Articles Posted in Drug crimes

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First, you need the background facts of McIntosh’s first trip to the 11th Circuit. In U.S. v. McIntosh, the defendant was indicted in federal court for distributing crack cocaine and for a firearm related offense. The charges arose from a November 2005 traffic stop when an officer found the drugs and a firearm in the car, but the indictment mistakenly alleged McIntosh committed the offenses in February 2007. The government discovered the mistake after McIntosh pleaded guilty to the charged offense but before his sentencing. To correct this mistake (which the 11th Circuit called a technical error regarding the date of the offense) the government obtained a second indictment alleging the correct date and filed a motion to dismiss the original indictment, which the district court granted. McIntosh entered a conditional plea to the new indictment and reserved his right to appeal the conviction on double jeopardy grounds, and he appealed that sentence. In that appeal (McIntosh I) the 11th Circuit agreed that the second indictment violated the Double Jeopardy Clause of the Constitution because jeopardy attached when the district court accepted the plea on the first indictment and accepting the plea was a conviction. In McIntosh I, the 11th Circuit held the dismissal of the original indictment did not vacate the conviction, so the Double Jeopardy Clause prohibits a second prosecution for the same offense and remanded with instructions to dismiss the second indictment.

After the district court dismissed the indictment the government moved to set McIntosh’s sentencing based on his plea to the original indictment. McIntosh objected on Double Jeopardy grounds and argued the court lacked jurisdiction. He also moved to withdraw his plea. These motions were denied and he was sentenced to 120 months.

In this appeal, which is Mcintosh’s second time on appeal, the 11th Circuit rejected his Double Jeopardy challenge. It found that the dismissal of the original indictment did not terminate his case because the original prosecution did not end. The sentencing that proceeded after his guilty plea could not be characterized as a second prosecution nor was it a second punishment for the same offense.

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In U.S. v. Bellaizac-Hertado, the Eleventh Circuit held the Maritime Drug Law Enforcement Act was unconstitutional as applied to a boat found in Panamanian waters. While patrolling in waters of Panama, a Coast Guard boat observed a fishing vessel operating without lights a without a flag. It informed the Panamanian Navy, which pursued the vessel until the occupants abandoned the vessel and fled into the jungle. The abandoned boat had 760 kilograms of cocaine. Eventually the occupants were found and arrested by the Panamanian authorities. They were turned over to the U.S. by the Panamanian government, which consented to their prosecution in the United States. A grand jury in Miami, Florida, indicted the four defendants with conspiracy to possess with intent to distribute cocaine on board a vessel subject to the jurisdiction of the United States under 46 U.S.C. §70503(a). The defendants challenged the Miami federal court’s jurisdiction on the ground that the district court lacked jurisdiction and argued the Maritime Drug Law Enforcement Act was unconstitutional as applied to their conduct. The district court denied the motion because it found the defendants were operating a stateless vessel, and it found the Act was constitutional as applied as Congress and several courts had determined that drug trafficking was universally condemned by various nations.

The Maritime Drug Law Enforcement Act is an exercise of constitutional power by Congress under Article 1, section 8, clause 10 “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” The United States relies on the grant of power under the “Offense” clause as the source of power to proscribe the defendant’s drug trafficking in the territorial waters of Panama. The issue the Court faced was whether Congress has the power under the Offense Clause to proscribe drug trafficking in the territorial waters of another nation.

The Eleventh Circuit found that drug trafficking was not a violation of customary international law in 1789 at the time of the Constitution was written and is not a violation of customary international law today. Drug trafficking was not a matter of international concern in 1789 and was not a violation of customary international law. It found that it is not a violation of contemporary customary international law. Despite the widespread ratification of the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, there are states that are parties to this agreement that have been designated by the President as “major drug transit or major illicit drug producing countries.” Therefore the failure of these states to enforce drug activity shows that drug trafficking is not yet considered a violation of customary international law. The failure of these countries to comply with their treaty obligations “suggests they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.” Drug trafficking is also treated differently in the international law arena than violations of other customary international laws such as international efforts to prevent or punish genocide. Drug trafficking is not considered a crime under customary international law.

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The Defendant in U.S. v. Dortch was charged in federal court with possession with intent to distribute marijuana and carrying and possessing a firearm in furtherance of a federal criminal drug offense after a search warrant executed at the defendant’s house turned up traces of drugs and tools related to drug distribution (scales and boxes of sandwiches bags). The police found the two firearms in the bedroom and other locations of the house. The indictment also charged the defendant with possession of two specific firearms by a convicted felon and it alleged eight of the defendant’s prior convictions, however the government was only allowed to introduce 3 priors because 5 were too old or prejudicial.

