Drug Offenses

The Tenth Circuit affirmed a defendant’s conviction despite finding that the district court violated Rule 605 of the Federal Rules of Evidence, which prohibits judges from testifying as witnesses. After the defendant had testified that there had been a second video, not shown to the jury, which would have shown the government’s video was manufactured, the district judge instructed the jury that there was only one video in the case. While this clearly violated Rule 605, the Court concluded that the violation was harmless in light of the overwhelming evidence of guilt.

The Sixth Circuit affirmed a defendant’s conviction and sentence. The Court held that the district court did not err in using the future-tense in instructing the jury on the elements of RICO, since the conspiracy charge criminalized the agreement to form a racketeering enterprise, even if the enterprise has not been formed yet. The Court also affirmed the two-level enhancement for maintaining a premise for drug distribution, holding that the defendant could be held accountable for a co-defendant’s maintenance of a premise that was part of a jointly undertaken criminal activity.

The Second Circuit vacated a defendant’s conviction for distributing fentanyl. The Court held that the defendant only has to present “some credible evidence” regarding government inducement in order to obtain an instruction on entrapment. The Government’s law enforcement witness also improperly testified that the defendant was an experienced drug dealer, which required specialized knowledge.

The Eleventh Circuit affirmed the district court’s denial of the defendant’s motion to suppress evidence from a traffic stop. The Court held that the officer’s mistaken interpretation of Alabama traffic law was reasonable, the officer did not unlawfully prolong the stop by asking the driver about his plans and itinerary or allowing his dog to sniff near the car, and there was probable cause to search the vehicle based on the dog’s change in behavior near the car, though the dog did not give a “final response” indicating the presence of drugs.

The First Circuit vacated a defendant’s sentence for maintaining a drug involved premises. The Court held that the district court erred in applying the higher offense level under USSG 2D1.8(a) because there was insufficient evidence that the defendant had participated in the underlying drug offense beyond providing her apartment to her boyfriend as a place to sell and store drugs. The fact that she knew about his drug activities and accompanied him on some of his trips to resupply, standing alone, were not enough to show she participated.

The Eleventh Circuit affirmed a nurse practitioner’s convictions for drug conspiracy and healthcare fraud in a “pill mill” case. The Court held there was sufficient evidence to convict her of the drug offenses despite the government’s failure to provide any patient testimony that the prescription medications they received were unnecessary, and it affirmed her conviction for healthcare fraud based on her knowledge and participation in filing claims to government programs for office visits where patients received illegal prescriptions. The Court held that the trial court erred in instructing the jury that the parties had stipulated to disputed fact, but held this did not amount to an improper directed verdict or deprive the defendant of her defense because the instruction did not relate to an element of the charged offense or any of the facts necessary to establish one of those elements, and the defendant was still able to present her theory of defense. The Court also rejected the defendant’s evidentiary claims.

The Eleventh Circuit affirmed the defendants’ convictions for drug and firearm offenses in a case involving a “reverse sting police corruption case.” The defendants were two officers who worked with other corrupt officers to provide armed protection to undercover agents acting as drug dealers. Among other things, the Court held that the evidence was sufficient to convict them notwithstanding their entrapment defenses, the trial court did not plainly err in failing to inform the jury that it was entitled to a “read-back” of one of the defendant’s trial testimony, and the defendants failed to establish a prima facie case of a Batson violation.

The U.S. Sentencing Commission recently released statistics reflecting trends in federal prosecutions for marijuana trafficking. The stats reflect that, since 2016, the number of federal marijuana trafficking cases has significantly and consistently decreased. The stats also broke down the number of offenders in BOP custody for marijuana, how many received downward variances, and other trends.

The Eleventh Circuit affirmed a defendant’s sentence. The Court held that the district court had failed to elicit objections before pronouncing sentence, but the record was sufficient on appeal so remand was not necessary. Regarding the merits, the Court held that the district court had properly applied the enhancement for firearm possession under USSG 2D1.1(b)(1) and denied safety valve relief under 5C1.2. While a defendant can still qualify for the safety valve even though the firearm enhancement applies, the defendant here did not meet the requirement for safety valve because the district court found his firearm was “definitely connected” to his drug offense.

The Eighth Circuit affirmed a defendant’s sentence and the sentencing court’s application of the enhancement for an offense involving a “large number” of vulnerable victims. The Court held that the defendant’s actions in stealing pain medication from 14 patients warranted the application where the district court found that this was a “large number” relative to similar offenses.