Articles Posted in Drug crimes

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Reeves and five codenfendants in U.S. v. Reeves were convicted following a nine day trial of federal drug charges including conspiracy to distribute more than five kilograms of cocaine, possession of more than 50 grams of crack cocaine, and possession of a firearm by a convicted felon. The indictment followed nearly one year of investigation by the Georgia Bureau of Investigation and the Drug Enforcement Agency into the drug activities of individuals involved in drug distribution in the area of Baldwin County, Georgia. Agents used video surveillance and court ordered wiretaps to determine that numerous coconspirators were involved in large scale cocaine distribution network starting from a Mexican supplier of large quantities down to low level distributors of small quantities.

Reeves challenged his conspiracy conviction arguing that the facts showed he and his coconspirators were not part of a single criminal agreement but rather he just bought and sold cocaine in the ordinary course of several discrete agreements. The court rejected his arguments finding that he regularly purchased from one coconspirator and repeatedly sold to the same street-level distributors was more than adequate evidence for the jury to find a single overarching conspiracy to possess with intent to distribute cocaine. Reeves’ codefendant wife argued the evidence was insufficient to convict her of the conspiracy particularly because there was no evidence she personally distributed drugs. The court of appeals disagreed on the basis of the tape recorded telephone conversations presented at trial showing her knowledge of the cocaine conspiracy. Those conversations showed that a reasonable jury could find that the wife knew there was cocaine hidden in the house, that she agree to dispose of it after coconspirator was arrested, and that she tried to conceal the conspiracy by falsely tell the police that her codefendant husband lived at another address.

Another issue the wife raised was the admission of telephone recordings without proper authentication. The court of appeals found there was plenty of evidence establishing her voice on the recordings, including testifying on her own behalf in which she acknowledged speaking on the phone and identifying her own voice.

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The defendant in U.S. v. Salgado was indicted and convicted of the federal crimes of drug conspiracy, money laundering conspiracy, and possession with intent to distribute as least one kilogram of heroin. Prior to sentencing the presentence investigation report (psi) calculated his guidelines sentence range by grouping his convictions together under USSG § 3D1.2(c) because the drug conspiracy and distribution offenses were “the underlying offenses from which the laundered funds were derived.” The psi used the money laundering guideline, USSG § 2S1.1 to determine the defendant’s base offense level. To calculate the offense level under § 2S1.1, the psi set his base offense level using the guideline for the underlying conspiracy to distribute heroin. Under the facts of this case it came to a level 34. It then determined that certain enhancements applied under § 2S1.1, including a role enhancement, for his role in the heroin transactions that qualified him as a manager, leader or supervisor.

The issue in this appeal was not whether Salgado’s role in the heroin distribution conspiracy made him a manager, leader, or supervisor. Instead, the issue was whether the district court misapplied the guidelines by using Saldgado’s conduct in the underlying drug conspiracy to impose a role enhancement when calculating his offense level for money laundering under USSG § 2S1.1(a)(1).

According to §1B1.5(c), if the offense level adjustments is determined by reference to another guideline, the Chapter Three adjustments also are determined in respect to the referenced offense guideline “except as otherwise expressly provided.” This means that where a guideline determines a defendant’s offense level by reference to another offense, the Chapter Three adjustments are to be based on the guideline and rules for that other offense. But the 11th Circuit pointed out that this is a default rule because the “except as otherwise” provided language. Application note 2(c) of § 2S1.1 is one of the otherwise provided exceptions. It instructs courts that when setting an offense level under § 2S1.1(a)(1), a court should make Chapter Three adjustments based on the defendant’s conduct in the money laundering offense itself, and not based on his conduct in the offense from which the money that was laundered was obtained. This meant that when the district court calculated Salgado’s offense level under § 2S1.1(a)(1), it could base his role enhancement on conduct in the money laundering conspiracy but not on his conduct in the underlying drug offense.