The trial court sent a copy of the indictment to the jury unaware it sent the unredacted copy containing reference to the 5 prior inadmissible convictions. One of those was a 1987 conviction for selling marijuana that was identical to one of the charged offenses.

The Eleventh Circuit found that giving the jury the unredacted indictment was harmless error. The government presented an overwhelming case that the defendant possessed a firearm as a convicted felon. The government also presented a strong case that he possessed marijuana with the intent to distribute.

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In U.S. v. Liberse, the defendant pled guilty to conspiracy to distribute 50 grams or more of crack cocaine in 2006. At the time of his offense, his guideline range was 121 to 151 bases on the quantity of crack cocaine. Though the mandatory minimum was 120 months, his sentence of 121 months was one month above the statutory mandatory minimum. The mandatory minimum did not affect the sentence because it was less than the guideline range. The government later filed a motion to reduce his sentence pursuant to Rule 35(b) for his substantial assistance in the prosecution of another case. The district court reduced his sentence below the statutory minimum to 97 months.

In 2010, the Fair Sentencing Act (FSA) increased the drug amounts that trigger the mandatory minimum sentences (from 5 grams to 28 grams with respect to the 5 year minimum and from 50 grams to 280 grams with respect to the 10 year minimum sentence.) After enactment of the FSA, the Sentencing Commission promulgated Amendment 750 which revised the crack cocaine quantity table of 2D1.1(c) and Amendment 759 made it retroactive.

Liberse filed a motion pursuant to 18 U.S.C. §3582(c)(2) to reduce his sentence because under this Amendment Liberse’s guideline range was lowered to 70 to 87 months and The district court denied the motion for the reason that Liberse was subject to the same 120 month mandatory minimum sentence that was in effect before the FSA and the district judge in this federal court in Ft. Lauderdale, Florida, believed the Commission did not have authority to alter a statutory mandatory penalty. The 11th Circuit court overturned the decision finding that the revised crack cocaine quantity table lowered his base offense level to the point where his new guideline range would be 70 to 87 months. The open question that was not decided by Dorsey v. U.S. (applying the FSA to offenses that took place before the Act but sentenced after the enactment) is whether the reduced mandatory minimum quantities under the FSA apply to a Liberse whose offense and sentence took place before enactment. It was not decided by this decision and 11th Circuit will allow the district court to decide if the FSA mandatory minimum quantities apply to Liberse’s case. Either way his sentence will be reduced. It could be reduced by one month if the district court finds the FSA does not apply to reduce the mandatory minimum for Liberse (the mandatory minimum of 120 months is still less than his original guideline range of 121 months). Or it could find the FSA does apply and reduce the sentence to the new guideline range of 70 to 87 months. Also, because Liberse received a Rule 35(b) sentence reduction to his original sentence for substantial assistance, the sentencing court can reduce his sentence, pursuant to Amendment 759, which provides for a reduction that is “comparably less than the amended guideline range” if the term of imprisonment imposed was less than the normal guideline range because of the defendant’s substantial assistance. For this reason the district court did have the authority to reduce the sentence.

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In U.S. v. Almedina the defendant was arrested after receiving a package containing 458 grams of heroin that was delivered to him by ICE agents in a controlled delivery. The package had been imported to Miami from Colombia. Almedina cooperated with agents in his federal criminal case and explained that he was promised $1,000 from a Salgado to pick up the package and deliver it to Salgado. He also told the agents that he accepted a package from Colombia the month before for Salgado and was paid about the same. Salgado was arrested on federal criminal drug charges. He admitted being paid to accept the package and for some people from South America. He confirmed receipt of a package the month before and was paid a little less. At Almedina’s sentencing, the PSI included the earlier package, and the government estimated the earlier package weighed about the same as the seized package based on the amount both persons were paid. The sentencing court accepted the approximate quantity of the previous delivery and combined with the seized quantity put Almedina at an offense level 30, which applied to 700 to 999 grams of heroin.

Almedina argued on appeal that the district court improperly speculated the quantity. He argued it was speculation to presume the first package contained heroin just because the second contained heroin. It is plausible, he argued, that the first package contained no contraband and was just a dry run. Almedina reasoned that it is unlikely that drug dealers would send that amount of contraband to an unknown person without first determining that person was reliable. And even if the first contained contraband there is no evidence as to the type or amount. The government’s argued the district court was correct because it is unlikely the drug importers would have paid them for an empty package.

