Case o' The Week: Six v. Five, Means Two v. Eight -- Collazo En Banc, and Mens Rea for 841 Drug Cases and 846 Conspiracies

“This should be an easy case.” 

The Honorable Judges Sandra Ikuta (Majority Opinion), and William Fletcher (Dissent)

United States v. Collazo, 2020 WL 7052298 (9th Cir. Dec. 2, 2020) (en banc) (W. Fletcher, J., dissenting), decision available here.

 Players: En banc decision by Judge Ikuta, joined by Judges M. Callahan, M. Smith, Jr., Miller, Bade and Bress.

  Thoughtful dissent by Judge W. Fletcher, joined by C.J. Thomas, and Judges Nguyen, Watford and Hurwitz.

  Hard-fought battle by former Fed. Def. San Diego AFPD Ben Coleman, among many other amicus allies.   

 Facts: Collazo his co-D’s were tried for, among other things, violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846. Id. at *3. The case involved schemes to smuggle drugs into jails.

  The jury was instructed that, if they found the defendants guilty of these conspiracy charges, they would have to make special findings as to the type and amounts of drugs if they were “reasonably foreseeable or fell within the scope of the [conspiracy’s] agreement.” Id.

  The jury found requisite drug amounts to trigger big mand-mins for six defendants. Id. at *4. See blog entries here 

 Issue(s): “[W]e voted to hear the appeals en banc to clarify our jury instructions for conspiracy under § 846 and the facts that trigger the penalties under § 841(b) (1)(A)–(B).” Id. at *4.

 Held: “[W]e conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type and quantity.” Id. at *14.

  “[W]e conclude that to obtain a conviction and a particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant's mental state was the same as if the defendant had been charged with the underlying offense. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b).” Id. at *17.

 Of Note: Judge Fletcher’s compelling dissent sets forth precisely why Collazo is such a deeply troubling outcome. Id. at *20. The majority, he explains, breaks with SCOTUS’s increasing concern with the protections of mens rea requirements in criminal statutes. The majority decision also dodges the natural interpretation of a statute that does, after all, start with the words “knowingly” and “intentionally!” Id. at *23 (quoting Section 841(a)(1)).

  Will Collazo be the law of the Circuit until the Supremes grant cert.? Maybe – or maybe Ninth Circuit Rule 35-3 will come to the rescue. . . . (“In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.”)

 How to Use: This partisan-split opinion (six majority republicans versus five democrat dissenters) splits in other ways as well. Most notably, the Ninth parts ways with eight other circuits in this outlier opinion. Continue to preserve mens rea objections to Section 841 and 846 instructions: whether through a full en banc decision, or a Supreme Court reversal, this decision is unlikely to be the last word on federal drug mens rea requirements.

  ND Cal. Sr. Litigator Dan Blank also noted Collazo has parted ways with Buckland: Judge Ikuta now officially deems drug type and quantity as elements after Alleyne. Id. at *7 (“Under Alleyne’s reasoning, the facts of drug type and quantity under § 841(b) constitute elements or ingredients of the crime because they affect the penalty that can be imposed on a defendant) (emphasis added). 

 Now that the Ninth’s characterization of these facts has -- evolved – from the “sentencing factors” of Buckland to the “elements” of Collazo,  demand a Rule 29 dismissal to the entire drug case when the charged “elements” of specific drug type and quantity are not proved.                                                 

For Further Reading: “The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again. The presumption of mens rea is no mere technicality, but rather implicates ‘fundamental and far-reaching’ issues . . . .”

Judge Fletcher, dissenting in Collazo? 

Nope: this full-throated tribute to mens rea requirements is from then Judge, now Justice - Kavanagh. See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, C.J., dissenting).

 

 

 

Image of Judge Ikuta from https://www.law.com/therecorder/2019/07/24/parties-cant-have-their-day-in-court-and-compel-arbitration-too-ninth-circuit-rules/ . Image of Judge W. Fletcher from https://www.taiwannews.com.tw/en/news/3089662.

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' The Week: The Sixth & the Ninth - Pimentel-Lopez, Jury "Drug Amount" Verdicts, and Guideline Sentences in Drug Cases

 Here’s a radical Sixth Amendment wish: respect the crucial role of juries, by constraining the guideline calcs of sentencing judges with the findings in a jury’s verdict.

