United States v. Benjamin Galecki

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10288

Plaintiff-Appellee, D.C. No.
2:15-cr-00285-
v. APG-EJY-2

BENJAMIN GALECKI, AKA
Zencense Ben, OPINION

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-10296

Plaintiff-Appellee, D.C. No.
2:15-cr-00285-
v. APG-EJY-1

CHARLES BURTON RITCHIE, AKA
Burton Ritchie,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
2 USA V. GALECKI

Argued and Submitted December 6, 2021
San Francisco, California

Filed December 27, 2023

Before: Ronald M. Gould and Daniel P. Collins, Circuit
Judges, and Roslyn O. Silver, * District Judge.

Opinion by Judge Collins

SUMMARY **

Criminal Law

The panel affirmed Benjamin Galecki’s and Charles
Burton Ritchie’s drug-trafficking and money-laundering
convictions in connection with their distribution of “spice,”
a synthetic cannabinoid product; reversed their mail and wire
fraud convictions; and remanded for further proceedings.
Defendants manufactured and distributed spice through
their company, Zencense Incenseworks, LLC. The drug-
trafficking charges were based on the premise that, although
the particular cannabinoid that Defendants used, XLR-11,
had not yet been specifically listed as a prohibited controlled
substance under federal law, that cannabinoid was

*
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 USA V. GALECKI 3

nonetheless treated as a controlled substance because it was
an “analogue” of a listed substance.
Defendants contended that all of their convictions should
be set aside on the ground that the district court erred in
refusing to suppress evidence seized during or as a result of
a raid at Zencense’s Nevada warehouse. The panel held that
Defendants failed to establish that they have Fourth
Amendment standing to challenge the search and that the
district court therefore properly denied their motions to
suppress.
Defendants argued that the evidence was insufficient to
establish the scienter required in a Controlled Substances
Act (CSA) prosecution resting on the Controlled Substance
Analogue Enforcement Act of 1986 (the Analogue
Act). Applying McFadden v. United States, 576 U.S. 186
(2015), and considering the record as a whole, the panel
concluded that a rational jury could find, beyond a
reasonable doubt, that both Defendants had the scienter
required for an Analogue Act case.
The panel held that the district court did not abuse its
discretion in concluding that its “deliberate ignorance”
instruction modeled on this court’s decision in United States
v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), had a
sufficient foundation in the evidence.
The panel rejected Defendants’ as-applied vagueness
challenge to the statutory definition of a “controlled
substance analogue” in the Analogue Act.
Defendants argued that their due process rights were
violated by the district court’s failure to compel the
Government to grant use immunity to two potential defenses
witnesses who would have testified as to the Defendants’
4 USA V. GALECKI

scienter concerning whether XLR-11 was covered by the
Analogue Act. The panel held that Defendants failed to
make the requisite showing of a direct contradiction in
testimony that resulted in a fundamentally unfair distortion
of the fact-finding process.
Rejecting Defendants’ contention that the evidence was
insufficient to support their convictions for operating a
continuing criminal enterprise in violation of the CSA, the
panel held that the evidence was sufficient to permit a
rational jury to conclude that Defendants acted “in concert”
with five or more persons.
The panel held that the evidence at trial was insufficient
to prove the mail-fraud and wire-fraud offenses charged in
the indictment, and that Defendants were entitled to
judgment of acquittal on these counts, because the
Government presented no evidence that the specific alleged
misrepresentations were materially false to anyone who
bought Zencense’s products.
The panel addressed whether the jury’s general verdict
on the money laundering offenses—which did not specify on
which predicate offenses it relied—may stand. The panel
held that any error under Yates v. United States, 354 U.S.
298 (1957), in allowing the money laundering convictions to
be based on the mail and wire fraud conduct, rather than on
the CSA offenses, was harmless beyond a reasonable doubt.
 USA V. GALECKI 5

COUNSEL

James Felman (argued) and Brandon K. Breslow (argued)
Kynes Markman & Felman PA, Tampa, Florida; J. Lloyd
Snook III, Snook & Haughey PC, Charlottesville, Virginia;
for Defendants-Appellants.
Elizabeth O. White (argued) and Robert L. Elman, Assistant
United States Attorneys, Office of the United States
Attorney-Reno, Reno, Nevada; Adam M. Flake and Daniel
D. Hollingsworth, Assistant United States Attorneys;
Christopher Chiou, Acting United States Attorney, Office of
The United States Attorney, Las Vegas, Nevada; for
Defendants-Appellants.

OPINION

COLLINS, Circuit Judge:

Defendants Benjamin Galecki and Charles Burton
Ritchie were convicted of drug trafficking, mail fraud, wire
fraud, and money laundering in connection with their
distribution of “spice,” a synthetic cannabinoid product that,
when smoked, produces a high. The drug-trafficking
charges were based on the premise that, although the
particular cannabinoid that Defendants used had not yet been
specifically listed as a prohibited controlled substance under
federal law, that cannabinoid was nonetheless treated as a
controlled substance because it was an “analogue” of a listed
substance. On appeal, Defendants raise multiple challenges
to their analogue-based drug-trafficking convictions, but we
reject these contentions and affirm those convictions. We
6 USA V. GALECKI

likewise affirm their money laundering convictions, but we
reverse their mail and wire fraud convictions.
I
A
Defendants Galecki and Ritchie manufactured and
distributed spice through their company, Zencense
Incenseworks, LLC (“Zencense”), which was formed in
Florida in 2010. Although headquartered in Florida,
Zencense also manufactured spice at a warehouse that the
company leased in Nevada. Zencense was highly successful,
and mid-2012, it employed approximately 140 people.
At trial, several former Zencense employees testified
concerning the company’s spice operations. For example,
Robert Biggerstaff testified that Galecki taught him how to
manufacture spice that contained a cannabinoid known
alternatively as “XLR-11” or “5F-UR-144.” The “point of
adding” the XLR-11, Biggerstaff explained, was to “create a
product that would actually get you high.” Rachel
Templeman, a sales employee, testified that Zencense
customized the product with various flavorings, including
blueberry, cherry, vanilla, chocolate, and pineapple.
Although both Templeman and Biggerstaff stated that
they knew that end users were ingesting Zencense’s
products, the company maintained an official position that
its products were simply “potpourri,” which it sold in
packets labeled “not for human consumption.” Consistent
with this company position, Biggerstaff testified that
Zencense staff were instructed not to refer to the various
versions of the product as “flavors,” because that could
“invoke[] a connotation of being orally ingested.” Rather,
staff were expected to use the words “aroma” or “fragrance.”
 USA V. GALECKI 7

Biggerstaff stated that, if a Zencense employee did not use
the “language of fragrance” or “aroma,” and instead
“refer[red] to something involving taste,” that employee
“would have been terminated” by Galecki or Ritchie.
Templeman agreed that “we weren’t able to call [the
options] flavors” and that she instead referred to them as
“[a]romas” or “scents.”
However, rather than sell its “potpourri” to home goods
stores such as “Bed Bath & Beyond” or to general retailers
such as Target or Walmart, Zencense marketed its products
primarily to “either smoke shops or alternative adult
emporiums” or “independent convenience stores.”
Templeman testified that when she referred to “spice or
incense or potpourri” on sales calls to such potential
retailers, “they knew what you were talking about,” because
those names were “standard in the industry.” Asked why
Zencense did not market its potpourri to stores like Target or
Walmart, Biggerstaff explained that “[w]e didn’t believe
they would be a good customer for our product” because
they would be expecting “an air freshener,” and “that’s not
the product that we were selling.”
To illustrate the stark contrast between Zencense’s
products and actual potpourri, the Government introduced
testimony from the CEO of a genuine potpourri company,
Aromatique. The CEO testified that Aromatique typically
sold its conventional potpourri to retailers such as
Anthropologie and Macy’s for as much as $18 per 8-ounce
package. Zencense “potpourri,” by contrast, sold to smoke
shops and other similar stores for around $7.50 per gram—
i.e., more than 90 times the price of ordinary potpourri at
8 USA V. GALECKI

Aromatique. 1 The potpourri options available to shoppers at
Aromatique included “Smell of Spring,” “Tarocco &
Clove,” and “Valencia Orange.” The Zencense “potpourri”
options included “Bizarro,” “Shockwave,” “Headhunter,”
“Sonic Boom,” and “DefCon 5 Total Annihilation.”
The Government also introduced Zencense’s written
sales script into evidence, and it confirmed the company’s
focus on selling to smoke shops while simultaneously
maintaining the nominal position that the products were “not
for human consumption.” For example, if a potential retailer
responded that it did not carry “spice” and was not familiar
with it, the script stated that the Zencense salesperson should
then explain that spice was “an herbal incense blend that you
burn” and then immediately ask, “Do you sell pipes?” If the
retailer responded that it did not sell pipes, the script stated
that “[m]ost likely this will not be a potential customer” and
the salesperson should “[e]nd [the] call, mark ‘Not
Interested,’ explain in notes, and mark for deletion.” But if
the retailer stated that it did sell pipes, then the caller was to
immediately respond by saying, “You know how pipes are
for tobacco use only? Well, spice is not for human
consumption.” An associated note in the script reminded the
caller that the company’s “stance” was “always that it is not
for human consumption.” But the script also noted that
retailers “that are in this business understand that language
is very important and will usually not press the issue too
much.”
In addition, the Government presented testimony to
show that Galecki and Ritchie were aware that customers

