1 7-2087-cr

U SA v. O' Bri en

1 UNITED STATES C OURT OF APPEALS 2 FOR THE SEC OND C I RC UIT 3 - - - - - - 4 August Term, 2018 5 ( Argued: November 28, 2018 Deci ded: June 7, 2019) 6 Docket No. 17-2087-cr 7

_ ________________________________________________________ 8 U NITED STATES OF AMERIC A, 9 Appellee, 10 - v. - 11 M I C HAEL O' BRIEN, AKA Jeremy Soto, AKA Stephen C onte, AKA 12 G eorge Manol as, 13 Defendant-Appellant . * 14

_

________________________________________________________ 15 B efore: KEARSE, LIVINGSTON, and C A RNEY, Circuit Judges . 16 Appeal from a judgment of the Uni ted States D i stri ct C ourt for the

* The Cler k of Cour t i s di r ected to amend the offi ci a l capti on to confor m wi th the abov e.1 E astern Di stri ct of New York, Rosl ynn R. Mauskopf, Judge, convi cting defendant of 2 i mporting and possessi ng wi th intent to di stribute m ethyl one and anabol i c steroi ds, 3 s ee 21 U.S.C . §§ 9 52(b), 960(b)(3), 960(b)(5), 841(a)(1), 8 4 1 ( b ) ( 1 )(C ), and 841(b)(1)(E), 4 and conspi ring to do so, see i d . §§ 963 and 846; and of operati ng a stash house, see id . 5 § § 841(a)(1), 856(a)(1) and 856(b). On appeal, defendant pri nci pal l y chal l enges (a) the 6 d eni a l of hi s pretri al m oti on to suppress evi d ence on the ground that any statements 7 o r c onsent were u nknowing and invol untary because he was incapaci tated by bei ng 8 in w i thdrawal from an addi cti ve substance, and (b) the suffi ci enc y o f th e t ri al 9 evi d ence to establ i sh that h e knew what he was d eal ing w i th was a control l ed 10 substance. He a l so chal l enges the den i a l o f hi s posttri al moti on to di smi ss the 11 indi ctment on the grounds that methy l o n e was d esi gnated a control l ed substance 12 pursuant to an unconsti tuti onal d e l egati on of Congressi onal power to the Uni ted 13 States Attorney General, and that the desi gnati on process--publ i cati on in the Federal 14 Regi ster--di d not consti tute noti ce suffi ci ent to afford due process. We fi nd no meri t 15 in hi s contenti ons. 16 Affi rmed. 17 MARGARET LEE, Assi stant Uni ted States Attorney, 18 Brookl yn, New York (Ri chard P. Donoghue, Uni ted 19 States Attorney for the Eastern Di stri ct o f New York, 20 Amy Busa, Assi stant Uni ted States Attorney, 21 Brookl yn, New York, on the bri ef), for Appellee . 21 SUSAN G. KELLMAN, Brookl yn, New York (Sarah 2 Kunstl er, Offi ces of Susan G. Kel l man, Bro o k l yn, 3 New York, on the bri ef), f or Defendant-Appellant .

4 K EARSE, Circuit Judge : 5 Defendant Mi chael O' Bri en appeal s from a j udgment e n tered in the 6 Uni t ed States Di stri ct C o urt for the Eastern Di stri c t of New York fol l owing a jury t ri al 7 before Rosl ynn R . Mauskopf, Judge, convi cting hi m of fi ve drug t raffi c king offenses, 8 t o wi t, i mporting m ethyl o ne and anabol i c steroi ds, and conspi ri ng to do so, in 9 v i ol ati on of 21 U.S.C . §§ 952(b), 960(b)(3), 960(b)(5), and 963 (C ounts Two and One); 10 possessi ng wi th intent to di stribute those substances, and conspi ri ng to do so, in 11 v i ol ati on of id . §§ 841(a)(1), 841(b)(1)(C ), 841(b)(1)(E), and 846 ( C o unt s Four and 12 Thre e); and o perati ng a stash house, in vi o l ati on of id . §§ 841(a)(1), 856(a)(1), and 13 8 56(b) (C ount Fi ve); and sentenci ng hi m pri nci pal l y to 144 months' i m pri sonment, t o 14 be fol l o wed by a fi ve-year term of supervi sed rel ease. On appeal, O' Bri en contends 15 princi pal l y (a) that the di stri ct court erred in denyi ng hi s pretri al moti on to suppress, 16 o n Fourth and Fi fth A mendment grounds, hi s postarrest statements a n d evi dence 17 sei zed from hi s a partments, argui ng that hi s statements and any consents to search

31 w ere unknowi ng and i nvol untary because he was i ncapaci tated by hi s addi cti on to 2 and wi thdrawal fro m a human growth hormone cal l ed Gamma-Hydroxybutyrate 3 ( "GHB"); and (b) that the evi dence at tri al was i nsuffi ci ent to establ i sh that he knew 4 the sub s t a nces he was i mporting and possessi ng for di stributi on were control l ed 5 substances. He al so contends that the desi gnati on of methy l o n e as a control l ed 6 substance, making traffi cking in that substance unl awful, was i mpl emented through 7 an uncon sti tuti onal del egati on of C o ngress' s l egi sl ati v e power to the Uni ted States 8 A ttorney G eneral, a nd that the desi gnati on process--publ i cati on in the Federal 9 Regi ster--di d not consti tute noti ce suffi ci ent to afford due process. Findi ng no meri t 10 in hi s contenti ons, we affi rm the judgment.

11 I. BAC KGROUND

12 The present prosecuti on had i ts ori gin in sei zures on September 2 0, 2013, 13 by Uni ted States C ustoms and Border Protecti on ("C BP") offi c ers, of three packages 14 a t the mai l fa c il i ty of John F. Kennedy Internati onal Ai rport, each a ddressed to a 15 d i fferent person--none of them O' Bri en--at the l ocati ons of di fferent m ai lbox s t o res 16 in Brookl yn, New York. Each package w as f i e l d

- t e sted and found to contai n 41 a pproxi mately one k i l ogram of methyl one ( commonly referred to a s "Mol l y"). C BP 2 informed a gents of Homel and Securi ty Investi gati on ("HSI"), who took possessi on o f 3 the packages. 4 HSI agents repl aced the methyl one i n each i ntercepted package wi th a 5 sham substance, and they conducted control l ed d el i veri es on September 23. One o f 6 the addressees, Ki mberl y Ru u d , a r ri ved at the mai lbox store to whi ch a sei zed 7 pac k a g e had been sent to a di fferent addressee; she pi cked up that package, al ong 8 w i th a noni ntercepted package that was addressed to her, and began to dri ve away. 9 Ruud was stopped and arrested. She consented to a search of her car. In addi ti on t o 10 the two packages she had j u s t col l ected, whi ch were in the car' s passenger area, 11 a gents found, inter alia, four packages in the t runk and two cel l phones. Al though the 12 l abel s on the packages i d enti fi ed thei r r e s p e c t i v e contents as vari ous uncontrol l ed 13 substances, the si x packages contai ned a total o f nearl y three ki l o grams o f methyl one 14 and nearl y three ki l ogr a m s o f a n abol i c steroi ds. An ensui ng search of Ruud' s 15 c el l phones reveal ed a seri es of communi cati ons on September 23 wi th a contact l i sted 16 a s "Bi g," who was eventual ly i denti fi ed as O' Bri en.

51 A . The October 10, 2013 Arrest of O'Brien 2 On October 10, 2013, pursuant to a 2011 New York State bench warrant 3 i ssued by the Suffol k C o unty Superi o r C ourt ("county court") for the arrest of O' Bri en 4 o n a fi rearms charge on whi ch he had pl e a ded gui l ty but had become a fugi ti ve, 5 O' Bri en was arrested by m embers of a state-and-federal task force that incl uded HSI 6 Speci a l Agent Vi ncent Mari no and Speci al Agent Edward Al ahverdi an of the Uni ted 7 States Drug Enforcement Admini strati on ("DEA"). The arrest w arrant w as executed 8 a t O' B ri en' s a partment on C ol l ege Point Boul evard in Qu e e n s, N e w Y o r k ( th e "C ol l ege 9 P oi nt Apartment" or "Apartment"). 10 As set out in greater detai l in P a rt I.B. bel ow, after O' Bri en was arrested 11 and handcuffed, he was gi ven Miranda warni ngs by Al ahverdi an. O' B ri en sai d that 12 he understood hi s ri ghts and was wi ll in g to answer some questi ons; and when 13 A l ahverdi an asked whether the agents coul d search the apartment, O' B ri en sai d they 14 c oul d l o o k anywhere they wanted. Searchi ng the Apartment pursuant to that 15 c onsent, the agents found, inter alia, several kinds of drug paraphernal i a, incl uding 16 l i sts of anabol i c steroi d chemi cal s; vi al s of a l i qui d l abel ed "Genzym e " ( a s teroi d brand 17 name) and hundreds of sheets of addi ti onal "Genz y m e" l abel s; currency-counti ng 18 m achi nes and more than $ 1 0 , 0 00 in cash; 18 cel l phones and 12 l aptop computers; 61 i denti fi cati on documents in vari ous names, al ong wi th bl ank i denti fi cati on cards and 2 an i denti fi cati on-card pri nter; appl i cati ons and r e c e i p t s fo r m a i lb o x rental s at mai lbox 3 stores throughout Brookl yn; 27 ai rway bi l l s for packages mai l ed from C hi na; and a 4 l e d g e r wi th annotated l i sts of anabol i c steroi ds, l ocati o ns, and phone numbers for 5 pi c k -up. 6 I n the meanti me, O' Bri en was d ri ven to a pol i ce preci nct in S u f f o l k 7 Co un ty b y A l ahverdi an, Mari no, and a Suffol k C o unty pol i c e offi cer. Duri ng the 8 d ri ve, O' Bri en was tal kati ve, stating that he made purchases o f m e th y l one and 9 anabol i c steroi ds from C hi na onl ine (describi ng the brand and c ol or o f the computer 10 he u sed for that operati on), and expl ai ni n g th a t h e had peopl e in the Uni ted States 11 rent l ocalmai lboxes and col l ect the packages he was i mporting. 12 After thei r a rri val at the preci nct, Al ahverdi a n and M a ri no formal l y 13 intervi ewed O' Bri en. M ari no stated that the agents knew O' Bri en had a "stash house" 14 in an apartment at 132-35 41st Road in Queens ("41st Road"), and a sked for hi s 15 c onsent to search i t. Aft e r M ari no read a Department o f Homel and Securi ty, U.S. 16 I mmi grati on and C ustoms Enforcement ("DHS/ IC E") consen t f o r m a l oud and gave 17 i t to O' Bri en to read, O' Bri en si gned i t. The form si gned by O' Bri en states as fol l ows: 18 71 I, Mi chael O' B ri en, have been info r med by U.S. Immi grati on and C ustoms 2 E nforcement (IC E) Speci al Agent Vi ncent Mari no of my ri ght t o refuse to consent t o 3 asearch of my property, descri bed as: . . . 4 C omputer, phones 5 132-35 41st Rd Apt 5E 6 40-22 C ol l ege Pt. Bl vd 3PHR 7 I have a l so been advi sed by IC E Speci al A g ent Mari no that, 8 i f I vol untari l y consent to a search o f thi s property, a n y thi ng 9 di scovered duri ng thi s search may be used against me in cri m inal, 10 ci vi l, or admi ni strati ve proceedi ngs. 11 I have deci ded to a l l o w IC E Speci al A gents Vi ncent M ari no 12 and Homel and Securi ty Speci al Agents . . . to conduct a c o mpl ete 13 search of my apartments, l ocated at 40-22 C ol l ege Poin t B l vd 14 PH3R / 132-35 41st Road, Queens Apt 5E. These IC E Speci al 15 Agents are authori zed by m e to take any l etters, papers, m ateri al s 16 or other property whi ch they may desi re to exami ne. 17 I hereby vol untari l y and intenti onal l y consent to al l ow IC E 18 to search my property. My consent i s freel y gi ven and not the 19 resul tof any promi ses, threats, coerci on or other inti mi dati on. I 20 have read the above statement and understand my rights. 21 ( C onsent To Search dated October 10, 2013 (O' Bri en' s " Wri tten Consent To Sear ch" 22 (bol di ng in o ri g inal )), attached to Affi davi t of M i chae l O' Bri en d ated Apri l 30, 2019 23 [ sic ] ("O' Bri en Suppressi on Moti on Aff."), i n support of moti on to suppress.) 24 Based on thi s w ri tten consent, l aw enforcement agents searched the 41st 25 R oad a partment and found, inter alia, numerou s p i l l s , powders, and j ugs of l i qui d,

