voluntarily made the time well settled the guilty plea cannot be truly know when you're voluntary unless a defendant is understand understanding of the law in relation to the facts of the case this court noted in the united states first th determine whether or not their plea is knowing and voluntary the first is the complexity of the charge the charge in this case encountered eleven years distribution of an analog there probably aren't many federal offenses that are more complex than federal drug analog violations complex speak because it deals with having to determine whether there is substantially similar chemical structure and substantially similar pharmacological effects which is so difficult because there is no definition the scientific community we sit down look at the specific stop substance on an ad hoc basis then we get together at a conference and then we vote on each different situation whether or not mark in our  opinion it is substantially similar so what would you like the government to do like the government to go back to congress and have defined substantial similarity your honor and take the vagueness out of the statute and how how would you define substantial similarity me personally i'm not a chemist but i'd suggest the way it be done is to have the scientific community made up of the da which has their six or seven chemists and a segment of the scientific community from the professors and practitioners that analyze these chemicals and get together and try and reach a decision about what  reasonable definition of substantial similarly how well the lay people apply they'd at least have a definition your honor and then they many all good if it's a scientific definition then they could go to an expert to a chemist and asked them if it fits the definition as it's out there today a layperson can't go to a chemists and get an answer that can be relied upon to act upon that's the difficulty with this type of offense there is no one really understand why can't he why can't he go to the done that in the carlson case there were experts on one side there were experts on the other side but there is no definition for either one of those two experts to deal with the lay experts person comes in and testifies in my scientific opinion eighteen or j w h eighteen and then you've got that opinion and then over here you have the decision by the da that it is substantially similar we've got this molecule in this molecule and they may be different but it's substantially similar to this analog drug over here that's been labeled as a controlled substance on the schedule one or schedule two list woodhouse  schedule and that's what they're saying over here xsara weapon is substantially similar to shape the b h eighteen because these molecules we have the range and we have this you know on may second the analog was sold in ashland wisconsin on may sixteenth it was listed at the time of the count of the police it was not a schedule controlled substance it was a quote unquote controlled substance analyzed and when you look at the statements that the defendants make and i'm getting a little head of myself but i think it's important to point out when you look at the statements the defendants make there is no conversation with any of them in them pleading guilty to an analog they say they're pleading guilty to a controlled substance is that he is someone who has not taken a position on this issue before but who has the training that enables him to offer an opinion and because he's not a party with mess he's not for the seller how does that decision prevent him from being prosecuted when the statute says if indeed it is substantially similar by this opinion in the united states attorney's office files a charge against the defendant how does the individual defendant have fair notice as to what conduct is restricted or precluded by the lawyers who would have  consulted a chemist or someone before he went into that business and i'm trying to suggest in this case they did they not only consulted a chemist they consulted the local district attorney they quit selling the stuff two months before the search warrants were issued in this case they did and they please clearly say it we never intended to do anything wrong who would they plead guilty to distribution of a controlled substance analog but they never admitting that they intended to violate the law they never admitted facts that support distribution  judge to do was apply although they didn't use this word to apply the trick caught inference that if you have information over here that suggests to you that human consumption is being engaged in for the purpose of getting high and the pharmacological effects are the same you can infer that they knew that the chemical substance was substantially similar this is going to become a controlled substance it was pretty good information that the defendants never intended to violate the law because they said we are not going to be selling it anymore once they got notice it goes there are so many things they said there were going to we're selling right now because it's going to be banned pretty soon right now it's pretty good in france they know this stuff is it's no different i guess when you go back to prohibition when somebody says hey we're selling all the whiskey we got today because in two weeks we can't sell it anymore it doesn't mean at the time that that whiskey was being sold that those individuals ever intend to violate the laws of prohibition by selling those drugs on a second drug i shouldn't say drugs controlled substance analogues on may second does not mean they sold a controlled substance first when we start talking about controlled substance analogs are controlled substances federal law defines a controlled substance analog if intended for human consumption as a controlled substance so in the plea process itself the what seems to be sort of language floating back and forth is actually act because these controlled substance analogs excell are eleven your one forty four p twenty two and five people twenty two of four that are an issue in our case were intended for conventional control substances in it and that was going to my next point at the law post mcfadden does not require that sort of knowledge it can be part of our proof it does not need to be part of a proof i  think what is happening is is a move mr harkins i think conflates really two different things from these charges to convict the defendant we have to prove as a as a matter of fact that this is a controlled substance and like we would have called dr trekkie we would have would have would have called dr ben len they were our affects and structure experts and as a matter of fact they would have offered expert testimony just like the experts in the carlson case and the experts in all the other cases and had there been other folks they got up and said no i think the molecules are shifted a little too much they're not substantially structure chemically structured but that's the first thing it is it an analog as a fact but i think you have to separate that then from what we have to prove to show the defendants knowingly distributed a controlled substance an alarm and post mcfadden the way i read it in trad and i think it's a fair reading there's really two ways to can do it to ace post with that one that they knew the substance was a controlled substance or excuse me that they knew the substance was controlled by the controlled substance act which includes the analog we can prove that mcfadden tells us circumstantially we can prove it by showing how they can see elective eighty s of how they had knowledge that the the thing produced a high the substance produce a high and it seems to be pretty clear from mcfadden that if we