When do we ever really “know” something is a question often asked in the many federal criminal cases I handle here in Atlanta, throughout Georgia and around the country. Most criminal cases require that the prosecutor prove that the Defendant “knew” something. The issue might be whether the Defendant “knew” that a package contained drugs, or, like a case I handled recently, whether a CEO “knew” about the bribery shenanigans done by lower-level executives in a different state. Many of the cases I have won over the years in federal court came about because the jury had significant doubts as to whether there was sufficient evidence that my client “knew” a certain fact. However, a recent case from the United States Court of Appeals for the Eleventh Circuit seems to make the prosecutor’s burden far easier. That case, U.S. v. Duenas, greatly expands what is called the “prudent smuggler” doctrine, and seems to foretell a harder time for me and other criminal defense lawyer in the future.
People who have read my musings over the years recognize that I often claim that legal decisions and rules are based in politics. The Prudent Smuggler line of decisions is no different. The absurdly expensive and counter-productive “War on Drugs” is where this legal principle had its genesis. Federal prosecutors convinced judges that it was too hard to prove that some people were involved in a drug conspiracy or activity. That person might be a small player who was told to carry a bag across a street, to take a ride with others in a car, or a fearful immigrant desperate to enter the country who would be handed a closed bag and told to bring the luggage into the United States. As the War on Drugs raged, more and more judges agreed with the general rule behind the “Prudent Smuggler” line of cases. As noted in this recent decision:
The rationale behind the “prudent smuggler doctrine,” as it has become known, is straightforward. A prudent smuggler seeks to facilitate the exchange of contraband in order to enrich himself while evading apprehension by law enforcement officers. He is, therefore, not inclined to navigate the contraband markets’ perils and uncertainties alone…Rather, he is disposed to trust a confidant to provide loyal and competent assistance in securing the illicit transaction’s smooth performance…Loyalty is necessary to ensure that the confidant will not abscond with the valuable contraband; and competency is necessary to ensure that the confidant will effectively consummate the plan. In entrusting the confidant, then, the smuggler will likely apprise him of the transaction’s essential details, including the nature of the contraband involved, so that the confidant may overcome the “normal but deadly hazards implicit in [contraband] trafficking.” The emphasis on the word “likely” comes from me. In other words, this is a made-up rule, based merely on the Judge’s own beliefs, supplanting his inclinations for that of jurors.
The bottom line on the Prudent Smuggler rule in the drug context is that “A reasonable jury could infer from the quantity of drugs seized that a ‘prudent smuggler’ is not likely to entrust such valuable cargo to an innocent person without that person’s knowledge.”) In other words, the larger the crime, the less likely that any innocent bystanders exist. And that’s the way it went in the bad old days of the War on Drugs.
The really troubling thing about this recent decision is that it expanded this old bad rule to non-drug cases. Mr. Duenas was charged with conspiring to distribute counterfeit currency. Drugs like cocaine and heroin are always illegal, and carrying a bag with multiple wrapped kilos of powder is one thing, but U.S. Currency is perfectly legal. Just because a bad guy has lots of phony money does not automatically mean that anyone with whom he associates is also a criminal.
This is a truly disturbing decision. I hope this is the high water mark for this poor doctrine which like the War on Drugs should be gently placed into the dustbin of history.