United States v Makkar and Sehgal

Makkar and Sehgal appealed their convictions for violating the Analogue Act. The panel vacated the convictions and remanded. It held that the mens rea jury instruction was plain error as allowing similar effects of drugs to prove similarity of chemical composition was logically inform and the government effectively conceded this in another trial and the Drug Enforcement Administration agreed the inference was scientifically untenable, these concessions overcame out of circuit precedent to the contrary and conviction under an improper standard violates substantial rights and undermines the integrity of the judicial proceedings. The panel rejected an argument that mens rea can be proved by similar effects alone as being argued too late in the process, is inconsistent with both the Act’s text and the United states Supreme Court’s recent case law on the Act. The panel also held that it was error to exclude Makkar’s and Sehgal’s cooperation with state authorities to test the substances as it was relevant to the mens rea element.