorded substantive conversation,

on August 25, 2011, McFadden discussed the composition of his

products,       characterizing         a    mixture        called     “Alpha”    as     “the

straight chemical” and “the replacement for the MDPV.”                                  When

asked     for   further      details       about    a     mixture    labeled    “No    Speed

Limit,” McFadden represented that “Alpha mixed with the 4-MEC

gives you a No Speed Limit–like feeling, just not as intense.”

McFadden also explicitly compared these mixtures to “cocaine”

and “crystal meth.”              In later conversations, McFadden discussed

distributing      a    “4-MEC”      blend     called       “New     Sheens,”    adding    “a

little extra kick” to a blend called “Hardball,” and describing

“Hardball” as a blend with “five active chemicals in it” or

“five ingredients.”

      McFadden        nevertheless          argues        that    his   statements        to

McDaniel were mere “sales talk,” completely unconnected with any

actual     knowledge        he   might      have.         McFadden,     a   construction

foreman and furniture salesman, asserts that he obviously lacked

the   experience       or    training       to     have    scientific,      chemical,     or

pharmacological knowledge about the products he sold.                                 We are


      3In his initial appeal, McFadden challenged the relevance
of the recordings and the transcripts, but did not challenge
their accuracy.   United States v. McFadden, 753 F.3d 432, 443
(4th Cir. 2014). We held that the district court did not abuse
its discretion in admitting the recordings and transcripts,
because they were relevant to prove that McFadden intended the
bath salts to be used for human consumption. Id.


                                             21
not persuaded by this argument, or by McFadden’s assertion that

under the holding of United States v. Turcotte, 405 F.3d 515,

527 (7th Cir. 2005), he is entitled to have the jury judge his

credibility        on    the    knowledge        issue   rather    than    have      this

question be reviewed on appeal for harmless error.

       McFadden correctly states the principle from Turcotte, that

even   if    a    defendant      is    proved    to   have   had   knowledge      of    an

analogue’s physiological effects, a jury is permitted, but is

not required, to infer that a defendant had knowledge of the

analogue’s relevant chemical similarities.                   See 405 F.3d at 527.

However,     McFadden’s         argument    on    this    point,   as    well   as     his

contention that he was engaged in mere “sales talk,” grossly

understates the evidence of his knowledge of the substances’

chemical structures and physiological effects.

       The   nine       recorded      telephone    conversations,       beginning       on

August 25, 2011, established McFadden’s thorough and detailed

knowledge of chemicals identified in Count One and Counts Five

through      Nine,      their    chemical    structures,      their     effects,       and

their similarity to other controlled substances.                        On August 25,

2011, McFadden explicitly referenced “MDPV” and “4-MEC” by name

and described blends of different chemicals.                       Laboratory tests

confirmed        that   McFadden’s      statements       accurately     described      the

chemical composition of his products.                     In addition, McFadden’s

evidence that he consulted the CSA schedules on the DEA website,

                                            22
although effective to raise a question whether he knew the bath

salts were regulated as controlled substances, demonstrated that

he   had        sufficient       knowledge         about           his    products’       chemical

structures to be able to compare them to the list of chemical

names      on     the     CSA     schedules.                 See    21     C.F.R.        § 1308.11.

Therefore,        the    record    shows      far       more       evidence       than    the    mere

knowledge or representation of physiological effects referenced

in Turcotte.           See 405 F.3d at 527.

     The telephone conversations also established that McFadden

knew the physiological effects of the products.                                   On August 25,

2011,   McFadden          described         the    “feeling”             caused    by    different

blends,     comparing           their       effects      to        those     of     cocaine      and

methamphetamine.                The     government            presented           evidence       that

McFadden’s         descriptions             accurately             reflected        the        actual

physiological effects of the blends.                               And, even if McFadden’s

descriptions        of    the    physiological           effects          were    merely       “sales

talk,” the Analogue Act defines analogues to include substances

merely represented to have the relevant physiological effects.

See 21 U.S.C. § 802(32)(A)(iii).

     Therefore, the recorded telephone conversations demonstrate

overwhelmingly           that    by     August         25,    2011,        McFadden       knew    the

chemical        identities        and       the    physiological             effects       of    the

substances he was selling.                   As the Supreme Court has held, “[a]

defendant        who    possesses       a    substance         with       knowledge       of    those

                                                  23
features knows all of the facts that make his conduct illegal.”

McFadden, 135 S. Ct. at 2305.                  Accordingly, we conclude that

because overwhelming evidence established that McFadden knew, as

of August 25, 2011, the specific features of the substances he

was   selling,    the    district   court’s       omission    of    the    knowledge

element    from   the    jury   instructions       was    harmless     error      with

regard to McFadden’s convictions under Counts Five through Nine.

For the same reason, we affirm McFadden’s conviction under Count

One for conspiracy to distribute controlled substance analogues,

which is supported by overwhelming evidence of his state of mind

beginning     with      the     date      of     those     recorded        telephone

conversations.

      With   respect     to   Counts    Two,     Three,    and     Four,   however,

because the erroneous omission of the knowledge element from the

jury instructions was not harmless beyond a reasonable doubt, we

vacate and remand those counts for further proceedings in the

district court consistent with the principles expressed in this

opinion.     We   also    remand    the    convictions       on    Count   One,    and

Counts     Five    through      Nine,      to     the     district     court       for

resentencing.



                                        IV.

      For these reasons, we affirm the district court’s judgment

of conviction on Counts One, Five, Six, Seven, Eight, and Nine,

                                          24
and vacate the court’s sentence on those counts and remand for

resentencing.    We vacate the district court’s judgment on Counts

Two,   Three,   and   Four,   and   remand   those   counts   for   further

proceedings in the district court.

                                                       AFFIRMED IN PART,
                                                        VACATED IN PART,
                                                            AND REMANDED




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