United States v. Collazo, No. 15-50509 (9th Cir. 2020)
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Five defendants appealed their convictions for conspiracy to distribute controlled substances under 21 U.S.C. 846 and 841. The en banc court concluded that the jury instruction in this case was erroneous, clarifying the requirements for conspiracy under section 846 and the facts that trigger the penalties under section 841(b)(1)(A)–(B).
The en banc court explained that to convict defendants of conspiracy under section 846 in this case, the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit a section 841(a) offense, and that each defendant had the requisite intent necessary for a section 841(a) conviction. The en banc court further explained that a defendant convicted of conspiracy under section 846 is subject to a penalty under section 841(b)(1)(A)–(B) if the government has proven beyond a reasonable doubt that the underlying section 841(a)(1) offense involved the drug type and quantity set forth in section 841(b)(1)(A)–(B). The government does not have to prove that the defendant had any knowledge or intent with respect to those facts. The en banc court clarified that a conviction under section 846 does not require proof of a level of criminal intent greater than that required for the underlying offense merely because it is a conspiracy conviction. The en banc court overruled United States v. Becerra, 992 F.2d 960 (9th Cir. 1993), and its progeny to the extent they depart from this decision.
In this case, the erroneous jury instructions could amount to harmless error if there was overwhelming evidence that each defendant entered into an agreement involving the requisite drug type and quantity. Given the numerous issues raised on appeal and the extensive record from the ten-day jury trial, the en banc court found it appropriate to return this case to the three-judge panel to reconsider both the harmless error issue and the balance of the issues raised by the parties in light of this opinion, and to enter an appropriate judgment.
Court Description: Criminal Law. In appeals by five defendants who were convicted of conspiracy to distribute controlled substances under 21 U.S.C. §§ 846 and 841, the en banc court clarified the requirements for conspiracy under § 846 and the facts that trigger the penalties under 21 U.S.C. §§ 841(b)(1)(A)–(B). The en banc court explained that to convict the defendants of conspiracy under § 846 in this case, the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit the relevant underlying offense (here 21 U.S.C. § 841(a)), and that each defendant had the requisite intent for a § 841(a) conviction. The en banc court held that in order to obtain a particular sentence under 21 U.S.C. § 841(b)(1)(A)(viii) and 4 UNITED STATES V. COLLAZO § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge (or intent) with respect to that type and drug quantity. The en banc court clarified that a conviction under § 846 does not require proof of a level of criminal intent greater than that required for the underlying offense merely because it is a conspiracy conviction. The en banc court concluded that to obtain a conviction and particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant’s mental state was the same as if the defendant had been charged with the underlying offense; the government need not prove the defendant’s knowledge (or intent) with respect to the drug type and quantity under § 841(b). The en banc court overruled United States v. Becerra, 992 F.2d 960 (9th Cir. 1993), and its progeny to the extent they depart from this decision. The en banc court explained that this court’s error in Becerra and its progeny was the failure to recognize that the rule of coconspirator liability for substantive offenses in Pinkerton v. United States, 328 U.S. 640 (1946), which was incorporated into the Sentencing Guidelines and applied regardless of whether the charge was conspiracy or a substantive offense, does not apply to the liability determination for a § 846 conspiracy offense. Applying this approach to the case on appeal, the en banc court held that the district court’s instruction—requiring the jury to determine “whether the government proved beyond a reasonable doubt that the amount of [the specified drug] that was reasonably foreseeable to [each defendant] or fell within UNITED STATES V. COLLAZO 5 the scope of his particular agreement equaled or exceeded” a specified amount—was erroneous. The en banc court remanded to the three-judge panel to reconsider the harmless error issue and the balance of the issues raised by the parties in light of this opinion, and to enter an appropriate judgment. Judge W. Fletcher—joined by Chief Judge Thomas and Judges Nguyen, Watford, and Hurwitz—dissented. Noting that any fact that by law increases the penalty for a crime is an element that must be submitted to the jury and proved beyond a reasonable doubt, and that there is a strong presumption that Congress intends to require a culpable mens rea as to every element of a crime, Judge Fletcher would hold that when the government seeks enhanced penalties under §§ 841(b)(1)(A) or (b)(1)(B), it must prove the defendant “knowingly or intentionally” distributed the actual controlled substance and quantity charged under §§ 841(b)(1)(A) or (b)(1)(B). 6 UNITED STATES V. COLLAZO
This opinion or order relates to an opinion or order originally issued on September 19, 2019.
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