1
A wholesale price of $18 for an 8-ounce package works out to
approximately $2.25 per ounce. By contrast, a wholesale price of $7.50
per gram works out to more than $212 per ounce.
 USA V. GALECKI 9

were smoking Zencense products to get high. The owner of
a chain of smoke shops who purchased spice from Zencense
testified that Ritchie told him that if someone smoked spice,
“it would knock you out for a couple of hours on the floor.”
And Jayson Lang, who owned a business that sold XLR-11
to Zencense, testified that “[i]t was common knowledge that
people were consuming the product” and that Galecki had
told him “people liked the 5F-UR-144 [XLR-11] more than”
another similar cannabinoid because XLR-11 was
“fluorinated,” which “made it stronger.”
In July 2012, employees of an apparel shop that was
located next to Zencense’s Nevada warehouse contacted the
Las Vegas police about what they considered to be
suspicious activities at the warehouse. Ultimately, federal
authorities sought and obtained a search warrant, which was
executed on July 25, 2012. Numerous items were seized,
including substantial quantities of XLR-11.
Notified of the Nevada raid, Ritchie responded the same
day by calling a Florida police officer whom he knew from
middle school and who in turn referred him to a DEA agent
named Claude Cosey. On July 26, Ritchie took Cosey and
another DEA employee on a “tour” of the company’s Florida
facilities, and he gave them free samples. During the tour,
Cosey told Ritchie “[y]ou know people smoke this, correct?”
Ritchie responded: “Hey, I sell it as either incense or
potpourri . . . . Whatever they do with it after that, I don’t
know and I don’t want to know.”
Defendants were charged with conducting a continuing
criminal enterprise in violation of the Controlled Substances
Act (“CSA”), see 21 U.S.C. § 848; violations of the CSA
relating to alleged drug trafficking; and various financial
10 USA V. GALECKI

crimes including money laundering, mail fraud, and wire
fraud.
B
At the time Defendants engaged in the charged conduct,
XLR-11 had not yet been listed on the federal schedules of
controlled substances governed by the CSA. 2 Accordingly,
the Government’s drug-trafficking charges proceeded on the
theory that XLR-11 fell within the CSA’s provisions
addressing “analogues” of listed substances. To set the
relevant context concerning the Government’s analogue
theory, we first review what it means to be an “analogue”
under the CSA, and we then summarize the Government’s
trial evidence concerning whether XLR-11 was an analogue.
1
The CSA provides for five “schedules” of controlled
substances that are regulated under the Act. See 21 U.S.C.
§ 812. The schedules are numbered in decreasing levels of
perceived dangerousness, with “Schedule I” listing the most
dangerous substances that have no accepted medical use.
See id. § 812(b)(1), (c). The various schedules, however, are
not set in stone: the CSA expressly “authorizes the Attorney
General to add or remove substances, or to move a substance
from one schedule to another.” Touby v. United States, 500
U.S. 160, 162 (1991) (citing 21 U.S.C. § 811(a)).
Unsurprisingly, violations of the CSA that involve Schedule
I substances “carry the most severe penalties.” Id.
The listed-chemical approach of the CSA gave rise to a
significant loophole. By taking a substance listed on the
federal schedules and making modifications to its chemical
2
Effective May 16, 2013, XLR-11 was formally added to Schedule I.
See 78 Fed. Reg. 28735 (May 16, 2013).
 USA V. GALECKI 11

structure, drug designers were able to “develop subtle
chemical variations of controlled substances” that were
functionally similar to a listed chemical without actually
being a listed chemical. Grinspoon v. DEA, 828 F.2d 881,
891 (1st Cir. 1987) (citation omitted). Congress responded
to this problem by passing the Controlled Substance
Analogue Enforcement Act of 1986 (“the Analogue Act”).
See Pub. L. No. 99-570, title I, subtitle E, 100 Stat. 3207-13–
3207-14 (Oct. 27, 1986). The Analogue Act accomplishes
this goal through two amendments to the CSA. First, the
Analogue Act added a new definition of the term “controlled
substance analogue.” 21 U.S.C. § 802(32)(A). Second, the
Analogue Act added a new section establishing the
substantive rule governing such “controlled substance
analogues.” See id. § 813. In its current form, the key
subsection of that latter provision states: “A controlled
substance analogue shall, to the extent intended for human
consumption, be treated, for the purposes of any Federal
law[,] as a controlled substance in schedule I.” Id. § 813(a).
Thus, any substance falling within the definition of a
controlled substance analogue must be treated, if “intended
for human consumption,” as equivalent to the most serious
controlled substances with the most severe penalties.
McFadden v. United States, 576 U.S. 186, 188 (2015)
(citations omitted).
Given this draconian rule, the statutory definition of
“controlled substance analogue” is obviously crucial. That
definition states that, subject to certain limited exceptions:

[T]he term “controlled substance analogue”
means a substance—
(i) the chemical structure of which is
substantially similar to the chemical
12 USA V. GALECKI

structure of a controlled substance in
schedule I or II;
(ii) which has a stimulant, depressant, or
hallucinogenic effect on the central nervous
system that is substantially similar to or
greater than the stimulant, depressant, or
hallucinogenic effect on the central nervous
system of a controlled substance in
schedule I or II; or
(iii) with respect to a particular person,
which such person represents or intends to
have a stimulant, depressant, or
hallucinogenic effect on the central nervous
system that is substantially similar to or
greater than the stimulant, depressant, or
hallucinogenic effect on the central nervous
system of a controlled substance in
schedule I or II.

21 U.S.C. § 802(32)(A).
Although the three components of this definition are
written in the disjunctive, most courts have read the statute
as requiring proof of both (1) component (i) and (2) either
component (ii) or component (iii). See United States v.
Makkar, 810 F.3d 1139, 1142–43, 1146 (10th Cir. 2015)
(concluding that this reading was confirmed by “the plain
language of the statute” and also noting the potential
vagueness concerns presented by a broader, fully disjunctive
reading); see also United States v. Turcotte, 405 F.3d 515,
521–22 (7th Cir. 2005); United States v. Klecker, 348 F.3d
69, 71 (4th Cir. 2003); United States v. Hodge, 321 F.3d 429,
435–39 (3d Cir. 2003); United States v. Washam, 312 F.3d
 USA V. GALECKI 13

926, 930 n.2 (8th Cir. 2002). With the acquiescence of both
sides, that reading was explicitly embodied in the jury
instructions that were given at Defendants’ trial, and the
Government confirmed at oral argument in this court that it
does not contest that construction of the statute for purposes
of this case. In view of that concession, “we need not decide
in this case whether that interpretation is correct,” and
therefore “we assume for the sake of argument that it is.”
McFadden, 576 U.S. at 194 n.2 (declining to address this
very same issue).
2
The indictment charged that XLR-11 was an analogue of
“JWH-018,” a substance that was added to Schedule I
effective March 1, 2011. See 76 Fed. Reg. 11075 (Mar. 1,
2011); see also 21 C.F.R. § 1308.11(g)(3). At trial, the
Government relied on expert testimony to establish that
XLR-11 satisfied both elements of the definition of an
analogue with respect to JWH-018.
First, Dr. Gregory Endres, an expert in “organic forensic
and medicinal chemistry,” testified that XLR-11 had a
substantially similar chemical structure to JWH-018. Dr.
Endres prepared the following diagram depicting XLR-11
and JWH-018 side-by-side:
14 USA V. GALECKI

Dr. Endres stated that “[t]o make a determination on
structural similarity I look at the chemical as a whole.” Dr.
Endres explained that XLR-11 and JWH-018 have “exactly
the same” “acylindole core,” including the “same atoms” in
the “same locations” with the “exact same structure.” In Dr.
Endres’s view, the “substitution of a fluorine atom” in the
tail part of XLR-11’s structure was not a significant change
from JWH-018. Dr. Endres also noted that the “naphthyl
group” in JWH-018 was replaced by a
“tetramethylcyclopropyl” group in XLR-11. He stated that
the naphthyl group is an aromatic that can engage in “pi
stacking,” a phenomenon that he described as providing a
“weak electrostatic interaction . . . that can contribute to
better binding affinity.” However, he stated that he did not
view this “as a significant enough change,” because “pi
stacking is not required for binding affinity in the
cannabinoid receptors.”
Second, Dr. Jordan Trecki, a pharmacological expert,
opined that “XLR-11 has a substantially similar
 USA V. GALECKI 15

hallucinogenic effect on the central nervous system of that
of JWH-018.” Dr. Trecki testified that chemical differences
between JWH-018 and XLR-11 “retained and actually
intensified the pharmacological effect of the substance.”
Substances like XLR-11 “continued to work [as] well [as] or
greater than the original JWH substance,” and the changes
from JWH-018 to XLR-11 “enhanced” the substance’s
effect by, among other things, adding a fluorine atom.
Because fluorine “reduce[s] the metabolism of [a]
substance,” it allows substances to “stay[] in your body
longer,” meaning that less of the substance is necessary to
trigger the same effect over time.
C
Zencense employee Ryan Eaton—who had been sent to
assist Zencense’s warehouse operations in Las Vegas—was
tried alongside Galecki and Ritchie as a co-defendant.
However, the jury acquitted Eaton on all six counts with
which he was charged. The jury also acquitted Galecki and
Ritchie on two drug-trafficking counts involving a different
alleged analogue, known as “AM 2201” (Counts 20–21), but
it convicted both men on all remaining counts, including all
five drug-trafficking charges involving XLR-11 (Counts 22–
26). 3 Galecki and Ritchie were each sentenced to 20 years