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In U.S v. Campbell the defendant was indicted for conspiracy to possess and for possession with intent to distribute 100 kilograms or more of marijuana in violation of 46 U.S.C. § 70501 after he was arrested by Coast Guard on a vessel in international waters. The Coast Guard had earlier observed the vessel off the coast of Jamaica with three individuals aboard discarding dozens of bale in the water that the Coast Guard later determined were about 997 kilograms of marijuana. The Coast Guard determined the vessel lacked indicia of nationality because it lacked a flag, port, or registration number. The captain claimed the vessel was registered in Haiti. When the Coast Guard contacted the Republic of Haiti about whether the vessel was of Haitian nationality the response from Haiti was that it could neither confirm nor deny the registry. In a pretrial motion to dismiss on jurisdictional grounds, the defendant argued the certification of the Secretary of State to establish extraterritorial jurisdiction for prosecution violated the defendant’s right under the Confrontation Clause and there was insufficient evidence to prove that the defendant was aboard a vessel subject to the jurisdiction of the United States. The defendant was convicted following a bench trial where he stipulated to the material facts.

In the first issue raised, defendant argued the admission of the certification of the Secretary of State without the ability to cross examine a Haitian witness violated his right under the Confrontation Clause. The Eleventh Circuit found the stateless nature of the vessel was not an element of the offense to be proved at trial and the admission of the certification did not violate his right to confront the witnesses at trial. The Confrontation Clause does not bar the admission of hearsay to make a pretrial determination of jurisdiction when it is not an element of the offense. The Confrontation Clause protects a defendant’s right to confront testimony offered against him to establish guilt, and the Supreme Court has never extended the reach of the Confrontation Clause “beyond the confines of a trial.

In the second issue the defendant argued that the Fifth and Sixth Amendments require a jury to determine whether extraterritorial jurisdiction exists. The Eleventh Circuit rejected this argument in find that the issue of jurisdiction was preliminary to trial because the issue whether the boat was seized within the prescribed limit did not affect the right of the court to hold the person for trial. It only affect the question of guilt or innocence.

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Dwight Donawa, a citizen of Antigua, entered the United States in 1985 and became a permanent resident. In 2009 he was convicted in Florida state court of possession of cannabis with intent to sell or deliver in violation of § 893.13(1)(a)(2). After his conviction Department of Homeland Security began removal proceedings on grounds that he was removable because he had been convicted of an aggravated felony (8 U.S.C. § 227(a)(2)(A)(iii). Under the Immigration and Nationality Act permits the government to remove (deport) noncitizens who are convicted of certain crimes including drug offenses. Ordinarily a deportable citizen may ask the Attorney General for discretionary relief from removal, but if the noncitizen has been convicted of an aggravated felony, his is not only deportable but he is also ineligible for any discretionary relief. Before the Immigration Court he argued that he was not subject to removal and alternatively he argued that he was at the very least eligible for discretionary cancellation of removal under 8 U.S.C. § 1229b(a).

In Donawa v. U.S. Attorney General the court of appeals faced the issue of whether Donawa’s conviction under Florida Statutes § 893.13(1)(a)(2) for possession of cannabis with intent to sell or deliver is, as a matter of law, an aggravated felony. The definition of an aggravated felony that is relevant here is “illicit trafficking in a controlled substance” as defined by Title 18 U.S.C. § 924(c) The issue boiled down to whether 893.13(1)(a)(2) constitutes a drug trafficking crime, and if not whether it falls into the broader category of “illicit trafficking in a controlled substance.”

The Eleventh Circuit reached the conclusion that § 893.13(1)(a)(2) is not an aggravated felony as a matter of law. In Fequiere v. Ashcroft, a case decided in 2002, the Eleventh Circuit determined the statute was an aggravated felony. Since the Fequiere decision, Florida enacted § 893.101 which significantly changed the nature of the offense. In this amendment the legislature eliminated the element of knowledge of the illicit nature of the controlled substance. Instead, the amendment made the lack of knowledge an affirmative defense to the offense. Thus, the statutory scheme, which had been in place at the time of the Fequiere the decision, had change to the extent that the required element of knowledge was no longer the state’s burden. In contrast, the federal drug trafficking statute, 18 U.S.C. 841(a)(1), which is among the drug trafficking offenses listed under 18 U.S.C. 924(c)(2), requires the government to establish that the defendant had knowledge of the nature of the substance in his possession. Under the categorical approach, a person could be convicted under the Florida statute without any knowledge of the nature of the substance in his possession. Under those same facts, a person could not be convicted of the federal crime. Applying the categorical approach, (where a court confines its consideration only to the fact of conviction and the statutory definition of the offense) the Florida statute cannot qualify as an aggravated felony.

