We are still here for our clients, old and new, during the coronavirus pandemic.

Articles Posted in Drug Crimes

Federal crimes often involve questions about whether a person “possesses” an item. The concept of “constructive possession” allows a jury to convict a Defendant if he or she does not have actual possession, but has the power and intention to take control of the item at a later point. The United States Court of Appeals for the Eleventh Circuit, here in Atlanta, recently confronted a case where the trial judge used faulty language when telling the jury about the concept of constructive possession. Although the instruction was bad, the Court of Appeals refused to reverse the Defendant’s conviction. The case is U.S. v. Cochran.

Roderick Cochran was seen outside a house, and a police officer claimed she observed him from a block away going in and out of the property. When the police used a warrant to go inside and search the house, they found drugs in the kitchen, and ammunition hidden in a bedroom. Cochran’s driver’s license listed him as living two doors down, and a piece of mail was found inside addressed to he and his niece, who had also lived there. Like some of the early scenes in “My Cousin Vinny”, the defense established that trees and other obstructions made it impossible for the officer to have observed Cochran from a block away. Additionally, the defense showed that including Mr. Cochran’s name on the letter addressed to his niece was a standard format, but it did not show he lived with the niece.

Like most federal courts, the Eleventh Circuit publishes Pattern Jury Instructions for use in federal criminal trials. The Pattern Instruction on possession tells jurors that even if a Defendant does not actually possess an item, he or she can have “constructive possession” if the Defendant has power and intention to take control of it later. In Mr. Cochran’s trial, prosecutors convinced the trial judge to add a sentence that read:”Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.” Cochran’s very able lawyers from the Federal Public Defender objected to the instruction. The jury was quite confused, asking questions about how it should decide if Mr. Cochran possessed either the ammunition or the drugs. “If you have free access to a home then do you have constructive possession of the contents?” The district court replied that it could not answer the question and instructed the jury to consult the jury instructions. During deliberations the next day, the jury again sent a note to the district court, this time asking: “Regarding Count 1 [the ammunition charges] does the definition of constructive possession apply to the phrase ‘knowingly possess?'”

Yesterday, I concluded my case where we represented the Defendant in what seems to be the very first federal criminal prosecution for selling the prescription drug “Adderall”. Early in the case, the prosecutor (and the probation officer) argued that the Sentencing Guidelines for this crime exceeded 10 years. Later, we got them down to 57-71 months. We filed an aggressive Sentencing Memorandum (Download file) arguing that the Guidelines and the whole case was far out of line. Yesterday, a United States District Judge sitting in Brooklyn, New York agreed with us, refused to put our client in jail, and imposed a sentence of 6 months home confinement.

We live in a pill-popping culture where pharmaceutical companies create more and more drugs that they claim we “need” to survive. Adderall is a drug prescribed mostly for Attention Deficit and Hyperactivity Disorder. It is well-known that this drug is often used, traded and sold by college students as a “study aid.” More and more professionals use the drug to get through a big test or hard and stressful workload. Some stories have called it “Ivy League Crack.”

Our client wanted to go to medical school. She had a romantic relationship with a medical doctor, who wrote Adderall prescriptions to supposedly “help” her study for the MCAT’s. The doctor came up with the bright idea of writing more and more Adderall prescriptions, and then selling the excess pills to other Yuppies through Craiglist. He had our client fill most of the prescriptions, and showered her with gifts and trips using the proceeds. The couple broke up, he got busted, and turned on our client, resulting in her arrest as she got off a plane here in Atlanta. The case was prosecuted in the Eastern District of New York, where the doctor had been doing his medical residency.

Ed. Note: On November 1, the U.S. Sentencing Commission’s 2010 Amendments to the federal Sentencing Guidelines went into effect, along with a temporary, emergency amendment to implement Section 8 of the Fair Sentencing Act. On the whole, the amendments reflect a reduction in federal criminal sentences and provide the sentencing judge with additional discretion. We have been posting analyses of some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2010 amendments is available here.

In this post in August, we summarized the impact of the Fair Sentencing Act of 2010, which reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. The Act also provides for higher sentencing guidelines for all drugs in some cases. This amendment brings about the changes made by the Act.

Specifically, the emergency amendment makes the following changes to the Sentencing Guidelines to implement the Fair Sentencing Act:

Today President Obama signed the Fair Sentencing Act of 2010 into law. This federal law reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. While this is a step in the right direction, a significant disparity remains and the law has not been made retroactive.

The major features of the law include the following:

• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.

Last week, the Eleventh Circuit federal appeals court decided U.S. v. Sneed. In this Armed Career Criminal Act (ACCA) case, the Court decided that U.S. v. Shepard, decided by the Supreme Court in 2005, abrogated the Eleventh Circuit’s 2000 decision in U.S. v. Richardson. The Court held that sentencing courts may look only to Shepard-approved material and facts to which the defendant has assented (such as undisputed facts in the PSI) in determining whether ACCA prior offenses were committed on different occasions.

