UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-30048

Plaintiff-Appellee, D.C. No. 3:20-cr-05270- v. BHS-1 RICHARD MARSCHALL, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted November 8, 2022 Seattle, Washington

Filed September 20, 2023

Before: Sandra S. Ikuta and Daniel P. Collins, Circuit Judges, and Sidney A. Fitzwater,* District Judge.

Opinion by Judge Collins

* The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. 2 USA V. MARSCHALL SUMMARY*

Criminal Law

The panel affirmed Richard Marschall’s conviction under the Federal Food, Drug, and Cosmetic Act (“FDCA”) for shipping misbranded drugs in interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2). Marschall contended that the district court erred in concluding that the charged offense did not require proof that Marschall knew that the drugs he shipped were misbranded. The panel first held that the text of the various provisions of the FDCA at issue does not contain any language that imposes a scienter requirement of the sort that Marschall advocates. The panel then addressed whether there are convincing reasons to depart from the presumption that Congress intended to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct, even when Congress does not specify any scienter in the statutory text. The panel concluded that such convincing reasons are present here. The panel wrote that this is the unusual case in which a public welfare offense lacks a scienter element even though it is a felony with moderately severe potential penalties, given the confluence of circumstances: (1) Congress augmented, into a felony, a predicate misdemeanor offense that * 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. MARSCHALL 3 concededly lacks a scienter requirement; (2) it did so by adding, not a scienter requirement, but a prior conviction requirement; (3) this action contrasts with Congress’s explicit addition of a scienter requirement in the other clause of § 333(a)(2); and (4) the prior conviction requirement, as a functional matter, largely serves the same purposes as an express scienter requirement. The panel rejected Marschall’s other challenges to his conviction in an accompanying unpublished memorandum disposition.

COUNSEL Mohammad Ali Hamoudi (argued) and Gregory Geist, Assistant Federal Public Defenders, Federal Public Defender’s Office, Seattle, Washington, for Defendant-Appellant. Jonas B. Lerman (argued), Tania M. Culbertson, Michelle Jensen, Nicholas A. Manheim, Teal L. Miller, and Brian Werner, Assistant United States Attorneys; Nicholas W. Brown, United States Attorney; United States Attorney’s Office, Western District of Washington, United States Department of Justice, Seattle, Washington; for Plaintiff-Appellee. 4 USA V. MARSCHALL OPINION COLLINS, Circuit Judge: Defendant-Appellant Richard Marschall appeals from his conviction under the Federal Food, Drug, and Cosmetic Act (“FDCA”) for shipping misbranded drugs in interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2