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United States v. Johnston

United States District Court, E.D. Kentucky, Central Division

March 27, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
SETH J. JOHNSTON., Defendant

For Zafar Iqbal Nasir, Defendant: Derek G. Gordon, LEAD ATTORNEY, Anggelis & Gordon, PLLC, Lexington, KY; T. Scott White, LEAD ATTORNEY, Morgan & Pottinger, P.S.C. - Lexington, Lexington, KY.

For Joshua Logan Fox, Defendant: David Allen Lambertus, LEAD ATTORNEY, Interchange Law Offices, Louisville, KY.

For Victor Manuel Colindre Hernandez, Defendant: David A. Torres, LEAD ATTORNEY, PRO HAC VICE, Bakersfield, CA.

For Hosam Saad Al Baderi, also known as Ali, Defendant: Patrick F. Nash, LEAD ATTORNEY, Lexington, KY.

For Soha Aljenabi, Defendant: Adele Burt Brown, LEAD ATTORNEY, Lexington, KY.

For Asim Malik, Defendant: R. Tucker Richardson, III, Russell James Baldani, LEAD ATTORNEYS, Baldani, Rowland & Richardson, Lexington, KY.

For Nawaz Khan, Defendant: Louis William Rom, LEAD ATTORNEY, Lexington, KY.

For Russell Vanderhoof, Defendant: Thomas C. Lyons, LEAD ATTORNEY, Thomas C. Lyons Law Offices, Lexington, KY.

For Seth J. Johnston, Defendant: Bernard Pafunda, LEAD ATTORNEY, Lexington, KY.

For USA, Plaintiff: Robert M. Duncan, Jr., LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY.

Page 882

MEMORANDUM OPINION AND ORDER

Joseph M. Hood, Senior U.S. District Judge.

This matter is before the Court on Defendant Seth Johnston's Motion to Dismiss Count 1 of the Indictment for failure to charge essential elements [DE 174]. The government has responded [DE 200], and Johnston timely filed a reply [DE 205].

Johnston argues that Count 1 of the Third Superseding Indictment [DE 134] (" Indictment" ) fails to sufficiently charge the mens rea for the controlled substance analogue charge. Relying on a Seventh Circuit opinion, United States v. Turcotte,405 F.3d 515 (7th Cir. 2005), Johnston argues that the Indictment must allege that the defendant knew that the substance at issue had a chemical structure substantially similar to that of a controlled substance and that the defendant must either have known that it had similar psychological effects or intended or represented that it had such effects. This Court does ...


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