3
Specifically, the jury convicted Galecki and Ritchie of the following
five drug-trafficking offenses: (1) conspiracy to manufacture, possess
with intent to distribute, and distribute XLR-11, in violation of 21 U.S.C.
§ 846 (Count 22); (2) manufacture of XLR-11, in violation of 21 U.S.C.
§ 841(a)(1) (Count 23); (3) distribution of XLR-11, in violation of 21
U.S.C. § 841(a)(1) (Count 24); (4) maintaining drug-involved premises,
in violation of 21 U.S.C. § 856(a)(1) (Count 25); and (5) possession of a
“listed chemical” (viz., acetone) with intent to manufacture a substance
containing a detectable amount of XLR-11, in violation of 21 U.S.C.
16 USA V. GALECKI

in prison, followed by three years of supervised release, and
a criminal forfeiture order was entered against both of them.
Galecki and Ritchie timely appealed, and we have
jurisdiction under 28 U.S.C. § 1291.
II
We first address Defendants’ contention that all of their
convictions should be set aside on the ground that the district
court erred in refusing to suppress evidence seized during or
as a result of the raid at Zencense’s Nevada warehouse.
In June 2016, Galecki filed a motion to suppress,
asserting that the search warrant affidavit contained false and
misleading information in violation of Franks v. Delaware,
438 U.S. 154 (1978). The district court denied this motion
on the ground that Galecki had not established that he had
Fourth Amendment “standing” to challenge a search of a
warehouse leased, not by him, but by Zencense. See United
States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th Cir.
2009) (holding that, as “a matter of substantive Fourth
Amendment law,” a person challenging a search or seizure
must show that there has been a violation of that Amendment
“as to him, personally” (emphasis added) (simplified)); see
also Byrd v. United States, 138 S. Ct. 1518, 1530 (2018)
(noting that “Fourth Amendment ‘standing’” “should not be
confused with Article III standing, which is jurisdictional”).
Ritchie subsequently filed his own motion to suppress—
which Galecki later joined—arguing that the search warrant
affidavit both was defective under Franks and failed to

§ 841(c) (Count 26). (The statutory definition of “listed chemical” refers
to a distinct list of chemicals that are used in the manufacture of
controlled substances, and that term therefore does not correspond to the
above-described schedules of controlled substances. See 21 U.S.C.
§ 802(33), (35)(B).)
 USA V. GALECKI 17

establish probable cause. The district court denied this
motion as to both Defendants on the ground that it was an
improper motion to reconsider the earlier order denying
Galecki’s motion to suppress.
We need not decide whether the district court erred in
treating Ritchie’s motion as an improper motion for
reconsideration. Reviewing the merits of the Fourth
Amendment standing de novo as to both Defendants, see
United States v. Lopez-Cruz, 730 F.3d 803, 807 (9th Cir.
2013), we conclude that the district court correctly denied
the motions.
In arguing that they have standing to challenge the search
of Zencense’s Nevada warehouse, Defendants assert that
they each had a “reasonable expectation of privacy” in those
premises. See Byrd, 138 S. Ct. at 1526–27 (noting that this
test for Fourth Amendment standing “was derived from the
second Justice Harlan’s concurrence in Katz v. United States,
389 U.S. 347 (1967)”). To establish standing under this test,
Defendants had to show that they “manifested a subjective
expectation of privacy” in the Nevada warehouse that
“society is willing to recognize . . . as reasonable.”
California v. Ciraolo, 476 U.S. 207, 211 (1986). We
conclude that Defendants failed to make that showing.
As we have recognized, determining who may assert a
reasonable expectation of privacy with respect to specific
commercial spaces “requires analysis of reasonable
expectations ‘on a case-by-case basis.’” SDI Future Health,
568 F.3d at 695 (quoting O’Connor v. Ortega, 480 U.S. 709,
718 (1987) (plurality)). The need for such a case-by-case
inquiry arises from two considerations. First, because “the
expectation of privacy that the owner of commercial
property enjoys in such property differs significantly from
18 USA V. GALECKI

the sanctity accorded an individual’s home,” Donovan v.
Dewey, 452 U.S. 594, 598–99 (1981), the “expectation of
privacy in commercial premises” is “less than[] a similar
expectation in an individual’s home.” New York v. Burger,
482 U.S. 691, 700 (1987); see also Minnesota v. Carter, 525
U.S. 83, 90 (1998) (“Property used for commercial
purposes” is thus “treated differently for Fourth Amendment
purposes from residential property.”). Second, in light of the
“great variety of work environments,” any given company
officer, manager, or owner may not have the same personal
reasonable expectation of privacy in all of the commercial
spaces of the organization. SDI Future Health, 568 F.3d at
695.
In SDI Future Health, we identified a number of
considerations that inform the determination as to whether a
particular individual has a reasonable expectation of privacy
in a specific company space. First, we noted that, under our
decision in United States v. Gonzalez, Inc., 412 F.3d 1102
(9th Cir. 2005), the joint owners and managers of a “small
business,” particularly one that is “family-run,” may
exercise such complete “day-to-day” personal control over,
and “full access” to, the company’s facilities that those
owner/managers would have a reasonable expectation of
privacy over the relevant spaces. SDI Future Health, 568
F.3d at 696 (citing Gonzalez, Inc., 412 F.3d at 1116–17); see
also Gonzalez, Inc., 412 F.3d at 1117 (noting, by contrast,
that “the hands-off executives of a major corporate
conglomerate might lack standing to challenge all
intercepted conversations at a commercial property that they
owned, but rarely visited”).
Second, we stated in SDI Future Health that a further
“crucial” threshold factor is whether the particular place
searched in the commercial facility was “given over to the
 USA V. GALECKI 19

defendant’s exclusive use,” 568 F.3d at 695–96 (emphasis
added) (simplified), because a showing of such exclusivity
would indicate that, absent countervailing considerations,
the person’s expectation of privacy was reasonable.
Third, SDI Future Health held that, outside “the case of
a small business over which an individual exercises daily
management and control, an individual challenging a search
of workplace areas beyond his own internal office must
generally show some personal connection to the places
searched and the materials seized.” 568 F.3d at 698
(emphasis added). We further stated that whether the
requisite personal connection has been shown should be
assessed “with reference to the following factors,” which we
said are not exclusive, id. at 698 & n.8:

(1) whether the item seized is personal
property or otherwise kept in a private place
separate from other work-related material;
(2) whether the defendant had custody or
immediate control of the item when officers
seized it; and (3) whether the defendant took
precautions on his own behalf to secure the
place searched or things seized from any
interference without his authorization.

Id. at 698 (footnotes omitted). “Absent such a personal
connection or exclusive use, a defendant cannot establish
standing for Fourth Amendment purposes to challenge the
search of a workplace beyond his internal office.” Id.
Under this framework, Galecki and Ritchie did not
establish Fourth Amendment standing with respect to the
Nevada warehouse. First, this case does not fall within the
distinctive scenario, typified by Gonzalez, Inc., in which the
20 USA V. GALECKI

defendants personally exercise day-to-day physical access to
and control over the facilities as part of their daily
management of a closely held small business. Indeed, the
record does not affirmatively indicate that Galecki and
Ritchie had ever actually visited the Nevada warehouse,
much less exercised personal day-to-day control over the
physical plant. Second, the Nevada warehouse is not the
personal office of either Defendant. Because this case thus
does not fall into either of these two scenarios, we consider
whether Defendants established that, in light of the factors
identified in SDI Future Health, they had the requisite
“personal connection to the places searched and the
materials seized.” 568 F.3d at 698.
As to the first SDI Future Health factor, the items seized
from Zencense’s Nevada warehouse were not the “personal
property” of Galecki or Ritchie, nor were they “kept in a
private place separate from other work-related material.” Id.
Rather, they were materials used in the manufacture of
Zencense’s products, such as XLR-11, plant material,
acetone, and flavorings; physical equipment, such as drying
racks; or documents, such as packing slips, handwritten
notes concerning flavorings, and a document relating to
rental of a facility. Because “the first factor really addresses
whether the item seized was personal property without any
relationship to work,” id. at 697, it provides no support for
finding the requisite personal connection to the warehouse.
The second SDI Future Health factor likewise provides
no basis for finding standing, because neither Galecki nor
Ritchie had personal “custody or immediate control” of the
items at the time that they were seized. Id. at 698. As noted
earlier, there does not appear to be any record evidence that
either Defendant ever even visited the warehouse, which was
thousands of miles from Zencense’s Florida headquarters.
 USA V. GALECKI 21

Moreover, Defendants concede that neither of them was
present at the warehouse at the time it was searched.
The third SDI Future Health factor addresses whether
the defendant “took precautions on his own behalf to secure
the place searched or things seized from any interference
without his authorization.” Id. (emphasis added). This
“third factor involves actions the employee takes on his own
behalf, not as an agent of the [company].” Id. at 697
(emphasis added). Defendants have pointed to no such
evidence in the record. Instead, they point to the fact that
Eaton took steps to keep the warehouse locked and secure
and that Defendants had the legal right, as managers of
Zencense, to prohibit others from entering the property. At
best, those actions show only that Defendants took steps as
agents of Zencense to ensure the security of the company’s
property, and not that they took any steps to secure the
warehouse or its contents on their own behalf. As we made
clear in SDI Future Health, it is not enough that Defendants
set “general policy” over company premises, “put in place
significant security measures” there, or took “steps to protect
the privacy” of the building. Id. Under this factor, there
must be some showing that actions were taken for the benefit
of Galecki or Ritchie personally, as opposed to the benefit of
the company as a whole. There is no such evidence.
Nor does the record disclose any other factor, beyond the
three we identified in SDI Future Health, that would support
finding the required “personal connection” to the Nevada
warehouse. See id. at 698 n.8. 4 Accordingly, we hold that

4
Defendants point to the general factors that we used to analyze Fourth
Amendment standing in Lopez-Cruz, such as whether the defendant has
a property interest in the placed searched, whether the defendant has the
22 USA V. GALECKI