81 and a pproxi m a t e ly 11 ki l o grams of methyl one. In addi ti on, pursuant to a search 2 w arrant, HSI Speci al Agent J oshua Schottenfel d, who had parti ci pated in the search 3 o f the C ol l ege Point A p a r tment, searched the computer that O' Bri en tol d Al ahverdi an 4 and Mari no he used to o rder methyl o ne and anabol i c steroi ds from C h i n a . That 5 c omputer con t a i n e d r ecei pts and a web browser hi story of orders from a websi te 6 o fferi ng l egaland i l l egali tems, incl uding narcoti cs. 7 After O' Bri en si gned the w ri tten consent form a t the pol i ce preci nct, he 8 w as taken to the county court pursuant to the bench warrant i ssued for hi s arrest as 9 a fugi ti ve. In that court proceedi ng, the prosecutor asked that bai l be deni ed, noting 10 that O' Bri en apparentl y had access to l arge amounts of c a s h, as the search of hi s 11 a partment at the ti me of hi s arrest found "l ots of pi l l s" and "ki l os of cocai ne" ( People 12 v . O'Brien, No. 2456-2009, Superi or C ourt of the State of New York, C ounty of Suffol k, 13 O c tober 10, 2013 ( "C ounty Court Transcri pt"), at 2-3). The court noted that i t had 14 i ssued the bench warrant for O' Bri en' s a r r e s t in May 2 011 and that O' Bri en had 15 remained a fugi ti ve for more than two years, and i t rul ed that bai l w oul d thus be 16 d eni ed. 17 O' Bri en' s attorney then informed the court that O' B ri en needed medi cal 18 a ttenti on because he was addi cted to GHB. O' B ri en hi msel f stated that the ful l name 91 o f GHB wa s Gamma-Hydroxybutyrate and expl ai ned i ts nature and effects. The 2 proceedi ng ended wi th the court' s schedul ing O' B ri en' s next appearance. 3 Fol l o wing that county court proceedi ng, O' Bri en was a dmi tted t o a 4 nearby m edi cal center, where he remai ned for fi ve days, pri or t o bei ng sent to the 5 Suffol k C ounty Jai l . Some days thereafter, he was rel eased on bai l . 6 On O c t ob e r 2 9, 2 0 13, O' Bri en was charged in a one-count federal cr i m in a l 7 c ompl ai nt wi th conspi ra c y to i mport methyl one and was arrested by federal 8 a uthori ti es. He was indi cted in November on th e p r e s e n t fi ve narcoti cs traffi cking 9 c ounts.

10 B . The Suppression Motion 11 In Apri l 2 014, O' Bri en moved to suppress hi s October 10, 2013 postarrest 12 statements and the i t ems sei zed in the searches of hi s apartments. Hi s supporti ng 13 a ffi davi t stated, inter alia, that when he was arrested on October 10, he was under the 14 infl uence of GHB and w as addi cted to i t; that he had so advi sed the arresti ng agents; 15 and that he repeatedl y tol d them that i f he was not promptl y taken to a me di cal 16 f aci l i ty he was in danger of detoxi fi cati on death. ( S ee O' Bri en Aff. ¶ 3.) O' Bri en stated 17 that he di d not remember recei ving Miranda warni ngs on October 1 0, and that no one 101 read those ri ghts to hi m that day ( see id . ¶ 10); that he "ha[d] no recol l ecti on of gi ving 2 [ hi s] consent to l a w enforcement to search" the C ol l ege Poi nt Apartment or the 41st 3 R oad apartment ( id . ¶ 6; see id . ¶ 5); and that because he w as in wi thdrawal from GHB 4 a t the ti me of hi s arrest, he l acked the capaci ty to wai ve hi s Mira n d a r i g h t s o r t o 5 c onsent to searches ( see id . ¶ 10). He stated that the si gnature on the Wri tten Consent 6 T o Search form was not hi s. ( See id. ¶ 6.) 7 The di stri ct court conducted a heari ng on O' Bri en' s suppressi on moti o n 8 o n August 13 and 22, 2014. The govern m e n t cal l ed as wi tnesses Al ahverdi an and 9 Schottenfel d; O' Bri en testi fi ed and cal l ed Mari no as a wi tness.

10 1 . The Testimony of Alahverdian 11 Al ahverdi an testi fi ed that when he fi rst saw O' B ri en on October 1 0, 2013, 12 O' Bri en had al ready been arrested and was in handcuffs , s i t ti n g o n a couch in hi s 13 l i v i ng room. Al so in the l i ving room was Ma r i n o . A l a hverdi an a pproached and 14 introduced hi m sel f to O' Bri en, who seemed eager to tal k to the two agents. 15 A l ahverdi an sai d O' Bri en woul d "have to w ai t" unti lhe recei ved Miranda warni ngs 16 and woul d have to dealwi th the l ocal authori ti es about the state warrant on whi ch 17 he had just been a rrested. (Heari ng Tra n s c r i p t, A ugust 13, 2014 ("Aug. 13 Tr."), 111 a t 11-12; see also id. at 14 (Al ahverdi an tol d O' Bri en "we just have to get through thi s 2 and then I' m wi l l ing to l i sten to anythi ng you have to say").) 3 Al ahverdi an, w i th M a r in o p r e s e nt , r e a d th e Miranda warni ngs al oud and 4 a sked whether O' Bri en understood and whether he was wi l l ing to answer some 5 questi ons; O' Bri en sai d yes to both and seemed a l i ttl e exci ted. ( See i d. at 14-15.) 6 When Al ahverdi an a sked whether the agents coul d search the apartment, "[O' Bri en] 7 sai d, yeah, you can l ook anywhere you want." ( Id . at 16.) 8 After recei ving thi s o ral consent to search, Al ahverdi an rel ayed i t to hi s 9 supervi si ng offi cer and then returned to the l i ving room; at that poi nt, O' Bri en tol d 10 A l ahverdi an and Mari no that he was a ddi cted to GHB, that he ingested i t dai l y, and 11 he asked to be a l l owed to t ake some i m medi atel y. ( See id. at 17 ( "He asked for a cup 12 o f GHB.").) O' Bri en tol d them that i f he di d not g et hi s dosage of GHB "he woul d get 13 si ck"; but he di d not say he needed to be taken to a hospi t al . ( Id . at 46.) Al ahverdi an 14 and Mari no tol d O' Bri en that he coul d not be gi ven GHB because i t i s a control l ed 15 substance. ( See id. at 1 7-18, 4 6.) O' Bri en then asked i f he coul d take a Val i um pi l l and 16 t ol d Mari no where to find one. A l ahverdi an, after bri efl y steppi ng away again t o 17 c onfer wi th hi s supervi sor and returni ng to the l i ving room, inferred that Mari no had 18 a l l owed O' Bri en to take a V al i um because he heard O' Bri en thanki ng Mari no. ( See id. 121 a t 18, 47; see also Heari ng Transcri pt, August 22, 2014 ("Aug. 22 Tr."), at 12-13.) 2 Al ahverdi an testi fi ed that duri ng the ti me he and Mari no were in the 3 Col l ege Point A partment wi th O' Bri en, O' Bri en was "very tal kati ve" and "was very 4 a l ert." (Aug. 13 Tr. 18; s ee id. at 29.) O' B ri en was not sl urri ng hi s words in any way, 5 and Al ahverdi an saw no i n d i c a t i on that he was undergoi ng wi thdrawal . ( See id. 6 a t 1 9.) Duri ng the dri v e from the Apartment to the pol i ce preci nct in Suffol k C ounty, 7 O' Bri en conti nued t o be tal kati ve, describi ng "usi ng h i s b l a c k Acer computer" t o 8 " order[] Mol l y" on "websi tes l i ke A l i Baba and Si l k Road," and have i t shi pped to the 9 Uni t ed States. ( Id . at 20-21.) 10 When they arri ved at the preci nct, O' Bri en asked to have a c i garette and 11 w as al l owed to smoke before enteri ng the b u i l di ng. He thanked A l ahverdi an and 12 M a ri no for t reati ng hi m wi th c o urtesy and consi derati on. ( S ee Aug. 13 Tr. 21-22.) 13 A fter enteri ng the preci nct, A l ahverdi an, Mari no, and O' Bri en went into an intervi ew 14 room, where O' B r ie n was asked for consent to search hi s 41st R o ad stash pad. The 15 DHS/ IC E consent form was r e ad to hi m, l i sting i tems and pl aces to be searched; 16 O' Bri en di d not ask any questi o ns or gi ve any indi cati o n that he di d not understand. 17 ( See id. at 26.) He was gi ve n th e f o r m to read and was tol d that he had the ri ght t o 18 refuse consent; he si gned the form wi thout indi cating that he wi shed to refuse. ( See, 131 e .g. , i d. at 2 6-29, 52-54, 63-64; see also id. at 54 ( af t e r l o o k i n g at the consent-to-search 2 form, O' Bri en si gned i t, saying "yeah, i t ' s okay or yes"). 3 When Al ahverdi an asked O' Bri en what the agents w ere l i kel y to fi nd in 4 searchi ng the 41st R oad premi ses, O' B ri en sai d there mi ght be some steroi ds and that 5 there were about 10 ki l ograms of m ethyl one. When Al ahverdi an sought detai l s of the 6 o perati on, O' Bri en sai d that, per ki l o, he was buyi ng methyl o ne for about $1,900 and 7 sel l i ng i t for $30,000. He again d escribed orderi ng methyl o ne onl ine from C hi na, 8 having i t sent to l ocal mai lbox store addresses, an d th e n h a v i ng hi s peopl e pi ck up 9 the packages for hi m. ( See Aug. 13 Tr. 27, 29-30.) 10 Al ahverdi an testi fi ed that after l eaving the Col l ege Point Apartment, 11 O' Bri en had m ade no further ment i on of hi s addi c ti on to GHB nor any menti on o f 12 symptoms of w i thdrawal . ( See id. a t 27-29, 31-32, 61.) Duri ng hi s enti re c onversati o n 13 w i th Al ahverdi an and Mari no, O' B ri en was tal kati ve and pl easant and appeared to 14 have no di ffi cul ty focusi ng on the agents' questi ons, o r u n d erstandi ng them, or 15 c om m u n i cating. Al ahverdi an di d not noti ce anythi ng unusual about O' Bri en' s 16 behavi or. ( See id. a t 32.)

141 2 . The Testimony of Schottenfeld 2 Schottenfel d testi fi ed pri nci pal l y about the evi dence found on O' Bri en' s 3 c omputer (described in Part I.A. above) and about two recorded statements O' Bri en 4 m ade to persons other than Al ahverdi an and M ari no. Fi rst, Sch o t t e n fel d read the 5 fol l owing part of the October 10 county court t r a nscri pt that fol l owed the court' s 6 r efusal t o grant O' Bri en bai l and encompassed the enti re d i scussi on of O' Bri en ' s 7 physi calcondi ti on: 8 Ms. Gearri ty [O' B ri en' s then-attorney]: Judge, he has a 9 seri ous GHB a ddi cti on, so we' re going to need medi cal attenti on. 10 The C ourt: Al lri ght. Medi calattenti on. What' s G.H.B.? 11 The Defendant: Um, your Honor, i t' s--i t' s detri mental, i t' s 12 fatal

. 13 Ms. Gearri ty: What' s the name of i t? 14 The Defendant: Gamma hydroxybutyrate. It' s a chemi cal 15 that goes in the body and r e d uc es your dopamine l evel s. When 16 coming off of i t, i t wi l l actual l y start fi ri ng dopamine, i ncreasi ng 17 my heart rate and I ' l l go into cardi ac arrest i f I don' t get the proper 18 treatment. 19 The C ourt: Al lri ght. I' l lmark i t medi calattenti o n. 20 ( Aug. 13 Tr. 82 ( see C ounty C ourt Oct. 10 Transcri pt at 3-4).)

151 Second, Schottenfel d testi f i ed that he had l i stened to consensual l y 2 recorded tel ephone c al l s made by O' Bri en from the c o u n ty j ai l . Schottenfel d 3 i denti fi e d a "C D [that] comes from the jai l stating i t ' s Mr. O' Bri en" ( Aug. 13 Tr. 87), 4 whi ch contai ned an O ctober 16, 2013 conversati o n between O' B ri en and a woman 5 l ater i denti fi e d a s h i s e x-fi ancée ( s ee Aug. 22 Tr. 68). The C D was introduced and 6 pl a y ed for the c ourt. ( See Aug. 13 Tr. 83-84.) Al though i t does not appea r th a t the 7 record contai ns a transcr i p t o f th e C D , O ' B r i e n ' s o wn te s tim o ny - - o n c r o s s - exami nati o n 8 a t the August 22 sessi on of the suppressi o n heari ng--as to wh a t h e sai d in that 9 recorded conversati on was, i n part, as fol l ows: 10 Q. You tol d her that the agents came in, and they were l i ke, 11 wel l, we don' t actual l y have a search warrant for your house, so, 12 but we coul d g et one. So y o u k n o w, y ou w ant to l et us l ook 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 r eflection of what happened in your 17 apartment ? 18 A. I would say so. 19 Q. T hat they told you, that they didn't have a search warrant, 20 and a s ked for permission to search and you said, go ahead; is that 21 correct ?

