by Jacob Newman and Harry Sandick on May 28, 2019
In United States v. Pauling, the Second Circuit affirmed the District Court’s order granting the defendant’s motion to set aside his conviction for Conspiracy to Distribute or Possess with Intent to Distribute 100 Grams or More of Heroin. The Court concluded that the District Court had correctly found that the evidence at trial was insufficient to establish the quantity elementof the offense (100 grams or more), and therefore entered judgment of conviction instead to a lesser-included offense that did not have a mandatory minimum sentence.
Defendant was convicted of being a member of a drug conspiracy with an individual named “Low.” It was uncontested at trial that defendant Pauling and Low conspired to distribute 89 grams of heroin based on four transactions documented by the government. However, defendant Pauling argued that the government had not proved that the conspiracy included at least 11 more grams beyond a reasonable doubt, a quantity that would trigger the mandatory minimum sentence.
The government, in turn, relied on two different theories to demonstrate the necessary, additional grams. First, the government argued that it had established these additional grams based on a July 3 phone call in which a customer ordered 14 grams from Pauling. These 14 grams were already included in the 89, but the government asserted that another 14 grams could be “inferred” from this particular phone call because the customer stated that he wanted the “same thing as last time.” Second, the government argued that the jury could “infer” the additional 11 grams from the course of dealings between defendant Pauling and Low, which indicated that they might have engaged in other similar transactions.
The trial court and the appeals Court rejected both of the government’s arguments in turn. In short, the Court concluded that while both of these theories might support “reasoned speculation”that the additional 11 grams of heroin had been involved in the conspiracy, neither one allowed for a sufficient inference that would establish the inclusion of 11 or more additional grams beyond a reasonable doubt.
Judge Chin’s careful, searching analysis of the facts is a reminder that, while the defendant’s burden to overturn a verdict based on insufficient evidence is a high one, so too is the burden that the government must carry to prove every element of its case beyond a reasonable doubt.
Put simply, a conviction cannot stand simply because it maybe correct. It has to be correct beyond a reasonable doubt, judges are there to make sure the government cannot get away with anything less. Juries are not perfect, and sometimes district court judges need to step in and prevent an unjust result. The decisions here by the District Court to recognize the insufficiency of the evidence and by the Court of Appeals to let the District Court’s decision stand notwithstanding the government’s appeal, are models for other judges to follow when confronted with “iffy” evidence of drug quantity.
Commentary: This same principle holds true in different and more serious cases.
Consider drug importation cases where the element of “knowledge” (that the drugs were going to the United States) must be proven “beyond a reasonable doubt,” The government thinks that just because drugs are going through Central America is sufficient proof that the drugs MUST be going to the U.S.
That is incorrect. That may have been a time many years ago when drug dealers from Honduras, Guatemala, and El Salvador were a rare sighting, but now some of the biggest drug dealers in this hemisphere come from those very countries and are perfectly capable of sending and do send their cocaine to Europe, the Near and Far East, Japan, Russia, Africa and even Mexico who in turn send it to those countries using their own connections; and the government would have to acknowledge this fact.
Be convinced first that the government actually can prove their case before you think about cooperating.
David Zapp & Johanna Zapp