Whether the Due Process clause of the Fifth Amendment mandates a mens rea term for the felony recidivist enhancement, 21 U.S.C. § 333(a)(2), of the misdemeanor drug mislabeling offense described by 21 U.S.C. § 331(a)

QUESTION PRESENTED The decision below affirmed a felony conviction for introducing misbranded drugs into interstate commerce, in violation of 21 U.S.C. §§ 331(a) and 333(a)(2), despite the fact that the offense—ordinarily prosecuted as a misdemeanor—lacks any mens rea term as to any intent to defraud or mislead. Richard Marschall’s offense was elevated to a felony through the operation of a strict-liability recidivist provision, and the mislabeled “drug” was a combination of garlic and larch—foods the FDA considers safe for human consumption. The Ninth Circuit nonetheless held that the presumption of scienter was overcome by Congress’s omission of any mens rea term for the recidivist felony and that the Due Process Clause did not prohibit the use of strict liability for a felony offense carrying a three-year maximum term of imprisonment. This petition presents the following question: 1. Whether the Due Process clause of the Fifth Amendment mandates a mens rea term for the felony recidivist enhancement, 21 U.S.C. § 333(a)(2), of the misdemeanor drug mislabeling offense described by 21 U.S.C. § 331(a)? i