161 A. That's correct

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

3 3 . The Testimony of Marino 4 Mari no, cal l ed as a wi tness by O' B ri en, t e s t if i ed pri nci pal l y as fol l ows. 5 When Mari no fi rst saw O' Bri en at the C ol l ege Point Apartment o n O c t ob e r 10, O' Bri en 6 had al ready been handcuffed. ( See A ug. 2 2 Tr. 6-7.) After Mari no and Al ahverdi an 7 introduced themsel v es a s federal offi cers, O' Bri en responded "Okay" and sai d that he 8 w as prepared to hel p, whi ch Mari no understood to m ean that O ' B r i e n s o u ght to avoi d 9 i mpri sonmen t by provi di ng informati on. ( See id. a t 29.) Al ahverdi an then read 10 O' Bri en the Miranda warni ngs; O' Bri en sai d he understood those ri ghts. ( See id. at 30.) 11 O' Bri en sai d he was wi l l ing to speak to the agents, and he oral l y gave consent for the 12 search of the Apartment. ( See id. at 10 ("I asked hi m i f we were okay t o search and he 13 sai d go ri ght ahead.").) 14 After O' Bri en "had gi v en [the a g e n t s ] consent to search the apartment, 15 . . . then he advi sed that he was addi cted to the Ghb and the anabol i csteroi ds." ( Id . 16 a t 10.) O' Bri en al so "advi sed [the agents] he was v ery eager to a ssi st us i n th e 17 investi gati ons" ( id . at 11-12), and expressed hi s eagerness to stay out of jai l, rei terati ng 171 " throughout the c ourse of the day" that "in order to most hel p out l aw enforcement," 2 " he woul d need to be out i n the street" ( id . at 34). 3 As t o hi s addi cti on, O' Bri en sai d he had taken GHB that m orni ng and 4 a sked whether he coul d take more. When Mari no repl i ed that that woul d not be 5 permi tted, O' Bri e n s a i d that "i f that d[i d]n' t happen, [he] c [oul d ] g et very si ck"; 6 M a ri no testi fi ed, "I don' t know i f he used the w ord ' di e,' but " i t w a s e i th er "' si ck' or 7 ' d i e' ." ( Id . at 12.) O' Bri en d i d not, however, say he was experi enci ng any symptoms 8 a t that ti me ( se e i d . a t 3 2 ) , and Mari no u nderstood hi m to be sayi ng that he woul d 9 have probl ems in the future ( see id. at 13). O' Bri en asked, i f he woul d not be al l owed 10 m ore GHB, whether Mari no woul d l et hi m have a Val i um--and poi nted to a pi l l next 11 t o a prescri pti on bottl e--expl aini ng that Val ium woul d hel p in "co u n t e r a c ting" the 12 G HB ( id . at 12). M a rino testi fi ed that al though i t was certai nl y not standard 13 procedure, he l et O' Bri en have a Val i um pi l lbecause O' Bri en seemed "si ncere." ( Id . 14 a t 13 ("It sounded l i k e he was l egi ti mate.").) 15 When O' Bri en di scl osed hi s GHB addi cti on, he di d not el aborate and 16 " [h]e w as not compl aini ng of anythi ng"; "[h]e w as fi ne." ( Id . at 17.) He was cal m, was 17 not sl urri ng hi s words, and was havi ng no di ffi cu l ty speaki ng. ( See id. at 30-32.) He 18 a l so exhibi ted no di ffi cul ty in understandi ng the agents' ques ti o n s, o r focusi ng, or 181 staying awake. ( See id. 29, 39.) Al though O' Bri en' s hands were "sl i ghtl y shaki ng" at 2 the o utset, Mari no testi fi ed that he attributed that si mply to O' Bri en' s bei ng arrested; 3 he "asked [O' Bri en] a c oupl e of ti mes throughout the intervi ew i f he w as feel ing okay 4 and he sai d he was fi ne. . . . There was nothi ng out of the ordi nary." ( Id . at 33.) 5 There was no poi nt in the day when O' Bri en di d not appear to be luci d, 6 o r when he di d not understand wh a t was going on, o r when the agents had any 7 d i ffi cul ty communi cating wi th hi m. ( See id. at 36-37.) After the agents and O' Bri en 8 l eft the Apartment and w e r e on the way to the pol i c e preci nct in Suffol k C ounty, 9 O' Bri en di d not e xhibi t any symptoms of possibl e wi thdrawal o r intoxi cati on and was 10 speaki ng freel y ( see id. at 34), gi ving the a g e n ts d etai l s about hi s drug i mportati o n 11 o perati on. 12 H e a d v i s e d that he had a bl ack Acer c omputer that had on th e 13 computer al l hi s infor m a ti on from the purchases he made from 14 C hi na because he was sel l ing l a rge amounts of Mol l y . . . . He sai d 15 that he al so used websi tes such as Al i B ab a a n d Si l k Road and 16 there woul d be conversati o ns and recei pts on that computer. He 17 al so admi tted to havi ng pai d an indi vi dual [named] Wagner $200 18 for every ti me he pi cked up a box of Mol l y from a mai lbox store 19 [that O' Bri en had had hi m open] i n [Wagner' s] name. 20 ( Id . at 15-16.)

191 In the intervi ew room a t the pol i c e preci nct, Mari no tol d O' B ri en that the 2 a gents knew about O' Bri en' s stash house at 4 1 s t R o a d : "I sai d we knew about the 3 stash house and the l ocati on. I said I w ould like to search i t. He said okay ." ( Id . a t 19 4 ( emphases added).) As k e d what the agents woul d fi nd in that search, O' Bri en 5 responded, "[m]ul ti pl e vi al s of steroi ds a n d p robabl y about 10 keys of Mol ly." ( Id .; 6 s ee also Aug. 13 Tr. 30 ("key" i s used as sl ang for ki l ogram).) 7 Mari no then fi l l ed out the DHS/ IC E consent form ( quoted in ful l in P art 8 I .A. above), read i t to O' Bri en and went over i t wi th hi m. Mari no informed O' Bri en 9 " that he had a ri ght to r e fu s e t o consent to search hi s computer, hi s phones, the 10 a partment at 4 1st Road and the C ol l ege Point Boul evard apartment." (Aug. 22 Tr. 21.) 11 O' Bri en di d not in any w ay indi cate that he wi shed t o refuse c onsent. ( See id. at 35.)

12 4 . The Testimony of O'Brien 13 O' Bri en testi fi e d at the suppressi on heari ng and l argel y deni ed that he 14 had gi ven the ab o v e consents to search. He sai d that when he met Mari no, he 15 i mmedi a tel y tol d the a g e n t s that they needed t o get hi m to a hospi tal wi thin four 16 hours or he woul d di e. He al so testi fi ed that he tol d the a gents o f h i s n e ed for 17 m edi cal attenti o n three ti mes duri ng the approxi mately 20 minutes they were in the 201 Col l ege Poi nt Apartment, and that l ater that day he so i nformed the county court. 2 O' Bri en testi fi ed that he remembered speaki ng to Mari no, but he di d not 3 remember speaki ng to, or even seei ng, Al ahverdi an that d a y. ( See Aug. 22 Tr. at 43, 4 6 3.) O' Bri en di d not remember, i nter alia, recei ving Miranda warni ngs ( see id. at 45, 67) 5 o r si gni ng the DHS/ IC E consent form attached to hi s Suppressi on Moti on Affi davi t 6 ( see id. at 51). Notwi thstandi ng hi s cl ai med inabi l i ty to remember several events o f 7 O c t ober 10, O' Bri en sai d " I can testi fy

. . . , swear up and down," that "I ha v e n e v e r 8 had a conversati on about th[e DHS/ IC E ] form." ( I d .) O' Bri en noted that hi s arrest o n 9 October 10, 2013, was pursuant to a state warrant, and he testi fi ed that at "[n]o ti me 10 d i d [he] invi te [Mari no] to go col l ecti ng evi d ence on an outsi de c ase." ( Id . at 44; s e e 11 i d. a t 51 ("The o nl y consent that I gave, was to l ook around the C ol l ege Point l ocati on, 12 they were aski ng about guns. I tol d them there are no guns in thi s property. You can 13 l ook around."); but see i d. at 67 (O' B ri en " d [ i d ]n' t remember gi ving them consent t o 14 search [the C ol l ege Poi nt Apartment]").) 15 O' Bri en deni ed si gni ng the Wri tten C onsent To Search form at the pol i ce 16 preci nct as Mari no and Al ahverdi an described. Fi rst, O' Bri en t esti fi ed that i n fact he 17 w as not taken to a preci nct but had instead been dri ven from the A partment di rectl y 18 t o the county courthouse. ( See id. a t 47.) In addi ti on, he testi fi ed that he never gave 211 a wri tten c onsent to search. ( See id. at 4 5, 53; see also O' Bri en A ff. ¶ 6 (the "si gnature" 2 o n the "C onsent to Search F o r m . . . . i s not mine").) However, he al so testi fi ed t o 3 having a "fuzzy" recol l ecti on of bei ng v i s i t e d by Mari no and Al ahverdi an in the 4 hospi tal whi l e he was "in and o ut of" a " coma," and he " deduce[d] that that i s where 5 they had me si gn the consent to search form" (Aug. 22 Tr. 49-50). 6 O' Bri en admi tted that in the postarres t car ri de from the C ol l ege Point 7 A partm e n t he tol d the agents he had a bl a ck Acer computer a t the Apartment. He 8 a l so admi tted that he had in fact used the Al i B aba websi t e; but he d eni ed that he so 9 t ol d the agents. ( See id. at 75-76.) O' Bri en a l so admi tted that duri ng that dri ve he tol d 10 the agents about the 41st Road stash pad. "I tol d them there were steroi ds there and 11 . . . m aybe some mol l y . . . ." ( Id . a t 53.) However, he testi fi ed that " at no ti me di d the[ 12 a gents] ask [hi m] for c onsent to search the [41st Road] a partment" and that he "never 13 g ave consent." ( Id .) 14 As t o hi s p hysi cal condi ti on, O' Bri en testi fi ed that, al though he c o ul d 15 normal l y sl eep 3-4 hours wi thout b e in g a w a k e n e d b y G H B w i th d r a w a l s y m ptoms ( see 16 i d. a t 4 2 , 7 7 -78), on October 10 he began experi enci ng GHB wi thdrawal symptoms 17 when he was bei ng taken down in the el evator from the A partment, whi ch was some 18 3 0-35 m inutes after he had l ast taken GHB ( see, e .g. , id. at 60 (hi s "arrest . . . was about 221 1 5 minutes [after hi s] l ast dose")). He sai d he was taken to the county courthouse, a 2 t ri p that took about 1 1⁄2 hours, and that when they arri v ed he c oul d not wal k wi thout 3 staggeri ng ( see i d. at 47). O' Bri en testi fi ed "sei zure was runni ng through my body, my 4 enti re body was shaki ng, my hands shaki ng" "as [he was] standi ng before the Suffol k 5 County Judge" ( id . at 58). 6 O' Bri en acknowl edged that hi s then-attorney sai d noth i n g to the court 7 earl y i n the heari ng about hi s addi cti on or any wi thdrawal symptoms. It was not 8 u nti l the court sai d that bai l woul d be deni ed that she rai sed that subject. ( See Aug. 9 2 2 Tr. 79-80.) He sai d that after the county court deni ed hi mbai l, 10 I asked for medi cal attenti on there, in the C ourt, in the courtroom. 11 Judge Efman had to fi ni sh my sentence for m e a s I was a ski ng for 12 medi c al a ttenti o n, because I was sei zure-i ng. I coul d not come out 13 wi th the words. Judge fi ni shed the sentence, yo u need medi cal 14 attenti on, I sai d, yes, si r. 15 ( Id . at 48.) He testi fi ed that "despi te the cl a ri ty of the [county court] transcri pts," he 16 " had a massi ve sei zure" on October 10 "ri ght there i n open court." ( Id . at 47-48.) 17 W hi l e cl ai ming t o have been u nabl e to fi nd the words "med i c a l 18 a ttenti on," O' Bri en d i d not di spute that he had been abl e t o te ll th e c o u rt that GHB 19 stood for "Gamma Hydroxybutyrate" and to expl ai n i ts chemi cal effects on the body 20 ( id . a t 80; see id. at 81-82). O' Bri en admi tted that had been "abl e to understand" wi th 231 " no di ffi cul ty . . . what was going on" in that proceedi ng; and he acknowl edged that 2 the transcri pt contai ns no indi cati on that he was shaki ng, staggeri ng, fal l ing, havi ng 3 asei zure, or unabl e to arti cul ate. ( Id . at 81-82.)

