Fourth Circuit Finds Insufficient Evidence to Support Conviction For Drug Analogue Possession: Belk

In July 2019, a jury found Belk guilty on several counts, including possession with intent to distribute a controlled substance analogue. On appeal before the Fourth Circuit, Belk argued-among other claims-that there was insufficient evidence for the jury to convict him of possession with intent to distribute a controlled substance analogue.

Belk argued on appeal that (1) the expert’s testimony was insufficient evidence for the jury to have found that the substance was a controlled substance analogue; (2) the government failed to provide Belk “intended” to distribute the substance for human consumption; and (3) that the government failed to present sufficient evidence to satisfy the knowledge element of the crime. The Fourth Circuit agreed with Belk’s third argument.

To be convicted of possession with intent to distribute a controlled substance analogue, the government had to prove that Belk (1) distributed a substance that had the chemical structure of an analogue and the actual, intended, or claimed physiological effects of an analogue; (2) intended that the substance be used for human consumption; and (3) knew either the legal status of the substance, or the chemical structure and physiological effects of that substance.

The appellate court concluded that the government easily established the first element through its expert witness testimony. However, elements two and three required the court to determine aspects of Belk’s mental state: intent and knowledge. Viewing the evidence most favorably towards the government, the Fourth Circuit found substantial evidence of intent to distribute for human consumption. But the third element-the scienter requirement-fell short. The government could prove the third element by showing Belk knew that the substance was some controlled substance or knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.

The court found that the government presented no evidence that Belk knew the substance was controlled or that he knew its chemical structure and physiological effects. With no evidence in the record demonstrating Belk’s knowledge, the Fourth Circuit found this to be “the rare case in which the failure of proof is clear.”

Accordingly, judgment on the controlled substance analogue count was vacated, and the case remanded with instructions to enter judgment of acquittal on that count and resentence Belk accordingly.