     17-2087-cr
     USA v. O'Brien



 1                        UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                            ------

 4                                   August Term, 2018

 5   (Argued: November 28, 2018                                   Decided: June 7, 2019)

 6                                  Docket No. 17-2087-cr

 7   _________________________________________________________

 8   UNITED STATES OF AMERICA,

 9                                            Appellee,

10                                   - v. -

11   MICHAEL O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA
12   George Manolas,

13                                    Defendant-Appellant.*
14   _________________________________________________________

15   Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.

16              Appeal from a judgment of the United States District Court for the



     *    The Clerk of Court is directed to amend the official caption to conform with
          the above.
 1   Eastern District of New York, Roslynn R. Mauskopf, Judge, convicting defendant of

 2   importing and possessing with intent to distribute methylone and anabolic steroids,

 3   see 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E),

 4   and conspiring to do so, see id. §§ 963 and 846; and of operating a stash house, see id.

 5   §§ 841(a)(1), 856(a)(1) and 856(b). On appeal, defendant principally challenges (a) the

 6   denial of his pretrial motion to suppress evidence on the ground that any statements

 7   or consent were unknowing and involuntary because he was incapacitated by being

 8   in withdrawal from an addictive substance, and (b) the sufficiency of the trial

 9   evidence to establish that he knew what he was dealing with was a controlled

10   substance. He also challenges the denial of his posttrial motion to dismiss the

11   indictment on the grounds that methylone was designated a controlled substance

12   pursuant to an unconstitutional delegation of Congressional power to the United

13   States Attorney General, and that the designation process--publication in the Federal

14   Register--did not constitute notice sufficient to afford due process. We find no merit

15   in his contentions.

16                Affirmed.

17                         MARGARET LEE, Assistant United States Attorney,
18                             Brooklyn, New York (Richard P. Donoghue, United
19                             States Attorney for the Eastern District of New York,
20                             Amy Busa, Assistant United States Attorney,
21                             Brooklyn, New York, on the brief), for Appellee.

                                                2
 1                       SUSAN G. KELLMAN, Brooklyn, New York (Sarah
 2                           Kunstler, Offices of Susan G. Kellman, Brooklyn,
 3                           New York, on the brief), for Defendant-Appellant.




 4   KEARSE, Circuit Judge:

 5                Defendant Michael O'Brien appeals from a judgment entered in the

 6   United States District Court for the Eastern District of New York following a jury trial

 7   before Roslynn R. Mauskopf, Judge, convicting him of five drug trafficking offenses,

 8   to wit, importing methylone and anabolic steroids, and conspiring to do so, in

 9   violation of 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), and 963 (Counts Two and One);

10   possessing with intent to distribute those substances, and conspiring to do so, in

11   violation of id. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E), and 846 (Counts Four and

12   Three); and operating a stash house, in violation of id. §§ 841(a)(1), 856(a)(1), and

13   856(b) (Count Five); and sentencing him principally to 144 months' imprisonment, to

14   be followed by a five-year term of supervised release. On appeal, O'Brien contends

15   principally (a) that the district court erred in denying his pretrial motion to suppress,

16   on Fourth and Fifth Amendment grounds, his postarrest statements and evidence

17   seized from his apartments, arguing that his statements and any consents to search



                                                3
 1   were unknowing and involuntary because he was incapacitated by his addiction to

 2   and withdrawal from a human growth hormone called Gamma-Hydroxybutyrate

 3   ("GHB"); and (b) that the evidence at trial was insufficient to establish that he knew

 4   the substances he was importing and possessing for distribution were controlled

 5   substances. He also contends that the designation of methylone as a controlled

 6   substance, making trafficking in that substance unlawful, was implemented through

 7   an unconstitutional delegation of Congress's legislative power to the United States

 8   Attorney General, and that the designation process--publication in the Federal

 9   Register--did not constitute notice sufficient to afford due process. Finding no merit

10   in his contentions, we affirm the judgment.




11                                    I. BACKGROUND




12                The present prosecution had its origin in seizures on September 20, 2013,

13   by United States Customs and Border Protection ("CBP") officers, of three packages

14   at the mail facility of John F. Kennedy International Airport, each addressed to a

15   different person--none of them O'Brien--at the locations of different mailbox stores

16   in Brooklyn, New York. Each package was field-tested and found to contain


                                               4
 1   approximately one kilogram of methylone (commonly referred to as "Molly"). CBP

 2   informed agents of Homeland Security Investigation ("HSI"), who took possession of

 3   the packages.

 4               HSI agents replaced the methylone in each intercepted package with a

 5   sham substance, and they conducted controlled deliveries on September 23. One of

 6   the addressees, Kimberly Ruud, arrived at the mailbox store to which a seized

 7   package had been sent to a different addressee; she picked up that package, along

 8   with a nonintercepted package that was addressed to her, and began to drive away.

 9   Ruud was stopped and arrested. She consented to a search of her car. In addition to

10   the two packages she had just collected, which were in the car's passenger area,

11   agents found, inter alia, four packages in the trunk and two cellphones. Although the

12   labels on the packages identified their respective contents as various uncontrolled

13   substances, the six packages contained a total of nearly three kilograms of methylone

14   and nearly three kilograms of anabolic steroids. An ensuing search of Ruud's

15   cellphones revealed a series of communications on September 23 with a contact listed

16   as "Big," who was eventually identified as O'Brien.




                                              5
 1   A. The October 10, 2013 Arrest of O'Brien

 2                On October 10, 2013, pursuant to a 2011 New York State bench warrant

 3   issued by the Suffolk County Superior Court ("county court") for the arrest of O'Brien

 4   on a firearms charge on which he had pleaded guilty but had become a fugitive,

 5   O'Brien was arrested by members of a state-and-federal task force that included HSI

 6   Special Agent Vincent Marino and Special Agent Edward Alahverdian of the United

 7   States Drug Enforcement Administration ("DEA"). The arrest warrant was executed

 8   at O'Brien's apartment on College Point Boulevard in Queens, New York (the "College

 9   Point Apartment" or "Apartment").

10                As set out in greater detail in Part I.B. below, after O'Brien was arrested

11   and handcuffed, he was given Miranda warnings by Alahverdian. O'Brien said that

12   he understood his rights and was willing to answer some questions; and when

13   Alahverdian asked whether the agents could search the apartment, O'Brien said they

14   could look anywhere they wanted. Searching the Apartment pursuant to that

15   consent, the agents found, inter alia, several kinds of drug paraphernalia, including

16   lists of anabolic steroid chemicals; vials of a liquid labeled "Genzyme" (a steroid brand

17   name) and hundreds of sheets of additional "Genzyme" labels; currency-counting

18   machines and more than $10,000 in cash; 18 cellphones and 12 laptop computers;


                                                 6
 1   identification documents in various names, along with blank identification cards and

 2   an identification-card printer; applications and receipts for mailbox rentals at mailbox

 3   stores throughout Brooklyn; 27 airway bills for packages mailed from China; and a

 4   ledger with annotated lists of anabolic steroids, locations, and phone numbers for

 5   pick-up.

 6                In the meantime, O'Brien was driven to a police precinct in Suffolk

 7   County by Alahverdian, Marino, and a Suffolk County police officer. During the

 8   drive, O'Brien was talkative, stating that he made purchases of methylone and

 9   anabolic steroids from China online (describing the brand and color of the computer

10   he used for that operation), and explaining that he had people in the United States

11   rent local mailboxes and collect the packages he was importing.

12                After their arrival at the precinct, Alahverdian and Marino formally

13   interviewed O'Brien. Marino stated that the agents knew O'Brien had a "stash house"

14   in an apartment at 132-35 41st Road in Queens ("41st Road"), and asked for his

15   consent to search it. After Marino read a Department of Homeland Security, U.S.

16   Immigration and Customs Enforcement ("DHS/ICE") consent form aloud and gave

17   it to O'Brien to read, O'Brien signed it. The form signed by O'Brien states as follows:

18


                                                7
 1          I, Michael O'Brien, have been informed by U.S. Immigration and Customs
 2   Enforcement (ICE) Special Agent Vincent Marino of my right to refuse to consent to
 3   a search of my property, described as: . . .

 4                      Computer, phones
 5                      132-35 41st Rd Apt 5E
 6                      40-22 College Pt. Blvd 3PHR

 7                       I have also been advised by ICE Special Agent Marino that,
 8               if I voluntarily consent to a search of this property, anything
 9               discovered during this search may be used against me in criminal,
10               civil, or administrative proceedings.

11                     I have decided to allow ICE Special Agents Vincent Marino
12               and Homeland Security Special Agents . . . to conduct a complete
13               search of my apartments, located at 40-22 College Point Blvd
14               PH3R / 132-35 41st Road, Queens Apt 5E. These ICE Special
15               Agents are authorized by me to take any letters, papers, materials
16               or other property which they may desire to examine.

17                      I hereby voluntarily and intentionally consent to allow ICE
18               to search my property. My consent is freely given and not the
19               result of any promises, threats, coercion or other intimidation. I
20               have read the above statement and understand my rights.

21   (Consent To Search dated October 10, 2013 (O'Brien's "Written Consent To Search"

22   (bolding in original)), attached to Affidavit of Michael O'Brien dated April 30, 2019

23   [sic] ("O'Brien Suppression Motion Aff."), in support of motion to suppress.)

24               Based on this written consent, law enforcement agents searched the 41st

25   Road apartment and found, inter alia, numerous pills, powders, and jugs of liquid,



                                              8
 1   and approximately 11 kilograms of methylone. In addition, pursuant to a search

 2   warrant, HSI Special Agent Joshua Schottenfeld, who had participated in the search

 3   of the College Point Apartment, searched the computer that O'Brien told Alahverdian

 4   and Marino he used to order methylone and anabolic steroids from China. That

 5   computer contained receipts and a web browser history of orders from a website

 6   offering legal and illegal items, including narcotics.

