United States v. McCarthy

── United States v. McCarthy ── Court: Court of Appeals for the Tenth Circuit Date: May 06, 2026 Category: General Appellate Case: 25-5026 Document: 50-1 Date Filed: 05/06/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS May 6, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellant, v. No. 25-5026 BRANDON DAVID MCCARTHY; RACHEL CHRISTINE MCCARTHY, Defendants - Appellees. _________________________________ Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:23-CR-00359-SEH) _________________________________ Thomas E. Duncombe, Assistant United States Attorney (Clinton J. Johnson, United States Attorney, with him on the briefs), Tulsa, Oklahoma, for Plaintiff-Appellant. Leah D. Yaffe, Assistant Federal Public Defender, Denver, Colorado (Alan S. Mouritsen of Parsons Behle & Latimer, Salt Lake City, Utah; Virginia L. Grady, Federal Public Defender, Denver, Colorado, with her on the brief), for Defendants-Appellees. _________________________________ Before HARTZ, TYMKOVICH, and EID, Circuit Judges. _________________________________ HARTZ, Circuit Judge. _________________________________ The government appeals the dismissal of several charges in an indictment against Defendants Brandon and Rachel McCarthy. The issue before us is whether Defendants can be prosecuted for selling unprocessed poppy seeds, even if they are  Appellate Case: 25-5026 Document: 50-1 Date Filed: 05/06/2026 Page: 2 not controlled substances, if Defendants knew that the poppy seeds would be used as a precursor to manufacture a controlled substance—namely, poppy-seed tea, which contains opioids. Exercising jurisdiction under 18 U.S.C. § 3731, we reverse the dismissal of the disputed charges. I. BACKGROUND 1 Under the Controlled Substances Act (the CSA or the Act), 21 U.S.C. § 801 et seq., poppy seeds are explicitly excluded from the definitions of two substances listed as Schedule II controlled substances: opium poppy and poppy straw. See 21 U.S.C. §802(19)–(20) (definitions); 21 C.F.R. §1308.12 (Schedule II). The inside of an opium poppy pod, however, is coated with opium latex, a milky, sap-like substance, which contains opiate alkaloids, including morphine, codeine, and thebaine, which are controlled substances. After harvesting, unprocessed poppy seeds—typically marketed as “unwashed,” “organic,” or “natural”—have some opium latex coating. Aplt. App. 139. The industry standard requires that for poppy seeds to be food-grade, they must be processed to remove the coating. Defendants Brandon and Rachel McCarthy operated Lone Goose Bakery as an online store primarily selling unprocessed poppy seeds coated in opium latex. Defendants would buy the seeds in bulk and repackage them in smaller bags for their 1 On review of the dismissal of an indictment, we assume the allegations in the indictment to be true. See United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). 2  Appellate Case: 25-5026 Document: 50-1 Date Filed: 05/06/2026 Page: 3 customers. Most customers were individuals who purchased the seeds for personal consumption, not bakeries or ret