The district court’s estimate that the first package contained at least at least 215 grams of heroin was fair and reasonable. The 11th Circuit cited a long standing principle that when a fact pattern gives rise to two reasonable and different constructions, the fact finder’s choice between them cannot be clearly erroneous. Further, it cited the principle that in approximating the quantity of drugs, the district court may rely on evidence showing the average frequency and amount of a defendant’s drug sale over a given period of time. That determination must be based on fair accurate and conservative estimates of the quantity of drugs attributable to the defendant, and cannot be based on merely speculative calculations.

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In U.S. v. Glover the defendant moved to reduce his sentence under 18 U.S.C. §3582(c)(2) based on a retroactive amendment to the sentencing guidelines that lowered base offense levels for certain crack cocaine crimes. Glover pled guilty to 50 grams or more of crack cocaine violation 18 U.S.C. §841, but his relevant conduct involved two kilograms of crack cocaine. With his criminal history category of II, his guideline range would normally have been 188 to 235 months, except that he faced a mandatory life sentence under the sentencing enhancement provision of 21 U.S.C. §841(b)(1)(A) because he had at least two prior convictions for felony drug offenses. For this reason the statutory mandatory life sentence became his guideline sentence. The PSI recommended life and the sentencing judge adopted this recommendation. However, the government filed a §5K1.1 motion based on his substantial assistance to the government and the district court departed downward from the life sentence reducing his sentence to 208 months.

Amendment 750 lowered the crack cocaine penalties. The Sentencing Commission also made the amendment retroactive. In Glover’s case, the two kilogram quantity dropped from level 38 to 34. This would have given Glover an offense level 31 and a range of 121 to 151 for his criminal history category of II. Like many federal criminal lawyers in Miami that have applied for sentence reductions under this amendment, so did Glover. Unfortunately for Glover, the 11th Circuit held that §3582 does not allow for a reduction in his case. While the amendment normally applies where a sentencing range has been subsequently lowered by the Commission, the original guidelines were dictated by the statutory minimum. The amendment only applies if the amended guideline range is not affected by the operation of another other statute or guidelines. Here, Glover’s original guideline sentence was the statutory minimum of life, according to section 841(b)(1)(A). The statutory minimum was not affected by the Amendment.

The 11th Circuit held that the statute does not permit the defendant to receive a lower sentence than any sentence he would have receive if the amendment had been in effect at the time of his sentencing. The goal is to treat a defendant sentenced before the amendment the same as those sentenced after the amendment. Therefore, because the original sentence was based on a mandatory minimum sentence, the court lacks jurisdiction to consider a 3582(c)(2) motion even when an amendment would lower an otherwise applicable guidelines sentence.

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In U.S. v. Haile defendants Haile and Beckford were convicted of conspiracy to distribute more than five kilograms of cocaine, possession of five firearms, including a machine gun, in furtherance of a drug-trafficking offense, possession of an unregistered machine gun, and with possession of a firearm with obliterated serial number. The charges arose out of a reverse-sting operation where a Drug Enforcement Agent posing as a marijuana supplier met with Beckford who the undercover agent believed was looking to purchase marijuana. They discussed delivering 1,000 pounds to Beckford. The agent introduced Beckford to another undercover agent posing as a gun seller, and they discussed exchanging guns for marijuana. After the marijuana was delivered, the defendants were arrested. Haile had a Glock pistol. Beckford had cash, a loaded handgun, two rifles with obliterated serial numbers, and an M-11 machine gun.

The defendants’ lawyers challenged the conviction for knowing possession of a firearm in furtherance of a drug trafficking crime, claiming the indictment conflated the two elements of 18 U.S.C. § 924(c) that trigger the statute’s application. This is a penalty that federal criminal defense lawyers in Miami and across the county commonly face. The enhance penalty of statute is triggered two ways: (1) during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or (2) who in furtherance of any such crime, possesses a firearm. Both of these clauses were written in the indictment and defendants claimed that by conflating the elements it violated their 6th Amendment right to be informed of the nature of the accusations against them. The 11th Circuit rejected this claim, finding the indictment referred to the correct statute and place the defendants on notice of the two elements that trigger the enhancement.

Jury instruction for machine gun possession was correct.