 7                After O'Brien signed the written consent form at the police precinct, he

 8   was taken to the county court pursuant to the bench warrant issued for his arrest as

 9   a fugitive. In that court proceeding, the prosecutor asked that bail be denied, noting

10   that O'Brien apparently had access to large amounts of cash, as the search of his

11   apartment at the time of his arrest found "lots of pills" and "kilos of cocaine" (People

12   v. O'Brien, No. 2456-2009, Superior Court of the State of New York, County of Suffolk,

13   October 10, 2013 ("County Court Transcript"), at 2-3). The court noted that it had

14   issued the bench warrant for O'Brien's arrest in May 2011 and that O'Brien had

15   remained a fugitive for more than two years, and it ruled that bail would thus be

16   denied.

17                O'Brien's attorney then informed the court that O'Brien needed medical

18   attention because he was addicted to GHB. O'Brien himself stated that the full name


                                                9
 1   of GHB was Gamma-Hydroxybutyrate and explained its nature and effects. The

 2   proceeding ended with the court's scheduling O'Brien's next appearance.

 3                Following that county court proceeding, O'Brien was admitted to a

 4   nearby medical center, where he remained for five days, prior to being sent to the

 5   Suffolk County Jail. Some days thereafter, he was released on bail.

 6                On October 29, 2013, O'Brien was charged in a one-count federal criminal

 7   complaint with conspiracy to import methylone and was arrested by federal

 8   authorities. He was indicted in November on the present five narcotics trafficking

 9   counts.




10   B. The Suppression Motion

11                In April 2014, O'Brien moved to suppress his October 10, 2013 postarrest

12   statements and the items seized in the searches of his apartments. His supporting

13   affidavit stated, inter alia, that when he was arrested on October 10, he was under the

14   influence of GHB and was addicted to it; that he had so advised the arresting agents;

15   and that he repeatedly told them that if he was not promptly taken to a medical

16   facility he was in danger of detoxification death. (See O'Brien Aff. ¶ 3.) O'Brien stated

17   that he did not remember receiving Miranda warnings on October 10, and that no one


                                                10
 1   read those rights to him that day (see id. ¶ 10); that he "ha[d] no recollection of giving

 2   [his] consent to law enforcement to search" the College Point Apartment or the 41st

 3   Road apartment (id. ¶ 6; see id. ¶ 5); and that because he was in withdrawal from GHB

 4   at the time of his arrest, he lacked the capacity to waive his Miranda rights or to

 5   consent to searches (see id. ¶ 10). He stated that the signature on the Written Consent

 6   To Search form was not his. (See id. ¶ 6.)

 7                The district court conducted a hearing on O'Brien's suppression motion

 8   on August 13 and 22, 2014. The government called as witnesses Alahverdian and

 9   Schottenfeld; O'Brien testified and called Marino as a witness.




10         1. The Testimony of Alahverdian

11                Alahverdian testified that when he first saw O'Brien on October 10, 2013,

12   O'Brien had already been arrested and was in handcuffs, sitting on a couch in his

13   living room. Also in the living room was Marino. Alahverdian approached and

14   introduced himself to O'Brien, who seemed eager to talk to the two agents.

15   Alahverdian said O'Brien would "have to wait" until he received Miranda warnings

16   and would have to deal with the local authorities about the state warrant on which

17   he had just been arrested. (Hearing Transcript, August 13, 2014 ("Aug. 13 Tr."),


                                                11
 1   at 11-12; see also id. at 14 (Alahverdian told O'Brien "we just have to get through this

 2   and then I'm willing to listen to anything you have to say").)

 3                Alahverdian, with Marino present, read the Miranda warnings aloud and

 4   asked whether O'Brien understood and whether he was willing to answer some

 5   questions; O'Brien said yes to both and seemed a little excited. (See id. at 14-15.)

 6   When Alahverdian asked whether the agents could search the apartment, "[O'Brien]

 7   said, yeah, you can look anywhere you want." (Id. at 16.)

 8                After receiving this oral consent to search, Alahverdian relayed it to his

 9   supervising officer and then returned to the living room; at that point, O'Brien told

10   Alahverdian and Marino that he was addicted to GHB, that he ingested it daily, and

11   he asked to be allowed to take some immediately. (See id. at 17 ("He asked for a cup

12   of GHB.").) O'Brien told them that if he did not get his dosage of GHB "he would get

13   sick"; but he did not say he needed to be taken to a hospital. (Id. at 46.) Alahverdian

14   and Marino told O'Brien that he could not be given GHB because it is a controlled

15   substance. (See id. at 17-18, 46.) O'Brien then asked if he could take a Valium pill and

16   told Marino where to find one. Alahverdian, after briefly stepping away again to

17   confer with his supervisor and returning to the living room, inferred that Marino had

18   allowed O'Brien to take a Valium because he heard O'Brien thanking Marino. (See id.


                                               12
 1   at 18, 47; see also Hearing Transcript, August 22, 2014 ("Aug. 22 Tr."), at 12-13.)

 2                Alahverdian testified that during the time he and Marino were in the

 3   College Point Apartment with O'Brien, O'Brien was "very talkative" and "was very

 4   alert." (Aug. 13 Tr. 18; see id. at 29.) O'Brien was not slurring his words in any way,

 5   and Alahverdian saw no indication that he was undergoing withdrawal. (See id.

 6   at 19.) During the drive from the Apartment to the police precinct in Suffolk County,

 7   O'Brien continued to be talkative, describing "using his black Acer computer" to

 8   "order[] Molly" on "websites like Ali Baba and Silk Road," and have it shipped to the

 9   United States. (Id. at 20-21.)

10                When they arrived at the precinct, O'Brien asked to have a cigarette and

11   was allowed to smoke before entering the building. He thanked Alahverdian and

12   Marino for treating him with courtesy and consideration. (See Aug. 13 Tr. 21-22.)

13   After entering the precinct, Alahverdian, Marino, and O'Brien went into an interview

14   room, where O'Brien was asked for consent to search his 41st Road stash pad. The

15   DHS/ICE consent form was read to him, listing items and places to be searched;

16   O'Brien did not ask any questions or give any indication that he did not understand.

17   (See id. at 26.) He was given the form to read and was told that he had the right to

18   refuse consent; he signed the form without indicating that he wished to refuse. (See,


                                                13
 1   e.g., id. at 26-29, 52-54, 63-64; see also id. at 54 (after looking at the consent-to-search

 2   form, O'Brien signed it, saying "yeah, it's okay or yes").

 3                When Alahverdian asked O'Brien what the agents were likely to find in

 4   searching the 41st Road premises, O'Brien said there might be some steroids and that

 5   there were about 10 kilograms of methylone. When Alahverdian sought details of the

 6   operation, O'Brien said that, per kilo, he was buying methylone for about $1,900 and

 7   selling it for $30,000. He again described ordering methylone online from China,

 8   having it sent to local mailbox store addresses, and then having his people pick up

 9   the packages for him. (See Aug. 13 Tr. 27, 29-30.)

10                Alahverdian testified that after leaving the College Point Apartment,

11   O'Brien had made no further mention of his addiction to GHB nor any mention of

12   symptoms of withdrawal. (See id. at 27-29, 31-32, 61.) During his entire conversation

13   with Alahverdian and Marino, O'Brien was talkative and pleasant and appeared to

14   have no difficulty focusing on the agents' questions, or understanding them, or

15   communicating. Alahverdian did not notice anything unusual about O'Brien's

16   behavior. (See id. at 32.)




                                                 14
 1         2. The Testimony of Schottenfeld

 2                Schottenfeld testified principally about the evidence found on O'Brien's

 3   computer (described in Part I.A. above) and about two recorded statements O'Brien

 4   made to persons other than Alahverdian and Marino. First, Schottenfeld read the

 5   following part of the October 10 county court transcript that followed the court's

 6   refusal to grant O'Brien bail and encompassed the entire discussion of O'Brien's

 7   physical condition:

 8                      Ms. Gearrity [O'Brien's then-attorney]: Judge, he has a
 9                serious GHB addiction, so we're going to need medical attention.

10                         The Court: All right. Medical attention. What's G.H.B.?

11                         The Defendant: Um, your Honor, it's--it's detrimental, it's
12                fatal.

13                         Ms. Gearrity: What's the name of it?

14                      The Defendant: Gamma hydroxybutyrate. It's a chemical
15                that goes in the body and reduces your dopamine levels. When
16                coming off of it, it will actually start firing dopamine, increasing
17                my heart rate and I'll go into cardiac arrest if I don't get the proper
18                treatment.

19                         The Court: All right. I'll mark it medical attention.

20   (Aug. 13 Tr. 82 (see County Court Oct. 10 Transcript at 3-4).)




                                                 15
 1                Second, Schottenfeld testified that he had listened to consensually

 2   recorded telephone calls made by O'Brien from the county jail.                Schottenfeld

 3   identified a "CD [that] comes from the jail stating it's Mr. O'Brien" (Aug. 13 Tr. 87),

 4   which contained an October 16, 2013 conversation between O'Brien and a woman

 5   later identified as his ex-fiancée (see Aug. 22 Tr. 68). The CD was introduced and

 6   played for the court. (See Aug. 13 Tr. 83-84.) Although it does not appear that the

 7   record contains a transcript of the CD, O'Brien's own testimony--on cross-examination

 8   at the August 22 session of the suppression hearing--as to what he said in that

 9   recorded conversation was, in part, as follows:

10                       Q. You told her that the agents came in, and they were like,
11                well, we don't actually have a search warrant for your house, so,
12                but we could get one. So you know, you want to let us look
13                around. And I said, go ahead, feel free, I said, go ahead take a look. Is
14                that correct?

15                       A. That's correct.

16                      Q. And is that an accurate reflection of what happened in your
17                apartment?

18                       A. I would say so.

19                       Q. That they told you, that they didn't have a search warrant,
20                and asked for permission to search and you said, go ahead; is that
21                correct?



                                                 16
 1                       A. That's correct.

