next case scuse me on for argument is united states for  style the united states beyond those the two thousand and seventeen west law four one zero five three four the procedural posture of the case was the government had filed a motion that this is a controlled substance case not a controlled substance control substance act words sandor standard and that was that's kind of what one of the issues in this case the government seems to say well this is an analog case therefore the troll substance that doesn't have anything to do with it doesn't apply to research this is not a schedule two right so we don't need to get to the analyze and act right and to to have a specific charge about that the charge was you got to find he knew it was a controlled substance ok so what's wrong with that  arguments this scienter requirement that's in the control substance act applies in other words mcfadden was an analog case ok and i mean we all know that but the control substance defendant to know only that the substance he is dealing with is some unspecified substance listed on the federal drug schedules and then there's a footnote that specifically says the defendant may know that the white powder is listed on the schedule even if he does not know precisely what substance it is and if so he would be guilty of knowingly distributing a controlled substance now your argument is precisely that the district court erred by telling the jury exactly what the supreme court i mean i just read from the supreme court that it doesn't matter if he doesn't know what controlled substance it is as long as he knows he's dealing with an illegal drug well what what is what am i missing about mcfadden ok this is this is the part of the fan that you didn't read that there's two ways assuming that the senior requirement is the same in both that they can establish that the government can establish ever met could alternatively prove that he knew that it was methamphetamine even if he didn't know it was a controlled methamphetamine is a controlled substance but that's not an argument the government made in this case or tried to rely on they relied straightforwardly on the idea that he must have known it was an illegal drug because of how he acted and therefore the end i'm still trying to find out why there is some error in telling the district court  jury that he didn't need to know precisely what the name of the drug was he needs to know wanted two things he needs to know the name of the drug or he needs to know and the minnesota case that i was a to relies heavily on chief justice roberts concurrence which obviously i rely on as well but in a way it's i'd rather rely on the eight justices who signed the opinion and did not join justice roberts opinion which was concurring in the judgment and was not respect reflecting what the supreme court held here the two ways that the eight justices agreed that the defendant needs to know that he was dealing with a substance that was listed on the federal drug schedules as a controlled substance and there is no evidence that the defendant knew that zero there is zero evidence or in this is number two that he knew the specific name of the substance and the sisters if it name  substance i mean the only thing it was referred to the trial was ecstasy or six pos but neither of those appear neither of those names appear on the federal drug schedule it's either think the government in a marijuana case has to prove that somebody knew specifically that marijuana was a schedule one controlled you know or don't i don't you think methot somebody has to prove that he knows that methamphetamine is a schedule one controlled ok no  a ecstasy x t c ok so you're saying ecstasy is in their case and i didn't think it was i didn't see the i didn't think the word ecstasy was in there ok i will say this the the idea that it's illegal somewhere is not enough there are ten states that i can find where m d m a is not a control a criminal criminally it's not control it's not treated as criminal statute as a controlled substance alabama arkansas california in fact there's a california case the prosecution because the government seems to think as long as it's illegal somewhere now the government says as long as it's illegal under federal law and he acts like he knows it's illegal ok that's the issue ok now that this is an illegal substance ok and this is were i think chief justices roberts concurrence makes a difference there is no way that you can reconcile in my opinion the foot is foot no one that we're says evasive behavior with respect to law enforcement can be enough there's no way you can reconcile that statement with the idea of that the government has to prove number one that the defendant knew he dealing with a fake something that was listed on the federal drug control substance or he knows the name of it and it's a common name i there's no way you can reconcile those and he knows it's a controlled substance that's why he's hiding in the bathroom when he sells it all right let me give you another example is there any is there any law that you're aware of that says that the defendant isn't guilty of violating the statute unless he knows that he is violating this particular statute it has to be a federally it has to be a controls substance on the federal drug schedule i think that's pretty clear i mean if he doesn't know it's all of if he doesn't know the name of it if any doesn't know it's then his then the only other way to prove it is that he they have to prove that he knows it's on the there's no dispute about that only dispute is what they thought that they were referring to in the defendant took the stand here and the defendant said i didn't know i didn't know what it was i didn't know it was illegal so then at that point it's a credibility finding its credibility  termination by the jury where they have as did surely also pointed out the codefendant or the coconspirator excuse me referring to the pills ecstasy pills and saying that the defendant knew that they were ecstasy pills so the jury's credibility determination is really the only thing that's up for discussion here the only evidence that counters if you will most explicit lee that explicitly counters the claim that he did know what it was was also it's there was there was that we wouldn't put it forward  particles that was i think that was the four hundred eighty eight pills i don't think that was the largest i think the five thousand was a batch of five thousand pills that was the green with airplanes on them distinctive and there was also a batch that was off of the back of a tractor trailer  there was another coconspirator who was the girlfriend of mckenzie who was sent across to canada with money and then met a tractor trailer that had come in from canada to pick up pills and so that was another transaction that isn't one that you would typically think happens with illegal substance that somebody would make those arrangements to import a legal substance so the nature of the transactions themselves as was pointed out in the bathroom bar in the basement of a nightclub and  you know off of the back of a tractor trailer that's just come from canada after somebody else has been sent to canada with money in a different transaction or a different date and there was also consistency between the two coconspirators testimony those consistency between the testimony of the girlfriend  that runs and gunter who was the person who's explicitly referred to them as ecstasy pills so among those it wasn't just a statement it wasn't just he knew and it wasn't just the defense thing on the con on the converse not it wasn't just the defendant saying i didn't know the defendant also took the stand and said a whole bunch of other things and the other things that the defendant said were also things that the jury was reasonable or reasonable juror was justified in determining did not lend to the credibility of the story that it was some sort of play acting that it was an effort of being a gangster and i'm story was i was pretending that i knew this was a drug right you know  about the behavior is the behavior that one would expect to someone who is selling illegal drugs it was a pretty good play acting if it was play acting but the nature of the very fact that the pills that were found then this what ties it all up the bills that were found were in fact tested and there was a stipulation under it with regard to the chemical makeup of those pills which fully undermines the assertion that he thought he was dealing with not enough tylenol or just sex bill something that was a knock us stipulation he knew what was  that's the way it came across the court as well and i apologize for that i didn't intend to do that say only that as to the substance not correct correct it was a post post post seizure treatment that was done on the pills and then with regard be had to go just one more moment to the fake conspiracy concepts that really only came out from this particular defendant the girlfriend wasn't would have been clued it wasn't clued into that apparently the other coconspirators were including to that nobody came forward and testified as to this plot to it to behave as if a gangster as if he were a gangster so this was again only statements that came from him as opposed to the other sufficient evidence with regard to the actual nature of the transaction regarding the fact that the indictment alleged methamphetamine in india may i don't think there's any dispute that whatever methamphetamine was found was found in the same tablets we're not talking about a separate substance that's different from what's in the tablets ok so that was a chemical analysis and i think there's any evidence that he knew there was methamphetamine as a separate substance from m d m a in those tablets from the evidence so that it was the question was asked didn't this is my copy tell you it's from mt sinai but this is my company of section thirteen point zero eight one one of the twenty one c f or and this is what it says about this particular controlled substance m d m a it makes no reference to   and i'm saying doesn't have to be and i'm saying it's not and i'm saying it it does have to be so obviously that's where we disagree in the ongoing at that point out is that the government in its brief on pages richards we will reserve decision in this case