NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, 

 v. 

RICHARD MARSCHALL, 

Defendant-Appellant.

No. 22-30048 

D.C. No. 3:20-cr-05270-BHS-1 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted November 8, 2022

Seattle, Washington

Before: IKUTA and COLLINS, Circuit Judges, and FITZWATER,** District Judge.

Defendant-Appellant Richard Marschall timely appeals from his conviction

under the Federal Food, Drug, and Cosmetic Act (“FDCA”) for shipping 

misbranded drugs in interstate commerce in violation of 21 U.S.C. §§ 331(a) 

and 333(a)(2). In an accompanying opinion, we reject Marschall’s contention that 

the indictment was defective because it failed to allege the requisite scienter. In 

this unpublished memorandum disposition, we address Marschall’s remaining 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The Honorable Sidney A. Fitzwater, United States District Judge for the 

Northern District of Texas, sitting by designation.

FILED

SEP 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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challenges to his conviction. We affirm.

1. In his opening brief, Marschall argues that the FDCA’s definition of 

“drug” is unconstitutionally vague both on its face and as applied in his case. 

However, in his papers supporting his relevant motion to dismiss in the district 

court, Marschall explicitly stated that he “is not challenging the statute but rather 

the government’s ‘bad’ indictment which is vague because it does not provide fair 

notice as to the conduct prohibited” (emphasis added). The district court correctly 

rejected that challenge to the indictment, because the indictment here adequately 

(1) pleads “the elements of the offense charged and fairly informs [him] of the 

charge against which he must defend”; and (2) “enables him to plead an acquittal 

or conviction in bar of future prosecutions for the same offense.” Hamling v. 

United States, 418 U.S. 87, 117 (1974). Because Marschall affirmatively 

disclaimed below the challenges that he now seeks to raise concerning the asserted 

vagueness of the underlying statute, we decline to consider them. See United 

States v. Kaczynski, 551 F.3d 1120, 1123–24 (9th Cir. 2009). And even if we were 

to review them for plain error, this case in our view does not present circumstances 

in which any such claimed errors seriously affected “the fairness, integrity or 

public reputation of judicial proceedings.” Greer v. United States, 141 S. Ct. 2090, 

2096–97 (2021) (citation omitted).

2. The Government did not violate Marschall’s procedural due process 
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rights by failing to affirmatively warn him about the potentially illegal nature of his 

conduct prior to initiating criminal proceedings. We have already explained in our 

opinion that, in light of his prior conviction, Marschall had ample notice of the 

regulatory regime enforced in 21 U.S.C. § 333. To the extent that Marschall’s 

argument rests on the contention that the statute was too vague to provide notice 

that his particular conduct was covered, that is merely a repackaged version of the 

vagueness claim that we have already rejected. 

3. The district court correctly rejected Marschall’s claims that his 

indictment and conviction violate the First Amendment. In the charged shipment, 

Marschall falsely identified himself as an “N.D.” in materials accompanying the 

sold products, which he explicitly claimed would prevent and treat viral infections. 

As such, his commercial speech was materially false and misleading and therefore 

“is not protected by the First Amendment.” Thompson v. Western States Med. 

Ctr., 535 U.S. 357, 367 (2002). Moreover, the use of Marschall’s representations 

about the products to determine that those products were objectively intended for 

use in the treatment or prevention of disease does not violate the First Amendment. 

See Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993); Posters ‘N’ Things, Ltd. v. 

United States, 511 U.S. 513, 521–22 (1994); Village of Hoffman Ests. v. Flipside, 

Hoffman Ests., Inc., 455 U.S. 489, 495–97 (1982).

4. The district court properly declined to include, in the jury instructions, all 
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of the alternative definitions of “drug” that are contained in 21 U.S.C. § 321(g)(1). 

See United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013) (stating that we 

“review de novo whether the district court’s jury instructions adequately presented 

the defendant’s theory of the case” (citation omitted)). The statute provides four 

alternative and cumulative definitions of what articles count as a “drug.” See 

United States v. Storage Spaces Designated Nos. 8 & 49, 777 F.2d 1363, 1366 n.4

(9th Cir. 1985) (rejecting, as “frivolous,” the contention that the four alternative 

definitions create a “conjunctive test”). The indictment relied on only two of those 

four alternatives, and the Government ultimately elected to proceed only on one of 

those two at trial. The other alternatives were therefore irrelevant and properly 

omitted from the jury instructions. 

To the extent that Marschall further argues that the district court should have 

included language excluding from the definition of “drug” any food and dietary 

supplements for which certain “health claims” or “structure function claims” are 

made, we need not decide whether the district court erred, because any error would 

be harmless beyond a reasonable doubt. Marschall’s own proposed instruction 

stated that “[a] health claim or a structure function claim may not claim to 

diagnose, mitigate, treat, cure, or prevent a specific disease or class of diseases”

(emphasis added). Here, however, the only definition of “drug” used in the jury 

instructions required the Government to prove beyond a reasonable doubt that the 
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articles in question were “intended for use in the diagnosis, cure, mitigation, 

treatment, or prevention of disease,” and the Government’s theory on that score 

rested dispositively on the claims made by Marschall in the materials 

accompanying the products. We have no reasonable doubt that the jury’s verdict 

here rested on the conclusion that Marschall made a claim that the products would 

“diagnose, mitigate, treat, cure, or prevent a specific disease or class of diseases”—

which, under Marschall’s own proposed instruction, would defeat the food-anddietary-supplement exclusion that he says should have been contained in the jury 

instructions.

AFFIRMED.