Appeals Court Says Handing Out A Free Sample Of Drugs Isn't A 'Conspiracy'

from the do-better,-drug-warriors dept

Our nation's preeminent drug warriors rolled the dice on turning less than a half-gram of drugs into a lengthy prison sentence. They lost. The Sixth Circuit Court of Appeals isn't amused by the machinations of DEA agents (and federal prosecutors) who tried to turn a freebie sample into a drug trafficking conspiracy.

The opinion [PDF] opens with the Appeals Court showing just how permissive and expansive drug conspiracy statutes are.

Our court has long interpreted the drug-conspiracy statute, 21 U.S.C. § 846, to prohibit two individuals from knowingly reaching an agreement to distribute drugs.

Any two individuals. Pretty fucking open-ended. If you want a conspiracy, it doesn't take much to find one.

This conspiracy test could be read to cover every drug transaction between a willing seller and a willing buyer, even those for the buyer’s personal use. After all, the seller has agreed with the buyer to “distribute” drugs between them.

But it's not quite as expansive as the DEA officers involved in this case thought it was. There are a few judicial limits.

Yet we have also long held that a buyer-seller agreement alone does not establish a “conspiracy” under § 846.

And it's definitely not so expansive that it can cover what happened here. When the focus of the prosecution shifts to someone who was only incidental to the primary investigation, it's pretty difficult to continue pretending there's a "conspiracy."

The government presented overwhelming evidence that Aaron Reels operated a drug distribution scheme. The problem? Reels was not on trial. William Wheat was. And the evidence against Wheat showed essentially that he once gave Reels a .3-gram free “sample” of heroin—a sample that led to no further exchanges between them.

Whoops. The DEA had an actual drug trafficker in its grasp. But then it decided it also wanted the guy who spritzed a local dealer with some smack from the sample bottle. This is a recipe for losses, dismissals, and evidence suppression.

The government alleged that Wheat agreed with Reels to distribute heroin, and a jury convicted him of a drug conspiracy. We conclude, however, that insufficient evidence supports this conviction. The logic underlying our buyer-seller exception extends to Wheat’s agreement to distribute a sample to Reels. And the government did not present enough additional evidence of a broader agreement between Wheat and Reels to distribute heroin to third parties.

But not every charge is dismissed. The guy handing out the .3-gram "supply" of heroin made the mistake of using something everyone uses multiple times per day.

At the same time, Wheat used his phone to arrange the exchange of the sample. So the government more than sufficiently proved that he used a “communication facility” to facilitate a drug felony.

Sure, that's a much shorter sentence. But, come on: if it wasn't a "conspiracy," how can a "felony" be "facilitated" by the use of a phone to discuss a sample? The court giveth. And taketh. At the end of all of this, there's a person facing a few years in prison for handing out a sample.

I'm not sure what we're paying Cleveland-area DEA agents, but this arrest, indictment, and (partial) conviction doesn't appear to justify their salary.

The two arranged to meet at a Circle K gas station the next day. While there, Wheat gave Reels a free “sample” of about .3 grams of heroin. Samples are often exchanged between drug dealers who do not know each other well to help potential purchasers decide whether to buy from potential sellers. Testimony in this case suggested that the .3 grams would otherwise cost about $20 to $40 on the Cleveland drug market.

Yes, the DEA took down the actual drug dealer as well, but it couldn't resist trying to turn a free sample into a drug conspiracy worth years of imprisonment at taxpayer expense -- all over $20-40-worth of drugs. Good lord. The court calls bullshit:

Measured against these standards, Wheat’s conspiracy conviction cannot stand. To be sure, the government presented a “slam-dunk” case that Wheat committed a crime: He distributed a heroin sample to Reels in violation of 21 U.S.C. § 841(a)(1).

Maybe a case could be made for a lesser charge. But the DEA and federal prosecutors chose to go large.

But it did not charge Wheat with distributing to Reels; it charged him with conspiring with Reels.

Good luck talking a jury into that, says the court:

This evidence would allow a rational jury to conclude that Wheat and Reels negotiated a future drug deal, not that they agreed on one.

And the government's arguments actually makes its case worse:

As the government’s expert explained, drug sellers give samples to buyers to see if they “like[] the drugs” and help them decide whether “to purchase more.” It is not all that unlike Costco offering customers, say, a free taquito sample. Would anyone infer (beyond a reasonable doubt, no less) that a customer has agreed to buy a bulk package of taquitos merely from the decision to try the sample?

The government’s expert added that Reels had been “shopping around” for samples from several sources, “just like if you were buying a car, you are going to go get the best price and the best car for your dollar, and that’s exactly what he’s doing here[.]” Does his receipt of the other samples show an agreement to buy from the other sources too? [...]

In short, “[p]roof of mere negotiations” does not prove a conspiracy. And the government identifies “nothing but speculation” that the parties ever passed this negotiations phase.

This is some supremely lazy work by the DEA. And the work done by prosecutors to pursue this losing effort is nothing more than blowing tax dollars on charges that are both opportunistic and vindictive. The DEA already had a solid bust involving an actual drug trafficker. Then it got greedy and decided to pounce on someone who may have been doing nothing more than working a side hustle to support his own habit. That's the government seeking to take away anything from 5-40 years from someone's life just because they handed out a free sample of heroin to a known drug dealer who was already targeted by the DEA.

That's not a drug war victory. That's not going to keep massive amounts of drugs off the street. It's just federal prosecutors inflicting pain because they can.

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Filed Under: 6th circuit, conspiracy, dea, drug war