Galecki and Ritchie failed to establish that they have Fourth
Amendment standing to challenge the search of the Nevada
warehouse and that the district court therefore properly
denied their motions to suppress.
III
We reject Defendants’ challenges to their convictions for
drug trafficking in violation of the CSA.
A
Defendants argue that the evidence was insufficient to
establish the scienter required in a CSA prosecution resting
on the Analogue Act. We disagree.
In McFadden v. United States, 576 U.S. 186 (2015), the
Supreme Court addressed “the knowledge necessary for
conviction” under the principal drug-trafficking statute, 21
U.S.C. § 841(a)(1), “when the controlled substance at issue”
is “an analogue” rather than a scheduled controlled
substance. 576 U.S. at 188. The Court held that such
knowledge could be established in either of two ways. First,
the Government may establish the requisite scienter “by
evidence that a defendant knew that the substance with
which he was dealing is some controlled substance—that is,
one actually listed on the federal drug schedules or treated as
such by operation of the Analogue Act—regardless of
whether he knew the particular identity of the substance.”
Id. at 194. Second, the Government may prove scienter “by

right to exclude others from it, and whether he took “normal precautions
to maintain privacy.” 730 F.3d at 808 (citation omitted). In light of these
factors, Zencense would clearly have standing to challenge the search of
the warehouse had it been prosecuted. See SDI Future Health, 568 F.3d
at 694 n.3. But in the specific context of an owner, manager, or employee
of a company, these factors must be viewed within the context of the SDI
Future Health framework.
 USA V. GALECKI 23

evidence that the defendant knew the specific analogue he
was dealing with, even if he did not know its legal status as
an analogue.” Id.
The Court also elaborated on the actual sorts of proof that
might satisfy these two alternatives. As to the first—i.e.,
knowledge that the substance is a “controlled substance”—
the Government can rely on either “direct evidence,” such as
“past arrests that put a defendant on notice of the controlled
status of a substance,” or “circumstantial evidence,” such as,
“a defendant’s concealment of his activities, evasive
behavior with respect to law enforcement, knowledge that a
particular substance produces a ‘high’ similar to that
produced by controlled substances, and knowledge that a
particular substance is subject to seizure at customs.” Id. at
192 n.1; see also id. at 195 n.3. As to the second alternative,
the Court explained that the requisite scienter exists if the
Government shows that the defendant had knowledge of the
features of the substance that make it an analogue under the
Analogue Act’s definition. Id. at 194. In such a case, it is
the knowledge of the features that counts; the “defendant
need not know of the existence of the Analogue Act.” Id. at
195.
In assessing the sufficiency of the trial evidence of
scienter under these standards, 5 we ask only “whether, after
viewing the evidence in the light most favorable to the
5
We note that McFadden addressed only a prosecution under
§ 841(a)(1), whereas in Defendants’ case, only two of the five relevant
drug-trafficking charges rested specifically on that statute. See supra
note 3. Nonetheless, the parties and the district court proceeded on the
assumption that the same scienter requirements that apply under
McFadden in a § 841(a)(1) case are also applicable to the charges against
Defendants under §§ 841(c), 846, and 856(a)(1). We will proceed,
arguendo, on the same assumption.
24 USA V. GALECKI

prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.
2010) (en banc). Here, we conclude that the evidence was
sufficient to permit a rational jury to find scienter under
McFadden’s first alternative—namely, that Defendants
dealt with a substance with “knowledge that [it] is listed
[under the CSA] or treated as listed by operation of the
Analogue Act.” McFadden, 576 U.S. at 196.6 In particular,
the record in this case includes evidence of each of the four
types of circumstantial evidence that McFadden identified
as supporting a finding of scienter under this first alternative.
Id. at 192 n.1; see also id. at 195 n.3.
First, the Government presented evidence that Galecki
and Ritchie each knew that XLR-11 “produces a ‘high’
similar to that produced by controlled substances.” Id. at 192
n.1. As noted earlier, a retailer who purchased spice from
Zencense testified that Ritchie told him that if a person
smoked spice, “it would knock you out for a couple of hours
on the floor.” And the owner of a business that sold XLR-
11 to Zencense testified that Galecki had told him that XLR-
11 was more popular than another cannabinoid because the
former was “fluorinated,” which “made it stronger” so that
the “high lasts longer.”
Second, there was evidence of “evasive behavior with
respect to law enforcement.” McFadden, 576 U.S. at 192
n.1. In particular, Biggerstaff testified that, to address the
possibility that Zencense’s products would be “seized” or

6
We therefore need not consider whether sufficient evidence supported
finding scienter under McFadden’s second alternative. See Griffin v.
United States, 502 U.S. 46, 56–60 (1991).
 USA V. GALECKI 25

“confiscated” by law enforcement, the company maintained
“secret” storage locations “that just the higher-ups in the
company knew about so that if we ever had an interruption
in business, we could continue to sell because we still had
product that hadn’t been confiscated.” Biggerstaff stated
that, on at least one occasion, Ritchie personally took him
once to these storage facilities, and he also testified that
Ritchie told him not to say anything to anyone else about
these units. Cory Finch, a Zencense employee, testified that
Galecki sent him a text message regarding a Dodge work
truck that appeared to have expired registration tags.
Galecki stated that the truck could get “pulled over” and
informed Finch that if he did get pulled over in the truck,
there was a receipt showing the registration had been
renewed. In the meantime, Galecki instructed Finch not to
place “product in the Dodge until we have the new sticker.”
Defendants emphasize that Ritchie freely gave DEA
Agent Cosey a tour of Zencense’s Florida facility, but that
tour was given only after DEA agents had already raided the
Nevada warehouse. Weighing the competing inferences that
may be drawn from the record, the jury could reasonably
conclude that this tour, which was given only after the cat
was already out of the bag, reflected simply a disingenuous
and opportunistic shift in strategy towards law enforcement.
That inference is further bolstered by the fact that, during the
tour, Ritchie implausibly claimed to Agent Cosey that he
was unaware that customers were smoking Zencense
products.
Third, there was evidence from which the jury could
rationally infer that Defendants knew that the substances
involved were “subject to seizure at customs.” McFadden,
576 U.S. at 192 n.1. Specifically, Defendants were well
aware that the XLR-11 that they imported from China was
26 USA V. GALECKI

mislabeled as containing other products, such as “cytidine-
5' monophosphate.” A rational jury could conclude that the
products were mislabeled in this way precisely to avoid their
seizure by customs. Defendants argue that this practice was
standard throughout the spice industry, but that point does
not preclude the jury from drawing a permissible adverse
inference from the use of such mislabeling. Moreover, as
noted earlier, Defendants were aware of, and planned for, the
possibility that some of their products might be seized or
confiscated. In addition, even prior to the search of the
Nevada warehouse, Ritchie was informed of raids on retail
establishments, and at one point Zencense had a policy of
reshipping an order if the product that it shipped to a retailer
was seized.
Fourth, there was ample evidence that Defendants took
additional steps to “conceal[],” to the extent that they could,
the nature of their “activities.” McFadden, 576 U.S. at 192
n.1. As we have explained, the evidence readily supports the
inference that Defendants knew that their products would be
consumed by those who purchased them from smoke shops
and other retailers. Defendants, however, sought to obscure
that fact by labeling their products as “potpourri” or
“incense” and “not for human consumption.” They similarly
instructed their employees not to refer to the spice as having
“flavors,” which could connote ingestion. Defendants were
also aware that their “potpourri” products sold for very high
prices that vastly exceeded what a home aromatic would
actually fetch, which further supports a reasonable inference
that Defendants were engaged in a charade that sought to
avoid formally admitting what they knew that they were
selling.
The record also contains additional circumstantial
evidence beyond the four types that McFadden identified.
 USA V. GALECKI 27

Because Templeman testified that Ritchie explained the
concept of an “analogue” to her, the jury could infer that
Ritchie was specifically familiar with the Analogue Act.
There was also testimony that, during the relevant
timeframe, spice distributors, including Zencense, serially
switched the cannabinoids they used as one after another was
formally added to the CSA’s schedules. When asked to
explain why Zencense kept changing the cannabinoid it
used, Templeman stated that “we knew that we were just
staying one step ahead of legality.”
Considering the record evidence as a whole, we have
little difficulty concluding that a rational jury could find,
beyond a reasonable doubt, that both Galecki and Ritchie
had the scienter required for an Analogue Act case under
McFadden. See United States v. Anwar, 880 F.3d 958, 967–
68 (8th Cir. 2018).
B
We next address Defendants’ contention that the district
court erred in giving a “deliberate ignorance” instruction
modeled on this court’s en banc decision in United States v.
Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc). Under
Jewell, the Government can satisfy the scienter requirement
in a drug-trafficking case by showing that “[1] the defendant
[was] aware” that it was “highly probable” that he was
dealing with a controlled substance but [2] he acted with “a
conscious purpose to avoid learning the truth.” Id. at 704
(citation omitted); see also United States v. Heredia, 483
F.3d 913, 919–21 (9th Cir. 2007) (en banc). Defendants
contend that there was insufficient evidence to support
giving such an instruction here. See United States v. Yi, 704
F.3d 800, 804 (9th Cir. 2013) (“An instruction is appropriate
if it is ‘supported by law and has foundation in the
28 USA V. GALECKI

evidence.’” (citation omitted)). 7 We review the district
court’s conclusion that the evidence supported a Jewell
instruction only for an abuse of discretion, see Heredia, 483
F.3d at 921–22, and in conducting that review, we “must
view the evidence in the light most favorable to the party
requesting it,” Yi, 704 F.3d at 804 (citation omitted). We
find no abuse of discretion.
As framed in the jury instructions here, the first element
of the Jewell standard is that “the defendants . . . were aware
of a high probability that the charged controlled substance
analogue or analogues were treated as a controlled substance
by the Analogue Act.” This element is amply supported in
the trial record. As we have explained, there was substantial
evidence to support a finding that Defendants actually knew
that XLR-11 was treated as a controlled substance under the
Analogue Act. It necessarily follows that the evidence was
likewise sufficient to support the conclusion that Defendants
knew, at a minimum, that there was a high probability that
XLR-11 was a controlled substance analogue.
There was also sufficient evidence to support the second
element of the Jewell standard—i.e., that Defendants
“deliberately avoided learning the truth” about XLR-11. As
set forth earlier, Defendants were well aware that their
trafficking in XLR-11 had to be concealed, at all stages, from
law enforcement in order to avoid seizure of the XLR-11 and
their smokable products containing it. Defendants also
changed the cannabinoid that they used as earlier ones were
listed on the CSA’s schedules, which further supports an
7
Defendants do not contend that Jewell’s deliberate-ignorance standard
is inapplicable to Analogue Act cases under McFadden, and we therefore
assume arguendo that the district court’s Jewell instruction correctly
stated the law. Cf. Anwar, 880 F.3d at 967–68 (upholding a “deliberate
ignorance” instruction in an Analogue Act case).
 USA V. GALECKI 29

