UNITED STATES of America, Appellee, v. Carlos MCKENZIE, Defendant-Appellant, 686 F. App'x 77

SUMMARY ORDER Carlos McKenzie appeals from his conviction for conspiring to possess with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 846. We assume the parties’ familiarity with the underlying facts, the procedural history, the district court’s rulings, and the arguments presented on appeal. McKenzie lodges three challenges to his conviction. First, he argues that the evidence was insufficient to support the mens rea element of the crime. Second, relying on the Supreme Court’s decision in McFadden v.

United States, — U.S. -, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015), McKenzie contends that the district court improperly instructed the jury on that element. Finally, McKenzie challenges the special verdict form. We address each of his arguments in turn. I. Sufficiency of the Evidence We review de novo McKenzie’s challenge to the sufficiency of the evidence. United States v. Harvey, 746 F.3d 87, 89 (2d Cir. 2014) (per curiam). We are “required to draw all permissible inferences in favor of the government and resolve all issues of credibility in favor of the jury verdict.” United States v.

Kozeny, 667 F.3d 122, 139 (2d Cir. 2011). We will affirm a jury verdict if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vargas-Cordon, 733 F.3d 366, 375 (2nd Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in original). Upon review of the record, we conclude that the evidence was sufficient to support McKenzie’s conviction.

Because McKenzie was charged with and convicted of conspiracy to possess with intent to distribute controlled substances, the government needed only to prove “(1) the existence of the conspiracy charged; (2) that the defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v.

Santos, 541 F.3d 63, 70 (2d Cir. 2008) (internal citations omitted). “[Wjhere the defendant personally and directly participated in the drug transaction underlying the conspiracy charge, the government need not prove that the defendant had knowledge of either drug type or quantity.” United States v. Andino, 627 F.3d 41, 47 (2d Cir. 2010). McFadden, a case concerning the Controlled Substances Analogue Enforcement Act (“Analogue Act”), does not disturb that burden of proof.

Indeed, McFadden confirmed that knowledge “can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance ... regardless of whether he knew the particular identity of the substance.” 135 S.Ct. at 2305. There was sufficient evidence at trial, both direct and circumstantial, that McKenzie knew that he was dealing in a controlled substance.

The jury heard testimony about narcotics and money transactions from coconspirators Rawlins and Gunter, saw video surveillance evidence, heard wiretapped conversations discussing the specifics of drug transactions, and saw large quantities of ecstasy pills that were seized. There was testimony that McKenzie met Gunter in a bar bathroom to consummate one particular transaction. There were also various intercepted communications using coded language, arranging for payments, shipping methods, money transfers, and moving pills between conspirators.

McKenzie testified at trial, and maintains on appeal, that he thought he was selling legal “sex pills,” not ecstasy. It appears that the jury disbelieved that story. Thus, viewing the evidence in the light most favorable to the government, there is sufficient evidence to prove that McKenzie knew he tyas distributing a controlled substance. II. Jury Instructions Next, McKenzie challenges the jury instructions based on the McFadden case.

Specifically, he argues that the district court erred by repeatedly instructing the jury that it need not “find that [McKenzie] knew the precise chemical name or the precise chemical compounds of methamphetamine or methlyenedioxy-metham-phetamine.” Trial Tr. 1016. We review de novo this challenge as well, viewing the charge as a whole. United States v. Sabhnani, 599 F.3d 215, 237 (2d Cir. 2010). A defendant must demonstrate error and prejudice from the instructions. Id.

Erroneous jury instructions “either fail[] to adequately inform the jury of the law, or mislead[ ] the jury as to the correct legal standard.” Id. (quoting United States v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006)). McKenzie misunderstands McFadden, “which held that in prosecutions under the Analogue Act the Government must prove a defendant knew he was dealing with a substance regulated under the Analogue Act.” United States v. Tuttle, 646 Fed.Appx. 120, 122 (2d Cir. 2016). The controlled substances involved in McKenzie’s charge were not analogue drugs.

In any event, as discussed above, McFadden does not disturb long-established law that it is enough for a defendant to know that he was dealing in a controlled substance even if he did not know the specific identity of that substance. “As McFadden is inapposite” here, McKenzie “has failed to demonstrate any error.” Tuttle, 646 Fed.Appx. at 122. Not every methamphetamine (or MDMA) dealer will be a high school chemistry teacher, much less possess the knowledge and sophistication of one.

The district court properly instructed the jury that the government did not need to prove that McKenzie knew the chemical name, makeup, or structure of the controlled substances. III. Special Verdict Form Because McKenzie did not object to the special verdict form, we review his challenge for plain error. United States v. Scarpa, 913 F.2d 993, 1020-21 (2d Cir. 1990). On appeal, he contends that the special verdict form was error because it did not specifically instruct the jury that the government needed to prove drug quantity beyond a reasonable doubt.

In its jury instructions, the district court referred to the “beyond a reasonable doubt” standard no fewer than 18 times. Moreover, specifically with respect to drug quantity, the district court instructed: If [the conspiracy] is proven, we need to know how much. So the next part says if you answered proven that means the Government has established beyond a reasonable doubt that the controlled substances involved a detectable amount of methamphetamine and you can reference the stipulations that are before you. Gov’t App’x 189.

There is simply no basis to conclude that the jury applied anything other than- the “beyond a reasonable doubt” standard. We therefore discern no plain error. We have considered McKenzie’s remaining arguments and determine them to be without merit. Accordingly, the judgment of the district court is AFFIRMED. . McFadden also discussed a second approach to proving knowledge—with evidence that a defendant knew the actual identity of the controlled substance, That approach, however, is irrelevant to McKenzie’s case.

The district court instructed the jury only under the first approach, that "[w]hat the Government must prove beyond a reasonable doubt is that Mr. McKenzie knew that some illegal controlled substance that is illegal in the United States drug laws was part of this conspiracy and contained in the substances that he and others allegedly conspired to distribute or possess.” Gov't App’x 159.