 2   (Aug. 22 Tr. 68-69 (emphases added).)




 3         3. The Testimony of Marino

 4                Marino, called as a witness by O'Brien, testified principally as follows.

 5   When Marino first saw O'Brien at the College Point Apartment on October 10, O'Brien

 6   had already been handcuffed. (See Aug. 22 Tr. 6-7.) After Marino and Alahverdian

 7   introduced themselves as federal officers, O'Brien responded "Okay" and said that he

 8   was prepared to help, which Marino understood to mean that O'Brien sought to avoid

 9   imprisonment by providing information. (See id. at 29.) Alahverdian then read

10   O'Brien the Miranda warnings; O'Brien said he understood those rights. (See id. at 30.)

11   O'Brien said he was willing to speak to the agents, and he orally gave consent for the

12   search of the Apartment. (See id. at 10 ("I asked him if we were okay to search and he

13   said go right ahead.").)

14                After O'Brien "had given [the agents] consent to search the apartment,

15   . . . then he advised that he was addicted to the Ghb and the anabolic steroids." (Id.

16   at 10.) O'Brien also "advised [the agents] he was very eager to assist us in the

17   investigations" (id. at 11-12), and expressed his eagerness to stay out of jail, reiterating


                                                 17
 1   "throughout the course of the day" that "in order to most help out law enforcement,"

 2   "he would need to be out in the street" (id. at 34).

 3                As to his addiction, O'Brien said he had taken GHB that morning and

 4   asked whether he could take more. When Marino replied that that would not be

 5   permitted, O'Brien said that "if that d[id]n't happen, [he] c[ould] get very sick";

 6   Marino testified, "I don't know if he used the word 'die,' but" it was either "'sick' or

 7   'die'." (Id. at 12.) O'Brien did not, however, say he was experiencing any symptoms

 8   at that time (see id. at 32), and Marino understood him to be saying that he would

 9   have problems in the future (see id. at 13). O'Brien asked, if he would not be allowed

10   more GHB, whether Marino would let him have a Valium--and pointed to a pill next

11   to a prescription bottle--explaining that Valium would help in "counteracting" the

12   GHB (id. at 12).    Marino testified that although it was certainly not standard

13   procedure, he let O'Brien have a Valium pill because O'Brien seemed "sincere." (Id.

14   at 13 ("It sounded like he was legitimate.").)

15                When O'Brien disclosed his GHB addiction, he did not elaborate and

16   "[h]e was not complaining of anything"; "[h]e was fine." (Id. at 17.) He was calm, was

17   not slurring his words, and was having no difficulty speaking. (See id. at 30-32.) He

18   also exhibited no difficulty in understanding the agents' questions, or focusing, or


                                                18
 1   staying awake. (See id. 29, 39.) Although O'Brien's hands were "slightly shaking" at

 2   the outset, Marino testified that he attributed that simply to O'Brien's being arrested;

 3   he "asked [O'Brien] a couple of times throughout the interview if he was feeling okay

 4   and he said he was fine. . . . There was nothing out of the ordinary." (Id. at 33.)

 5                 There was no point in the day when O'Brien did not appear to be lucid,

 6   or when he did not understand what was going on, or when the agents had any

 7   difficulty communicating with him. (See id. at 36-37.) After the agents and O'Brien

 8   left the Apartment and were on the way to the police precinct in Suffolk County,

 9   O'Brien did not exhibit any symptoms of possible withdrawal or intoxication and was

10   speaking freely (see id. at 34), giving the agents details about his drug importation

11   operation.

12                 He advised that he had a black Acer computer that had on the
13                 computer all his information from the purchases he made from
14                 China because he was selling large amounts of Molly . . . . He said
15                 that he also used websites such as Ali Baba and Silk Road and
16                 there would be conversations and receipts on that computer. He
17                 also admitted to having paid an individual [named] Wagner $200
18                 for every time he picked up a box of Molly from a mailbox store
19                 [that O'Brien had had him open] in [Wagner's] name.

20   (Id. at 15-16.)




                                                19
 1                In the interview room at the police precinct, Marino told O'Brien that the

 2   agents knew about O'Brien's stash house at 41st Road: "I said we knew about the

 3   stash house and the location. I said I would like to search it. He said okay." (Id. at 19

 4   (emphases added).) Asked what the agents would find in that search, O'Brien

 5   responded, "[m]ultiple vials of steroids and probably about 10 keys of Molly." (Id.;

 6   see also Aug. 13 Tr. 30 ("key" is used as slang for kilogram).)

 7                Marino then filled out the DHS/ICE consent form (quoted in full in Part

 8   I.A. above), read it to O'Brien and went over it with him. Marino informed O'Brien

 9   "that he had a right to refuse to consent to search his computer, his phones, the

10   apartment at 41st Road and the College Point Boulevard apartment." (Aug. 22 Tr. 21.)

11   O'Brien did not in any way indicate that he wished to refuse consent. (See id. at 35.)




12         4. The Testimony of O'Brien

13                O'Brien testified at the suppression hearing and largely denied that he

14   had given the above consents to search. He said that when he met Marino, he

15   immediately told the agents that they needed to get him to a hospital within four

16   hours or he would die. He also testified that he told the agents of his need for

17   medical attention three times during the approximately 20 minutes they were in the


                                                20
 1   College Point Apartment, and that later that day he so informed the county court.

 2                O'Brien testified that he remembered speaking to Marino, but he did not

 3   remember speaking to, or even seeing, Alahverdian that day. (See Aug. 22 Tr. at 43,

 4   63.) O'Brien did not remember, inter alia, receiving Miranda warnings (see id. at 45, 67)

 5   or signing the DHS/ICE consent form attached to his Suppression Motion Affidavit

 6   (see id. at 51). Notwithstanding his claimed inability to remember several events of

 7   October 10, O'Brien said "I can testify . . . , swear up and down," that "I have never

 8   had a conversation about th[e DHS/ICE] form." (Id.) O'Brien noted that his arrest on

 9   October 10, 2013, was pursuant to a state warrant, and he testified that at "[n]o time

10   did [he] invite [Marino] to go collecting evidence on an outside case." (Id. at 44; see

11   id. at 51 ("The only consent that I gave, was to look around the College Point location,

12   they were asking about guns. I told them there are no guns in this property. You can

13   look around."); but see id. at 67 (O'Brien "d[id]n't remember giving them consent to

14   search [the College Point Apartment]").)

15                O'Brien denied signing the Written Consent To Search form at the police

16   precinct as Marino and Alahverdian described. First, O'Brien testified that in fact he

17   was not taken to a precinct but had instead been driven from the Apartment directly

18   to the county courthouse. (See id. at 47.) In addition, he testified that he never gave


                                                21
 1   a written consent to search. (See id. at 45, 53; see also O'Brien Aff. ¶ 6 (the "signature"

 2   on the "Consent to Search Form . . . . is not mine").) However, he also testified to

 3   having a "fuzzy" recollection of being visited by Marino and Alahverdian in the

 4   hospital while he was "in and out of" a "coma," and he "deduce[d] that that is where

 5   they had me sign the consent to search form" (Aug. 22 Tr. 49-50).

 6                O'Brien admitted that in the postarrest car ride from the College Point

 7   Apartment he told the agents he had a black Acer computer at the Apartment. He

 8   also admitted that he had in fact used the Ali Baba website; but he denied that he so

 9   told the agents. (See id. at 75-76.) O'Brien also admitted that during that drive he told

10   the agents about the 41st Road stash pad. "I told them there were steroids there and

11   . . . maybe some molly . . . ." (Id. at 53.) However, he testified that "at no time did the[

12   agents] ask [him] for consent to search the [41st Road] apartment" and that he "never

13   gave consent." (Id.)

14                As to his physical condition, O'Brien testified that, although he could

15   normally sleep 3-4 hours without being awakened by GHB withdrawal symptoms (see

16   id. at 42, 77-78), on October 10 he began experiencing GHB withdrawal symptoms

17   when he was being taken down in the elevator from the Apartment, which was some

18   30-35 minutes after he had last taken GHB (see, e.g., id. at 60 (his "arrest . . . was about


                                                 22
 1   15 minutes [after his] last dose")). He said he was taken to the county courthouse, a

 2   trip that took about 1½ hours, and that when they arrived he could not walk without

 3   staggering (see id. at 47). O'Brien testified "seizure was running through my body, my

 4   entire body was shaking, my hands shaking" "as [he was] standing before the Suffolk

 5   County Judge" (id. at 58).

 6                O'Brien acknowledged that his then-attorney said nothing to the court

 7   early in the hearing about his addiction or any withdrawal symptoms. It was not

 8   until the court said that bail would be denied that she raised that subject. (See Aug.

 9   22 Tr. 79-80.) He said that after the county court denied him bail,

10                I asked for medical attention there, in the Court, in the courtroom.
11                Judge Efman had to finish my sentence for me as I was asking for
12                medical attention, because I was seizure-ing. I could not come out
13                with the words. Judge finished the sentence, you need medical
14                attention, I said, yes, sir.

15   (Id. at 48.) He testified that "despite the clarity of the [county court] transcripts," he

16   "had a massive seizure" on October 10 "right there in open court." (Id. at 47-48.)

17                While claiming to have been unable to find the words "medical

18   attention," O'Brien did not dispute that he had been able to tell the court that GHB

19   stood for "Gamma Hydroxybutyrate" and to explain its chemical effects on the body

20   (id. at 80; see id. at 81-82). O'Brien admitted that had been "able to understand" with


                                                23
 1   "no difficulty . . . what was going on" in that proceeding; and he acknowledged that

 2   the transcript contains no indication that he was shaking, staggering, falling, having

 3   a seizure, or unable to articulate. (Id. at 81-82.)