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In U.S. v. Curbelo, the defendant was convicted following a trial of conspiracy to manufacture and possess marijuana with intent to distribute in connection with his involvement with an indoor marijuana growing operation in Naples, Florida. He was specifically charged with conspiracy to manufacture and possess with intent to distribute 1,000 or more marijuana plants and conspiracy to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C. §§841 and 846. The defendant was hired initially hired to work as a carpenter for Diaz, who offered the defendant the opportunity to work as a caretaker for one of his grow houses and received a percentage of the profit to supervise the house. Later, Curbelo became more involved as Diaz gave him opportunities to work on other grow houses. Eventually the DEA placed GPS tracking devices on vehicles used by Diaz but did not obtain a warrant. The DEA also obtained a court order to intercept Diaz’s cellular phone conversations and intercepted conversations with the Defendant and a coconspirator in which they discussed aspects of the marijuana growing operation.

At trial the government played recordings of the wiretaps on Diaz’s phone, which were in Spanish, so the government provided the jury with an English translation that had been prepared by translator but the government never identified who prepared the transcript. Instead the government used Diaz who was fluent in Spanish and English to establish the accuracy of the transcripts. The defendant objected at trial to the admission of the translations of the recordings without putting on the witness who made the translations. The defendant objected to the admission as a violation of the Sixth Amendment Confrontation Clause because he could not cross examine the person who translated the records. In resolving this issue the court of appeals had to decide if the transcripts contain statements that are testimonial and hearsay. It found the conversations themselves were not hearsay because Diaz testified ant the defendant’s statements may be admitted against him. Furthermore, the transcripts did not contain a certification by the translator as to the accuracy of the translations. The government merely presented the translations themselves and do not contain any hearsay statement by the translator. There were no express assertions by the translator that could be true or false, only an implicit statement that the translation was accurate. Diaz, who was a participant in the conversations, testified at the trial that based on his independent review of the transcripts and the recordings the English translations were accurate. The only statement the jury heard regarding the accuracy of the transcripts came from Diaz. Therefore, even if the translator made a testimonial statement out of court, she did not become a witness against the Defendant. Diaz testified based on his own judgment, that the translations were accurate.

GPS suppression issue waived.

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In U.S. v. Valerio the defendant became the target of a federal drug investigation when he was spotted at a hydroponic gardening equipment store by DEA agents acting suspiciously. After the defendant drove away, the agent followed the defendant’s truck and concluded he was acting nervous about being followed. Two weeks later the agents spotted the defendant again at the store and followed him to a Deerfield Beach warehouse where he entered one of the bays. The agents believed the warehouse was in a location suitable for a marijuana grow house operation. Agents later brought out a K-9 dog to sniff the doors but it did not alert to the bay that the defendant had entered. After coming up short the law enforcement decided to send agents to his house to knock on his door and ask to speak with him. They waited for the defendant to emerge from his house. Instead of approaching him to ask questions, they blocked his truck has he tried to drive away from his driveway. One of the agents wearing a bullet proof vest bearing the words “police” drew his firearm and ordered him out of the truck. They conducted a full pat-down search and escorted him to the front of his truck. When asked if he operated grow house he admitted to operating one inside a bay at the warehouse.

