United States Court of Appeals

For the Eighth Circuit

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No. 18-2535

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Charles Wolfe, also known as Chuck Wolfe

lllllllllllllllllllllDefendant - Appellant

___________________________

No. 18-2536

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Charles Wolfe, also known as Chuck Wolfe

lllllllllllllllllllllDefendant - Appellant

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Appeals from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: June 13, 2019

Filed: August 6, 2019

[Unpublished] 

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Before GRUENDER, STRAS, and KOBES, Circuit Judges.

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PER CURIAM.

Charles Wolfe appeals the district court’s denial of his motions to dismiss

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indictments for conspiracy, see 21 U.S.C. § 846, to violate the Controlled Substance

Analogue Act (“Analogue Act”), see id. §§ 802 and 841. He also appeals the district

court’s grant of a motion in limine preventing him from presenting an advice-ofcounsel defense at trial. We affirm.

Wolfe claims that the district court should have dismissed the indictments

because the Analogue Act is unconstitutionally vague. We review the denial of a

motion to dismiss an indictment de novo. United States v. Askia, 893 F.3d 1110,

1116 (8th Cir. 2018). The Analogue Act states that “[a] controlled substance

analogue shall, to the extent intended for human consumption, be treated, for the

purposes of any Federal law as a controlled substance in schedule I.” 21 U.S.C.

§ 813. A controlled substance analogue is a substance that is “substantially similar”

to a controlled substance in schedule I or II with respect to either its chemical

structure or its “stimulant, depressant, or hallucinogenic effect.” 21 U.S.C.

§ 802(32)(A). 

The Honorable Audrey J. Fleissig, Unites States DistrictJudge for the Eastern 1

District of Missouri.

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Wolfe contends that the phrase “substantially similar” renders the act

unconstitutionally vague because it “lends itself to arbitrary enforcement and does not

put an individual of average intelligence on notice of what substances are illegal.” 

He relies on United States v. Johnson, in which the Supreme Court voided the

residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally

vague. 135 S. Ct. 2551, 2556-57 (2015). “The same vagueness and arbitrariness, the

same inability to discern what the ordinary version of an offense looks like that

plagues the [ACCA],” he argues, “exists within the Analogue Act.” But we rejected

this very argument in an appeal brought by Wolfe’s co-conspirators. United States

v. Palmer, 917 F.3d 1035, 1038 (8th Cir. 2019). In Palmer, we determined that

Johnson did not affect prior precedent upholding the constitutionality of the

Analogue Act. Id.; see also McFadden v. United States, 135 S. Ct. 2298, 2306-07

(2015)(holding that the Analogue Act is not unconstitutionally vague); United States

v. Carlson, 810 F.3d 544, 550 (8th Cir. 2016) (rejecting the argument that “the

Analogue Act is unconstitutional because it does not provide notice of which acts are

criminal and permits arbitrary enforcement contrary to theDue Process Clause”). The

district court therefore properly denied Wolfe’s motions to dismiss. 

Wolfe also claims that he should have been permitted to present an advice-ofcounsel defense at trial. “We review the district court’s denial of a proffered legal

defense de novo.” United States v. Yan Naing, 820 F.3d 1006, 1011 (8th Cir. 2016). 

“A defendant is entitled to a jury instruction on an affirmative defense if he can

demonstrate an underlying evidentiary foundation for each of its elements.” Id.

(internal quotation marks omitted). “The evidence of each element must be sufficient

for a reasonable jury to find in the defendant’s favor.” Id. “[T]o rely upon the advice

of counsel in his defense, a defendant must show that he: (i) fully disclosed all

material facts to his attorney before seeking advice; and (ii) actually relied on his

counsel’s advice in the good faith belief that his conduct was legal.” United States

v. Rice, 449 F.3d 887, 897 (8th Cir. 2006).

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In support of his proffered defense, Wolfe submitted to the district court letters

from his former attorney analyzing whether the substances Wolfe conspired to

distribute were considered controlled substances “under the varying legal parameters

used by each individual state in defining Scheduled substances.” He claims that his

reliance on those letters, which indicated that the substances were legal in some states

and under some federal laws, should have entitled him to an advice-of-counsel

defense. 

But a reasonable jury could not have found that Wolfe both (1) fully disclosed

all material facts to his attorney before seeking the legal opinion and (2) relied on that

opinion in “the good faith belief that his conduct waslegal.” Each letter, for instance,

stated that it did not offer an opinion about the “safety or efficacy” of the substances

or “recommend them for human consumption.” Nevertheless, the conspiracy

depended on people purchasing the substancesfor human consumption. Thus, either

Wolfe failed to disclose to his attorney that the substances would be used for human

consumption or Wolfe failed to rely on his attorney’s recommendation not to

distribute the substances for the purpose of human consumption. The letters also do

not mention the Analogue Act and say nothing about what information Wolfe

provided to his attorney in connection with his request for the letters. Even when the

district court gave Wolfe the opportunity to provide a “full proffer of evidence to be

offered,including the testimony of[hisformer attorney] and the information provided

to counsel in connection with the opinion,” Wolfe offered no additional evidence. 

The district court therefore properly granted the Government’s motion in limine to

prohibit Wolfe from raising an advice-of-counsel defense at trial.2

Wolfe also claims that he “should have been allowed to present evidence of 2

the advice he received and what impact that [advice] had on his mens rea for the

crime alleged.” To the extent that thisis an argument for admission of the letters into

evidence unrelated to his proffered advice-of-counsel defense, our review is for an

abuse of discretion. See United States v. Jirak, 728 F.3d 806, 813 (8 Cir. 2013). th

The district court concluded that the probative value of the letters was “far

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For these reasons, we affirm. 

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outweighed by their prejudicial impact and the risk of misleading the jury.” This

conclusion supportsthe exclusion of the lettersfrom evidence, see Fed. R. Evid. 403,

and is one that we accord “great deference” to the district court when reviewing. See

United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th Cir. 2009). Applying this

deferential standard and considering our above discussion about the many evidentiary

issues presented by the letters, we conclude that the district court did not abuse its

discretion by excluding them from evidence. 

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