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Bath Salts Conviction Upheld by First Circuit

By William Vogeler, Esq. on December 15, 2017 | Last updated on March 21, 2019

Alan Ketchen came to the party a little too late.

Not the drug fest at his house; that party was going on all the time. It was his motion to withdraw a guilty plea; that was too late.

Ketchen wanted a do-over because -- after he pleaded guilty to drug charges -- a new case said prosecutors had to prove criminal defendants know the drugs they are dealing are controlled substances or "substantially similar" drugs. But in United States of America v. Ketchen, the dealer missed his chance.

Too Much, Too Late

He was convicted of conspiracy to distribute "bath salts," a synthetic drug known to cause hallucinations, delusions, psychosis and death. In one case last year, for example, a college student high on the drug tried to bite off a victim's face.

Ketchen, for his part, was selling the drug out of his house for as much as $5,000 per transaction. He also sold other controlled substances, including ecstasy, Klonopin and Xanax.

Police arrested him at his residence, and seized 1,110 grams of the synthetic drug, drug paraphernalia and $11,462 in cash. Facing too much evidence, he pleaded guilty on May 7, 2014.

Before he was sentenced, however, the U.S. Supreme Court said in McFadden v. United States that the government must "establish that the defendant knew he was dealing with 'a controlled substance'' -- even when the controlled substance at issue was an analogue.

The Analogue Act

The Federal Analogue Act, 21 U.S.C., Section 813 allows the government to treat any chemical "substantially similar" to a controlled substance as if it were a controlled substance.

Citing McFadden, Ketchen said he didn't know bath salts were a controlled substance before he pleaded guilty. But the U.S. First Circuit Court of Appeals said there was "strong circumstantial evidence, including Ketchen's own statements, showing that he knew he was dealing with an illegal drug."

For example, Ketchen admitted in his plea deal that he knew the drug was illegal. "I was not just selling a legal synthetic chemical, I was selling an illegal drug and using an illegal substance," he said.

The appeals court affirmed the denial of his motion to withdraw the guilty plea and his sentence to 160 months in prison.

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