Sunday, January 03, 2016

Case o' The Week: Weight, weight - don't tell me. Navarrette-Aguilar & Apprendi Proof for Mand-Min Drug Quantities

   The Ninth’s New Year’s Resolution: watch the weight.

United States v. Navarrette-Aguilar, 2015 WL 9463075 (9th Cir. Dec. 28, 2015), decision available here.

Players: Great decision by Judge Paez, joined by Judges Fisher and Ikuta.

Facts: Among other crimes, Navarette was charged with conspiracy to distribute a kilo or more of heroin, which triggered a twenty-year mand-min (Navarette had a prior). Id. 

To build the case the government used information from lower-level dealers to pursue higher-level distributors. Id. Specifically, cops developed snitches to work up the chain to Navarette. The government introduced 274 grams of heroin at trial. Id. at *2. The cooperators testified about the number of times they purchased heroin from Navarette, and the quantities involved. Id. at *3. The district court and Ninth agreed that this testimony was “vague.” Id. at *4.

The jury found Navarette conspired to distribute a kilo or more. Id. at *5. In denying the Rule 29, the court found the jury could have inferred, from a pattern of dealing, a “preexisting agreement to distribute at least a kilogram of heroin.” Id. at *6.

Issue(s): “Navarrette argues that substantial evidence did not support the jury's quantity finding. The evidence of historical transactions adduced did not amount to one kilogram. Navarrette maintains that when the district court denied his motions for judgment of acquittal, it erred in determining that the pattern of transactions permitted the jury to conclude that members of the conspiracy would have eventually distributed one kilogram of heroin.” Id. at *1.

Held:Even if some hypothetical pattern of transactions were consistent and clear enough to infer a preexisting agreement to surpass a certain quantity, such is not the pattern before us. While the testimony of [the cooperators] could prove repeated transactions over a period of eight weeks, the testimony did not show any consistency in those transactions, either with respect to amount or to frequency, from which a jury could reasonably infer an agreement to distribute a kilogram of heroin. This conclusion is underscored by the vague and equivocal nature of the testimony itself. Both witnesses at points contradicted themselves, and Burns repeatedly indicated that his memory was unreliable. Even construing the evidence in the light most favorable to the prosecution, the purchases in this case appear to have been ad hoc, and dependent on the level of demand at any given moment. . . . . 

Moreover, the testimony given at trial revealed that the whole arrangement was temporary and unstable. . . . Speculation cannot constitute substantial evidence.” Id. at *9-*10 (citation omitted).

Of Note: The Ninth upheld questioning about Navarette’s drug prior, because his sister’s testimony had “opened the door” to that evidence. Id. at *11. “Opening the door” is a particularly dangerous little concept, grounded in no evidentiary rule. See generally United States v. Wales, 977F.2d 1323, 1328-29 (9th Cir. 1992) (Kozinski, J., concurring in part.) (“This ‘opening the door’ doctrine has a certain common-sense appeal, but where is it to be found in the Rules of Evidence? I'm aware of no authority for admitting inadmissible evidence just because we think turnabout is fair play.”) 

Give Navaratte to defense witnesses, to warn of the consequences of well-meaning assertions (here, the sister volunteered that “she knew her brother was not involved in drugs).  

How to Use: Maybe Navarette would have dealt a kilo, posits the government, had the conspiracy not been interrupted? Judge Paez explains that this theory doesn’t cut it. “[T]he argument that the co-conspirators would have distributed one kilogram if it had not been interrupted potentially allows a quantity finding to stand upon what Navarrette would have continued to do, which, to the extent these hypothesized future bad acts were not captured by an agreement within the charged period, is clearly improper . . . Such a theory impermissibly invites the jury to speculate as to the amount of heroin involved in the conspiracy.” Id. at *10 (internal quotations and citations omitted). This discussion in Navaratte is a useful rejection of speculative conspiracy theories, used to stretch for mand-min drug amounts.
For Further Reading: On January 8, 2016, the Sentencing Commission will be meeting. Topics include a possible vote on the crime of violence amendment. See agenda here. 

The C.O.V. amendment to Section 4B.2 seems certain, at some point – but the big question is whether the amendment will be retroactive. For public comment on the proposed amendment, see the Commission’s page here.

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


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