Sunday, December 06, 2020

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 . Image of Judge W. Fletcher from


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



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