inference that they deliberately attempted to select close-to-
the-edge substances that they could superficially claim were
not yet obviously illegal but that would undoubtedly produce
the high that their ultimate consumers wanted. On this
record, a jury could reasonably conclude that Defendants
deliberately avoided learning whether XLR-11 was treated
as a controlled substance under the Analogue Act.
We therefore hold that the district court did not abuse its
discretion in concluding that its Jewell instruction had a
sufficient foundation in the evidence.
C
Defendants contend that, as applied in this case, the
Analogue Act’s requirement that the substance in question
have a “chemical structure” that is “substantially similar to
the chemical structure of a controlled substance in schedule
I or II,” see 21 U.S.C. § 802(32)(A)(i), is unconstitutionally
vague. “As generally stated, the void-for-vagueness
doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory
enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983). Defendants argue that the underlying standard for
determining chemical structural similarity is impermissibly
vague and that “[n]o person of ordinary intelligence would
have a reasonable opportunity to ‘know’ that XLR-11 is
‘substantially similar’ in chemical structure to JWH-018.”
We reject Defendants’ as-applied vagueness challenge.
Because the phrase “substantially similar” “is not further
defined by the statute, we give that phrase its ordinary
meaning.” United States v. Kuzma, 967 F.3d 959, 968 (9th
Cir. 2020). In common parlance, “similar” means “having
30 USA V. GALECKI

characteristics in common” or “alike in substance or
essentials.” Similar, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 2120 (1981 ed.) (“WEBSTER’S
THIRD”). The word “substantial,” as relevant here, means
that the thing “specified” is present “to a large degree or in
the main.” Substantial, WEBSTER’S THIRD, supra, at 2280.
Accordingly, the chemical structures of two substances are
“substantially similar” if they share common essential
characteristics “to a large degree or in the main.” Further,
the term “structure,” as used in the context of a chemical,
refers to “the arrangement of particles or parts in a
substance,” as in “the arrangement and mode of union of the
atoms in a molecule.” Structure, WEBSTER’S THIRD, supra,
at 2267. The statute thus requires, at a minimum, that the
two chemicals share, to a large degree or in the main,
common components in terms of the arrangement of atoms
and the chemical bonds between those atoms. However,
because the statute only requires “substantial” similarity, it
clearly contemplates that two substances may contain some
differences in their chemical structures and yet still be
sufficiently “alike” in their “essentials” to remain
“substantially similar.” Under these standards, Defendants’
as-applied vagueness challenge fails.
As an initial matter, the trial evidence in this case
provided an ample basis to conclude that XLR-11 satisfies
the statutory requirement that, at a minimum, it must share
common chemical structural features, in terms of the
arrangement of atoms and chemical bonds, with JWH-018.
As set forth earlier, the Government presented expert
testimony that XLR-11 and JWH-018 share a common
“acylindole core,” including the “same atoms” in the “same
locations” with the “exact same structure.” See supra
section I(B)(2). Defendants note that, despite this common
 USA V. GALECKI 31

chemical core, there are also some structural differences
between the two substances. Specifically, as we have
explained, the Government’s chemical expert noted two
differences in the respective chemical structures of XLR-11
and JWH-018: (1) in contrast to JWH-018, “a fluorine atom”
was substituted in the tail portion of XLR-11’s structure; and
(2) the “naphthyl group” in JWH-018 was replaced by a
“tetramethylcyclopropyl” group in XLR-11. See supra
section 1(B)(2). Accordingly, the question here is whether
the statute provides an adequate basis for assessing whether
these particular differences in the two substances’ chemical
structures are sufficiently significant that, despite their
common chemical core, XLR-11 and JWH-018 should not
be considered “substantially similar” in “chemical
structure.”
In addressing that question, we agree with the Second
Circuit’s observation that, in judging similarity of chemical
structure, what matters is whether the particular structural
differences between two otherwise similar chemicals make
a difference “in the substance’s relevant characteristics.”
United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)
(emphasis added). In Roberts, the court noted that, apart
from “only two atoms,” the two substances in question had
otherwise identical chemical structures, as reflected in “two-
dimensional diagrams of the molecules.” Id. The
Government argued that this high percentage of overlapping
chemical structural similarity should be enough, “standing
alone,” to “establish substantial similarity in chemical
structure.” Id. (simplified). The court declined to adopt this
argument, noting that it would not be the “appropriate rule
to apply in every situation” because, “[i]n another case, it
might well be that a one- or two-atom difference in a
molecule made such a radical difference in the substance’s
32 USA V. GALECKI

relevant characteristics that any similarity in two-
dimensional charts would not be ‘substantial’ enough to
satisfy the definition of ‘controlled substance analogue.’”
Id. This analysis indicates that at least one way to establish
the required substantial similarity in chemical structure
would be to show that (1) the alleged analogue shares a
significant core of common chemical structural features with
a listed substance, in terms of arrangement of atoms and
chemical bonds; and (2) any residual differences in the
analogue’s chemical structure, as compared to that of a listed
substance, do not result in a material “difference in the
substance’s relevant characteristics.” Id. 8
Under that standard, Defendants’ as-applied vagueness
challenge must be rejected. Here, the trial evidence provides
a sufficient basis for concluding that XLR-11 and JWH-018
share a common core of identical chemical structural
features and that the subset of differences between the two
chemicals does not make a difference in the substance’s
“relevant characteristics.” Here, the Government’s expert
on chemical structure testified that the replacement of the
“naphthyl group” in JWH-018 with a
“tetramethylcyclopropyl” group in XLR-11 was not a
“significant enough change,” because it would not materially
affect the substance’s chemical “binding affinity in the
cannabinoid receptors.” Cf. Roberts, 363 F.3d at 125
(considering, in judging chemical similarity, how the body
metabolized the analogue). As for the “addition of a fluorine

8
There may well be other ways to establish the required substantial
similarity in chemical structure, and our decision should not be
understood as foreclosing other possible approaches that may be
appropriate in other cases with different facts. For purposes of the as-
applied challenge presented here, the approach suggested by the Second
Circuit’s Roberts decision is sufficient to resolve this case.
 USA V. GALECKI 33

atom” in XLR-11, the Government presented expert
testimony at trial that the only relevant resulting difference
in chemical interaction and processing inside the body was
that the presence of a fluorine atom “help[s] the drug stay in
the body and not be metabolized or excreted too quickly.”
Moreover, as the Supreme Court noted in McFadden, the
other elements of an offense, such as scienter, can serve to
alleviate vagueness concerns by independently narrowing
the potential range of conduct covered by the statute. 576
U.S. at 197. As noted earlier, there is ample evidence in the
record to permit a jury to conclude that Defendants were
aware that XLR-11 was a controlled substance under the
Analogue Act, even if they did not know its precise chemical
structure. See supra section III(A). As a result, Defendants
are poorly positioned to contend that they could not be
expected to discern, through ordinary intelligence, the line
between lawful and unlawful conduct that is reflected in the
substantially-similar-chemical-structure element of the
statutory definition of an analogue. See Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972). Additionally,
Defendants are simply wrong in contending that vagueness
doctrine precludes Congress from ever drawing legal lines
that take account of the complexities of the underling subject
matter being regulated. Those who traffic in substances that
they know will be ingested by consumers and will have
significant pharmacological effects can hardly be heard to
complain that the relevant line-drawing may involve a level
of complexity that, as here, may call for expert testimony.
The asserted vagueness of the substantially-similar-
chemical-structure element is further significantly mitigated
by the additional requirement that there be substantial
similarity in the actual or represented pharmacological effect
34 USA V. GALECKI

of the alleged analogue. 9 Even though the two elements of
substantial similarity in chemical structure and substantial
similarity in pharmacological effect are separate and distinct,
the two elements can operate in tandem to adequately narrow
the as-applied scope of the statute in a particular case. For
example, in a case—such as this one—in which the jury is
instructed to use the same listed substance (here, JWH-018)
in evaluating both elements of the definition of an
“analogue,” the requirement that there be a substantial
similarity in pharmacological effect will have the practical
consequence of placing an outer limit on the range of
relevant differences in chemical structure. That is, in such a
case, the statute’s elements will not all be met if the
difference in chemical structure in the analogue—even if it
seems superficially trivial—substantially alters the
analogue’s pharmacological effect. This additional element
places a significant outer limit on the range of chemical
variations that will fall within the statutory definition of the
offense as a whole, thereby further mitigating any vagueness
concerns.
Here, the expert testimony presented by the Government
at trial was that the two above-identified differences in
chemical structure between XLR-11 and JWH-018 did not
impede XLR-11 from having a substantially similar
pharmacological effect as JWH-018. Specifically, Dr.
Trecki described the concept of an “activity cliff,” which
refers to a structural change to a chemical that causes it to
“lose the pharmacological activity, meaning, in more

9
As we have observed, see supra at 12–13, the statute actually phrases
this additional requirement in the disjunctive, which might suggest that
it is an alternative element rather than an additional one. However, the
Government has repeatedly conceded, in this case and elsewhere, that it
is an additional requirement. See McFadden, 576 U.S. at 194 n.2.
 USA V. GALECKI 35

layman’s terms, if you make a certain change, the drug will
stop working.” Dr. Trecki then explained that the chemical
differences between XLR-11 and JWH-018 did not result in
such an activity cliff:

So when we look at the differences in the
functional groups between . . . JWH-018 and
XLR-11, the changes that scientists used to
make these new molecules, it retained and
actually intensified the pharmacological
effect of the substance. The activity cliff
phenomena or theory did not apply here. The
substances all continued to work well or
greater than the original JWH substance.