  (Wish granted).

United States v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016), decision available here.

Honorable Judges W. Fletcher, Kozinski, and Fisher

 Players: Decision by Judge Kozinski, joined by Judges Fletcher and Fisher.  

Facts: Pimentel-Lopez was convicted of possession with intent and conspiracy to distribute meth. Id. at *3. The jury completed a form, provided with the consent of the parties, that attributed to Pimentel less than 50 grams of a substance containing a detectible amount of meth. Id. 

  At sentencing, the district judge found the actual quantity was over 4 kilos, with a guideline range of 235-293 months. The judge imposed 20 years. Id. at 5. Without the court’s “over 50 gram” determination, the guideline range would have been 63-78 months. Id.

Issue(s): “The jury in defendant’s criminal case made a special finding that the quantity of drugs involved was ‘less than 50 grams.’ We consider whether the district judge may nevertheless calculate defendant’s sentence based on the judge’s finding that the quantity involved was far in excess of 50 grams.” Id. at 3. 

  “The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because ‘[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.’” Id. at 5.

Held: “The jury found “beyond a reasonable doubt [that] the amount of [methamphetamine] attributable to Jesus Pimentel-Lopez [is] . . . [l]ess than 50 grams.” This is not a case where the jury failed to find a fact under the exacting standard applicable to criminal cases . . . . Where this happens, the district judge is free to find the same fact under a less stringent standard of proof. Id. Rather, what we have here is a case where the jury made an affirmative finding, under the highest standard of proof known to our law, that the amount of methamphetamine attributable to defendant is less than 50 grams. The district court cannot attribute more than that amount to defendant without contradicting the jury on a fact it found as a result of its deliberations. District judges have many powers, but contradicting juries as to findings of facts they have been asked to make is not among them.” Id. at 6 (internal citation omitted).

  “In our case, the jury was asked to find the upper limit of the quantity of illegal drugs involved in Pimentel-Lopez’s crimes, and it did just that: ‘[T]he amount of [methamphetamine] attributable to Jesus Pimentel-Lopez [is] . . . [l]ess than 50 grams.’ This was not a gratuitous finding added by the jury of its own accord . . . . The parties presented evidence on point and the jury was instructed that this was a permissible finding. In such circumstances, the finding is binding, no matter how inconvenient it may be in subsequent proceedings.” Id. at 7 (internal citation omitted).

Of Note: Judge Kozinski muses that it might have been a “blunder” for the government to agree to this “amount” verdict form. Id. at 10. If it was a blunder, it was an understandable one – the Ninth Circuit recommends an instruction nearly identical to the one given! See “9.16, Determining Amount of Controlled Substance,” available here. 

 

Ninth Cir. Model Criminal Jury Instruction 9.16

 Read Ninth Circuit Model Criminal Jury Instructions 9.15, 9.16, and Pimentel-Lopez together. If the government wants drug mand-mins, it appears to need the Ninth’s 9.16 “amount” jury form . . . but if the jury then finds a lower drug amount, the district court’s guideline calcs are later constrained by the jury’s findings.  

How to Use: A sentencing judge’s guideline calcs are constrained by the drug amounts found by the jury. Mull pages 9-10 of Pimentel-Lopez carefully, and that seems to be the inescapable holding. Ninth Instruction 9.16 and Pimentel-Lopez, together, may make it worthwhile to go to trial solely to seek a jury finding of a lower drug amount – a finding that will constrain a later guideline range. 

                                               

For Further Reading: Does this all seem a little . . . muddled? It is. This morass arises from the Ninth’s regrettable refusal to recognize that drug amounts and drug types are really just Apprendi elements of Section 841 and 846 offenses. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). 

 For a rational analysis of what should happen, if “writing on a clean slate,” consider Judge W. Fletcher’s concurrence in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015), available here. 

  (And for extra credit, consider the logical extension of the Pimentel-Lopez's "jury-respect" principle to the damnable practice of using acquitted conduct at sentencing -- a practice lambasted by another notable Ninth Circuit Fletcher. See blog on United States v. Mercado, here.)

Image of the Honorable Judges Fletcher, Kozinski, and Fisher from https://www.youtube.com/watch?v=T0esCFRmhXY

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

Case o' The Week: Ninth Could Use a (Learned) Hand in Conspiracy Cases, Macias-Valencia

You have to actually possess sufficient amounts of specific drugs to get a mandatory minimum sentence under federal drug law. See 21 USC Section 841(a).