 4         5. The District Court's Decision

 5                In a decision announced on the record on March 20, 2015, the district

 6   court denied O'Brien's suppression motion. (See Status Conference Transcript March

 7   20, 2015 ("Suppression Motion Decision").) The court concluded, based on the totality

 8   of the circumstances credibly shown by the record, that the government had carried

 9   its burden of proving that on October 10, 2013, O'Brien made the various statements

10   attributed to him pursuant to valid Miranda waivers; that the searches at issue were

11   authorized by O'Brien's voluntary consent, first oral and then written; and that while

12   the Written Consent To Search was not a model of clarity, even read in the light most

13   favorable to O'Brien it encompassed everything found in his two apartments,

14   including his computers and phones.

15                The court found that the agents who testified at the suppression hearing

16   were credible witnesses, based principally on their demeanor, their experience, and

17   the content of their testimony. In addition, the court found that Marino's credibility


                                                 24
 1   was enhanced by his candor in admitting that he had allowed O'Brien to take a

 2   Valium, an admission that "was . . . not necessarily in [Marino's] best interest," id. at 4.

 3   The court found that Miranda warnings were properly administered at the College

 4   Point Apartment; it credited the testimony of Alahverdian and Marino that O'Brien

 5   appeared to be calm, lucid, talkative, and "cogently answering questions, giving the

 6   agents detailed information" in "wanting to help get himself out of this situation," and

 7   that the agents saw no signs that O'Brien was undergoing withdrawal. Id. at 8.

 8                The district court rejected O'Brien's claim that he had been incapable of

 9   consenting to searches of his properties on October 10 because of withdrawal from

10   GHB. It found that his testimony lacked credibility "in significant part, if not in

11   whole," id. at 4; see id. at 5-6 ("much of his testimony was belied by every other piece

12   of evidence in the case," including being inconsistent with "his premotion affidavit"

13   and with "the jail call that he made to his girlfriend"). The court also noted that the

14   transcript of O'Brien's October 10 appearance in county court showed that O'Brien

15                was in control of his faculties [and] was explaining in detail to
16                Judge Ef[]man the potential [e]ffects of GHB withdrawal . . .
17                [O'Brien] was being his own very effective advocate . . . which
18                demonstrates now probably hours after [his] last hit of GHB that
19                he was not suffering in any way, shape, or form from any type . . .
20                of withdrawal that could affect his ability to knowingly and
21                voluntarily waive his Miranda rights or consent to any of the
22                searches.

                                                 25
 1   Id. at 8-9. The court rejected as "incredible" O'Brien's assertion that he had a seizure

 2   right after the court reporter stopped recording the proceedings. Id. at 9.

 3                 The court also found "no evidence in the hospital records to corroborate

 4   [O'Brien's] story" that he had a seizure, went into a coma, and was largely

 5   unconscious for the next several days. Id. at 10. It noted that those medical records

 6   themselves commented "that his stay was, quote, unremarkable." Id. The court found

 7   that O'Brien's "notion that the consent form was signed at the hospital while [he] was

 8   in a coma" was belied by all of the other evidence in the case, as well as being

 9   "completely implausible." Id. at 5.

10                 In sum, the district court stated, "I find that the [e]ffects of GHB,

11   whatever they were on the defendant, did not in any way undermine the defendant's

12   knowing and voluntary consent to search, the oral consent at College Point, and the

13   written consent for both College Point and 41st Road, or the waiver of his Miranda

14   rights," id. at 10.




15   C. The Trial, and O'Brien's Posttrial Motions

16                 In May 2015, with the start of his trial about two months away, O'Brien,

17   who had been represented by counsel throughout the pretrial proceedings, elected


                                               26
 1   to represent himself at trial. The court, after conducting a Faretta inquiry, see Faretta

 2   v. California, 422 U.S. 806, 835 (1975), allowed him to proceed pro se, with standby

 3   counsel. On July 28, 2015, the sixth day of trial, the jury found O'Brien guilty on all

 4   five of the counts against him.

 5                 After the jury verdict, O'Brien decided that he no longer wanted to

 6   proceed pro se, and counsel was appointed to represent him. However, on August 11,

 7   2015, O'Brien again decided that he wanted to proceed pro se; and again, after

 8   appropriate Faretta warnings, he was allowed to do so with standby counsel. In this

 9   new pro se period, O'Brien unsuccessfully moved for acquittal on the ground that the

10   evidence was insufficient to show that he had any connection to the 41st Road

11   apartment in which, inter alia, 11 kilograms of methylone had been found. Thereafter,

12   while still pro se, O'Brien also moved, as discussed in Part II.C. below, for acquittal on

13   the ground that methylone was designated a controlled substance pursuant to an

14   unconstitutional delegation of Congress's legislative power. That motion too was

15   denied.

16                 In June 2017, O'Brien decided that he wished to be represented by

17   counsel again, and counsel was appointed to represent him in connection with

18   sentencing.


                                                27
 1                                      II. DISCUSSION




 2                On appeal, O'Brien principally challenges (A) the district court's denial

 3   of his pretrial motion to suppress his postarrest statements and the physical evidence

 4   that was seized, (B) the sufficiency of the trial evidence to show that he knew

 5   methylone was a controlled substance, and (C) the denial of his posttrial motion to

 6   dismiss the indictment on the ground that the process that led to the designation of

 7   methylone as a controlled substance was unconstitutional. For the reasons that

 8   follow, we reject all of his contentions.




 9   A. The Denial of O'Brien's Motion To Suppress

10                O'Brien contends that his October 10, 2013 postarrest statements should

11   have been suppressed on the ground that, as he was undergoing withdrawal from

12   GHB, he was incapable of knowingly or voluntarily waiving his Fifth Amendment

13   privilege against self-incrimination. He contends that the physical evidence seized

14   in searching his College Point and 41st Road apartments should have been

15   suppressed as violative of his rights under the Fourth Amendment on the ground that

16   he did not give voluntary consent for those searches, either because of his claimed


                                                 28
 1   incapacitation by GHB withdrawal or because, he contends, the actions of the agents

 2   were coercive and he was not informed of his right to refuse consent to search.

 3                 In considering challenges to the denial of a suppression motion, we

 4   review the district court's conclusions of law de novo and its findings of fact for clear

 5   error. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.) ("Medunjanin"),

 6   cert. denied, 135 S. Ct. 301 (2014). In conducting clear-error review, "[w]e are not

 7   allowed to second-guess the [court's] credibility assessments, and '[w]here there are

 8   two permissible views of the evidence, the [court's] choice between them cannot be

 9   clearly erroneous.'" Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985));

10   see, e.g., United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) ("Isiofia"). In reviewing

11   the denial of a defendant's motion to suppress, we view the record in the light most

12   favorable to the government. See, e.g., United States v. Moore, 670 F.3d 222, 226 (2d Cir.

13   2012) (denial of motion to suppress postarrest statements); United States v. Moreno, 701

14   F.3d 64, 72 (2d Cir. 2012) (denial of motion to suppress evidence seized in a search

15   premised on consent). We see no error in the district court's denial of O'Brien's

16   suppression motion.




                                                   29
 1          1. O'Brien's Postarrest Statements

 2                 "Once Miranda warnings have been given, if the individual indicates 'that

 3   he wishes to remain silent, the interrogation must cease.'" Medunjanin, 752 F.3d at 585

 4   (quoting Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)); see also Berghuis v. Thompkins,

 5   560 U.S. 370, 386 (2010) ("Police are not required to rewarn suspects from time to

 6   time." (emphasis added)). In order to require that questioning cease, the accused

 7   must assert his right affirmatively and unambiguously. See, e.g., id. at 381 (accused's

 8   merely remaining "[l]argely silent" for some three hours did not invoke his privilege

 9   to remain silent sufficiently to require that the officers refrain from questioning him

10   (internal quotation marks omitted)). Where the accused "did not" say unambiguously

11   either "that he wanted to remain silent or that he did not want to talk with the police,

12   . . . . he did not invoke his right to remain silent." Id. at 382.

13                 Nonetheless, an "accused's statement during a custodial interrogation is

14   inadmissable at trial unless the prosecution can establish that the accused 'in fact

15   knowingly and voluntarily waived his [Miranda] rights' when making the statement."

16   Id. (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Such a "waiver must be

17   'voluntary in the sense that it was the product of a free and deliberate choice rather

18   than intimidation, coercion, or deception,'" and must be "knowing[]" in the sense that


                                                  30
 1   it was "'made with a full awareness of both the nature of the right being abandoned and the

 2   consequences of the decision to abandon it.'" Berghuis, 560 U.S. at 382-83 (quoting

 3   Moran v. Burbine, 475 U.S. 412, 421 (1986) ("Burbine") (emphasis ours)). "'[A]s Miranda

 4   holds, full comprehension of the rights to remain silent and request an attorney [is]

 5   sufficient to dispel whatever coercion is inherent in the interrogation process.'"

 6   Berghuis, 560 U.S. at 382 (quoting Burbine, 475 U.S. at 427).

 7                The waiver need not have been express; "courts can infer a waiver of

 8   Miranda rights 'from the actions and words of the person interrogated.'" Berghuis, 560

 9   U.S. at 387 (quoting Butler, 441 U.S. at 373). The prosecution need prove waiver only

10   "by a preponderance of the evidence," and it may be inferred "from all the

11   circumstances." Berghuis, 560 U.S. at 384. "[A] suspect who has received and

12   understood the Miranda warnings, and has not invoked his Miranda rights, waives the

13   right to remain silent by making an uncoerced statement to the police." Id. at 388-89.

14                In the present case, as described in Part I.B.5. above, the district court--

15   crediting the hearing testimony of Alahverdian and Marino, as it was entitled to do--

16   found that proper Miranda warnings were administered to O'Brien at the College

17   Point Apartment, that he understood his rights, and that he knowingly and

18   voluntarily waived them. The finding as to O'Brien's comprehension of the Miranda

                                                 31
 1   warnings was supported by, inter alia, the agents' testimony that O'Brien was alert,

 2   focused, and never evinced any difficulty understanding the agents or

 3   communicating with them, and that he said he understood those rights when they

 4   were read to him.