4 5 . The District Court's Decision 5 In a deci si on announced on the record on March 2 0, 20 1 5 , the di stri ct 6 c ourt deni ed O' Bri en' s suppressi on moti on. ( See Status C onference Transcri pt March 7 2 0, 2015 ( "Suppressi on Moti o n Deci si on").) The court concl uded, based on the total i ty 8 o f the c i rcumstances credibly shown by the record, that the g overnment had carri ed 9 i ts burden of provi ng that on October 10, 2013, O' Bri en made the vari ous statements 10 a ttributed to hi m pursuant to val i d M iranda wai vers; that the searches at i ssue were 11 a uthori zed by O' Bri en' s v ol untary consent, fi rst oral and then wri tten; and that whi l e 12 the W ri tten C onsent To Search was not a model of cl ari ty, even read in the l i ght most 13 f avorabl e to O' Bri e n i t encompassed everythi ng found in hi s two apartments, 14 incl uding hi s computers and phones. 15 The court found that the agents who testi fi ed at the suppressi on heari ng 16 w ere credibl e w i tnesses, based princi pal l y o n thei r demeanor, thei r experi ence, and 17 the content of thei r testi m ony. In addi ti on, the court found that Mari no' s credibi l i ty 241 w as enhanced by hi s candor in admi tting that he h a d a l l o w e d O' Bri en to take a 2 V al i um, an admi ssi on that "was . . . not necessari l y in [Mari no' s] best interest," i d. at 4. 3 The court found that Miranda warni ngs wer e p r o p e r l y admini stered at the C ol l ege 4 P oi nt Apartment; i t credi ted the testi mony of Al ahverdi an and Mari no that O' Bri en 5 a ppeared to be cal m, luci d, tal kati ve, and "cogentl y answeri ng qu esti o ns, gi ving the 6 a gents detai l ed informati on" in "wanting t o hel p get hi msel f out of thi s si tuati on," and 7 that the agents saw no si gns that O' Bri en was undergoi ng wi thdrawal . Id. at 8. 8 The di stri c t court rejected O' Bri en' s cl ai m that he had been incapabl e o f 9 c onsenti ng to searches o f h i s properti es on October 10 because of wi thdrawal from 10 G HB. I t f o u n d th a t hi s testi mony l acked credibi l i ty "in si gni fi cant part, i f not in 11 whol e," id. at 4; see id. at 5 -6 ( "much o f hi s t esti mony was bel i ed by every other pi ece 12 o f evi dence in the case," incl uding bei ng i nconsi stent wi th "hi s premoti on affi davi t" 13 and wi th "the jai lcal l that he made to hi s g i rl fri end"). The court al so noted that the 14 t ranscri pt of O' Bri en' s October 10 appearance i n county court showed that O' Bri en 15 was in control of hi s facul ti es [and] was expl a ini ng in d etai l t o 16 Judg e Ef[]man the potenti al [e]ffects of G HB wi thdrawal . . . 17 [O' Bri e n ] w a s b ei ng hi s own very effecti ve advocate . . . whi ch 18 demonstrates now probabl y hours after [hi s] l ast hi t of G HB that 19 he was not sufferi ng in any way, shape, or form from any type . . . 20 of w i thdrawal that cou l d a ffect hi s abi l i ty to knowi ngl y and 21 vol untari l y wai ve hi s M i randa ri ghts or consent to any o f the 22 searches. 251 I

d. at 8-9. The court rejected as "incredibl e" O' Bri en' s asserti on that he had a sei zure 2 ri ght after the court reporter stopped recordi ng the proceedi ngs. Id. at 9. 3 The court al so found "no evi dence in the hospi tal records to corroborate 4 [ O' B ri en' s] story" that he had a sei zure, went into a co m a , and was l argel y 5 u nconsci ous for the next several days. Id. at 10. It noted that those medi cal records 6 themsel ves commented "that hi s stay was, quote, unremarkabl e." I d. The court found 7 that O' Bri en' s "noti on that the consent form w as si gned at the hospi t al whi l e [he] was 8 in a coma" was bel i ed by a l l of the o ther evi dence in the case, as wel l as bei ng 9 " compl etel y i m pl ausibl e." Id. at 5. 10 In sum, the d i stri ct court stated, "I find th a t th e [e]ffects of GHB, 11 whatever they were on the defendant, di d not in any way undermi ne the defendant' s 12 knowi ng and vol untary consent to search, the o ral c onsent at C ol l ege Point, and the 13 w ri tten consent for both C ol l ege Point and 41st Road, or the wai ver of hi s M iranda 14 ri ghts," id. at 10.

15 C. The Trial, and O'Brien's Posttrial Motions 16 In May 2015, wi th the start of hi s t ri a l about two months away, O' Bri en, 17 who had been represented by counsel throug h o u t the pretri al proceedi ngs, el ected 261 t o represent hi m sel f at t ri al . The court, after conducting a Faretta inqui ry, see Faretta 2 v . California, 4 22 U.S. 806, 835 (1975), al l owed h i m to proceed pro se, wi th standby 3 c ounsel . On Jul y 28, 2015, the si xth day of tri al, the jury found O' Bri en gui l ty on al l 4 fi ve of the counts agai nst hi m . 5 After the jury verdi ct, O' B ri en deci ded that he n o l onger wanted t o 6 proceed pro s e, and counsel was appoi nted to represent hi m. However, on August 11, 7 2 015, O' Bri en a gain deci ded that he wanted to proceed p ro se ; and again, after 8 a ppropri ate Faretta w arni ngs, he was al l owed to do so wi th standby counsel . In thi s 9 new pro se peri od, O' Bri en unsuccessful l y moved for acqui ttal on the ground that the 10 evi d ence was insuffi c i ent t o show that he had a n y connecti on to the 41st Road 11 a partment in whi ch, inter alia, 11 ki l ograms of methyl one had been found. Thereafter, 12 whi l e sti l l p ro s e, O' Bri en a l so moved, as di scussed in Part I I.C . bel ow, for acqui ttal o n 13 the ground that methyl one was desi gnated a control l ed substance pursuant to an 14 u nconsti tuti onal del egati o n of C ongress' s l egi sl ati ve power. That moti on too was 15 d eni ed. 16 I n J u n e 2017, O' Bri en deci ded that he wi shed to be represented by 17 c ounsel again, and counsel was appoi nted to represent hi m in c onnecti o n w i th 18 sentenci ng. 271 II. DISC USSION

2 On appeal, O' Bri en pri nci pal l y chal l enges (A) the d i stri ct court' s deni al 3 o f hi s pretri al m oti on t o suppress hi s postarrest statements and the physi cal evi dence 4 that was sei zed, (B) the suffi ci ency of the tri al evi dence t o s h o w that he knew 5 m ethyl one was a control l ed substance, and (C ) the de n i a l o f h i s posttri al moti o n t o 6 d i smi ss the indi ctment on the ground that the process that l ed to the desi gnati on o f 7 m ethyl one as a control l ed substance w as unconsti tuti o n a l . For the reasons that 8 fol l ow, we reject al lof hi s contenti ons.

9 A . The Denial of O'Brien's Motion To Suppress 10 O' Bri en c ontends that hi s October 1 0, 2013 postarrest statements shoul d 11 have been suppressed on the ground that, as h e w a s u ndergoi ng wi thdrawal from 12 G HB, he was incapabl e o f k n o wingl y or vol untari l y wai ving hi s Fi fth Amendment 13 pri vi l ege against sel f-i ncri minati on. He contends that the physi cal evi dence sei zed 14 in s earchi ng hi s C ol l ege Point and 41st Road apartments shoul d have be e n 15 suppressed as vi ol ati ve of hi s ri ghts under the Fourth Amendment on the g r o und that 16 he di d not gi ve vol untary c o n s ent for those searches, ei ther because of hi s cl ai med 281 incapaci tati o n by GHB wi thdrawal or because, he contends, the acti ons of the agents 2 w ere coerci ve and he was not i nformed of hi s ri ght to refuse consent to search. 3 I n c o n si deri ng chal l enges to the deni al of a suppressi on moti on, we 4 revi ew the di stri c t court' s concl usi ons of l aw de novo and i ts fi ndi ngs of fact for cl ear 5 error. See, e.g. , United States v. Medunjanin , 752 F .3d 576, 584 ( 2d C i r.) (" Medunjanin "), 6 c e r t . denied, 135 S. C t. 301 (2014). In conducting cl ear-error revi ew, " [w]e a r e n o t 7 a l l owed to second-guess the [court' s] credibi l i ty a ssessments, and ' [w]here there are 8 two permi ssibl e vi ews of the evi dence, the [court' s] choi ce between them cannot be 9 c l earl y erroneous.' " Id. (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)); 10 s ee, e.g. , United States v. Isiofia, 370 F.3d 226, 232 (2d C i r. 2004) (" Isiofia " ). In revi ewing 11 the deni al of a defendant' s moti on to suppress, w e vi ew the record in the l i ght most 12 f avorabl e to the government. See, e.g. , United States v . Moore, 670 F.3d 2 22, 226 (2d C i r. 13 2 0 12) (deni al of moti on to suppress postarrest statements); United S tates v. Mo re n o, 70 1 14 F .3d 64, 72 (2d C i r. 2012) (deni al of moti on to suppress evi dence sei zed in a sear c h 15 p r e m is e d on consent). We see no error in the di stri ct court' s deni al of O' Bri en' s 16 suppressi on moti on.

