Your client has been charged with a drug-trafficking conspiracy after being stopped carrying a backpack containing drugs. He knew that he was transporting drugs. But can he be convicted (and can his mandatory minimum sentence be enhanced) based on drug type and quantity absent proof that he knew these details? The Ninth Circuit has just asked the parties to brief these questions (under different facts) in United States v. Collazo, Ninth Circuit No. 15-50509, et seq. (order filed 1/29/2020). The case is in an interesting posture: After argument to a three-judge panel, the panel asked the parties to address whether the case should be heard initially en banc. The court ultimately voted to hear the matter en banc, and it was argued and submitted to the en banc court on January 13, 2020.
Last week, the en banc court requested further briefing, specifically:
1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit, see, e.g., United States v. Hubbard, 96 F.3d 1223, 1229 (9th Cir. 1996); United States v. Baker, 63 F.3d 1478, 1491 n.16 (9th Cir. 1995), apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?
2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).
3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”).
The Ninth Circuit's en banc interest in these questions makes it a good time to preserve this issue by requesting appropriate jury instructions and challenging sentencing enhancements absent drug type/quantity admissions (at a guilty plea) or a verdict (at trial) in your own cases. Watch this space for further developments.