Case o' The Week: Ninth Won't Cross A Bridge Too Far - Lemus and Extrapolating Purity When No Drugs in Evidence
The Ninth refuses to gaze into the "crystal" ball to guess at meth purity, when no meth is in evidence.
United States v. Lemus, 2016 WL 805739 (9th Cir. Mar. 2, 2016), decision available here.
Players: Decision by Judge M. Smith, joined by Judges Reinhardt and Paez. Big win for Deputy Fed. Public Defender Michael Tanaka, C. D. Cal. Federal Public Defender.
Facts: FBI Informant Ana Montano met Lemus in a bar. Id. at *1. After she discussed Lemus’s gang, she asked if he could supply her with ounce quantities of meth. Id. Lemus replied he had a pound for sale. Id.
The informant later tried to buy ounces from Lemus; he demurred, saying his source only sold it by the pound. Lemus offered the informant a sample (she declined). Id.
Agents followed Lemus, but didn’t conduct a traffic stop, and did not get a search warrant to search for drugs. Id. No drugs were ever seen, or recovered. Id.
Lemus was convicted after a jury trial of possession of over 50 grams of meth with the intent to distribute. Id.
Issue(s): “Lemus argues that the quantity finding is unsupported by evidence because there was no drug seized that could be tested for purity to determine whether it contained at least 50 grams of methamphetamine.” Id. at *4.
Held: “It would be a bridge too far to allow a jury to extrapolate from comparison drugs that were not from activity related to the defendant or a conspiracy in which the defendant is involved. A 90% level of purity would more than suffice to support the jury’s quantity determination, if adequately connected to the drugs concerning which Lemus had constructive possession. However, the government failed to include evidence connecting that purity level to Lemus. Viewing the evidence in the light most favorable to the government, no reasonable factfinder could have determined beyond a reasonable doubt that Lemus possessed more than 50 grams of methamphetamine.” Id. at *5.
“Because the drug quantity fails based on insufficient evidence, the government may not retry that issue, and instead must seek resentencing based solely on the basic possession conviction, i.e., under the lowest quantity category in Federal Sentencing Guidelines § 2D1.1.” Id.
Of Note: Why is this conviction upheld? There were no drugs seized or even seen: the evidence was solely Lemus’s boasting during the meetings with the informant. Remember the good old corpus delecti rule? A defendant’s own inculpatory statements cannot – alone – support a conviction? Id. at *2. The Court explains that corpus delecti remains the rule, but (thus far) in the Ninth, it applies only as to a defendant’s confession, not to contemporaneous crime statements. Id.
Here, Lemus’s “pound” drug brags happened during the offense (he dismissed them as jokes during his “confession”) so corpus delicti is not a bar.
The Second and Tenth Circuits have (wisely) extended a corroboration requirement from the confession context to include statements made during an offense. Id. at *3. Judge Smith avoids whether to adopt that prudent requirement in the Ninth, finding that in any event there was sufficient corroboration from Lemus’s other actions during the offense. Id.
It thus remains an open question in the Ninth whether corpus delecti corroboration requirements extends past confessions, to offense statements.
How to Use: This is a welcome win on drug mand-mins, but read the opinion carefully. Judge Smith notes the Ninth has previously upheld convictions requiring proof of meth amounts in the absence of the drugs themselves (and thus, without purity testing) when the jury could infer the meth offered was at least as pure as some actual meth, related to the case, that could be used for comparison. Id. at *4. A great outcome, in Lemus, but beware of the caveats.
For Further Reading: For a compelling explanation of the corpus delicti rule (told in the context of a troubling murder conviction), see David A. Moran, In Defense of the Corpus Delicti Rule, available here.
Image of “A Bridge Too Far” from http://static.rogerebert.com/uploads/movie/movie_poster/a-bridge-too-far-1977/large_ormdFwSHGVgsWdrzP5pRPaA6nme.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website available at www.ndcalfpd.org