Indeed, neither of Defendants’ experts affirmatively opined
that the differences in chemical structure on which they
focused would lead to XLR-11 having overall materially
reduced pharmacological effects than JWH-018.
Taking all of the foregoing points together, we reject
Defendants’ as-applied vagueness challenge to the statutory
definition of a “controlled substance analogue.”
D
Defendants argue that their due process rights were
violated by the district court’s failure to compel the
Government to grant use immunity to two potential defense
witnesses who would have testified as to Defendants’
scienter concerning whether XLR-11 was covered by the
Analogue Act. Specifically, Defendants sought to call
Timothy Dandar, a lawyer who would have testified that he
advised Defendants that XLR-11 was “not an illegal product
under the Controlled Substance Analogue Act,” and Adam
36 USA V. GALECKI

Libby, a chemist who would have testified that he advised
Defendants that XLR-11 was not substantially similar in
chemical structure to JWH-018. The parties agreed below
that, if called as witnesses, Dandar and Libby would assert
their Fifth Amendment rights. The Government declined to
grant Dandar and Libby use immunity and the trial court
denied a motion by the defense to compel the Government
to do so. Reviewing de novo, see United States v. Straub,
538 F.3d 1147, 1156 (9th Cir. 2008), we conclude the trial
court did not err.
“[F]or a defendant to compel use immunity[,] the
defendant must show that: (1) the defense witness’s
testimony was relevant; and (2) either (a) the prosecution
intentionally caused the defense witness to invoke the Fifth
Amendment right against self-incrimination with the
purpose of distorting the fact-finding process; or (b) the
prosecution granted immunity to a government witness in
order to obtain that witness’s testimony, but denied
immunity to a defense witness whose testimony would have
directly contradicted that of the government witness, with
the effect of so distorting the fact-finding process that the
defendant was denied his due process right to a
fundamentally fair trial.” Id. at 1162. There is no dispute
that Dandar’s and Libby’s testimony would have been
“relevant” at step one of the Straub test. Id. The only
question is whether the district court correctly concluded that
the Defendants failed to establish either of the two Straub
alternatives at step two. It did.
Defendants rely on the second Straub alternative, which
focuses on the effect of the Government’s actions in denying
immunity to defense witnesses while granting it to
prosecution witnesses. Although Defendants do not point to
any witnesses who were formally granted immunity in this
 USA V. GALECKI 37

case, the Government concedes in its answering brief that we
have held “that government witnesses who are granted
favorable plea deals in return for their testimony are
encompassed by Straub[’s] use of the term ‘immunized.’”
United States v. Wilkes, 744 F.3d 1101, 1105 n.1 (9th Cir.
2014). Defendants, however, failed to show, as Straub
requires, that Libby and Dandar would have given testimony
that “directly contradicted” the testimony of one of the
Government cooperating witnesses in a way that
impermissibly distorted the fact-finding process.
This case bears no resemblance to Straub, in which we
found the requisite direct contradiction when the defense
witness sought to be immunized would have given directly
contradictory testimony concerning the critical content of a
specific conversation that occurred at a particular place and
during a particular timeframe. 538 F.3d at 1162–63. No
Government witness here testified to the contents of any
communications between Defendants and Dandar or Libby,
much less that the contents of those communications were
the opposite of what Defendants claimed. Moreover,
although (as we have explained) the testimony of the
Government’s witnesses supplied evidence from which a
rational jury could circumstantially conclude that Galecki
and Ritchie knew that XLR-11 was treated as a controlled
substance by virtue of the Analogue Act, those witnesses’
testimony also included other elements that refute any
suggestion that the refusal to immunize Dandar and Libby
resulted in such a distortion of the fact-finding process that
the trial was rendered fundamentally unfair. For example,
Templeman also testified that she was specifically told by
Ritchie and Galecki that the products they were selling were
legal. Indeed, after testifying that Ritchie had explained the
concept of an analogue to her, Templeman added that she
38 USA V. GALECKI

was not worried that they might actually be selling analogues
because she “believed the product was legal” based on her
conversations with Defendants.
Defendants are not entitled to insist on immunity for any
witness that might provide additional testimony that, from
Defendants’ point of view, might helpfully contribute to the
overall assessment of the circumstantial evidence. They
were required, under Straub, to show a direct contradiction
in testimony that resulted in a fundamentally unfair
distortion of the fact-finding process. The district court
correctly held that they failed to make that showing.
IV
Defendants contend that the evidence was insufficient to
support their convictions for operating a continuing criminal
enterprise (“CCE”) in violation of the CSA. See 21 U.S.C.
§ 848. “In order to prove that a defendant is guilty of
engaging in a continuing criminal enterprise in violation of
21 U.S.C. § 848, the government must establish (1) that the
defendant’s conduct constituted a felony violation of federal
narcotics law; (2) that the described conduct occurred as part
of a continuing series of violations of federal narcotics law;
(3) that the defendant undertook the activity in concert with
five or more persons; (4) that the defendant acted as the
organizer, supervisor, or manager of the criminal enterprise;
and (5) that the defendant obtained substantial income or
resources from the purported enterprise.” United States v.
Hernandez-Escarsega, 886 F.2d 1560, 1570 (9th Cir. 1989).
A “continuing series” for purposes of the second element
means “three or more federal narcotics violations.” Id. “It
is not necessary,” for purposes of the third “in concert with”
element, that the defendant “act in concert with five or more
persons at the same time, or that five or more persons be
 USA V. GALECKI 39

engaged in any single criminal transaction.” United States v.
Burt, 765 F.2d 1364, 1366 (9th Cir. 1985). However, the “in
concert with” element does “require[] proof of a conspiracy”
sufficient to violate 21 U.S.C. § 846. Rutledge v. United
States, 517 U.S. 292, 300 (1996). We conclude that the
evidence was sufficient under these standards.
Defendants contend that there was insufficient evidence
to support the jury’s conclusion that they acted “in concert”
(i.e., criminally conspired) with five or more persons. We
disagree. The evidence was sufficient to permit a rational
jury to conclude that Defendants acted in concert with the
following five Zencense employees: Ryan Eaton, Rachel
Templeman, Robert Biggerstaff, Corey Finch, and Diana
Duty.
Defendants assert that Eaton cannot be counted as one of
the five requisite conspirators given that the jury acquitted
him on all charges. That is wrong. “It is well established
that a person may be convicted of conspiring with a co-
defendant even when the jury acquits that co-defendant of
conspiracy.” United States v. Ching Tang Lo, 447 F.3d
1212, 1226 & n.8 (9th Cir. 2006) (citing United States v.
Powell, 469 U.S. 57, 65–66 (1984), and United States v.
Valles-Valencia, 823 F.2d 381, 381–82 (9th Cir. 1987)). As
we explained, “inconsistent verdicts do not necessarily lead
to the conclusion that the guilty verdict was the incorrect
verdict,” because “inconsistent verdicts can just as easily be
the result of jury lenity as a determination of the facts.” Id.
at 1226 n.8 (citation and internal quotation marks omitted).
Consequently, “the acquittal of all conspirators but one does
not necessarily indicate that the jury found no agreement to
act.” Id. (citation omitted).
40 USA V. GALECKI

Although the jury’s acquittal of Eaton is thus not
dispositive, we must still undertake an “independent review
of the sufficiency of the evidence” as to whether Galecki and
Ritchie conspired with Eaton. Powell, 469 U.S. at 67. We
conclude that the evidence on that point was indeed
sufficient. Finch testified that he trained Eaton how to make
spice, including teaching him the same “knowledge of the
process and the additives and things like that” that had
originally been conveyed to Finch by Galecki. Finch
testified that Eaton, after some time working with Zencense
in Florida, left for Las Vegas. Shipping records showed that
Ritchie then shipped packages to and from Eaton in Las
Vegas, with shipping costs to “send[] packages between
Burton Ritchie and Ryan Eaton at the warehouse” alone
totaling just over $14,000. When agents raided the Nevada
warehouse where Eaton worked, they found industrial
cement mixers, drying tables, jugs of flavoring, a large safe,
mylar bags, documentation from Zencense’s Chinese
exporters, and large drums of acetone for processing spice.
The Government also presented evidence that Eaton texted
an acquaintance that “I do nothing but make itchy spice in a
hot warehouse and float in my pool.” A special agent
testified that Eaton said that he received instructions that
“the word ‘flavoring’ should never be used,” that “it should
always be referred to as a fragrance rather than a flavor,” and
that if anyone joked about the phrase “[n]ot for human
consumption,” that employee could “potentially be fired on
the spot.” Based on this evidence, a rational jury could find,
beyond a reasonable doubt, that Galecki and Ritchie acted in
 USA V. GALECKI 41

concert with Eaton in undertaking the underlying drug-
trafficking activity. 10
The same is true of Templeman, Biggerstaff, and Finch,
all of whom testified at trial. Templeman’s testimony
provided substantial evidence from which a rational jury
could conclude that she and Defendants acted in concert.
Templeman testified that she was aware of instructions to
use euphemistic language when describing the flavors of
Zencense products; that she was aware Zencense shipments
had been raided by law enforcement and that she had
conveyed that information to Ritchie; that Ritchie told her
what an analogue was; and that she, a single Zencense
“potpourri” salesperson, made a 5 percent commission on
sales, with her commission amounting to between $100,000
and $125,000, in the months of May to August 2012 alone.
Biggerstaff’s testimony likewise established that he was
aware of the company’s requirement to use euphemistic
language to describe its products’ flavors; was aware
Zencense products had been raided by law enforcement; was
aware that Defendants controlled what Biggerstaff called
“secret” storage units to replace “confiscated” product; had
been taught by Galecki to manufacture spice, which
Biggerstaff knew contained XLR-11; and that Galecki told
him XLR-11 was just “one molecule off” from another
synthetic drug. And Finch testified that although he initially
thought he was making incense, he later learned he was in
fact producing spice; that he had originally been trained to
produce spice by Galecki; that he placed “not for human