 5                The evidence supporting the finding that O'Brien's ensuing statements

 6   were voluntary included the testimony of the agents, described in Parts I.B.1. and

 7   I.B.3. above, that (a) after receiving his Miranda warnings O'Brien said he was willing

 8   to talk with the agents, (b) he had in fact expressed eagerness to provide them with

 9   information immediately upon meeting them and was temporarily halted only

10   because Alahverdian insisted on giving him Miranda warnings first, and (c) after

11   receiving his Miranda warnings, O'Brien was extremely talkative and informative,

12   freely giving the agents numerous details about the workings of his methylone and

13   anabolic steroids operation. O'Brien himself has never asserted--in his affidavit, or

14   in his suppression hearing testimony, or in his brief on appeal--that he ever told the

15   agents he wished to remain silent or he did not want to talk with them.

16                The court was not required to reach contrary conclusions on the basis of

17   O'Brien's testimony that he did not remember being given Miranda warnings on

18   October 10. The court found it clear that the warnings had in fact been given, see


                                               32
 1   Suppression Motion Decision at 7; and O'Brien's professed inability to remember the

 2   reading of Miranda warnings--which had interrupted his initial attempt to cooperate

 3   in an effort to avoid imprisonment--was implausible at best. The court noted that

 4   O'Brien's similar assertions that he did not remember giving permission that day to

 5   search the College Point Apartment (see Aug. 22 Tr. 67; O'Brien Aff. ¶ 6) were not

 6   credible in light of his recorded October 16 telephone call from jail to his ex-fiancée

 7   (see Suppression Motion Decision at 5-6), in which O'Brien said that the agents had

 8   asked for permission to search the Apartment and he had said, "go ahead" (Aug. 13

 9   Tr. 83-84).

10                 The present record also fully supports the court's finding that O'Brien's

11   ability to understand his Fifth Amendment rights and forgo them voluntarily was not

12   impeded by his addiction to GHB. O'Brien's reliance on this Court's decision in

13   United States v. Taylor, 745 F.3d 15 (2d Cir. 2014), for the contrary conclusion is

14   misplaced. In that case, in which the defendant apparently had attempted to commit

15   suicide by ingesting a large number of pills as he was arrested, we reversed the denial

16   of a suppression motion where the record showed, inter alia, that "Taylor was largely

17   stupefied when he made his post-arrest statements, as confirmed by the testimony of the

18   law enforcement agents and the pretrial services officer who interviewed him, and by the


                                               33
 1   evaluations of staff psychologists at the Metropolitan Correctional Center," id. at 20

 2   (emphases added); that "all the witnesses support[ed] the account that Taylor was

 3   actually slipping in and out of consciousness during [his first] interview, and immediately

 4   before and after the [second] interview," id. at 26 n.3 (emphases added); and that it

 5   was "clear to the officers (as their testimony confirm[ed]) that Taylor was in and out of

 6   consciousness while giving his statement, and in a trance or a stupor most of the time

 7   when not actually asleep," id. at 25 (emphases added).

 8                 Here, in contrast, no one testified that O'Brien was somnolent or in a

 9   stupor or not fully conscious during his dealings with Alahverdian and Marino. The

10   agents testified squarely to the contrary. (See, e.g., Aug. 22 Tr. 34 (Marino: O'Brien

11   did not appear to have had any difficulty staying awake); Aug. 13 Tr. 29

12   (Alahverdian:     O'Brien appeared to have no difficulty at all focusing on or

13   understanding the agents' questions).) Alahverdian also testified that O'Brien was

14   "very talkative" and "very alert" (Aug. 13 Tr. 18); and Marino testified that O'Brien

15   was calm and coherent, speaking freely, and was lucid throughout the day (Aug. 22

16   Tr. 12, 31-32, 36).

17                 O'Brien's own representations as to his condition were inconsistent. For

18   example, in his affidavit, O'Brien said he was in withdrawal from GHB at the time of


                                                 34
 1   his arrest. (See O'Brien Aff. ¶ 10.) Yet there is no dispute that after O'Brien's arrest,

 2   Alahverdian and Marino were in O'Brien's College Point Apartment for some 20

 3   minutes before taking him downstairs for the drive to Suffolk County; and O'Brien

 4   testified at the suppression hearing "not until I went downstairs, that is when the

 5   withdrawal began" (Aug. 22 Tr. 65; see id. ("Q. When you were speaking with agents

 6   in your apartment, you were not going through withdrawal; is that correct? A. That's

 7   correct.")).

 8                  Both Alahverdian and Marino testified that O'Brien gave no appearance

 9   of being in withdrawal--and said nothing about needing immediate medical

10   attention--either at the Apartment or during the drive to the Suffolk County police

11   precinct. (See, e.g., Aug. 13 Tr. 19, 27-29, 31-32, 46, 61; Aug. 22 Tr. 17, 32-34.) And

12   although at the end of the interview at the police precinct O'Brien told the agents that

13   he felt ill, the transcript of his ensuing county court proceeding--in which O'Brien

14   himself explained the workings and effect of GHB, telling the court that the actual

15   name of GHB is "Gamma-Hydroxybutyrate"--counters his claim that his cognitive

16   powers were impaired. Indeed, at the suppression hearing O'Brien admitted that in

17   the county court proceeding he in fact "had no difficulty understanding what was

18   going on" (Aug. 22 Tr. 82).


                                                35
 1                The district court discredited, as it was entitled to, O'Brien's claim that,

 2   when he arrived at the county court, he was having a seizure. That claim is belied by

 3   the undisputed facts that he and his attorney made no mention of his physical

 4   condition until late in that court proceeding; and that when his attorney introduced

 5   the fact of his addiction, there was no mention whatever of a seizure--either by the

 6   attorney or by O'Brien himself. As the district court found, the county court

 7   transcript of O'Brien's responses--some hours after his last ingestion of GHB--reveals

 8   that O'Brien acted in that proceeding as a capable and articulate advocate for himself

 9   and negates any inference that he was impaired when he agreed to speak with the

10   agents earlier.

11                In sum, the circumstances as a whole, as reflected in the present record,

12   reveal no error either in the district court's findings that O'Brien received proper

13   Miranda warnings, fully understood them, and voluntarily made statements to the

14   agents, or in the court's conclusion that he thus waived his Fifth Amendment right to

15   remain silent.




16         2. O'Brien's Consents To Search

17                "It is . . . well settled that one of the specifically established exceptions"


                                                36
 1   to the Fourth Amendment requirements that private property not be searched

 2   without a search warrant issued upon probable cause "is a search that is conducted

 3   pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When the

 4   "'prosecut[ion] seeks to rely upon consent to justify the lawfulness of a search, [it] has

 5   the burden of proving that the consent was, in fact, freely and voluntarily given.'" Id.

 6   at 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).

 7                The analysis required to determine whether consent to search was given

 8   freely and voluntarily, however, differs somewhat from the above Fifth Amendment

 9   analysis as to whether the postarrest right to remain silent was "knowingly" and

10   voluntarily waived, for "[t]here is a vast difference between those [Fifth Amendment

11   truth-seeking] rights that protect a fair criminal trial and the rights guaranteed under

12   the Fourth Amendment." Schneckloth, 412 U.S. at 241. Whereas "[a] strict standard of

13   waiver has been applied to those [Fifth Amendment] rights guaranteed to a criminal

14   defendant to insure that" he "has not unknowingly relinquished the basic protections

15   . . . thought indispensable to a fair trial," id. at 242, the Fourth Amendment's focus is

16   not on truth-seeking at trial but rather on "protect[ing] the 'security of one's privacy

17   against arbitrary intrusion by the police,'" id. (quoting Wolf v. Colorado, 338 U.S. 25, 27

18   (1949)).


                                                 37
 1                Thus, focusing on what constitutes a valid consent for Fourth

 2   Amendment purposes, the Schneckloth Court concluded that the considerations

 3   informing the Miranda rule--that knowledge of a right to refuse to speak is an

 4   indispensable element of a valid waiver of the privilege against self-incrimination--

 5   "are simply inapplicable" to requests for a relaxation of one's insistence on the right

 6   to privacy. Id. at 246. It ruled that the appropriate Fourth Amendment question is

 7   "whether a consent to a search was in fact 'voluntary' or was the product of duress or

 8   coercion, express or implied." Id. at 227. Finding "no reason . . . in the area of consent

 9   searches" to deviate "from the traditional definition of 'voluntariness,'" id. at 229, the

10   Court stated that voluntariness "is a question of fact to be determined from the

11   totality of all the circumstances," id. at 227. And "[w]hile knowledge of the right to

12   refuse consent is one factor to be taken into account, the government need not

13   establish such knowledge as the sine qua non of an effective consent." Id.; see also id.

14   at 248-49; Edwards v. Arizona, 451 U.S. 477, 484 (1981) ("Schneckloth . . . thus

15   emphasized that the voluntariness of a consent or an admission on the one hand, and

16   a knowing and intelligent waiver on the other, are discrete inquiries.").

17                Schneckloth announced its test in the context of the prosecution's reliance

18   on consent given by the subject of the search who was not in custody. In United States

                                                38
 1   v. Watson, 423 U.S. 411 (1976), the Court held that the fact that consent was given by

 2   the subject of the search while he was in custody does not change the test; custody is

 3   a factor to be considered, but not one that is dispositive. Id. at 424 ("the fact of

 4   custody alone has never been enough in itself to demonstrate a coerced confession or

 5   consent to search"; "under Schneckloth, the absence of proof that [the defendant] knew

 6   he could withhold his consent, though it may be a factor in the overall judgment, is

 7   not to be given controlling significance").

 8                As "[t]he touchstone of the Fourth Amendment is reasonableness," Florida

 9   v. Jimeno, 500 U.S. 248, 250 (1991), "[t]he standard for measuring the scope of a

10   suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--

11   what would the typical reasonable person have understood by the exchange between

12   the officer and the suspect?" Id. at 251. Thus, "the ultimate question presented is

13   whether the officer had a reasonable basis for believing that there had been consent

14   to the search." United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (internal

15   quotation marks omitted).




