17-2087-cr USA v. O'Brien 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2018 5 (Argued: November 28, 2018 Decided: June 7, 2019) 6 Docket No. 17-2087-cr 7 _________________________________________________________ 8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v. - 11 MICHAEL O'BRIEN, AKA Jeremy Soto, AKA Stephen Conte, AKA 12 George Manolas, 13 Defendant-Appellant.* 14 _________________________________________________________ 15 Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges. 16 Appeal from a judgment of the United States District Court for the * The Clerk of Court is directed to amend the official caption to conform with the above. 1 Eastern District of New York, Roslynn R. Mauskopf, Judge, convicting defendant of 2 importing and possessing with intent to distribute methylone and anabolic steroids, 3 see 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), 841(a)(1), 841(b)(1)(C), and 841(b)(1)(E), 4 and conspiring to do so, see id. §§ 963 and 846; and of operating a stash house, see id. 5 §§ 841(a)(1), 856(a)(1) and 856(b). On appeal, defendant principally challenges (a) the 6 denial of his pretrial motion to suppress evidence on the ground that any statements 7 or consent were unknowing and involuntary because he was incapacitated by being 8 in withdrawal from an addictive substance, and (b) the sufficiency of the trial 9 evidence to establish that he knew what he was dealing with was a controlled 10 substance. He also challenges the denial of his posttrial motion to dismiss the 11 indictment on the grounds that methylone was designated a controlled substance 12 pursuant to an unconstitutional delegation of Congressional power to the United 13 States Attorney General, and that the designation process--publication in the Federal 14 Register--did not constitute notice sufficient to afford due process. We find no merit 15 in his contentions. 16 Affirmed. 17 MARGARET LEE, Assistant United States Attorney, 18 Brooklyn, New York (Richard P. Donoghue, United 19 States Attorney for the Eastern District of New York, 20 Amy Busa, Assistant United States Attorney, 21 Brooklyn, New York, on the brief), for Appellee. 2 1 SUSAN G. KELLMAN, Brooklyn, New York (Sarah 2 Kunstler, Offices of Susan G. Kellman, Brooklyn, 3 New York, on the brief), for Defendant-Appellant. 4 KEARSE, Circuit Judge: 5 Defendant Michael O'Brien appeals from a judgment entered in the 6 United States District Court for the Eastern District of New York following a jury trial 7 before Roslynn R. Mauskopf, Judge, convicting him of five drug trafficking offenses, 8 to wit, importing methylone and anabolic steroids, and conspiring to do so, in 9 violation of 21 U.S.C. §§ 952(b), 960(b)(3), 960(b)(5), and 963 (Counts Two and One); 10 possessing with intent to distribute those substances, and conspiring to do so, in 11 violation of id. §§ 841(a)(1), 841(b)(1)(C), 841(b)(1)(E), and 846 (Counts Four and 12 Three); and operating a stash house, in violation of id. §§ 841(a)(1), 856(a)(1), and 13 856(b) (Count Five); and sentencing him principally to 144 months' imprisonment, to 14 be followed by a five-year term ...
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