291 1 . O'Brien's Postarrest Statements 2 " Once Miranda warni ngs have been gi ven, i f the in d iv i d u a l in d i c a te s ' th a t 3 he wi shes to remai n si l ent, the interrogati o n must cease.' " Medunjanin , 752 F.3d a t 585 4 ( qu oting Miranda v. Arizona, 384 U.S. 436, 473-74 ( 1966)); see also Berghuis v. Thompkins , 5 5 60 U.S. 370, 386 (2010) ("Pol i ce are not requi red to rewarn s u s p e c t s f rom ti me t o 6 ti me." (emphasi s add e d ) ) . In order to requi re that questi oni ng cease, the accused 7 must assert hi s ri ght affi rmati vel y and unambi guousl y. See, e .g. , id. at 381 (accused' s 8 m erel y remai ning " [l ]argel y si l ent" for some three hours di d not invoke hi s pri vi l ege 9 t o remai n si l ent suffi ci ently to requi re that the offi cers refrai n from questi oni ng hi m 10 ( i nternal quotati on marks omi tted)). Where the accused "di d n o t " s ay un a mb i gu o usl y 11 ei ther "that he w anted t o remai n si l ent or that he di d not want to tal k wi th the pol i ce, 12 . . . . he di d not invoke hi s ri ght to remain si l ent." Id. at 382. 13 Nonethel ess, an "accused' s statement duri ng a custodi al interrogati on i s 14 in a dmi ssabl e at tri al unl ess the prosecuti on can establ i sh that the accused ' i n f a c t 15 knowi ngl y and vol untari l y w ai ved hi s [ Miranda ] ri ghts' when making the statement." 16 I d. (quoting North Carolina v. Butler , 441 U.S. 369, 373 (1979)). Such a "wai ver must be 17 ' v ol untary in the sense that i t was the product of a free and del iberate choi ce rather 18 than i nti mi d ati o n, coerci on, or decepti on,' " and must be "knowing[]" in the sense that 301 i t was "' m ade with a full awareness of b oth the nature of the r i ght b eing abandoned and the 2 c onsequences of the deci si on t o abandon i t.' " B e r ghuis , 5 60 U.S. at 382-83 (quoting 3 Mo ran v. Burbine, 475 U.S. 4 12, 421 (1986) ( " B urbine ") ( emphasi s ours)). "' [A]s Miranda 4 hol ds, ful lcomprehensi on of the ri ghts to remai n si l ent and request an attorney [i s] 5 suffi ci ent to d i spel whatever coerci on i s inherent in the interrogati on process.' " 6 B erghuis , 560 U.S. at 382 (quoting Burbine, 475 U.S. at 427). 7 The wai ver need not have been express; "courts can infer a wai ver o f 8 M i randa ri ghts ' from the a cti ons and words of the person interrogated.' " Berghuis , 560 9 U .S. at 387 (quoting Butler , 441 U.S. at 373). The prosecuti o n need prove wai ver onl y 10 " by a preponderance of the evi dence," and i t may be in f e r r e d " from al l the 11 c i rcumstances." Berghuis , 5 60 U.S. at 384. " [A] suspect who has recei ved and 12 u nderstood the Miranda warni ngs, and has not invoked hi s Miranda ri ght s, wai ves the 13 ri ght to remai n si l ent by making an uncoerced statement to the pol i ce." Id. at 388-89. 14 In the present case, as descri bed in Part I.B.5. above, the di stri ct court-- 15 c redi ting the heari ng testi mony of Al ahverdi an and Mari no, as i t was enti tl ed to d o-- 16 found that proper Mi r a n d a w a r ni ngs w ere a dmini stered to O' Bri en at the C ol l ege 17 P oi nt Apartment, that h e u n d e r stood hi s ri ghts, and that he knowi ngl y and 18 v ol untari l y w ai ved them. The fi ndi ng as to O' Bri en' s c omprehensi on o f the Miranda 311 w arni ngs w a s s u p ported by, inter alia, the agents' testi mony that O' Bri en was al ert, 2 f o c used, and never evi nced any di ffi cul ty understandi ng the agents or 3 c ommuni cating wi th them, and that he sai d he understood those ri ghts when they 4 w ere read to hi m. 5 The evi dence supporti ng the fi ndi ng that O' Bri en' s ensui ng statements 6 w ere vol u n t a ry incl uded the testi mony of the agents, described in Parts I.B.1. and 7 I .B.3. above, that (a) after recei ving hi s Miranda warni ngs O' Bri en sai d he was wi l l ing 8 t o tal k wi th the agents, (b) he had in fact expressed eagerness to provi de them wi th 9 informati on i mmedi atel y u p o n m eeting them and was temporari ly hal ted onl y 10 because Al ahverdi an insi sted on gi vi ng hi m Miranda warni ngs fi rst, and (c) after 11 recei vin g hi s Miranda warni ngs, O' B ri en was extremel y tal kati ve and informati ve, 12 freel y g i ving the agents numerous detai l s about the worki ngs of hi s methyl one and 13 anab o l i c steroi ds o perati on. O' Bri en hi msel f has never a sserted--i n hi s affi davi t, or 14 in hi s suppressi on heari ng testi mony, or in hi s bri ef on appeal --that he ever tol d the 15 a gents he wi shed to remai n si l ent or he di d not want to tal k wi th them. 16 The court was not requi red to reach contrary concl usi o ns on the basi s o f 17 O' Bri en' s testi m ony that he di d not remember bei ng gi ven Miranda warni ngs o n 18 October 10. The court found i t cl ear that the warni ngs had in fact been gi ven, see 321 Suppressi on Moti on Deci si on at 7; and O' Bri en' s professed inabi l i ty t o remember the 2 readi ng of Miranda w arni ngs--whi ch had interrupted hi s ini ti al a ttempt to cooperate 3 in an effort to a voi d i mpri sonment--was i mpl au s ib l e at best. The court noted that 4 O' Bri en' s si mi l ar asserti o ns that he di d not remember g i ving permi ssi on that day t o 5 search the Col l ege P oi nt Apartment ( see Aug. 22 Tr . 6 7; O ' B ri en A ff. ¶ 6) were not 6 c redibl e in l i ght o f hi s recorded October 16 tel ephone cal lfrom jai l to hi s ex-fi ancée 7 ( see Suppressi on M o t i o n Deci si o n a t 5-6), in whi ch O' Bri en sai d that the agents had 8 a sked for permi ssi on to search the Apartment and he had sai d, "go ahead" (Aug. 13 9 T r. 83-84). 10 The present record al so ful l y supports the court' s fi ndi ng that O' Bri en' s 11 abi l i ty to understand hi s Fi fth Amendment ri ghts and forgo them vol untari l y was not 12 i mpeded by hi s addi cti on to GHB. O' Bri en' s rel i ance o n thi s C ourt' s deci si on in 13 United S t a t es v. T aylor, 745 F.3d 15 (2d C i r. 2014), for the contrary concl usi on i s 14 m i spl aced. In that case, in whi ch the defendant apparentl y had attempted to commi t 15 sui ci de by ingesti ng a l a rge number of pi l l s as he was a rrested, we reversed the deni al 16 o f a suppressi on moti on where the record showed, inter alia, that " Taylor was largely 17 s tupefied when he made hi s post-arrest statements, a s confirmed by the testimony of the 18 l aw enforcement agen t s a n d t h e p retrial services officer who interviewed him , and by the 331 e valuations of staff psychologists at the Metropolitan Corre ctional Center ," id. at 20 2 ( emphases added); that " all th e w i tnesses support[ed] the account that Taylor was 3 a ctually slipping i n a n d o u t o fco n s c iousness duri ng [hi s fi rst] intervi ew, and i mmedi atel y 4 before and after th e [second] intervi ew," id. at 26 n.3 (emphases added); and that i t 5 w as " clear to the o ffic e r s ( a s t heir testimony confirm[ed]) that Tayl or was in and out o f 6 c onsci ousness whi l e g i ving hi s statement, and in a trance o r a stupor most of the time 7 w hen not actually asleep ," id. a t 25 (emphases added). 8 Here, in contrast, no one testi fi ed that O' Bri en was somnol ent o r in a 9 stupor or not ful ly consci ous duri ng hi s deal ings w i th A l ahverdi an and M ari no. The 10 a gents t e s t i f i e d squarel y to the contrary. ( S ee, e.g. , Aug. 22 Tr. 34 (Mari no: O' Bri en 11 d i d not appear to have had a ny di ffi cu l ty staying awake); Aug. 13 Tr. 29 12 ( Al ahverdi an: O' Bri en appeared to have no di ffi cul ty at al l f ocusi ng on or 13 u nderstandi ng the agents' questi ons).) Al ahverdi an al so testi fi ed that O' Bri en was 14 " very tal kati ve" and " ver y a l e r t " ( A u g. 13 Tr. 18); and M ari no testi fi ed that O' Bri en 15 w as cal m and coherent, speaki ng freel y, and was l u c i d throughout the day (Aug. 22 16 T r. 12, 31-32, 36). 17 O' Bri en' s own representati ons as t o hi s condi ti on were inconsi stent. For 18 exampl e, in hi s affi davi t, O' Bri en sai d he was in wi thdrawal from GHB at the ti me o f 341 hi s arrest. ( See O' Bri en Aff. ¶ 10.) Yet there i s no di spute that after O' Bri en' s arrest, 2 A l ahverdi an and Mari no were in O' Bri en' s C ol l ege Point A p a rtment for some 20 3 m i nutes before t aking hi m downstai rs for the dri ve to Suffol k C ounty; and O' Bri en 4 t esti fi ed at the suppressi on heari ng "not unti l I went downst a i r s , that i s when the 5 w i thdrawal began" (Aug. 22 Tr. 65; see id. ("Q

. When you were speaki ng wi th agents 6 in your apartment, you were not going through wi thdrawal ; i s that correct? A. That' s 7 c orrect.")). 8 Both Al ahverdi an and Mari no t esti fi ed that O' Bri en gave no appearance 9 o f b e i n g in wi thdrawal --and sai d nothi ng about needi ng i mmedi ate medi cal 10 a ttenti on--ei ther at the Apartment or duri ng the d r i v e to the Suffol k C ounty pol i ce 11 preci nct. ( See, e.g. , A u g. 13 Tr. 19, 27-29, 31-32, 46, 61; Aug. 22 Tr. 17, 32-34.) And 12 a l though at the end of the intervi ew at the pol i ce preci nct O' Bri en tol d the agents that 13 he fel t i l l, the transcri pt of h i s ensui ng county court proceedi ng--i n whi ch O' Bri en 14 hi msel f expl ained the worki ngs and effect of GHB, tel l ing the court that the actual 15 name of GHB i s " Gamma-Hydroxybutyrate"--counters hi s c l ai m that hi s cogni ti ve 16 powers were i mpai red. Indeed, at the suppressi on heari ng O' Bri en admi tted that in 17 the county c ourt proceedi ng he in fact "had no di ffi cu l ty understandi ng what was 18 g oi ng on" (Aug. 22 Tr. 82 ). 351 The di stri ct court di scredi ted, a s i t was enti tl ed t o, O' Bri en' s cl ai m that, 2 when he arri ved at the c ounty court, he w as havi ng a sei zure. That cl ai m i s bel i ed by 3 the undi s p u t e d facts that he and hi s a ttorney made no menti on of hi s physi cal 4 c ondi ti on unti l l a te in that court proceedi ng; and that when hi s attorney introduced 5 the fact of hi s addi cti on, there was no menti on whatever of a sei z ure--ei ther by the 6 a ttorney or by O' Bri en hi m sel f. As the di stri ct court found, the c o u n ty court 7 t ranscri pt of O' Bri en' s responses--some hours after hi s l ast ingesti on of GHB--reveal s 8 that O' Bri en acted in that proceedi ng as a capabl e and arti cul ate advocate for hi msel f 9 and negates any inference th a t h e w a s i mpai red when he agreed to speak wi th the 10 a gents earl i er. 11 In sum, the c i rcumstances as a whol e, as refl ected in the present record, 12 reveal no error ei ther in the di stri ct court' s fi ndi ngs that O' Bri e n r e c e i v e d proper 13 M i randa warni ngs, ful l y understood them, and vol untari l y made statements to the 14 a gents, or in the c ourt' s concl usi on that he thus wai ved hi s Fi fth Amendment ri ght t o 15 remain si l ent.

16 2 . O'Brien's Consents To Search 17 "It i s . . . wel lsettl ed that one of the speci fi cal ly establ i shed excepti ons" 361 t o the Fourth Amendment requ i r e m e nts that pri vate property not be searched 2 w i thout a search warrant i ssued upon probabl e cause "i s a search that i s conducted 3 pursuant t o consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). When the 4 " ' prosecut[i on] seeks t o rel y upon consent to justi fy the l awfulness of a search, [ i t] has 5 the burden o f provi ng that the consent w as, in fact, freel y and vol untari ly gi ven.' " Id. 6 a t 222 (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). 7 The anal y si s requi red to d etermi ne whether consent to search was gi ven 8 freel y and vol untari ly, however, di ffers somewhat from the above F i fth Amendment 9 anal ysi s as to whether the postarrest ri ght to remain si l ent was " know i n g l y " and 10 v ol untari l y wai ved, for "[t]here i s a vast di fference between those [Fi fth Amendment 11 t ruth-seeki ng] ri ghts that protect a fai r cri m inal tri al and the ri ghts guaranteed under 12 the Fourth Amendment." Schneckloth , 412 U.S. at 241. Whereas "[a] stri ct standard o f 13 w ai ver has been appl i ed t o those [Fi fth A mendment] ri ghts guaranteed to a cri minal 14 d efendant to insure that" he "has not unknowi ngl y rel inqui shed the basi c protecti ons 15 . . . thought indi spensabl e to a fai r tri al," id. at 2 42, the Fourth Amendment' s focus i s 16 not on truth-seeki ng at tri a l but rather on "protect[i ng] the ' securi ty o f one' s pri vacy 17 a gainst a rbi trary intrusi on by the pol i ce,' " i d. (quoting Wolf v. Colorado , 338 U.S. 25, 27 18 ( 1949)). 371 Thus, focusi ng on what consti tu t e s a val i d consent for Fourth 2 A m e n d m ent purposes, the Schneckloth C ourt concl uded that the consi derati o n s 3 informi ng the Miranda rul e--that knowl edge of a ri ght to refuse t o s p eak i s an 4 indi spensabl e el ement of a val i d wai ver of the pri vi l ege a gainst sel f-i ncri minati o n-- 5 " are si m pl y inappl i cabl e" to requests for a rel axati o n of one' s insi stence on the ri ght 6 t o pri vacy. Id. at 246. I t r ul e d th a t the appropri ate Fourth A mendment questi on i s 7 " whether a consent to a search was in fact ' v o l untary' or w as the product of duress or 8 c oerci o n, express o r i mpl i ed." Id. at 227. F indi ng "no reason . . . in the area of consent 9 searches" to devi ate "from the tradi ti onal defi ni ti on of ' vol untari ness,' " id. at 229, the 10 Court stated that vol untari ness "i s a questi on o f fact to be determi ned from the 11 t otal i ty of al l the ci rcumstances," id. at 227. And "[w]hi l e knowl edge o f th e r i g h t t o 12 refuse consent i s one fa c to r t o be taken into a ccount, the government need not 13 establ i sh such knowl edge as the sine qua n on of an effecti ve consent." Id. ; see also id. 14 a t 248-4 9 ; E d w a r d s v . Arizona, 451 U .S. 477, 4 84 (1981) (" Schneckloth . . . thus 15 emphasi zed that the vol untari ness of a consent or an admi ssi on on the one hand, and 16 aknowi ng and i ntel l i gent wai ver on the other, are di screte i nqui ri es."). 17 Schneckloth announced i ts test in the context of the prosecuti on' s rel i ance 18 o n consent gi ven by the subject of the search who was not in custody. In United States 381 v . Watson , 423 U.S. 411 ( 1976), the C ourt hel d that the fact that consent was gi ven by 2 the subject of the search whi l e he was in custody does not change the test; custody i s 3 a factor to be c onsi dered, but not one that i s di sposi ti ve. Id . a t 424 ("the fact o f 4 custody al one has never been enough in i tsel f to demonstrate a c oerced c onfessi o n or 5 c onsent to search"; "under S chneckloth , the absence of proof that [the defendant] knew 6 he coul d wi thhol d hi s consent, though i t may be a factor i n the overal ljudgment, i s 7 not to be gi ven control l ing si gni fi cance"). 8 As "[t]he t o u ch s t o n e o f the F o u r th A m e n d m e nt i s r e a s o n ab l e n e s s, " F l o rida 9 v . Jimeno , 500 U.S. 248, 250 ( 1 9 9 1 ) , " [t]he standard for measuri ng the scope o f a 10 suspect' s consent under the Fourth Amendment i s that of ' objecti ve' reasonabl eness-- 11 what woul d the typi cal reasonabl e person have understood by the exchange between 12 the o ffi cer and the suspect?" Id. a t 251. Thus, "the ul ti m ate questi o n presented i s 13 whether the offi cer had a reasonabl e basi s for bel i evi ng that there had been consent 14 t o the search." United S tates v. Garcia, 56 F.3d 418, 423 ( 2 d C i r . 1995) (i nternal 15 quotati on marks omi tted).