16                In the present case, the district court correctly determined that O'Brien

17   consented to the searches of his College Point and 41st Road apartments and that his


                                               39
 1   consents were not the product of duress or coercion, express or implied. While

 2   O'Brien insists that his consent was involuntary because he was not informed that he

 3   could refuse to give consent, that contention is legally and factually flawed. As

 4   discussed above, Fourth Amendment standards do not make it mandatory to advise

 5   a suspect of his right to refuse consent to search. And in any event, the Written

 6   Consent To Search signed by O'Brien stated that he had in fact been informed that he

 7   could refuse to consent to the search of his properties. O'Brien's testimony, varying

 8   between, inter alia, claiming no recollection that he received appropriate warnings and

 9   asserting categorically that he did not, provides no basis for overturning the district

10   court's finding.

11                Nor does the record support O'Brien's contention that the circumstances

12   of his arrest on October 10 were inherently "coercive" (O'Brien brief on appeal at 42).

13   O'Brien's effort to liken his case to Isiofia, 370 F.3d 226, in which we affirmed the grant

14   of a suppression motion, falls woefully short. In Isiofia, the district court had

15   plausibly found that a defendant's consent to search his apartment, computer, and car

16   was not voluntary when it was given only after, inter alia, (a) agents entered Isiofia's

17   apartment unlawfully, (b) eight agents remained in the living room with him for up

18   to an hour and a quarter without a valid reason to remain there, (c) the agents did not


                                                 40
 1   tell him with what crime he was being charged, and (d) they gave Isiofia--who lacked

 2   fluency in English--two consent-to-search forms that did not describe the nature of

 3   the objects to be seized (one leaving that detail "blank" and the other being "helplessly

 4   vague"). See id. at 231 (internal quotation marks omitted); id. at 234.

 5                While O'Brien claims parallel circumstances by stating that he was

 6   arrested and "surrounded" by a team of 10 or more officers from different agencies

 7   (O'Brien brief on appeal at 43), the similarity ends with the fact that a large number

 8   of officers entered O'Brien's home. Here, there was no illegal entry; the officers had

 9   a well-founded fugitive warrant for his arrest, which allowed them to enter his

10   Apartment to execute the arrest, see, e.g., Steagald v. United States, 451 U.S. 204, 221

11   (1981). After O'Brien was arrested and seated on a couch in his living room, he was

12   not surrounded by officers; only Alahverdian and Marino were there with him; the

13   other officers were conducting a security sweep elsewhere in the apartment.

14   Similarly, at the Suffolk County police precinct, the only officers in the interview

15   room with O'Brien were Alahverdian and Marino. Further, O'Brien's own statements

16   and explanations in the record in this case foreclose any suggestion that O'Brien was

17   not fluent in the English language. And not only did the agents testify that they and

18   O'Brien had no difficulty understanding each other; O'Brien--while saying that he


                                                41
 1   remembered meeting Marino but not Alahverdian in the Apartment--testified that he

 2   "had no difficulty communicating with [Marino]" (Aug. 22 Tr. 65).

 3                Nor does the record indicate that either Alahverdian or Marino engaged

 4   in any coercion or intimidation. Marino testified that they did not (see Aug. 22 Tr. 36);

 5   they were in the Apartment for only some 20 minutes, part of that time being needed

 6   to allow O'Brien to get dressed (see id. at 14). And O'Brien did not describe any

 7   threatening or coercive statements or conduct by the officers.

 8                The record also belies any notion that O'Brien felt intimidated. For

 9   example, "throughout the course of the day" O'Brien sought to bargain with the

10   agents by offering to provide information to assist their investigation if it might keep

11   him out of jail (Aug. 22 Tr. 34). Marino described O'Brien as calm, lucid, and

12   speaking freely (see, e.g., id. at 31-33, 34); Alahverdian described the conversation with

13   O'Brien during the ride to the Suffolk County police precinct as "pleasant" (Aug. 13

14   Tr. 29). And in O'Brien's own description to his ex-fiancée on October 16, 2013, of his

15   October 10 consent to search the Apartment, he sounded anything but intimidated.

16   He admitted telling her that when they asked if they could search, he said "go ahead,"

17   "take a look," "feel free" (Aug. 22 Tr. 69).




                                                    42
 1                  Alahverdian also testified that in the Apartment, O'Brien thanked Marino

 2   for granting his plea for a Valium; when they arrived at the precinct, O'Brien thanked

 3   the agents for their considerate treatment in general. (Aug. 13 Tr. 18, 47, 21-22.) And

 4   O'Brien himself testified that the agents had proceeded expeditiously on October 10

 5   because "they took it seriously that I needed medical attention." (Aug. 22 Tr. 57; see

 6   also id. at 102 (Marino testifying that when they "were concluding the interview" at the

 7   precinct, O'Brien "said he wasn't feeling well and he wanted to see a doctor. The

 8   interview stopped, I advised Suffolk County," and turned O'Brien over to the local

 9   officers.).)

10                  O'Brien's contention that he was incapable of giving consent voluntarily

11   because he was experiencing withdrawal from GHB is refuted by the record

12   discussed in Part II.A.1. above, supporting the district court's permissible finding that

13   O'Brien's cognitive and volitional functions were not impaired by his withdrawal

14   from GHB.

15                  Finally, we reject O'Brien's additional suggestion that his ability to refuse

16   consent was overborne by Marino's acceding to his request to alleviate the effects of

17   GHB withdrawal by taking a Valium (see O'Brien brief on appeal at 43 (being "given

18   a Valium . . . could have only served to increase his impairment"); see also id. at 38)).


                                                  43
 1   O'Brien points to no evidence to support this supposition. In contrast, the evidence

 2   includes medical records showing that when O'Brien arrived at the hospital

 3   complaining of GHB withdrawal, one of the medicines he was immediately given was

 4   Valium. (See, e.g., Hospital Discharge Summary at 1 (when O'Brien arrived at the

 5   hospital and "stated that he was using GHB," had been "taking GHB for the last few

 6   years, every 2-3 hours[,] and presented with tachycardia, disphoresis, and

 7   tremulousness," "[h]e was given Valium 5 IV, Librium 50 p.o., and a bolus of normal

 8   saline, to which he responded and a decision was made not to place him in the ICU

 9   for further monitoring." (emphasis added)).

10                 In sum, we see no error of fact or law in the district court's denial of

11   O'Brien's motion to suppress the evidence discovered in the searches to which he

12   consented.




13   B. O'Brien's Insufficiency Argument

14                 The Controlled Substances Act ("CSA") provides, inter alia, that it is

15   "unlawful for any person knowingly or intentionally . . . to . . . possess with intent to

16   . . . distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). It is also unlawful for

17   any person "knowingly or intentionally" to "import[] . . . a controlled substance" into


                                                  44
 1   the United States. 21 U.S.C. §§ 960, 952. The indictment charged O'Brien with

 2   violating these sections by knowingly importing and possessing with intent to

 3   distribute methylone and anabolic steroids; with violating 21 U.S.C. §§ 963 and 846,

 4   respectively, by conspiring to import and to possess with intent to distribute those

 5   substances; and with violating 21 U.S.C. § 856 by knowingly and intentionally renting

 6   and maintaining premises for the purpose of distributing methylone, a controlled

 7   substance. O'Brien argues that he was entitled to acquittals on the ground that the

 8   government did not prove that he knew methylone was a controlled substance. We

 9   disagree.

10                Knowledge that the commodity being imported or possessed for

11   distribution was a controlled substance is an element of each of the above offenses;

12   and in order to convict, the government must establish that knowledge beyond a

13   reasonable doubt. See, e.g., United States v. Abdulle, 564 F.3d 119, 125 (2d Cir. 2009)

14   ("Abdulle") (§§ 841(a)(1) and 846); United States v. Hassan, 578 F.3d 108, 121 (2d Cir.

15   2008) (§§ 952 and 963); United States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003)

16   ("Hamilton") (§ 856), cert. denied, 540 U.S. 985 (2003). See also McFadden v. United States,

17   135 S. Ct. 2298, 2304 (2015) (the CSA requires only that the defendant know that the

18   substance he is dealing with is listed on the federal drug schedules, not that he know


                                                 45
 1   precisely what the substance is); Abdulle, 564 F.3d at 126 ("A defendant may be

 2   convicted of a violation of 21 U.S.C. § 846 without knowing the exact type of drug

 3   involved. The government need only prove that the defendant was aware that some

 4   controlled substance was involved." (internal quotation marks omitted)).

 5                It is seldom possible to present direct evidence of a person's state of

 6   mind. His knowledge may, however, be inferable from outward manifestations such

 7   as his statements or his conduct, or from the circumstances surrounding or attendant

 8   upon the fact he is alleged to have known. See, e.g., United States v. Nersesian, 824 F.2d

 9   1294, 1314 (2d Cir. 1987). Efforts a defendant has made toward concealment, for

10   example, of either the nature of an activity or his participation in it, may support an

11   inference that he knew the activity was unlawful. See, e.g., Abdulle, 564 F.3d at 129 ("a

12   rational jury could have found that [the defendant in question] possessed and

13   intended to deal in a controlled substance by inferring that he and the others

14   expedited [its] importation . . . and concealed its contents in order to minimize the

15   possibility that their illicit activities would be detected").

16                In challenging the sufficiency of the evidence to support his conviction,

17   a defendant bears a heavy burden. See, e.g., United States v. Romano, 794 F.3d 317, 335

18   (2d Cir. 2015); United States v. Leonard, 529 F.3d 83, 87 (2d Cir. 2008) ("Leonard"); United


                                                 46
 1   States v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004); Hamilton, 334 F.3d at 179. In

 2   assessing such a challenge, we are required to view all of the evidence--whether direct

 3   or circumstantial--in the light most favorable to the government. See, e.g., Glasser v.