10
For the same reason, we reject Defendants’ contention that, because
he was acquitted, Eaton cannot serve as a supervisee for purposes of
establishing that Defendants acted in concert with at least one or more of
the five supervisees in undertaking “three or more federal narcotics
violations.” Hernandez-Escarsega, 886 F.2d at 1570.
42 USA V. GALECKI

consumption” stickers on Zencense products; and that he
was aware of “the flavor versus fragrance rule” in talking
about Zencense products. While Finch testified that he
began to believe the product was questionable when
interviewed by law enforcement, implying that he had not
believed the product was illegal prior to that point in time,
the jury was not required to credit Finch’s self-serving
statements about his own state of mind.
The record evidence is less robust as to Diana Duty, who
did not testify at trial. But we must affirm Defendants’ CCE
conviction so long as, “viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Jackson, 443 U.S. at 319. According
to Finch, Duty conducted Finch’s job interview, and she
chose to conduct it, not at Zencense’s offices, but at a nearby
McDonald’s. After he “passed the interview,” Finch was
then “taken back to a unit where I was given the job.” Finch
also stated that, after he was hired, it was Duty who
instructed him as to “exactly” what “was the terminology we
should use.” She stated that “[a]ll plant material” was to be
called “product” and that “[t]here’s no flavor; there’s
fragrance.” Finch did not think that it was unusual to call
plant material “product,” but he thought it seemed “a little
odd” that “it was pretty harsh on the flavor versus fragrance
rule,” but since “it was a new job,” he “did what [he] was
told.” Duty thus had the role of interviewing and clearing a
prospective employee off-campus before bringing him back
to Zencense’s facility, and she was the one who then
instructed that employee in the crucial euphemistic language
that was employed by Defendants to describe their products.
The nature of Duty’s knowledge and role in the company
provides a sufficient circumstantial basis to permit a rational
 USA V. GALECKI 43

jury to conclude, beyond a reasonable doubt, that Defendants
acted in concert with Duty.
V
Defendants also challenge their convictions for mail
fraud, wire fraud, and money laundering (Counts 2–19). We
reverse Defendants’ convictions for mail fraud and wire
fraud, but we affirm their convictions for money laundering.
A
Defendants argue that the evidence was insufficient to
prove all of the elements necessary to sustain their
convictions for mail and wire fraud (Counts 9–19). 11 “The
elements of mail and wire fraud are: (1) proof of a scheme
to defraud; (2) using the mails or wires to further the
fraudulent scheme; and (3) specific intent to defraud.”
United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008)
(citing 18 U.S.C. §§ 1341, 1343). “In order to prove a
‘scheme to defraud,’ the jury must find that the defendant
employed ‘material falsehoods.’” United States v. Lindsey,
850 F.3d 1009, 1013 (9th Cir. 2017) (quoting Neder v.
United States, 527 U.S. 1, 20 (1999)). However, “‘the
government does not have to prove actual reliance upon the
defendant’s misrepresentations’ to satisfy materiality.” Id.
at 1014 (quoting Neder, 527 U.S. at 25). Rather, “a false
statement is material if it has ‘a natural tendency to
influence, or [is] capable of influencing,’” the decisionmaker
to whom the statement “was addressed.” Id. at 1013

11
Specifically, these charges included conspiracy to commit mail fraud
in violation of 18 U.S.C. § 1349 (Count 9); conspiracy to commit wire
fraud in violation of 18 U.S.C. § 1349 (Count 14); four substantive
counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 10–13);
and five substantive counts of wire fraud in violation of 18 U.S.C. § 1343
(Counts 15–19).
44 USA V. GALECKI

(quoting Neder, 527 U.S. at 16). We agree that, under these
standards, the Government’s evidence at trial was
insufficient to prove the mail fraud and wire fraud offenses
charged in the indictment.
The scheme to defraud that was charged in the
indictment and that was the basis for all of the mail fraud and
wire fraud counts was that, “for the purposes of obtaining
money from others,” Defendants “made materially false and
fraudulent pretenses, representations, and promises that
Zencense manufactured and distributed ‘herbal incense,’
‘potpourri,’ and ‘aromatherapy’ not for human consumption
to conceal that they then and there well knew that the ‘herbal
incense,’ ‘potpourri,’ and ‘aromatherapy’ was synthetic
cannabinoid products for human consumption.” The jury
was likewise expressly instructed, nearly verbatim, that all
of the fraud charges rested on these alleged false material
representations.
The problem with the Government’s theory is that, in
assessing whether Defendants made a “material falsehood”
for the purpose of obtaining money or property, materiality
is judged in relation to the persons to whom the statement is
addressed. Lindsey, 850 F.3d at 1013; see also Universal
Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S.
176, 193 (2016) (“Under any understanding of the concept,
materiality looks to the effect on the likely or actual behavior
of the recipient of the alleged misrepresentation.”
(simplified)); Neder, 527 U.S. at 16 (holding that, in cases
charging materially false statements to a government agency
or officer, “a false statement is material if it has a natural
tendency to influence, or is capable of influencing, the
decision of the decisionmaking body to which it was
addressed.” (emphasis added) (simplified)). Here, the
persons to whom the charged statements were made for the
 USA V. GALECKI 45

purpose of obtaining money or property were the retailers
and end consumers of Zencense’s products. But the
Government presented no evidence at trial that the specific
alleged misrepresentations were materially false to anyone
who bought Zencense’s products.
The Government presented no evidence whatsoever that
the labeling of Zencense’s products as “potpourri” and “not
for human consumption” had any natural tendency to
influence retailers or consumers into thinking that they were
purchasing extraordinarily expensive high-end home
aromatics. All of the Government’s evidence, in fact,
pointed in precisely the opposite direction—i.e., that the
purchasers all understood, and were in on, the charade. For
example, the Government introduced testimony from Ryan
Yarbro, an employee of a company with a chain of smoke
shops that sold Zencense products, and he stated that
“everyone, at least in the company I worked for, knew that
people would be smoking it.” Victor Nottoli, who owned
another chain of smoke shops that sold Zencense products,
testified that his understanding of Zencense products’ use by
consumers was that “[t]hey were smoking it.” Templeman,
a Zencense sales employee, testified that when she used the
words “spice or incense or potpourri” to refer to Zencense’s
products on sales calls to retailers, they “knew what you
were talking about.”
Moreover, the Government introduced testimony
showing that Defendants deliberately avoided marketing
their products to retailers who were interested in purchasing
true potpourri or incense. Asked why the company did not
market Zencense potpourri to stores like Target or Walmart,
Biggerstaff explained that “[w]e didn’t believe they would
be a good customer for our product” because they would be
expecting “an air freshener,” and “that’s not the product that
46 USA V. GALECKI

we were selling.” Templeman testified that most of
Zencense’s customers “were either smoke shops or
alternative adult emporiums, just not your run of the mill
products,” and that sales staff did not try to market to
“Walmart or Bed Bath & Beyond.” The Government also
introduced Zencense’s sales script into evidence, and that
document instructed salespersons making calls that, if a
potential client was unfamiliar with spice, they were to ask
if the store sold pipes. If the answer was no, the script
explained, “[m]ost likely this will not be a potential
customer” because “they are not the kind of store we want to
sell to.” In such cases, the script instructed, the salesperson
should “[e]nd call, mark ‘Not Interested,’ . . . and mark for
deletion.”
At no point did the Government introduce evidence that
Defendants intentionally marketed or sold their products as
real “spice” to cooking shops, as “incense” to yoga studios,
or as “potpourri” to home improvement stores—in other
words, directed their products, in any way, toward any
retailers or consumers as to whom the “potpourri” label
might have had “a natural tendency” to influence them to
believe they were purchasing something other than drugs.
Lindsey, 850 F.3d at 1013. Indeed, the Government
underscored the point by bringing the CEO of an actual
potpourri company to trial, who testified that he sold his
potpourri for 1/90th the price of Zencense’s product, used
fundamentally different ingredients in crafting his potpourri,
sold his products to an entirely different set of retailers, and
did not use secret code words to describe his potpourri
products.
On this record, the Government simply failed to prove
that Defendants made any materially false statement to
purchasers for the purpose of obtaining money or property.
 USA V. GALECKI 47

The Government’s evidence confirmed that both Defendants
and the purchasers whose money Defendants were trying to
obtain understood the labels “potpourri” and “not for human
consumption” as a code for “smokable synthetic
cannabinoids.” While “[a] misrepresentation may be
material without inducing any actual reliance,” United States
v. Blixt, 548 F.3d 882, 889 (9th Cir. 2008) (citation
omitted)—as in the case of a false statement to an
undercover law enforcement officer who is secretly aware of
the defendant’s fraudulent scheme—there can be no
materially false statement when both the listener and the
hearer know and intend that the words being used have the
same distinctive meaning.
While Defendants were properly convicted under the
CSA, the Government’s effort to shoehorn this case into the
mail fraud and wire fraud statutes failed as a matter of law.
Defendants were entitled to a judgment of acquittal on these
counts. 12
B
We next address Defendants’ convictions for money
laundering offenses (Counts 2-8). 13 Each of these charges
12
At oral argument, the Government suggested that the fraud convictions
could be sustained on the alternative theory that Defendants falsely
stated or implied to retailers that Zencense’s products were legal, thereby
inducing retailers to purchase products they would otherwise have
refrained from purchasing. This contention fails because, as the district
court correctly recognized, the jury cannot properly convict a defendant
of mail fraud based on different misrepresentations from those that were
charged in the indictment. See United States v. Adamson, 291 F.3d 606,
614–16 (9th Cir. 2002).
13
Specifically, the indictment charged one count of conspiracy to engage
in financial transactions to promote unlawful activity, in violation of 18
48 USA V. GALECKI

required the Government to prove either that Defendants
carried out (Counts 4–7) or conspired to carry out (Counts
2–3, and 8) financial activity involving “specified unlawful
activity.” See 18 U.S.C. § 1956(a)(1), (a)(2)(A), (h). The
indictment listed, as the predicate “unlawful activity” for
these charges, all of the other charged offenses, including
both the CSA offenses and the fraud offenses. The jury
instructions likewise permitted the jury to rely on the
conduct underlying any of the charged violations of the CSA
or the fraud offenses. The jury returned general verdicts of
guilt on the money laundering charges, without specifying
which predicate the jury had relied on in convicting.
Given that we have affirmed Defendants’ convictions as
to the CSA offenses but reversed their convictions mail fraud
and wire fraud offenses, the question arises whether the
jury’s general verdict on the money laundering offenses—
which could have rested on any of these predicate offenses—
may stand. The Supreme Court has held that, in certain
circumstances, a general verdict of guilt must be set aside
“where the verdict is supportable on one ground, but not on
another, and it is impossible to tell which ground the jury
selected.” Yates v. United States, 354 U.S. 298, 312 (1957).
This rule applies, for example, where the unsupportable
ground for the verdict was time-barred by a statute of
limitations, see Yates, 354 U.S. at 304–11, or was tainted by
constitutional error, see Stromberg v. California, 283 U.S.
359, 367–68 (1931). However, in Griffin v. United States,

