Drug Offenses

Police Departments Try to Trick Drug Offenders Using the Coronavirus

In an attempt to go after some low hanging fruit, or perhaps as a practical joke, several police departments across the country have sent out posts on social media offering to tests methamphetamine and other drugs for the presence of coronavirus.

One such post from a Florida police department advises that people who fear that their meth might be contaminated should: “Bring it by our station and we will test your batch within minutes!”

Click here to read the article at WGN9 Chicago.

DEA Operation Project Python Results in 750 Arrests

The Justice Department announced the arrest of more than 750 individuals in the DEA-led Operation Project Python, which was charged with investigating a Mexican cartel called Jalisco New Generation Cartel. In addition to the 750 arrests, law enforcement seized over 20 kilograms of drugs and $20 million in cash. The arrests took place across Los Angeles, New York, Houston, Chicago, and Atlanta.

The charges include violent offenses, money laundering, and trafficking cocaine, meth, and fentanyl-laced heroin into and through the United States.

Law enforcement has declared that this is merely “phase one” of Project Python and that it plans on using evidence gathered during these arrests and search warrant executions to continue pursuing other members of the cartel.

Click here to read the article from NBC News.

Click here to read our firm’s breakdown of the type of drug conspiracy charges that are often brought against alleged gang members.

United States v. Wesley Scott Hamm (6th Cir. March 2020)

Drug Offenses/Elements – Sufficient evidence existed of a drug conspiracy, as opposed to a mere buyer-seller relationship, where the relationship was ongoing, the quantities involved were large, the transaction involved extensive planning, and the alleged seller taught the buyer how to mix the drugs for resale.

Drug Offenses/Death Counts – Sufficient evidence existed that the defendant’s drug distribution caused death where the defendant was part of a conspiracy to distribute carfentanil and the carfentanil’s combination with methamphetamine was the but-for cause of the victim’s overdose death.

Drug Offenses/Jury Instructions – A jury may not use a Pinkerton theory of liability to apply a death-or-injury sentencing enhancement under § 841(b)(1)(C).

Wesley Hamm, his wife, and his drug dealer, Shields, were indicted and charged with conspiracy to distribute controlled substances, including carfentanil, a substance “10,000 times stronger than morphine.” The three were charged after Hamm had purchased several grams of what he believed to be normal fentanyl from Shields and given some to another dealer, Myers, who in turn sold them to several other individuals who overdosed and, in some cases, died. Upon her arrest, Myers smuggled some of the substance into the jail, sold them to others who later overdosed, and ultimately committed suicide.

At trial, the jury convicted Hamm and Shields on conspiracy counts, two counts of distributing cafentanil, along with the sentencing enhancement for drug distribution resulting in death or serious bodily injury based on the overdoses discussed above.

On appeal, the Court first held that there was sufficient evidence of a conspiracy between Hamm, Shields, and Myers that rose above a mere “buyer-seller relationship” between Hamm and Shields. The Court noted that Hamm and Shields had an ongoing relationship, Hamm bought large quantities of substances from Shields, and Shields had previously taught Hamm how to mix the drugs for resale.

The Court also found there was sufficient evidence that the carfentanil that Hamm sold Shields was the but-for cause of the victim’s death. While the victim had also ingested methamphetamine before overdosing, experts for the government testified that the carfentanil made the combination deadly and, even without the meth, the carfentanil may have been enough on its own to cause death.

However, the Court found that the trial court committed reversible error by misstating the law in its jury instructions on the sentencing enhancement. The court had allowed the jury to apply the enhancement under the theory of Pinkerton liability, which allows members of a conspiracy to be held liable for foreseeable acts committed by other members.

However, the Court held on appeal, Pinkerton does not apply to death enhancements on substantive distribution counts. Rather, the death enhancement can only apply to defendants who were “part of the distribution chain” to the victim, as the Sixth Circuit held in United States v. Swiney, 203 F.3d 397 (6th. Cir. 2000). The Pinkerton theory of liability can be used to convict a defendant for substantive offenses related to the conspiracy, but it does not extend to allowing the jury to apply sentencing enhancements. The jury instructions alleging otherwise constitutes harmful, reversible error.

Appeal from the Eastern District of Kentucky

Opinion by Boggs, joined by Gibbons and Bush

Click here to read the opinion.

Shular v. United States (U.S. Supreme Court, February 2020)

In a unanimous decision, the Supreme Court held a defendant's prior conviction under state law qualifies as a "serious drug offense" under the ACCA if the defendant's conduct involves "manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance" as spelled out under the statute. In doing so, the Court rejected a categorical approach that would require courts to match the defendant's state offenses to a "generic offense."

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