16 In the present case, the di stri ct court correctl y determi ned that O' Bri en 17 c onsented to the searches of hi s C ol l ege Point and 41st Road apartments and that hi s 391 c onsents were not the product of duress or coerci on, express or i mpl i ed. Whi l e 2 O' Bri en insi sts that hi s consent was invol untary because he was not informed that he 3 c oul d refuse to gi ve consent, that content i o n is l e g a l ly and factual l y fl awed. As 4 d i scussed above, Fourth Amendment standards do not make i t m andatory to advi se 5 a suspect of hi s ri ght to refuse consent to s earch. And in any event, the Wri tten 6 Consent To Search si gned by O' Bri en stated that he had in f act been informed that he 7 c oul d refuse to consent to the search of hi s properti es. O' Bri en' s t esti mony, varyi ng 8 b e tw e e n

, i nter alia, cl ai ming no recol l ecti on that he recei v e d a p p r o p r i a te w a rnin g s an d 9 a sserti ng categori cal l y that he di d not, provi des no basi s for overturni ng the di stri ct 10 c ourt' s fi ndi ng. 11 Nor does the record support O' Bri en' s contenti on that the ci rcumstances 12 o f hi s arrest on October 10 were inherentl y "coerci v e" (O' Bri en bri ef on appeal at 42). 13 O' Bri en' s effort to l i ken hi s case to Isiofia, 370 F.3d 226, in whi ch we affi rmed the grant 14 o f a suppressi o n moti o n, f a l l s woeful l y short. In Isiofia, the di stri ct court had 15 pl a u sibl y found that a defendant' s con s e nt to search hi s a partment, c omputer, and car 16 w as not vol untary when i t was g i ven onl y after, i nter alia, (a) agents entered Isi ofi a ' s 17 a partment u nl awful l y, (b) ei ght agents remai ned in the l i ving room w i th hi m for up 18 t o an hour and a qu arter wi thout a val i d reason to remai n there, (c) the agents di d not 401 t el l hi m w i th what cri me he was bei ng charged, and (d) they g ave Isi ofi a--who l acked 2 fl uency in Engl i sh--two c onsent-to-search forms that di d not d e s c r ib e the nature o f 3 the objects to be sei zed (one l eavi ng that d etai l " bl ank" and the other bei ng "hel pl essl y 4 v ague"). See id. at 231 (internal quotati on marks omi tted); id. at 234. 5 Whi l e O' Bri en cl a i m s paral l el ci rcumstances by stating that he was 6 a rrested a n d "surrounded" by a team of 10 or more offi cers from di fferent agenci es 7 ( O' B ri en bri ef on a ppealat 43), the si mi l a ri ty ends wi th the fact that a l a rge number 8 o f offi cers entered O' Bri en' s home. Here, there w as no i l l egal entry; the offi cers had 9 a w el l -founded fugi ti v e warra n t f o r h i s arrest, whi ch al l o wed them to enter hi s 10 A partment to execute the arrest, see, e.g. , Steagald v. United States , 4 5 1 U . S . 204, 221 11 ( 1981). After O' Bri en was arrested and seated o n a couch in hi s l i ving room, he was 12 not surrounded by o ffi cers; onl y Al ahverdi an and Mari no were there wi th hi m; the 13 o ther offi cers were con d u c t ing a securi ty sweep el sewhere in the apartment. 14 Si mi l arl y, at the Suffol k C ounty pol i ce preci nct, the onl y offi cers in the intervi ew 15 room wi th O' B ri en were A l ahverdi an and M a ri no. Further, O' Bri en' s o wn statements 16 and expl anati ons in the record in thi s case forecl ose any suggesti on that O' Bri en was 17 not fl uent in the E ngl i sh l anguage. And not onl y d i d the agents testi fy that they and 18 O' Bri en had no di ffi c u l ty understandi ng each other; O' Bri en--whi l e sayi ng that he 411 remembered meeting Mari no but not Al ahverdi an in the Apartment--testi fi ed that he 2 " had no di ffi cul ty communi cating wi th [Mari no]" (Aug. 22 Tr. 65). 3 Nor does the record indi cate that ei ther Al ahverdi an or Mari no engaged 4 in any coerci on or inti mi dati on. Mari no testi fi ed that they d i d not ( s ee Aug. 22 Tr. 36); 5 they were in the Apartment for onl y some 20 minutes, part of that ti me bei ng needed 6 t o al l ow O' B ri en to get dressed ( see id. at 14). And O' Bri en di d not d escribe any 7 threateni ng or coerci ve statements or conduct by the offi c ers. 8 The reco r d a l so bel i es any noti o n that O' Bri en fel t inti mi dated. For 9 ex a m pl e, "throughout the course of the day" O' Bri en sought to bargai n wi th the 10 a gents by offeri ng to provi de informati on to assi st thei r investi gati on i f i t mi ght keep 11 hi m out of jai l (Aug. 22 Tr. 34). Mari no described O' Bri en as cal m, l uci d, and 12 speaki ng freel y ( see, e . g. , id. at 31-33, 34); Al ahverdi an described the c onversati on wi th 13 O' Bri en duri ng the ri d e to the Suffol k C ounty pol i ce preci nct as "pl easant" (Aug. 13 14 T r. 29). And in O' Bri en' s own descri pti o n to hi s ex-fi ancée on October 1 6, 2013, of hi s 15 October 10 consent to search the Apartment, he sounded anythi ng but inti mi dated. 16 He admi tted tel l ing her that when they a sked i f they coul d search, he sai d "go ahead," 17 " take a l ook," "feel free" (Aug. 22 Tr. 69).

421 A l ahv e r d i an a l s o te s ti fi e d th a t in th e A p a r tm e nt , O ' B ri en thanked M a r in o 2 for granti ng hi s pl ea for a Val i um; when they arri ved at the preci nct, O' B ri en thanked 3 the a g ents for thei r consi derate treatment in general . (Aug. 13 Tr. 18, 47, 21-22.) And 4 O' Bri en hi msel f t esti fi ed that the agents had proceeded expedi ti ousl y on October 10 5 because "they took i t seri ousl y that I needed medi cal attenti on." (Aug. 22 Tr. 57; see 6 a lso i d. at 102 ( M ari no testi fying that when they "were concl uding the intervi ew" at the 7 preci nct, O' Bri en "sai d he wasn' t feel ing wel l and he w a n t e d to see a doctor. The 8 intervi ew stop p e d , I advi sed Suffol k C ounty," and turned O' Bri en over to the l ocal 9 o ffi cers.).) 10 O' Bri en' s contenti on that he was incapabl e of gi ving consent vol untari l y 11 because he was experi enci ng wi thdrawal from GHB i s refuted by the record 12 d i scussed in Part II.A.1. above, supporti ng the di stri ct court' s permi s sibl e fi ndi ng that 13 O' Bri en' s cogni ti v e a n d v ol i ti onal functi o ns were not i mpai red by hi s wi thdrawal 14 from GHB. 15 Final ly , w e r e j e ct O' Bri en' s addi ti onal suggesti on that hi s abi l i ty to refuse 16 c onsent was overborne by Mari no' s a ccedi ng to hi s request to al l evi ate the effects o f 17 G HB wi thdrawal by taking a Val i um ( see O' Bri en bri ef on appeal at 43 (bei ng "gi ven 18 aVal i u m . . . coul d have onl y served t o increase hi s i mpai rment"); see also id. at 38)). 431 O' Bri en poi nts t o no evi dence to support thi s supposi ti on. In c o ntrast, the evi dence 2 incl udes m edi c al rec o rds showi ng that when O' Bri en arri ved at the hospi tal 3 c ompl ai nin g o f G H B w i th d r a w a l, one of the medi ci nes he was i mmedi atel y gi ven was 4 V al i um. ( S ee, e .g. , Hospi tal Di s c h a r g e Summary at 1 (when O' Bri en arri ved a t the 5 hospi tal and "stated that he was usi ng GHB," had been "taking GHB for the l ast few 6 y ears, every 2-3 hours[,] and presented wi th tachycardi a, di sphore s i s , a n d 7 t remul ousness," "[h]e was gi ven Valium 5 IV, Libri um 50 p.o., and a bol u s of normal 8 sal ine, to whi ch he responded and a deci si on was made not to pl ace hi m in the IC U 9 for further moni tori ng." (emphasi s added)). 10 In sum, we see no error of fact or l aw in the d i stri c t court' s deni al o f 11 O' B r ie n ' s moti on to suppress the evi dence di scovered in the searches to whi ch he 12 c onsented.

13 B . O'Brien's Insufficiency Argument 14 The C ontrol l ed Subst a n c e s Act ("C SA") provi des, i nter alia, that i t i s 15 " unl awful for any person knowi ngl y or intenti onal ly . . . to . . . possess wi th intent t o 16 . . . di stribute . . . a c ontrol l ed substance." 21 U.S.C . § 8 41(a)(1). I t i s al so unl awful for 17 any person "knowingl y or intenti onal l y" to "i mport[] . . . a control l ed substance" into 441 the Uni ted S t a t e s . 2 1 U.S.C . §§ 960, 9 52. The indi ctment charged O' Bri en wi th 2 v i ol ating these secti ons by k n o w i n g l y i mporting and possessi ng wi th i ntent t o 3 d i stribute methyl one and anabol i c steroi ds; wi th vi ol ating 21 U .S.C . § § 963 and 846, 4 respecti vel y, by c onspi ri ng to i m p o r t a nd to possess wi th intent to di stribute those 5 substances; and w i th vi ol ating 21 U.S.C . § 856 by knowi ngl y and intenti onal l y renti ng 6 and maintaini ng premi ses for the purpose of di stributing methyl one, a cont r o l l ed 7 substance. O' Bri en a rgues that he was enti tl ed to acqui ttal s on the g round that the 8 g overnment d i d not prove that he knew methyl one was a control l ed substance. We 9 d i sagree. 10 Knowl e d g e that the commodi ty bei ng i mported or possessed for 11 d i stributi on was a control l ed substance i s an el ement of each of the above offenses; 12 a n d i n order to c onvi ct, the government must establ i sh that knowl edge beyond a 13 reasonabl e d oubt. See, e.g. , United States v. Abdul l e, 5 6 4 F.3d 119, 125 (2d C i r. 2009) 14 ( " Abdulle ") (§§ 841(a)(1) and 846); United States v . Ha s s a n , 578 F.3d 1 08, 121 (2d C i r. 15 2 0 0 8) ( §§ 952 and 963); United States v. Hamilton , 3 34 F .3d 170, 1 80 ( 2d C i r. 200 3 ) 16 ( " Hamilton ") (§ 856), cert. denied, 540 U.S. 985 (2003). See also McFadden v. United States , 17 1 35 S. C t. 2298, 2304 (2015) ( the C SA requi res onl y that the defendant know that the 18 substance he i s deal ing wi th i s l i sted on the federal drug schedul es, not that he know 451 preci sel y what the substance i s); Abdulle, 564 F.3d a t 126 ("A defendant may be 2 c onv i cted o f a v i ol ati o n of 2 1 U.S.C . § 846 wi thout knowi ng the exact type of drug 3 invol ved. The government need onl y prove that the defendant was a ware that some 4 c ontrol l ed substance was i nvol v ed." (i nternal quotati on marks omi tted)). 5 It i s sel dom possibl e to present d i r e c t evi dence of a person' s state o f 6 m i nd. Hi s knowl edge may, however, be inferabl e from outward mani festati ons such 7 a s hi s statements or hi s conduct, or from the ci rcumstances surroundi ng or attendant 8 u pon the fact he i s al l eged t o have known. See, e.g. , United States v. Nersesian , 824 F.2d 9 1 294, 1314 (2d C i r. 1987). E fforts a d efendant has made toward co n c eal ment, for 10 exampl e, o f ei ther the nature of an acti vi ty o r hi s parti ci pati on in i t, may support an 11 inference that he knew the acti vi ty was unl awful

