Does the government have to prove that euphoria is a controlled substance?

The government was not required to prove that the Marshes knew that euphoria was a controlled substance. In construing criminal statutes, we have often held that one may "knowingly" commit criminal acts without knowing that the acts are criminal. See, e.g., United States v. Sherbondy, 865 F.2d 996, 1002 (9th Cir.1988). Thus, the district court's supplemental instruction was not incorrect.

Moreover, any conflict between the supplemental instruction and the original Instruction Number 7 could only have benefited the Marshes. ¹ Instruction Number 7 implies, correctly, that the Marshes could have knowingly attempted or conspired to manufacture 4-methyl aminorex, even if they did not know exactly what it was, as long as they knew that it was a controlled substance. See, e.g., United States v. Lopez-Martinez, 725 F.2d 471, 474-75 (9th Cir.1984). The converse of that proposition is, as the supplemental instruction implies, incorrect. The Marshes could knowingly attempt or conspire to manufacture 4-methyl aminorex even if they did not know that it was a controlled substance. Although the jury might have been confused about this until it received the supplemental instruction, that confusion could only have benefited the Marshes. There was therefore neither harm nor error from the challenged instructions.

2. Sentencing