U.S.C. § 1956(h) (Count 2); one count of conspiracy to transport funds
to promote unlawful activity, in violation of 18 U.S.C. § 1956(h) (Count
3); four substantive counts of transporting funds to promote unlawful
activity, in violation of 18 U.S.C. § 1956(a)(2)(A) (Counts 4–7); and one
count of conspiracy to launder monetary instruments in violation of 18
U.S.C. § 1956(h) (Count 8).
 USA V. GALECKI 49

502 U.S. 46 (1991), the Supreme Court distinguished Yates
and Stromberg and upheld a general verdict of conviction for
conspiracy, even though the verdict could have rested on
“either one of the two objects of the conspiracy” and one of
those objects was supported by insufficient evidence. Id. at
48, 60 (emphasis omitted). Indeed, the Court described any
such proposed extension of Yates to the insufficiency context
as “unprecedented and extreme.” Id. at 56. Moreover, the
Court noted that it had previously squarely held that “when
a jury returns a guilty verdict on an indictment charging
several acts in the conjunctive, . . . the verdict stands if the
evidence is sufficient with respect to any one of the acts
charged.” Turner v. United States, 396 U.S. 398, 420 (1970)
(quoted in Griffin, 502 U.S. at 56–57). The Court held that
the resulting “distinction between legal error (Yates) and
insufficiency of proof (Turner)” is one that “makes good
sense”:

Jurors are not generally equipped to
determine whether a particular theory of
conviction submitted to them is contrary to
law—whether, for example, the action in
question is protected by the Constitution, is
time barred, or fails to come within the
statutory definition of the crime. When,
therefore, jurors have been left the option of
relying upon a legally inadequate theory,
there is no reason to think that their own
intelligence and expertise will save them
from that error. Quite the opposite is true,
however, when they have been left the option
of relying upon a factually inadequate theory,
50 USA V. GALECKI

since jurors are well equipped to analyze the
evidence.

Griffin, 502 U.S. at 58–59.
Because we have reversed the mail fraud and wire fraud
convictions for insufficiency of the evidence, this case
would appear to be governed by the Griffin/Turner
insufficiency rule rather that the Yates legal-error rule. On
the other hand, the jury here arguably was not “well
equipped” to detect the insufficiency of the evidence as to
the mail fraud and wire fraud predicates, see Griffin, 502
U.S. at 59, because the jury did convict Defendants of those
offenses despite the evidentiary insufficiency that we have
identified. Moreover, we have previously recognized that,
in some cases, a conclusion that the evidence was
insufficient may actually rest more on a legal determination
than a factual one—i.e., it may rest on the conclusion that
the amply proved conduct simply “fails to come within the
statutory definition of the crime” as charged in the
indictment. Griffin, 502 U.S. at 59 (stating that such a legal
determination is subject to the Yates rule); see United States
v. Gonzalez, 906 F.3d 784, 791 (9th Cir. 2018)
(characterizing our prior decision in United States v.
Manarite, 44 F.3d 1407, 1413 (9th Cir. 1995), as an example
of an insufficiency determination that actually rests on a
“legal deficiency” that, under Griffin, would be subject to the
Yates rule). We conclude that we need not decide whether
this case is governed by the Griffin/Turner rule or the Yates
rule. Even assuming that Yates applies, the Supreme Court
has squarely held that “errors of the Yates variety are subject
to harmless-error analysis.” Skilling v. United States, 561
U.S. 358, 414 (2010). We conclude that any Yates error here
was harmless.
 USA V. GALECKI 51

Skilling held that “[h]armless error analysis,” which was
described in the context of “collateral review” in Hedgpeth
v. Pulido, 555 U.S. 57 (2008), “applies equally to cases on
direct review.” 561 U.S. at 414 n.46. Hedgpeth held that
Yates errors are governed by the same harmless-error
standards that otherwise govern instructional errors,
including the omission of an element, see Hedgpeth, 555
U.S. at 60–62, and in the context of direct review, those
standards were set forth in Neder, 527 U.S. at 18–19. Under
Neder’s standards, a Yates error is harmless if, after a
“thorough examination of the record,” we are able to
“conclude beyond a reasonable doubt that the jury verdict
would have been the same absent the error.” Id. at 19. As
we shall explain, that standard is met here.
As noted earlier, the money laundering counts on which
Defendants were convicted consisted of four substantive
counts of transporting funds to promote unlawful activity, in
violation of 18 U.S.C. § 1956(a)(2)(A) (Counts 4–7), and
three different conspiracy counts charged under 18 U.S.C.
§ 1956(h). Each of the four substantive counts rested on a
specific monetary transfer from a Zencense account to a
bank account in Jiaojiang, China. Given that these large
payments to a Chinese account were clearly in payment for
the XLR-11 that was being purchased by Zencense from
China, these four particular monetary transactions were
directly tied to the drug-trafficking activity underlying the
CSA charges and only derivatively and indirectly tied to the
domestic sales activities that underlay the mail fraud and
wire fraud charges. Given that fact, we have little difficulty
concluding, beyond a reasonable doubt, that the jury’s
conviction on these four substantive accounts “would have
been the same absent” the asserted Yates error in giving the
jury the alternative option of relying on the fraud charges.
52 USA V. GALECKI

Neder, 527 U.S. at 19. And because Count 3 explicitly
charged a conspiracy to transfer money “from a place in the
United States to and through a place outside of the United
States, namely, China,” the same reasoning readily leads us
to conclude that any Yates error with respect to that
conspiracy count was likewise harmless.
That leaves only the conspiracy charges in Count 2,
which alleged a conspiracy to “conduct financial
transactions . . . which involved the proceeds of [the]
specified unlawful activity,” and Count 8, which alleged a
conspiracy to “engage in a monetary transaction . . . in
criminally derived property,” namely, the “deposit,
withdrawal, transfer, and exchange of funds and monetary
instruments, such property having been derived from [the]
specified unlawful activity” (emphasis added). As charged,
these two conspiracies focused on the funds obtained from
Zencense’s overall operations, and so, unlike the other five
charges, they are not similarly focused directly on the
purchase of XLR-11. In support of these charges, the
Government introduced evidence of domestic transactions
involving Zencense’s revenues, and the Government
expressly relied on both the drug trafficking and fraud
predicates in urging the jury to convict on these counts.
Despite that difference, we nonetheless conclude beyond a
reasonable doubt that the “jury verdict” on these two counts
“would have been the same absent” any Yates error. Neder,
527 U.S. at 19.
As noted earlier, the theory of mail fraud and wire fraud
charged in the indictment was that Defendants made
materially false representations about their products “to
conceal that they then and there well knew that the ‘herbal
incense,’ ‘potpourri,’ and ‘aromatherapy’ was synthetic
cannabinoid products for human consumption” (emphasis
 USA V. GALECKI 53

added). The Government’s fraud-based theory was thus
explicitly intertwined with the drug-trafficking activity.
Moreover, the jury here did properly convict Defendants on
all of the drug-trafficking charges asserted under the CSA.
Given these two key facts, we have no reasonable doubt that
the jury’s verdict would have been the same had the jury
understood that a conviction on Counts 2 and 8 could only
be based on the charged drug-trafficking activity. Indeed,
on this record, there is no reasonable possibility that the jury
here rested its convictions on Counts 2 and 8 on a
determination that Zencense’s ultimate revenues were
derived only from mail fraud and wire fraud and not also
from drug-trafficking. See United States v. Jefferson, 674
F.3d 332, 361 (4th Cir. 2012) (“[I]f the evidence that the jury
‘necessarily credited in order to convict the defendant under
the instructions given . . . is such that the jury must have
convicted the defendant on the legally adequate ground in
addition to or instead of the legally inadequate ground, the
conviction may be affirmed.’” (citation omitted)); see also
United States v. Reed, 48 F.4th 1082, 1090 (9th Cir. 2022)
(holding, in the context of a collateral challenge, that an
instructional error in allowing a jury to base a conviction on
alternative conspiracy predicates, one of which is legally
invalid, is nonetheless harmless when the resulting
alternative “conspiracies” are “inextricably intertwined”
such that “no rational juror could have” convicted based on
“one predicate but not the other” (citations omitted)).
Because any Yates error in allowing the money
laundering convictions to be based on the mail fraud and
wire fraud conduct was harmless beyond a reasonable doubt,
we affirm Defendants’ money laundering convictions.
54 USA V. GALECKI

VI
Defendants’ convictions on Counts 1–8 and 22–26 are
affirmed. Defendants’ convictions on counts 9–19 are
reversed, and the district court is instructed to enter a
judgment of acquittal on those counts. We remand to the
district court for further proceedings consistent with this
opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.