 4   United States, 315 U.S. 60, 80 (1942), overruled on other grounds by Bourjaily v. United

 5   States, 483 U.S. 171, 181 (1987); United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008)

 6   ("Eppolito"), cert. denied, 555 U.S. 1148 (2009); Leonard, 529 F.3d at 87. We consider

 7   items of evidence not in isolation but in conjunction, see, e.g., United States v. Autuori,

 8   212 F.3d 105, 114 (2d Cir. 2000); United States v. Podlog, 35 F.3d 699, 705 (2d Cir. 1994),

 9   cert. denied, 513 U.S. 1135 (1995); we defer to the jury's evident assessments of the

10   credibility of the witnesses and its resolution of the weight of the evidence, see, e.g.,

11   United States v. Coté, 544 F.3d 88, 99 (2d Cir. 2008) ("giv[ing] full play to the right of the

12   jury to determine credibility"); United States v. Miller, 116 F.3d 641, 676 (2d Cir. 1997),

13   cert. denied, 524 U.S. 905 (1998); United States v. Morrison, 153 F.3d 34, 49 (2d Cir. 1998);

14   we credit every inference that the jury could have drawn in the government's favor,

15   see, e.g., Eppolito, 543 F.3d at 45; Leonard, 529 F.3d at 87; and we must affirm the

16   conviction so long as, from the inferences reasonably drawn, the jury might fairly

17   have concluded guilt beyond a reasonable doubt, see, e.g., Eppolito, 543 F.3d at 45-46;

18   United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003).

                                                  47
 1                In sum, the conviction must be upheld if "any rational trier of fact could

 2   have found the essential elements of the crime beyond a reasonable doubt." Jackson

 3   v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).             This standard,

 4   reemphasized in the Supreme Court's recent opinions, makes "clear" that "on direct

 5   appeal, 'it is the responsibility of the jury--not the court--to decide what conclusions

 6   should be drawn from evidence admitted at trial. A reviewing court may set aside

 7   the jury's verdict on the ground of insufficient evidence only if no rational trier of fact

 8   could have agreed with the jury.'" Coleman v. Johnson, 566 U.S. 650, 651 (2012) (quoting

 9   Cavazos v. Smith, 565 U.S. 1, 2 (2011)).

10                The jury in this case was properly instructed that in order to convict

11   O'Brien on any of the counts against him, it was required to find that he knew the

12   products he was importing and possessing with intent to distribute were controlled

13   substances. There was no question that O'Brien knew that the substances he was

14   importing were methylone and anabolic steroids. He admitted to Alahverdian and

15   Marino that he ordered methylone and anabolic steroids online from sellers he knew

16   were in China. And, as described in Part I.A. above, the search of O'Brien's College

17   Point Apartment turned up dozens of airway bills for packages mailed from China.

18   Contrary to O'Brien's repeated statement in his pro se opening to the jury that he had


                                                 48
 1   "nothing to hide," the many steps he took to conceal the contents of those packages

 2   and his connection to them provided fertile ground for the inference that he knew

 3   that dealing in those substances was unlawful.

 4                First, rather than going through traditional banking channels, O'Brien

 5   paid for his orders of these substances using bitcoins and multiple money remitter

 6   services. This enabled him to, inter alia, make his purchases without using his own

 7   name. (See generally Trial Transcript ("Trial Tr.") at 117, 280-82, 288-90.)

 8                Second, O'Brien never had his purchases of methylone and anabolic

 9   steroids addressed to himself or sent to his apartments. He hired people to rent mail

10   boxes in their own names--or in false names--at mailbox stores throughout Brooklyn.

11   As described in Part I.A. above, the items found in the search of O'Brien's College

12   Point Apartment included not only applications and receipts for mailbox rental

13   agreements at multiple mailbox store locations (see Trial Tr. 214), but also a cache of

14   false identification cards, along with blank ID cards and a printer that could create

15   more. O'Brien had the packages of methylone and anabolic steroids he ordered from

16   China addressed to the persons who rented the mailboxes and sent to the various

17   mailbox store locations. When the packages arrived, O'Brien had the persons he had

18   hired retrieve them. For example, he told the agents on October 10 that he had had


                                                49
 1   his friend Michael Wagner rent a mailbox in Wagner's name, and he paid Wagner

 2   $200 each time he picked up a box of Molly from a mailbox store and brought it to

 3   O'Brien. (See Trial Tr. 117.)

 4                In addition, the packages containing O'Brien's purchases were

 5   themselves fraudulently labeled. The intercepted packages that led to O'Brien's

 6   eventual arrest on the present charges bore labels that misrepresented their contents

 7   as various uncontrolled substances, when in fact they contained methylone and

 8   anabolic steroids that O'Brien had ordered.

 9                Lastly, after the drugs ordered from China arrived and had been picked

10   up by O'Brien's retrievers and given to O'Brien, O'Brien stored them in Apartment 5E

11   on 41st Road--identified in his Written Consent To Search as one of "my

12   apartment[s]." To rent that apartment O'Brien had used the alias "George Manolas."

13                In the district court, O'Brien moved for acquittal under Fed. R. Crim. P.

14   29 on the principal ground that the government had failed to establish that he was the

15   lessor of the 41st Road apartment in the name George Manolas. The district court

16   denied that motion. See United States v. O'Brien, No. 13-CR-586 (RRM), 2017 WL

17   2371159 (E.D.N.Y. May 31, 2017) ("Rule 29 Decision"). O'Brien has not challenged that

18   decision on appeal, and any further argument that "George Manolas" was not one of


                                              50
 1   O'Brien's aliases has been waived.

 2                In any event, the government's contention that the "George Manolas"

 3   who leased the apartment at 41st Road was O'Brien was amply supported by several

 4   categories of circumstantial evidence, including (a) trial testimony of Alahverdian

 5   and/or Marino that O'Brien admitted that the 41st Road apartment was his stash

 6   house, supplied the exact number of the apartment (5-E) when Marino said the agents

 7   knew it was on the fourth or fifth floor, and reasonably accurately described what the

 8   agents would find inside that apartment, see Rule 29 Decision, 2017 WL 2371159,

 9   at *10 (citing Trial Tr. 119-25, 683); (b) recordings of two telephone calls by O'Brien in

10   October 2013 from the county jail to his then-girlfriend, instructing her to open the

11   mail at his College Point Apartment addressed to George Manolas, see Rule 29

12   Decision, 2017 WL 2371159, at *11 (citing Trial Tr. 250, 253); and (c) testimony by

13   Schottenfeld describing the batches of false identification documents found in the

14   search of the College Point Apartment, including birth certificates, social security

15   cards, and police identification cards in names other than O'Brien's, including the

16   names Jeremy Soto, Stephen Conte, and George Manolas, with some of the Conte and

17   Soto identification documents bearing photographs of O'Brien (see Trial Tr. 193-99).




                                                51
 1                In sum, O'Brien contrived to order and pay for methylone and anabolic

 2   steroids without using his real name; to have the drug packages labeled as containing

 3   uncontrolled substances; to have the packages addressed to persons other than

 4   himself, sent to addresses other than his, and retrieved by other persons without

 5   mention of his name; and to have the drugs warehoused in a place he leased under

 6   an alias. Such precautions lent themselves easily to a rational inference that O'Brien

 7   was aware that the drugs in which he dealt were controlled substances.

 8                Finally, O'Brien also explicitly evinced his wariness of the law

 9   enforcement tactic of apprehending drug traffickers by subjecting intercepted

10   suspicious packages to controlled deliveries. In an O'Brien message that was read to

11   the jury--apparently an email to a supplier, saying "'65k is a very appealing offer.

12   Okay,'"--O'Brien indicated that his staff had previously been caught in such a

13   maneuver, saying:

14                "Here is the problem with why i am so nervous about the current
15                shipment--keep in mind i am very experienced... [T]his tracking
16                number . . . says they made an attempt to deliver. [T]hat is
17                IMPOSSIBLE. [I]t is a mailbox rental store and there is ALWAYS
18                a person there to receive parcels--it's simply what they are in
19                business to do... [T]hey rent mailboxes. [N]ot to mention that I
20                receive parcels there every week from China with no
21                problems. . . . [I]n my unfortunate experience in the past, along with
22                the other wholesalers I know, this is a trap. I send my worker in to
23                sign for the package and they arrest them on the spot."

                                                52
 1   (Trial Tr. 291-92 (quoting Government Exh. 413) (emphases ours).)

 2                  We conclude that the evidence as a whole was ample for the jury to infer

 3   that O'Brien knew that the substances in which he knowingly dealt, methylone and

 4   anabolic steroids, were in fact controlled substances.




 5   C.       O'Brien's Challenges to the Scheduling of Methylone as a Controlled Substance

 6                  Finally, O'Brien contends that the district court erred in denying his

 7   posttrial motion for acquittal on the ground that the indictment charging him with

 8   unlawful conduct with respect to methylone was constitutionally flawed because the

 9   scheduling of methylone as a controlled substance was accomplished through (a) an

10   impermissible delegation of congressional power to the United States Attorney

11   General, and (b) the Attorney General's subdelegation of that power to the DEA. He

12   also argues that the scheduling process was insufficient to afford him the notice

13   mandated by principles of due process. We reject these contentions because such

14   challenges were required to be made prior to trial and because, in any event, they lack

15   merit.




                                                  53
 1         1. Untimeliness

 2                The Federal Rules of Criminal Procedure provide that certain types of

 3   objections to a prosecution "must be raised by pretrial motion if the basis for the

 4   motion is then reasonably available and the motion can be determined without a trial

 5   on the merits." Fed. R. Crim. P. 12(b)(3) (2014). This requirement serves a number of

 6   purposes, including sparing the court, the witnesses, and the parties "the burden and

 7   expense of a trial," Davis v. United States, 411 U.S. 233, 241 (1973) (discussing 1944

 8   version of Rule 12), and "insuring that indictments are not routinely challenged (and

 9   dismissed) after the jury has been seated and sworn, a result that would . . . force

10   courts frequently to confront complex Double Jeopardy questions," United States v.

