Case o' The Week: Houston, we have a problem -- no Section 841 Scienter

Scienter requirements for federal drug case takes another hit in United States v. Houston, __ F.3d __, 2005 WL 1076091 (9th Cir. May 9, 2005), available here. In Houston, the Ninth refuses to impose a "foreseeability" requirement for the mandatory minimums in Section 841, arising from death after distribution. The opinion is also worth a read to survey the general miserable state of mens rea requirements in federal drug prosecutions.

Players: Hard-fought case with a tough, tough panel by Montana AFPD David Ness.

Facts: Tina Bradford was found dead on an Indian reservation. 2005 WL 1076091, *1. Among other controlled substances in her blood and urine was found a lethal dose of methadone. Id. The methadone came from a prescription bottle bearing defendant Rosemary Houston’s name, found near the scene. Id. Houston was charged with distributing a controlled substance that resulted in death, was convicted, and received a 276 month sentence. Id. The defendant contested the mandatory minimum sentence, arguing that the victim commited suicide and that this death was not foreseeable.

Issue(s): "Houston . . . particularly protests being held responsible for a death that she claims was an unforeseeable suicide." Id. at *1.

Held: "We conclude that the plain language of the statute establishes that although cause-in-fact must be proven, foreseeability is not an element of the crime . . ." Id. at *1. "The Government was not required to prove that Bradford's death was reasonably foreseeable by Houston in order to obtain the heightened minimum sentence authorized by § 841(b)(1)(C )." Id. "To obtain the heightened minimum sentence described in § 841(b)(1)(C), the Government also had to prove that the methadone Houston delivered to Bradford actually caused Bradford's death. The Government was not required to prove foreseeability as an element of the drug distribution crime." Id. "The plain language of § 841(b)(1)(C) demonstrates that proximate cause is not a required element. Congress specified that the heightened sentence would apply "if death . . . results" from the distribution of a controlled substance. This passive language unambiguously eliminates any statutory requirement that the death have been foreseeable. According to its language, as long as death "results" from the use of a described controlled substance, the person convicted of distributing the substance "shall be sentenced to a term of imprisonment of not less than twenty years or more than life. Id." Id. at *2.

Of Note: The Ninth joins its sister circuits in not requiring proximate cause for the death enhancement of Section 841, and views its holding as consistent with earlier decisions on the federal drug statute regarding foreseeability. Id. at *3.

The decision is a noteworthy reminder, however, of just how horrible the drug statute really is – future AFPDs can just skip the chapter on mens rea in law school, because the concept is forgotten in federal criminal law. The opinion also gives a quick overview of the devolution of drug mens rea, explaining that while forseeability regarding the amount of drugs is necessary for drug conspiracy charges, foreseeability is not necessary for a "straight" drug offense. Id. at *2 (discussing United States v. Mesa-Farias, 53 F.3d 258 (9th Cir.1995) (substantive offense lies "regardless of whether the total amount was foreseeable." Id. at 260), and limiting to conspiracy cases United States v. Becerra, 992 F.2d 960(9th Cir.1993) (requiring that the quantity of drugs be foreseeable for § 841(b) to apply.))

How to Use: The small solace in this case is the Ninth steps back from the First Circuit’s characterization of the statute as a "strict liability" offense. Id. at *3 & n5. The Court explains that there may be some "some fact scenarios in which the distribution of a controlled substance is so removed and attenuated from the resulting death that criminal liability could not be imposed within the bounds of due process . . . ." Id. This may be the only small window of defense for some clients fighting these very high mandatory minimum cases.

For Further Reading: Although it is a bit dated, Professor Richard Singer has an excellent law review article discussing the gradual destruction of the mens rea requirement in 81 USC Section 841 – a destruction produced by years of muddied thinking and mis-cited statutes and authority. See Singer, Richard, The Model Penal Code and Three Two
(Possibly Only One) Ways Courts Avoid Mens Rea, Buffalo Crim.L.Rev., Vol. 4:139
(2001), available here.

Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org.