. S ee, e.g. , A bdulle, 564 F.3d at 129 ("a 12 r a ti onal jury coul d have found that [the defendant in questi on] possess e d a n d 13 intended to deal in a control l ed substance by inferri ng that he an d th e others 14 exped i t e d [ i ts] i mportati on . . . and conceal ed i ts contents in order to mini mi ze the 15 possibi l i ty that thei r i l l i ci t acti vi ti es woul d be detected"). 16 In chal l engi ng the suffi ci ency of the evi dence to support hi s convi cti on, 17 a d efendant bears a heavy burden. See, e.g. , United States v. R omano , 794 F .3d 317, 335 18 ( 2d C i r. 2015); United States v. Leonard, 529 F.3d 83, 87 ( 2d C i r. 2008) (" Leonard "); United 461 S tates v. Morgan , 3 8 5 F .3d 196, 204 (2d C i r . 2004); Hamilton , 3 34 F.3d at 179. In 2 a ssessi ng such a chal l enge, we a re requ i red to vi ew al l of the evi dence-- wh e th e r d i r ect 3 o r ci rcumstanti al --i n the l i ght most favorabl e to the government. See, e.g., Glasser v. 4 United States , 315 U . S . 6 0 , 8 0 (1942), overruled on other grounds by Bourjaily v. United 5 S tates , 483 U.S. 171, 1 81 (1987); United States v. Eppolito , 543 F.3d 25, 45 (2d C i r. 2008) 6 ( " Eppolito "), cert. d e n i e d, 5 55 U.S. 1148 (2009); Leonard, 529 F.3d a t 87. We consi der 7 i tems of evi d ence not in i sol ati on but in conjuncti on, s ee, e.g. , United States v. Autuori, 8 2 12 F .3d 105, 1 14 (2d C i r. 2000); United States v. Podlog, 35 F.3d 699, 705 (2d C i r. 1994), 9 c ert. denied, 5 1 3 U.S. 1135 (1995); w e defer to the jury' s evi dent assessments of the 10 c redibi l i ty of the wi tnesses and i ts resol uti on of the wei ght of the evi dence, see, e.g. , 11 United States v. Coté , 544 F.3d 88, 99 (2d C i r. 2008) ("gi v[i ng] ful l pl ay to the ri ght of the 12 j ury to determi ne credibi l i ty"); United States v. Miller , 1 16 F.3d 6 41, 676 (2d C i r. 1997), 13 c ert. denied, 524 U .S. 905 (1998); United States v . Morrison , 153 F.3d 34, 4 9 (2d C i r. 1998); 14 w e credi t every inference that the jury coul d have drawn in the government' s favor, 15 s ee, e.g. , Eppolito , 543 F.3d at 45; Leonard, 529 F.3d a t 8 7; and we must affi rm the 16 c onvi cti o n so l ong as, from the inferences reasonabl y drawn, the j u r y mi ght fai rl y 17 have concl uded gui l t beyond a reasonabl e doubt, see, e .g. , E ppolito , 543 F.3d at 45-46; 18 United States v. Jackson , 335 F.3d 170, 180 (2d C i r. 2003). 471 In sum, the c onvi cti on must be uphel d i f " any rati o nal tri er of fact c o ul d 2 have found the essenti al el ements of the cri me beyond a reasonabl e doubt." Jackson 3 v . Virginia, 4 4 3 U . S . 3 07, 319 (1979) ( emphasi s in ori g inal ) . Thi s standard, 4 reemphasi zed in the Supreme C ourt' s recent opi ni ons, makes "cl ear" that "on di rect 5 a ppeal, ' i t i s the responsibi l i ty of the jury--not the court--to deci de what concl usi ons 6 shoul d be drawn from evi dence admi tted at t ri a l . A revi ewi ng c o urt may set asi d e 7 the jury' s verdi ct on the ground of insuffi c i ent evi dence onl y i f no rati onal tri er of fact 8 c oul d have agreed wi th 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 thi s case was properl y instructed that in o r d e r t o convi ct 11 O' Bri en on any of the counts against hi m, i t was requi red to fi nd th a t h e knew the 12 products he was i mporting and possessi ng wi th intent to di stribute were control l ed 13 substanc e s . There w as no questi on that O' Bri en knew that the substances he was 14 i mporting were methyl one and anabol i c steroi ds. He a dmi tted to A l ahverdi an and 15 M a ri no that he ordered methyl one and anabol i c steroi d s onl ine from sel l ers he knew 16 w ere i n Chi na. And, as described in Part I.A. above, the search of O' Bri en' s C ol l ege 17 P oi nt Apartment turned up dozens of a i rway bi l l s for packages mai l ed from C hi na. 18 Contrary t o O' Bri en' s repeated statement in hi s p ro se o peni ng t o the jury that he had 481 " nothi ng to hi de," the many steps he took to conceal the contents of those packages 2 and hi s connecti on to them provi ded ferti l e ground for the inference that he knew 3 that deal ing i n those substances was unl awful

. 4 Fi rst, rather than going through tradi ti onal banki ng chann e l s, O' Bri en 5 pai d for hi s orders o f these substances usi n g b i t c o i n s and mul ti pl e money remi tter 6 servi ces. Thi s enabl ed hi m to, inter alia, make hi s purchases wi thout usi ng hi s own 7 name. ( See generallyTri alTranscri pt ("Tri alTr.") at 117, 280-82, 288-90.) 8 Second, O' Bri e n never had hi s purchases of methyl one and anabol i c 9 steroi ds addressed to hi msel f or sent to hi s a partments. He hi red peopl e to rent mai l 10 boxes i n thei r own names--or in fal se names--at mai lbox stores throughout Brookl yn. 11 A s described in Part I.A. above, the i t e ms found in the search of O' Bri en' s C ol l ege 12 P oi nt Apartment incl uded not onl y appl i cati o ns and recei pts for mai lbox rental 13 a greements at mul ti pl e mai lbox store l ocati ons ( see Tri al Tr. 214), but al so a cache o f 14 f al se i d e nti fi cati on cards, al ong wi th bl ank I D cards and a pri nter that coul d create 15 m ore. O' Bri en had the packages of methyl one and anabol i c steroi d s he ordered from 16 C h i n a a ddressed to the persons who rented the m ai lboxes and sent to the vari ou s 17 m ai lbox store l ocati ons. When the packages arri ved, O' Bri en had the persons he had 18 hi red retri eve them. For exampl e, he tol d the agents o n October 10 that he had had 491 hi s fri end Mi chael Wagner rent a mai lbox in Wagn e r ' s name, and he pai d Wagner 2 $ 200 each ti me he pi c k e d up a b ox o f Mol l y from a mai lbox store and brought i t t o 3 O' Bri en. ( See Tri alTr. 117.) 4 In addi ti on, the packages contai ni ng O' Bri en' s purchases were 5 themsel ves fraudul entl y l abel e d. The intercepted packages that l ed to O' Bri en' s 6 eventual arrest on the present charges bore l abel s that mi srepresented thei r contents 7 a s v ari ou s u n control l ed substances, when in fact they contai ned methyl one and 8 anabol i c steroi ds that O' Bri en had ordered. 9 Lastl y, after the drugs ordered from C hi na arri v ed and had been pi cked 10 u p by O' Bri en' s retri evers and gi ven to O' Bri en, O' Bri en stored them in Apartment 5E 11 o n 41st Road--i denti fi ed in hi s W ri tten C onsent To Search a s o n e o f "my 12 a partment[s]." To rent that a partment O' Bri en had used the a l i as " George Manol as." 13 In the di stri c t court, O' Bri en moved for acqui ttal under F ed. R. C ri m. P. 14 2 9 on the pri nci pal ground that the government had fai l ed to establ i sh that he was the 15 l essor of the 41st Road apartment in the na m e G e o r g e Manol a s. The di stri ct court 16 d e ni ed that moti on. See United States v. O'Brien , No. 13-C R-586 ( RRM), 2 0 1 7 W L 17 2 371159 (E.D.N.Y. May 31, 2017) ("Rul e 29 Deci si on"). O' Bri en has not chal l enged that 18 d eci si on on appeal, and any further argument that "George M anol as" was not one o f 501 O' Bri en' s al i ases has been wai ved. 2 In any event, the government' s contenti on that th e "George Manol as" 3 who l eased the apartment at 41st Road w as O' Bri en was amply supported by several 4 c ategori es of ci rcumstanti al evi dence, including (a) tri a l te s ti mony of Al ahverdi an 5 and/ o r Mari n o that O' Bri en admi tted that the 41st Road apartment was hi s stash 6 house, suppl i ed the exact number of the apartment (5-E) when Mari no sai d the agents 7 knew i t was on the fourth or fi fth fl o or, and reasonabl y accuratel y described what the 8 a gents woul d fi nd insi de that apartment, see Rul e 29 De c i s io n, 2 017 WL 2371159, 9 a t *10 ( ci ting Tri al Tr. 119-25, 683); (b) recordi ngs of two tel ephone c al l s by O' Bri en in 10 October 2013 from the county jai l t o h i s then-gi rl fri end, instructi ng her to open the 11 m ai l at hi s C ol l ege Point Apartment addressed t o G eorge Manol as, s e e Rul e 29 12 Deci si on, 2017 WL 2371159, at *11 (ci ting Tri a l Tr. 250, 253); and ( c) testi mony by 13 Schottenfel d d escribi ng the batches of fal se i denti fi cati on d o c uments found in the 14 search of the C ol l ege P oi nt Apartment, incl u d ing bi rth certi fi c a t es, soci al securi ty 15 c ards, and pol i ce i denti fi cati on cards in names other than O' Bri en' s, incl uding th e 16 names Jeremy Soto, Stephen C onte, and George Manol as, wi th some of the C onte and 17 Soto i denti fi cati on documents beari ng photographs of O' B ri en ( see Tri al Tr. 193-99).

511 In sum, O' Bri en contri ved to order and pay for methyl one and anabol i c 2 steroi ds wi thout usi ng hi s real name; to have the drug packages l abel ed a s contai ni ng 3 u ncontro l l e d substances; to have the packages addressed to persons other than 4 hi msel f, sent to addresses oth e r th a n h i s, and retri eved by other persons wi thout 5 m enti on of hi s name; and to have the drugs warehoused i n a pl ace he l eased under 6 an al i as. Such precauti o ns l ent themsel ves easi l y t o a rati onal inference that O' Bri en 7 w as aware that the drugs i n whi ch he deal twere control l ed substances. 8 Final ly, O' Bri en al so expl i ci tl y evi nced hi s wari ness of th e l aw 9 enforcement tacti c of apprehendi ng drug tr a ffi ckers by subjecti ng intercepted 10 suspi c i ous packages to control l ed del i veri es. In an O' Bri en message that was read t o 11 the j ury--apparentl y an emai l t o a s u p pl i er, sayi ng "' 65k i s a very appeal ing offer. 12 O k a y, ' " --O' Bri en indi cated that hi s staff had previ ousl y been caught in such a 13 m aneuver, sayi ng: 14 " Here is the p r o b l e m with why i am so nervous about the current 15 shipment--keep in mind i am very exper ienced ... [T]hi s tracki ng 16 number . . . says they made an a t te mp t to del i ver. [ T]hat i s 17 IMPOSSIBLE. [I]t i s a mai lbox rental store and there i s ALWAYS 18 a person there to recei v e parcel s--i t' s si mply what they a r e in 19 busi ness to d o... [T]hey rent mai lb oxes. [N]ot to menti on that I 20 recei ve parcel s there every week from C hi na wi th no 21 probl ems. . . . [I]n my unfortunate experience in the p ast, al ong wi th 22 the other whol esal ers I know, this is a trap . I send my worker in to 23 sign for the package and they arrest them on the spot . " 521 ( Tri alTr. 291-92 (quoting Government Exh. 413) (emphases ours).) 2 We concl ude that the evi dence as a whol e was ampl e for the jury to infer 3 that O' Bri en knew that the substances in whi ch he knowi ngl y deal t, methyl one and 4 anabol i c steroi ds, were i n fact control l ed substances.

5 C. O 'Brien's Challenges to the Scheduling of Methylone as a Controlled Substance 6 Final ly, O' Bri en contends that the di stri ct court erred in denyi ng hi s 7 posttri al m o t i o n for acqui ttal on the ground that the indi ctment chargi ng hi m wi th 8 u nl awful conduct w i th respect to methyl one was consti tuti onal l y fl awed because the 9 schedul ing of methyl one as a control l ed substance was accompl i shed through (a) an 10 i mperm is sibl e del egati on of c ongressi onal power t o the Uni ted States Attorney 11 G eneral, and (b) the Attorney General ' s subdel egati on of that power to the DEA. He 12 a l so argues that the schedul ing pr o c e s s was insuffi ci ent to a fford hi m the noti ce 13 m andated by pri nci pl es of due process. We reject these conten t i o ns because such 14 chal l enges were requ i red to be made pri or to tri al and because, in any event, they l ack 15 m eri t.