The circumstances surrounding the stop and seizure of the defendant did not fall within the Fourth Amendment exception pursuant to Terry v. Ohio. The court found the timing and circumstances surrounding the officer’s seizure of the defendant placed it well outside the Terry exception to probable cause requirement. Given the delay and absence of a contemporaneous observations of the defendant that required swift law enforcement action, the court found there was no activity that would support the underlying purpose behind Terry exception to the probable cause requirement. While there may have been suspicious activity at the time he was observed a week earlier, the passage of time allowed the police to conduct conventional criminal investigation. They could have continued to conduct surveillance of the warehouse or his residence, verify his connection to the warehouse through utility records, or conduct a voluntary encounter with him. None of these investigative tactic would have been a problem under the Fourth Amendment prohibition against warrantless search and seizure. The opportunity to Terry stop is only “justified by and limited to the exigent circumstances of the moment” and cannot be used later after the exigency has expired. “The exception established in Terry to the general Fourth Amendment requirement that all seizures be supported by probable cause is justified by the exigencies associated with law enforcement dealing with the rapid unfolding and often dangerous situations on city streets.” There was no exigency when the defendant exited his house and entered his truck and there was no probable cause to believe he was involved in any illegal activity when he was seized. Statements made by the defendant and evidence obtained as a result of the illegal seizure should have been suppressed.

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In U.S. v. Hamilton, the defendant appeal the denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which authorizes a court to modify or reduce a sentence for an amendment to the guideline range. The defendant pled guilty to drug offenses including conspiracy to possess and distribute 50 grams or more of cocaine base (crack cocaine). The defendant’s presentence investigation report (PSR) stated that the defendants in the conspiracy received at least one kilogram of powder cocaine that was cooked into crack cocaine. He was assigned a base offense level of 38 based on the drug offense involving at least 1.5 kilograms of crack cocaine. The defendant objected to this base offense recommendations by the PSR. In response to the defendant’s objections, the PSR said that at least two weeks of activities by the conspiracy would have been sufficient to make at least 1.5 kilograms of crack cocaine. The addendum implicitly used the conversion rate of 75% of powder cocaine to powder. At sentencing the district court adopted the addendum’s calculation that the defendants received on kilogram of powder per week and operated for at least 2 months.

The defendant filed a motion for sentence reduction pursuant to 3582(c)(2) in light of amendment 750 to the guidelines which raised to 8.4 kilograms the minimum amount of crack cocaine necessary to establish a base offense level of 38. In response to the motion to reduce, the probation officer found the defendant was responsible for 12 kilograms of crack cocaine and fell under the offense level of 38. The defendant’s response was that at sentencing the district court initially only found him responsible for at least 1.5 kilograms of cocaine.

The 11th Circuit held that the district court may reduce a defendant’s sentence based on a subsequently enacted amendment if the sentencing Guidelines make the amendment retroactively applicable. In determining the amended guideline range, the district court may not reconsider any guideline application decisions and must leave all previous factual decisions intact. The district court is limited to considering the sentence that it would have imposed had the amendment been in effect at the time of the original sentencing and must leave all its previous factual decisions intact.

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In U.S. v. Carrillo the 11th Circuit dealt with question whether a defendant convicted of a drug offense and receiving a 2-point guidelines increase for the possession of a firearm can be eligible for a safety valve reduction. The court ruled that that the provisions are not mutually exclusive but it will be a difficult for a defendant to qualify for a safety valve. Defendant Carrillo pled guilty to the federal crime of conspiracy to sell methamphetamines and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g). Through an undercover agent, Carrillo sold a variety of firearms. Eventually, the defendant began to sell the agent quantities of methamphetamines, but he continued to sell the agent more firearms. One time the defendant sold the agent a shotgun and some methamphetamines on the same day. The PSI recommended a two point enhancement under USSG §2D1.1(b)(1) a dangerous weapon was possessed under relevant conduct. The defendant argued for safety valve eligibility because there was no connection between his sale of methamphetamine and his sale of firearms. Title 18 U.S.C. §3553(f)(1) and USSG §5C1.2(a)(2) (“safety valve”) provides for relief from the mandatory minimum 60 month sentence if a defendant meets five criteria. One of the criteria requires the defendant show he did not use violence or possess a firearm or other dangerous weapon “in connection with the offense.” Carrillo met the other 4 criteria of the safety valve provision but the district court found he did not qualify under this provision because of the incident where he sold the agent a rifle and a bag of drugs on the same day.