chose that way of proving knowledge we do not need to prove knowledge of chemical structure and there's a i think there's a good reason for reading it that that sort of proof which was the case here really does apply to sellers it know the effects and what the supreme court tells us is and it's in step and from target and i think we have to be clear on that the knowledge of things like the effects or the way you're selling them in secret words you're using and what not which was the case here that supports an inference that they knew this was a controlled substance perhaps on a perfect analogy to attention we can prove when i see a controlled substance i'm sorry should go back to my first point when you know it's a controlled substance a controlled substance analogue if this thing you're selling is an analog and it's intended for human consumption it's defined as a controlled substance that affected  was an analog therefore a controlled substance as a matter of fact because we proffered the expert to it our factual basis the expert testimony showing that we had we would have called experts who would have said  to the defendants know what they were selling was something other than some incense and i think the the court was very careful to explain what knowingly needs in this context  tried to assist in that process it was the focus of all of judge peterson's questions really the court made it clear in its questions to ms nowak and mr marson that this could be done circumstantially that and that's i think getting back to the point i think it's a key thing and it goes to sort of the totality of it here that once we can prove that a defendant knows the effects for example knows that it generates a high that it's like marijuana or whatever then one can infer that they knew it was controlled under the controlled substances act it is inter caught the inference was or that was if we proved you knew the effects we would infer that you knew the chemical structure i don't think post mcfadden that's really that's not that's not appropriate that's not the way the apartment justice approaches the inference is different it isn't that we are inferring that they knew the chemical structure with the inference is we are inferring as is justice thomas wrote that they knew it was controlled and this case is such a good example i think because just in the plead proffers mr ultimately says i know people smoked so you know this for human consumption i know people use it to get high i knew it was like marijuana and i knew it was a controlled substance and i think that is is these is very powerful circumstantial proof of their own answers that that they knew that they knowingly were selling this controlled substance and mark and it's close to incense or something or some right and they were selling incense in the front of the store and if you price it the incense cost you couple bucks and the incense in the back was costing you a lot lot more it and the other part of the in the in the in the record for the total factual basis  we had witnesses in the p s r who talked about being there testers who worked for them it was a very elaborate system and it is for most of these cases if you want them to j c know and you said i want to buy some really powerful stuff that's really got a good high you were actually given a twenty four hour timeout that's in p s or paragraph twenty seven you had to leave the store the people who work there like ms hunt and she's and p s are pair of twenty six they were specifically trained by these defendants to say it's all about the strength of smell it has nothing to do with potency if and they sold all sorts of smoking devices what are called one hitters a little smoking devices they were not allowed to ever refer to those a smoking device these are to use your insights in these  instructions given to her use it when you're sober don't be drinking and partying use it when you're sober so when you come back and tell us the defendants which one is really strong we know it's because you are using bizarro or funky monkey or these various products and we know it's not because of some of it so they they want to clear the control room there are two or three other people in the p s r also just like sensing hearing that would also test the products they weren't employees they were customers they would be in that store five or six times a day it's spending hundreds of dollars a day and then they were given product and said come back and tell us which ones the pope really pope and one other thing two  e mail to a supplier and says we're a small business in northern wisconsin but we're doing five to eleven thousand dollars a week and our customers like it stronger that statement cannot refer to we're doing the eleven thousand dollars a week because they love a strong smell compared with the rest of her statement said she knew people were smoking she she knew the use it to get a buzz we sold it after it had an effect like marijuana and then she'd directly in question your plea directly address facebook posting because they knew as of may two that this thing they were selling not only was it giving people a buzz not only was it giving him high not only was it like marijuana they knew that in two weeks it was actually going to be not an analog but an actual controlled substance and the response was to continue to sell and then after that date to sell different analogues that would be the p b twenty two in the five and ruling from queen knew before that well with what they did in the we chose that count specifically quite frankly because it was easier for them to get their head around the knowledge they need i think proof shows that whatever i believe about all the counts prior to that and that's specific day they not only knew this was like marijuana they not only knew it gave you a high they not only knew it was being used for human consumption they knew that at that point the government actually said this isn't an analog anymore this can be a controlled and the defendants in my view they wanted to plead guilty the judge knew they wanted to plead guilty but these defendants had stern adults for goodness sake why can't they be allowed to please go they were that are all this it and i know my time's up we are but i think the thing is they had spent years saying it's not for human consumption it's just incense and like a like a frog defending perhaps they had trouble actually saying record but as the people in my office said i've been too invested in this case the court only gave you ten minutes don't take the hour you want the income tax is not a new she very well you get what it was raised in relates transcript of his plea wherein he said i mean my early stages of alzheimer's i don't have anything to do with running the business yeah i know they put fifties and hundreds into the safe i don't know how much money we were making i don't know this i don't know that i didn't have anything to do with it i signed the tax return i believed it was true and accurate those are the rule eleven colloquy statements by mr morrison so why  guilty i have no idea your honor i wasn't there second in regard to these comments regarding knowledge and controlled substances i direct the court's attention to mcfadden decision of page two three zero five and they talk about the individual's knowledge and they talk about the means in the manner in which that can be proved and the first is by proving that the substance which was being dealt is a controlled substance we don't happen because it's not on the list it can be established by evidence the defendant knew the specific analogue he was dealing with even if he did not know what's legal status enters analog and then it goes into the substantial similarity that they