(Unless, of course, you're charged with conspiring to violate those laws . . . in which case, no actual drugs need to be involved at all, to earn a ten year mandatory minimum sentence. See United States v. Macias-Valencia, __ F.3d __, 2007 WL 4246068 (9th Cir. Dec. 5, 2007), decision available here)).

Learned would be dubious (right).

Players: Hard-fought appeal by veteran SF defense attorney Rommel Bondoc, decision by Judge Graber.

Facts: The DEA set up a “reverse-sting” with Macias-Valencia and his brother. Id. An undercover DEA agent offered to sell Macias-Valencia meth in two one-pound transactions. Id. Macias-Valencia and his brother were busted when they showed up with over $4,600 in cash and met with the agent to complete the sale. Id. No actual meth, however, was ever involved in the investigation or arrest. Id.

At sentencing, San Jose District Judge Whyte imposed the ten-year mandatory minimum required by the drug and conspiracy statutes, 21 USC §§ 841 and 846 (though he suggested that might have sentenced lower under the guidelines) Id. He rejected the defense argument that the “statutory maximum sentence should not apply because no actual contraband was involved in the commission of the offense.” Id.

Issue(s): “Does the mandatory minimum sentence of 10 years, prescribed by 21 USC § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense? Id. at *1.

Held: “Joining the Sixth Circuit, we answer ‘yes.’” Id. “In summary, Congress has dictated that a conviction for a conspiracy to distribute or an attempt to distribute a controlled substance carries the same penalty as a conviction for the distribution of the same amount of the same controlled substance. Neither a conspiracy conviction nor an attempt conviction requires the delivery, presence, or even existence of actual contraband. It follows that the district court properly imposed the mandatory minimum sentence here.” Id. at *4.

Of Note: The rub in this decision is that the substantive offense – possession for sale, 21 USC § 841(a) – requires proof that the defendant knowingly possessed a controlled substance and had the intention to distribute it. Id. The defense here (logically) argued that conspiring to commit that substantive offense should require that same element: in other words, a conspiracy to sell drugs should require actual drugs somewhere in the transaction, before a mandatory minimum sentence kicks in. Id. Judge Graber (joined by Judges Beezer and Trott) disagreed.

According to the panel, the statutory text “is clear.” Id. at *2. The result is that Macias-Valencia gets a ten-year mandatory minimum sentence for conspiring to commit a substantive crime (possession for sale), when there were never actually any drugs and he could not have, therefore, have been found guilty for the substantive crime itself! Conspiracy remains “that darling of the modern prosecutor’s nursery,” eight decades after Judge Learned Hand’s memorable quote. Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925).

A previous Ninth Circuit panel (Judges Lay, Hug, and Schroeder) flat-out agreed with the defense argument that a mand-min sentence for a conspiracy conviction requires actual controlled substances. United States v. Steward, 16 F.3d 317, 322 (9th Cir. 1994). The panel here avoids an en banc referral by characterizing the Steward holding as “dicta.” Macias-Valencia, 2007 WL 4246068, *3. “Dicta?” Maybe, but dicta that is directly on-point, from two former Chief Ninth Circuit Judges. Seems en banc review would be the better course – particularly because the panel crafts a new (and bad) Ninth rule.

How to Use: Beware: Macias-Valencia will undoubtably be abused to bootstrap high mandatory-minimum sentences into drug cases that wouldn’t otherwise qualify because there are no drugs involved, or insufficient drugs to trigger the mand-mins. The decision is particularly dangerous in a world where snitches and DEA agents routinely push our clients into dealing much larger amounts than is their normal “business practice.” Add the fact that you don’t actually need an overt act alleged or proved in a drug conspiracy, United States v. Travelman, 650 F.2d 1133, 1137 (9th Cir. 1981), and the new rule of Macias-Valencia will create some horribly unjust cases.

For Further Reading: For a very interesting article suggesting much-needed reform of conspiracy law, see Benjamin E. Rosenberg, Several Problems in Criminal Conspiracy Laws and Some Proposals for Reform, 43 No. 4 Crim. Law Bulletin 1, July-Aug. 2007.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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