As we explained in this post, the ACCA provides for a mandatory minimum sentence of 15 years for federal criminal defendants who have three previous convictions for violent felonies or serious drug offenses. Those offenses must have been committed on temporally distinct occasions. In Sneed, the defendant had three previous drug convictions that were charged in a single indictment in Alabama. The state indictment did not provide dates or times for the offenses, so the district court looked to police reports attached to the government’s sentencing memorandum to determine that the offenses were committed on different occasions.

In 2000, the Eleventh Circuit held in Richardson that “determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions.” In that case, police reports showed that the prior crimes had been temporally distinct and their accuracy was not contested. The Eleventh Circuit relied on the police reports and concluded that the crimes were distinct.

Congratulations to Jake Waldrop and the Federal Defender Office here in Atlanta for winning one at the Court of Appeals this week! Yesterday, the Eleventh Circuit held that Federal Rule of Criminal Procedure 35, which imposes a seven-day jurisdictional time limit on modifications of sentences, applies to crack resentencings, as well as original sentencings.

The opinion in the case, U.S. v. Phillips, is available here.

The Federal Defender blog has a post on the case here.

Last week the Eleventh Circuit, which sits here in Atlanta, Georgia, decided U.S. v. Jules. The Court held that “when a district court intends to rely on new information in deciding a motion for the modification of a sentence pursuant to 18 U.S.C. § 3582(c)(2),” both the federal government and the criminal defendant are entitled to notice of the information and an opportunity to respond.

Jules was originally sentenced to 151 months, the bottom of his Guidelines range, for conspiracy to possess with intent to distribute 50+ grams of cocaine base. The Guidelines were subsequently amended to reduce the base offense-level in such a case. Thereafter, Jules requested a modification of his sentence. The probation office sent a memo to the district court detailing misconduct by Jules while in prison. That memo was neither docketed nor provided to either of the parties. The district court relied on the sanctions in the memo in denying Jules’ motion for modification.

The Eleventh Circuit held that, although a defendant in a § 3582(c)(2) proceeding is not afforded all of the protections as at an original sentencing, the “fairness and due process principles embodied in the Federal Rules of Criminal Procedure, the Sentencing Guidelines’ policy statements, and the reasoning of [the Fifth and Eighth Circuits] compel us to hold that each party must be given notice of and an opportunity to contest new information relied on by the district court in a § 3582(c)(2) proceeding. The court also stated that a hearing is permissible for allowing parties to contest such information, but not necessary.

Ed. Note: The first of this month, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. This is our final post analyzing some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.

New Sentencing Enhancement at §2D1.1

Last Tuesday, in Abuelhawa v. United States, the Supreme Court ruled that using a cell phone to make a misdemeanor purchase of drugs does not “facilitate” a felony drug distribution crime. The government charged Mr. Abuelhawa with six felony charges, one for each cell phone call, for facilitating the sale of drugs, although his two, first-time, small cocaine purchases qualified only as misdemeanors. Those charges resulted in a potential sentence of 24 years in federal prison, compared with a potential two-year sentence for two misdemeanors. Just for using a cell phone.

The government argued that Abuelhawa’s use of a phone to buy cocaine counted as “facilitation” because it made the drug dealer’s sale easier, hence violating a section of the Controlled Substances Act that makes it a felony “to use any communication facility in committing or in causing or facilitating” felony drug distribution. While at first glance, the common meaning of “facilitate” may give this impression, the result is absolutely absurd. And, as the Court points out, in any sale, the two parties have specific roles and “it would be odd to speak of one party as facilitating the conduct of the other.”

Justice Souter, in his opinion for the unanimous Court, was diplomatic in his criticism of the government’s inane argument. He called it “improbable” and “just too unlikely” because it “comes up short” and “does not follow.” The Court reasoned that the distinction Congress made in the Controlled Substances Act between distribution (a felony) and simple possession (a misdemeanor) makes it “impossible to believe that Congress intended ‘facilitating’ to cause that twelve-fold quantum leap in punishment for simple drug possessors.”

Here in Atlanta, we have been involved in many criminal cases in which police arrested people for traffic offenses, then searched their vehicles and found evidence of completely unrelated crimes. The search incident to arrest rule has been unfairly used by police as an investigatory tool since New York v. Belton extended the rule in Chimel v. California to automobiles in 1981. Last Tuesday, the United States Supreme Court, in Arizona v. Gant, limited this rule to constitutional bounds. Dividing down unusual lines, the Court formulated a new rule that is more in keeping with the original rationale for Chimel and Belton. The rule will apply in both federal and state cases.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

Contact Information