531 1 . Untimeliness 2 T h e F e d e r al Rul es of C ri minal Procedure provi de that c ertain types o f 3 objecti ons to a prosec u t i o n "must be rai sed by pretri al moti on i f the basi s for the 4 m oti on i s then reasonabl y avai l abl e and the moti on can be d etermi ned wi thout a t ri al 5 o n the meri ts." Fed. R. C ri m . P. 12(b)(3) (2014). Thi s requi rement serves a number o f 6 purposes, incl uding spari ng the court, the wi tnesses, and the parti es "the burden and 7 expense of a tri al," Davis v . United States , 411 U.S. 233, 241 ( 1973) (d i scussi ng 1944 8 v ersi on of Rul e 12), and "insuri ng that indi ctments are not routi nel y chal l enged (and 9 d i smi ssed) after the jury has been seated and swor n, a resul t that woul d . . . force 10 c ourts frequentl y to confront compl ex Doubl e Jeopardy questi o ns," United States v. 11 S pero , 331 F.3d 57, 62 (2d C i r. 2003) (di scu s s in g 2 0 02 versi on o f Rul e 12) (i nternal 12 quotati on marks omi tted). 13 The categori es of moti ons that must be made before tri al are those that 14 a ssert "a defect in insti tuting the prosecuti on," Fed. R. C ri m . P. 1 2(b)(3)(A) (2014), or 15 a ssert "a defect in the in d i c tm e n t, " id. Rul e 12(b)(3)(B). As amended in 2014, Rul e 16 1 2 ( b ) ( 3 ) provi des "a nonexcl usi ve l i st of commonly rai sed cl ai ms under eac h 17 c ategory." Advi sory C ommi ttee Note (2014) ("2014 Advi sory Note"). The exampl es 18 incl ude "an error in the grand-jury p r o c e e di ng," Rul e 12(b)(3)(A)(v), and the

541 indi ctment' s "fai lu re to state an offense," id. Rul e 12(b ) ( 3)(B)(v). See also 2014 Advi sory 2 Note (noti ng that pri o r l anguage al l owing a moti on to di smi ss for fai l ure to state an 3 o ffense to be made at any ti me, on the theory that that fai l ure w as "juri sdi cti onal," was 4 removed i n l i ght of the Supreme C ourt' s deci si on in United States v. Cotton , 535 U.S. 5 6 25, 629-31 (2002), that such a fl aw does not i mpl i c a te the court' s juri sdi cti on). 6 If a m oti on fal l ing wi thin Rul e 12(b)(3) i s not made before tri al (or before 7 such pretri aldeadl ine as may be set by the court for such moti ons), i t i s "unti mel y." 8 F ed. R. C ri m. P. 1 2(c)(3) (2014). If the moti on i s unti m el y, the court may nonethel ess 9 entert a i n i t i f th e m ovant shows "good cause" for hi s fai l ure to make i t pri or to the 10 d eadl i ne. Id. Such provi si ons, a lbei t w i th sl i ght vari ati o ns in wordi ng and 11 numberi ng, have been incl uded in Rul e 12 si nce i ts incepti o n in 1944. See, e.g. , Davis , 12 4 11 U.S. at 236 (di scussi ng the ori ginalversi on of Rul e 12, whi ch stated in perti nent 13 part, that "' [d]efenses and objecti ons based o n d e f e c t s in the insti tuti on o f the 14 prosecuti on or i n the i ndi ctment . . . may be rai sed onl y by moti on before tri a l,' and 15 that fai l ure to present such defenses or objecti ons ' consti tutes a w a iv e r thereof, but 16 the court for cause shown may grant rel i ef from the wai ver' " ( quoting Fed. R. C ri m . 17 P . 12(b)(2) ( 1944)); Shotwell Mfg. Co. v . United States , 371 U .S. 3 4 1 , 3 6 2 ( 1963) 18 ( " Shotwell ") (same).

551 Both D avis and Shotwell deal t w i th posttri al c l a i m s that the prosecuti ons 2 had been d e f ecti v el y insti tuted because thei r respecti ve grand juri es had been 3 c onvened pursuant to sel ecti on methods not desi gned to draw from a cross-secti o n 4 o f the communi ty. See, e.g. , Davis , 411 U.S. at 235; Shotwell, 371 U .S. at 460-61. In both 5 c ases, the Supreme C ourt concl uded that the Rul e 12 wai ver provi si o n " p recl udes 6 u nti mel y chal l enges to grand jury arrays, even when such chal l enges ar e o n 7 c onsti tuti onalgrounds." Davis , 411 U.S. at 238 (ci ting Shotwell, 371 U.S. at 363). 8 I n S hotwell, the C ourt u phel d fi ndi ngs that no "cause" suffi ci en t to 9 " war r a n t r e l ief from" Rul e 12' s wai ver provi si o n was shown where "the facts 10 [ underl ying the chal l enge] were notori ous and a vai l abl e to peti ti oners in the exerci se 11 o f due di l i gence before the tri al ." 371 U.S. at 3 63. In Davis , the C ourt si mi l arl y uphel d 12 the fi ndi ng o f no "cause" where the bel atedl y chal l enged system had been in use "for 13 y ears," and " [n]o reason ha[d] been suggested why peti ti oner o r hi s a tto rney c o ul d 14 not have ascertai ned al l of the facts necessary to present objecti o n to the court pri or 15 t o tri al ." 411 U.S. at 243. 16 We reach the same concl usi ons wi th respect to O' Bri en' s i mpermi ssibl e17 d el egati on chal l enge, gi ven the fundamental nature of the asserted d efects. The 18 c ontenti on that a federal grand j u r y w a s chosen through a process that was not

561 d esi gned to d r a w f r o m a cross-secti on of the communi ty i s a contenti on that the 2 ensuing indi ctments we r e i s s u e d b y an e nti ty that was not consti tuti onal l y authori zed 3 t o accuse any person of any cri me; such a contenti on posi t s a defect in the insti tuti o n 4 o f the prosecuti on. L i kewi se, a chal l enge to Congress' s del egati on to members of the 5 E xecuti ve Branch of authori zati on to desi gnate substances as control l ed substances 6 posi ts that the t argeted c onduct has been desi gnated a c ri m e by an enti ty not 7 c onst itu t i o n al l y authori zed to say that any person may be prosecuted for that 8 c onduct. A p r o s e c ut i on for conduct that has been defi ned as cri m inal onl y by an 9 enti ty wi tho u t l e gi ti mate authori zati on to do so woul d be defecti ve ei ther in i ts 10 insti tuti on or in i ts fa il u r e t o charge a c ogni zabl e offense. If a defendant wi shes t o 11 a ssert such a fl aw, he must make hi s moti on pri or to tri al i f the basi s for hi s asserti o n 12 i s then reasonabl y avai l abl e. 13 In the present case, O' Bri en' s tri al began on Jul y 20, 2015. Hi s cl ai m that 14 m ethyl one had been u nconsti tuti onal l y desi g n a t e d a control l ed substance was not 15 a sserted pri o r to tri a l ; i t w as not rai sed unti l November 2016, more than a year after 16 he had been tri ed and found gui l ty of the charges against hi m . I t i s cl ear that the facts 17 o n whi ch hi s moti o n was premi sed had been avai l abl e to hi m throughout hi s pretri al 18 peri od. As to the del e g a t io n process i tsel f, the C SA, in whi ch C ongress authori zed

571 the Attorney General to, inter alia, add substances to control l ed substance schedul es 2 u nder 21 U.S.C . § 811(a), was enacted in 1970, s e e P u b . L. 9 1-513, 8 4 Stat. 1242 3 ( codi fi ed at 21 U.S.C . § 8 01 et seq .). The Attorney General ' s r e g ul a t i o n s del egati ng 4 a uthori ty to the DEA to schedul e control l ed substances on a tempor a ry basi s were 5 promul gated in 1990. See 2 8 C.F.R. § 0.100(b) (1990). A nd the parti cul ars of the 6 d el egati on process were described in detai l by the Su p r e m e C o urt in 1991 in Touby 7 v . United States , 500 U.S. 160, 162 ( 1991), whi ch rejected an i mpermi ssibl e-del egati o n 8 chal l enge to convi cti ons for manufacture a n d conspi racy to manufacture 9 4 -methyl aminorex, more commonl y known as "Euphori a." 10 The desi gnati on of methyl one as a c o n t r o l l ed substance occurred wel l 11 b e fore O' B ri en' s October 29, 2013 arrest in thi s case. Noti ce of Intent to desi gnat e 12 m ethyl one a s such a substance temporari l y was publ i shed in the Federal Regi ster o n 13 September 8 , 2011, s ee 76 Fed. R e g . 5 5 6 1 6 ; Noti ce o f P roposed Rul emaking to make 14 i ts pl acement in Schedul e I permanent was publ i shed in the Federal Regi ster o n 15 October 17, 2012, see 7 7 Fed. Reg. 63766; and the permanent schedul ing of methyl one 16 w as publ i shed i n the Federal Regi ster on Apri l12, 2013, see 78 Fed. Reg. 21818. 17 O' Bri en was thus arrested on the present charges of unl awful l y deal ing 18 in methyl one m ore than si x months after the publ i cati on of noti ce that m ethyl one was 581 permanentl y schedul ed as a con t r o l le d substance, and more than two years after 2 publ i c a t i o n o f i ts temporary desi gnati on as a control l ed substance. Thus, the 3 c omponents o f O' B ri en' s i mpermi ssibl e-del egati o n chal l enge were avai l abl e t o 4 O' Bri en pri or to hi s Jul y 2015 tri al . They were matters of publ i c record. 5 The onl y excuse offered by O' Bri en for the fai l ure to m ake hi s del egati o n 6 chal l enge pri or to tri al was that he was proceedi ng pro s e, stating that "i t' s a l ot for a 7 regul ar d efendant to know and t o l earn" (Sente n c i n g Transcri pt January 20, 2017, 8 a t 17). Thi s expl anati on was speci ous at best. E ven a ssuming that a defendant' s pro 9 s e status coul d be accepted as "good cause" for hi s fai l ure to make a ti mel y chal l enge 10 t o l ong-establ i shed procedures, that e x c u s e w oul d have no val i di ty in thi s case. 11 O' Bri en' s ci tati on of hi s p r o s e status i gnored the f act that he di d not become pro se 12 u nti l about two months before hi s tri a l ; fo r th e precedi ng 1 9 months of the 13 prosecuti on, O' Bri en had been r e p r esented by counsel . There had been ampl e 14 o pportuni ty and experti se to al l ow for the making of an i mpermi ssibl e-del e g a t i o n 15 chal l enge pri or to tri al, i f one had been warranted.

16 2 . Lack of Merit 17 In Touby, the Supreme C ourt c o nsi dered contenti ons that C ongress, in 591 a uthori zing the Attorney General to add, remove, and transfer substances across the 2 c ontrol l ed substance schedul es under 21 U.S.C . § 8 1 1 ( a), " unconsti tuti onal l y 3 d el egate[d] l egi sl ati ve power to the Attorney General," 500 U.S. a t 162, as wel l as 4 c ontenti ons that th e A ttorney General c oul d not permi ssibl y subdel egate that 5 a uthori ty to the DEA, see id. at 169. The C ou r t r ej e c ted those contenti ons in the 6 c ontext of the schedul ing of 4- m e thyl aminorex. See id. at 165-69. We see no 7 princi pl ed basi s o n w h i ch to reach a di fferent c oncl usi on wi th respect to O' Bri en' s 8 paral l el chal l enges t o the schedul ing of methyl one. Whe th e r ti m ely or not, those 9 chal l enges l a c ked meri t. 10 O' Bri en al so contends that publ i cati on of the intended and actual 11 schedul ing o f m e th y l one as a control l ed substance in the Federal Regi ster was 12 insuffi ci ent to provi de noti c e that deal ing in meth y l o ne was unl awful

. However, 13 Congress requi res that "documents havi ng general appl i cabi l i ty and l egal effect"-- 14 whi ch incl udes " every document or orde r whi ch prescribes a penal ty"--"shal l be 15 publ i shed in the F ederal Regi ster," 44 U.S.C . § 1 505(a); and i t has provi ded that 16 proper publ i cati on o f a document in the Federal Regi ster "i s suffi ci ent to gi ve noti ce 17 o f the contents of the document to a p e r s o n s u bject t o or affected by i t," id. § 1507. 18 A ccordi ngl y, when "regul ati ons, whi ch are gi ven the force of l aw, are publ i shed in 601 the F ederal Regi ster, . . . constructi ve noti ce of thei r contents i s thus gi ven al l persons 2 a ffected 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 C i r. 2 017) (after making the requi si te fi ndi ngs, the 4 DEA temporari l y schedul ed e th y l o n e , and "[w]hen the DEA fi l ed the Noti c e and 5 Order i n the Federal Regi ster, Kel l y recei ved fai r noti ce that ethyl one was a control l ed 6 substance" (i nternal quotati on marks omi tted), cert. denied, 138 S. C t. 2038 (2018)). 7 As set out above, the intended and actual schedul ing of methyl one as a 8 c ontrol l ed substance were publ i shed in the F ederal Regi ster. We thus reject O' Bri en' s 9 l ack-of-noti ce argument. 10 We note al so th a t, a s di scussed in Part II.B. above, the statutory 11 provi si ons under whi ch O' Bri en was prosecuted made hi s c onduct unl awful onl y i f 12 he "knew" he was deal ing wi th a control l ed substance. There i s no d i spute that 13 O' Bri en knew that he was deal ing in methyl one; and, as di scussed, the properl y 14 instructed jury found beyond a reasonabl e d oubt, based on ampl e evi dence, that 15 O' Bri en knew methyl one was a control l ed substance.

611 C ONC LUSION

2 We have consi dered al l of O' B ri en' s contenti ons on thi s a ppeal and have 3 found them to be wi thout meri t. The judgment of the di stri ct court i s affi rmed.

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