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In U.S. v. Merrill, the defendant was convicted in federal court in Miami of the federal crime of knowingly selling ammunition made by a Communist Chinese military company to the U.S. Army. Here are the facts. AEY, a munitions dealership based in Miami Beach, Florida, placed a bid with U.S. Army for a contract to supply the Afghanistan Security Forces with various types of military munitions including 500 million rounds of AK-47 ammunition. The contract called for AEY to supply certain ammunition to the Afghan National Police and the Afghan National Army over a two year period. As an investor in AEY, Merrill advised AEY how to prepare the bid, and used his contacts in the arms business to find prices for ammunition. When the army requested details about the financial viability of AEY, Merrill provided letters from two of his companies promising a loan of $36 million to support the contract. Merrill and codefendant agreed to split the profits. Their bid price of $298 million was accepted by the U.S. Army. AEY acquired its munitions from a munitions supplied called MEICO located in Albania. When one of the AEY representatives went to Albania to oversee shipping, he discovered Chinese characters on the wooden crates containing the ammunition and contacted the other principles of AEY. One of the coconspirators sent an email to the Directorate of Defense Trade Controls Response Team at the State Department asking about the legality of brokering Chinese ammunition to the Army if it had been sitting for about 20 years with a company in Albania that acquired it before the U.S. enacted the arms embargo against China purchasing military equipment manufactured by the Communist Chinese military companies. The response given by the State Department was that the transaction could not be authorized. The coconspirators went ahead with it anyway by removing the Chinese characters form the crates and packaging. As the ammunition was shipped, the coconspirators sent about 30 certificates of conformance containing false statements that MEICO was the manufacturer of the ammunition and not the Communist Chinese military company that actually made it. Merrill was charged federal crimes of making false statements to the Army; defrauding the Army by making false statements, wire fraud against the Army, and defrauding the government in the procurement of property.

1. The court rejected Merrill’s motion to dismiss indictment.

Merrill challenged the indictment on the grounds that MEICO had acquired the ammunition from Communist China forty years before AEY acquired it from MEICO. It also argued that AEY had no contract with the Chinese military company. The 11th Circuit held that the charges were valid, finding that the ban on any sales of ammunition made by Communist Chinese military company does not include any exception for munitions that left China before the regulation was enacted. Merrill’s interpretation would leave a “gaping” loophole that the Department of Defense could not have intended.

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In U.S. v. Cochran the issue before the jury was whether drugs and drug related materials inside of a house belonged to a defendant or someone else who could have had access to the house. Though this happened in the Middle District of Florida, it is a common issue seen in federal drug cases in Miami as well. To prove the case the government offered a modification to the constructive possession jury instruction given in a drug possession case. The 11th Circuit disapproved of the modification; however it did not amount to reversible error. The facts leading to the Defendants arrest are this.

1. Agents executed a search warrant at house where they suspected he was staying.

2. Inside they found a small quantity of cocaine and a digital scale drugs along with forks and a measuring cup bearing drug residue in various parts of the house.

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In U.S. v. Schneider, the defendant at age 71 had the misfortune of selling oxycodone pills to an undercover police officer. Things for him got worse when his federal sentence was enhanced the statutory mandatory minimum 15 years because he was caught with a pistol and charged with possession of a firearm as a convicted felon. Under 18 U.S.C. § 924(e) a defendant with three or more priors for crimes of violence or drug offense faces a 15 year mandatory sentence if convicted of a firearm possession. The sentencing judge determined Schneider qualified for the enhancement because it counted a 25 year old Florida false imprisonment conviction as a crime of violence.

Schneider argued his Florida false imprisonment conviction should not be treated as a crime of violence under 924(e) because the language constituting a violation included “secretly confining” and did not necessarily require violence but could take place in the context of a nonviolent white collar crime. Under the Florida law False imprisonment means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.”

Applying the analysis set forth by the Supreme Court in Sykes v. U.S., the 11th Circuit found the Florida was a crime of violence. Under Sykes a crime qualifies as a crime of violence under the residual clause of §924(e) if it categorically poses a serious potential risk of physical injury that is similar to the risk posed by one of the enumerated crimes in the statute. The 11th Circuit reached the same conclusion in an earlier case, U.S. v. Chitwood, where the court held that the Georgia false imprisonment was a crime of violence. Though the Georgia statutes lacked the “secretly confining” provision found in the Florida statute, 11th Circuit reached the same conclusion as in Chitwood. The court found that the Florida false imprisonment crime possesses a potential risk of physical injury. It cited examples of Florida cases where the term “secretly” was defined in the context of kidnapping or abducting of a victim who was unaware that he or she was being abducted such as a victim secretly separated from a location in order to commit rape or molestation. Used in this context, the court determined that if a victim is likely to realize he or she is being secretly abducted, the victim could suffer injury from trying to escape from a perpetrator. As Sykes held, the injury need not be from the force applied by the perpetrator.

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