11   Spero, 331 F.3d 57, 62 (2d Cir. 2003) (discussing 2002 version of Rule 12) (internal

12   quotation marks omitted).

13                The categories of motions that must be made before trial are those that

14   assert "a defect in instituting the prosecution," Fed. R. Crim. P. 12(b)(3)(A) (2014), or

15   assert "a defect in the indictment," id. Rule 12(b)(3)(B). As amended in 2014, Rule

16   12(b)(3) provides "a nonexclusive list of commonly raised claims under each

17   category." Advisory Committee Note (2014) ("2014 Advisory Note"). The examples

18   include "an error in the grand-jury proceeding," Rule 12(b)(3)(A)(v), and the


                                                54
 1   indictment's "failure to state an offense," id. Rule 12(b)(3)(B)(v). See also 2014 Advisory

 2   Note (noting that prior language allowing a motion to dismiss for failure to state an

 3   offense to be made at any time, on the theory that that failure was "jurisdictional," was

 4   removed in light of the Supreme Court's decision in United States v. Cotton, 535 U.S.

 5   625, 629-31 (2002), that such a flaw does not implicate the court's jurisdiction).

 6                If a motion falling within Rule 12(b)(3) is not made before trial (or before

 7   such pretrial deadline as may be set by the court for such motions), it is "untimely."

 8   Fed. R. Crim. P. 12(c)(3) (2014). If the motion is untimely, the court may nonetheless

 9   entertain it if the movant shows "good cause" for his failure to make it prior to the

10   deadline.   Id.   Such provisions, albeit with slight variations in wording and

11   numbering, have been included in Rule 12 since its inception in 1944. See, e.g., Davis,

12   411 U.S. at 236 (discussing the original version of Rule 12, which stated in pertinent

13   part, that "'[d]efenses and objections based on defects in the institution of the

14   prosecution or in the indictment . . . may be raised only by motion before trial,' and

15   that failure to present such defenses or objections 'constitutes a waiver thereof, but

16   the court for cause shown may grant relief from the waiver'" (quoting Fed. R. Crim.

17   P. 12(b)(2) (1944)); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 362 (1963)

18   ("Shotwell") (same).


                                                 55
 1                 Both Davis and Shotwell dealt with posttrial claims that the prosecutions

 2   had been defectively instituted because their respective grand juries had been

 3   convened pursuant to selection methods not designed to draw from a cross-section

 4   of the community. See, e.g., Davis, 411 U.S. at 235; Shotwell, 371 U.S. at 460-61. In both

 5   cases, the Supreme Court concluded that the Rule 12 waiver provision "precludes

 6   untimely challenges to grand jury arrays, even when such challenges are on

 7   constitutional grounds." Davis, 411 U.S. at 238 (citing Shotwell, 371 U.S. at 363).

 8                 In Shotwell, the Court upheld findings that no "cause" sufficient to

 9   "warrant relief from" Rule 12's waiver provision was shown where "the facts

10   [underlying the challenge] were notorious and available to petitioners in the exercise

11   of due diligence before the trial." 371 U.S. at 363. In Davis, the Court similarly upheld

12   the finding of no "cause" where the belatedly challenged system had been in use "for

13   years," and "[n]o reason ha[d] been suggested why petitioner or his attorney could

14   not have ascertained all of the facts necessary to present objection to the court prior

15   to trial." 411 U.S. at 243.

16                 We reach the same conclusions with respect to O'Brien's impermissible-

17   delegation challenge, given the fundamental nature of the asserted defects. The

18   contention that a federal grand jury was chosen through a process that was not


                                                56
 1   designed to draw from a cross-section of the community is a contention that the

 2   ensuing indictments were issued by an entity that was not constitutionally authorized

 3   to accuse any person of any crime; such a contention posits a defect in the institution

 4   of the prosecution. Likewise, a challenge to Congress's delegation to members of the

 5   Executive Branch of authorization to designate substances as controlled substances

 6   posits that the targeted conduct has been designated a crime by an entity not

 7   constitutionally authorized to say that any person may be prosecuted for that

 8   conduct. A prosecution for conduct that has been defined as criminal only by an

 9   entity without legitimate authorization to do so would be defective either in its

10   institution or in its failure to charge a cognizable offense. If a defendant wishes to

11   assert such a flaw, he must make his motion prior to trial if the basis for his assertion

12   is then reasonably available.

13                In the present case, O'Brien's trial began on July 20, 2015. His claim that

14   methylone had been unconstitutionally designated a controlled substance was not

15   asserted prior to trial; it was not raised until November 2016, more than a year after

16   he had been tried and found guilty of the charges against him. It is clear that the facts

17   on which his motion was premised had been available to him throughout his pretrial

18   period. As to the delegation process itself, the CSA, in which Congress authorized


                                                57
 1   the Attorney General to, inter alia, add substances to controlled substance schedules

 2   under 21 U.S.C. § 811(a), was enacted in 1970, see Pub. L. 91-513, 84 Stat. 1242

 3   (codified at 21 U.S.C. § 801 et seq.). The Attorney General's regulations delegating

 4   authority to the DEA to schedule controlled substances on a temporary basis were

 5   promulgated in 1990. See 28 C.F.R. § 0.100(b) (1990). And the particulars of the

 6   delegation process were described in detail by the Supreme Court in 1991 in Touby

 7   v. United States, 500 U.S. 160, 162 (1991), which rejected an impermissible-delegation

 8   challenge to convictions for manufacture and conspiracy to manufacture

 9   4-methylaminorex, more commonly known as "Euphoria."

10                The designation of methylone as a controlled substance occurred well

11   before O'Brien's October 29, 2013 arrest in this case. Notice of Intent to designate

12   methylone as such a substance temporarily was published in the Federal Register on

13   September 8, 2011, see 76 Fed. Reg. 55616; Notice of Proposed Rulemaking to make

14   its placement in Schedule I permanent was published in the Federal Register on

15   October 17, 2012, see 77 Fed. Reg. 63766; and the permanent scheduling of methylone

16   was published in the Federal Register on April 12, 2013, see 78 Fed. Reg. 21818.

17                O'Brien was thus arrested on the present charges of unlawfully dealing

18   in methylone more than six months after the publication of notice that methylone was


                                              58
 1   permanently scheduled as a controlled substance, and more than two years after

 2   publication of its temporary designation as a controlled substance. Thus, the

 3   components of O'Brien's impermissible-delegation challenge were available to

 4   O'Brien prior to his July 2015 trial. They were matters of public record.

 5                The only excuse offered by O'Brien for the failure to make his delegation

 6   challenge prior to trial was that he was proceeding pro se, stating that "it's a lot for a

 7   regular defendant to know and to learn" (Sentencing Transcript January 20, 2017,

 8   at 17). This explanation was specious at best. Even assuming that a defendant's pro

 9   se status could be accepted as "good cause" for his failure to make a timely challenge

10   to long-established procedures, that excuse would have no validity in this case.

11   O'Brien's citation of his pro se status ignored the fact that he did not become pro se

12   until about two months before his trial; for the preceding 19 months of the

13   prosecution, O'Brien had been represented by counsel. There had been ample

14   opportunity and expertise to allow for the making of an impermissible-delegation

15   challenge prior to trial, if one had been warranted.




16         2. Lack of Merit

17                In Touby, the Supreme Court considered contentions that Congress, in


                                                59
 1   authorizing the Attorney General to add, remove, and transfer substances across the

 2   controlled substance schedules under 21 U.S.C. § 811(a), "unconstitutionally

 3   delegate[d] legislative power to the Attorney General," 500 U.S. at 162, as well as

 4   contentions that the Attorney General could not permissibly subdelegate that

 5   authority to the DEA, see id. at 169. The Court rejected those contentions in the

 6   context of the scheduling of 4-methylaminorex. See id. at 165-69. We see no

 7   principled basis on which to reach a different conclusion with respect to O'Brien's

 8   parallel challenges to the scheduling of methylone. Whether timely or not, those

 9   challenges lacked merit.

10                O'Brien also contends that publication of the intended and actual

11   scheduling of methylone as a controlled substance in the Federal Register was

12   insufficient to provide notice that dealing in methylone was unlawful. However,

13   Congress requires that "documents having general applicability and legal effect"--

14   which includes "every document or order which prescribes a penalty"--"shall be

15   published in the Federal Register," 44 U.S.C. § 1505(a); and it has provided that

16   proper publication of a document in the Federal Register "is sufficient to give notice

17   of the contents of the document to a person subject to or affected by it," id. § 1507.

18   Accordingly, when "regulations, which are given the force of law, are published in


                                              60
 1   the Federal Register, . . . constructive notice of their contents is thus given all persons

 2   affected by them." Yakus v. United States, 321 U.S. 414, 435 (1944); see, e.g., United States

 3   v. Kelly, 874 F.3d 1037, 1048 (9th Cir. 2017) (after making the requisite findings, the

 4   DEA temporarily scheduled ethylone, and "[w]hen the DEA filed the Notice and

 5   Order in the Federal Register, Kelly received fair notice that ethylone was a controlled

 6   substance" (internal quotation marks omitted), cert. denied, 138 S. Ct. 2038 (2018)).

 7                 As set out above, the intended and actual scheduling of methylone as a

 8   controlled substance were published in the Federal Register. We thus reject O'Brien's

 9   lack-of-notice argument.

10                 We note also that, as discussed in Part II.B. above, the statutory

11   provisions under which O'Brien was prosecuted made his conduct unlawful only if

12   he "knew" he was dealing with a controlled substance. There is no dispute that

13   O'Brien knew that he was dealing in methylone; and, as discussed, the properly

14   instructed jury found beyond a reasonable doubt, based on ample evidence, that

15   O'Brien knew methylone was a controlled substance.




                                                  61
1                                    CONCLUSION




2               We have considered all of O'Brien's contentions on this appeal and have

3   found them to be without merit. The judgment of the district court is affirmed.




                                            62