In this case of first impression in the 11th Circuit the court focused on the interpretation of the language “in connection with the offense.” No definition or explanation was provided in the guidelines or the statutes. The court rejected the government’s argument that Carillo was automatically not eligible for the safety valve because his he received 2 points under §2D1.1 (b)(1) for the possession of a firearm. The court concluded the sentencing guidelines did not intend for this result because §2D1.1 (b)(1) imposes a 2-point increase if “a weapon was possessed” and not “if a weapon was possessed in connection with the offense.” A 2-point increase for firearm does no automatically exclude eligibility for safety valve; nevertheless, a defendant seeking relief under the safety valve will have a “difficult task” to show that there is no connection with the drug offense. Where the firearm is not in proximity to the drugs, the 11th Circuit found the determination of whether there was a “connection” with the drug offense depended on whether the firearm “facilitated or had the potential to facilitate” the drug offense. Under the facts of Carrillo’s case, defendant was not eligible for the safety valve because the sale of guns did facilitate the drug offense. The firearm transaction “greased the wheels” for the drug sales to take place. The guns sales created trust and established relationship before the drug sales could occur.

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The defendant in U.S. v. Hoffman was sentenced to life for his conviction of conspiracy to distribute of 50 or more grams of methamphetamines in violation of 21 U.S.C. §§ 841(a)(1), 846, and with possession with intent to distribute methamphetamines. Prior to trial on these federal crimes the government filed a notice pursuant to 21 U.S.C. §851 that it intended to seek enhance punishment base on a prior Florida state drug convictions for conspiracy to traffic in cocaine and possession of cocaine. His priors were committed at 17, and at the time, he was sentenced as a youthful offender. The prior Florida felony drug convictions increased the minimum from 10 years to life imprisonment and at sentencing the district court imposed a life sentence. On appeal, the defendant challenged the life sentence under the Eighth Amendment arguing the sentence was cruel and unusual punishment because the basis for the punishment were the two conviction for offenses committed while the defendant was a juvenile.

Defendant relied on the Supreme Court decision in Roper v. Simmons where the court held that the 8th and 14th amendments forbid imposing the death penalty on offenders who were under the age of 18 when their crimes were committed. The 11th Circuit found Roper did not apply and distinguished it on these grounds:

1. Roper involved a death sentence and not a life imprisonment.

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In U.S. v. Colon, the defendant, Christina Colon, pleaded guilty to the federal crime of distribution of crack cocaine and possession of a firearm in furtherance of a drug trafficking offense. The Pre-sentence Report calculated her range at 46- 57 months and the district court varied down to 36 months. Pursuant to the firearm count the court imposed a mandatory minimum term of 5 years to run consecutively to the drug count, for a total of 96 months. Following the sentence, the Sentencing Commission issued Amendment 706, which reduced the base offense levels for crack cocaine offense. Colon filed a motion pursuant to 18 U.S.C. § 3582 to reduce her sentence. The district court found she was eligible and reduced her sentence under the drug count from 36 to 27 months leaving her with a total sentence of 87 months. Colon filed a second motion to reduce her sentence after enactment of the Fair Sentencing Act and the subsequent guidelines amendments. Amendment 750 issued by the Sentencing Commission, retroactively reduced the base offense levels for crack cocaine offenses. The Commission also issued Amendment 759 which restricted a district court’s discretion to make the reduction below the minimum of the amended guideline range, unless the original sentence imposed had been below the guideline range because of a reduction based on the defendant’s substantial assistance.

Under the new amendments the range, Colon’s range would be 30 to 37 months. The district court did not reduce her sentence because her current sentence was 27 months and below the new guideline range. The district court found the new amendment prevented the court from reducing the range because the original variance was not based on substantial assistance.

Colon claims the district court erred in applying Amendment 759 because the Sentencing Commission’s amendment of that policy statement exceeded its authority under the Sentencing Reform Act. The 11th Circuit rejected Colon’s challenge that Amendment 759 violated the ex-post Facto Clause. The court found the Amendment did not increase the punishment assigned by law when the act to be punished occurred. Colon’s guideline range after those amendments was the same as it would have been without them.

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