Buying Drugs with a Gun Does Not Require Heightened Sentences

A gun used to purchase drugs does not qualify a defendant for longer sentences under the U.S. Sentencing Guidelines

 United States v. Gates, 2017 BL 879, 7th Cir., No. 16-2193, 1/4/17.

The Seventh Circuit ruled that sentence enhancement for the commission of a drug crime cannot stem from the presence of a weapon used only for the exchange of drugs. The court recognized that the enhancement is generally applied only when the weapon is used in the commission of the drug crime. In this case, the gun was used as payment for drugs and as satisfaction for a prior debt. The court, noting how little a role the weapon played in the actual exchange, even outlined how the gun was stored and transported before the drug deal.

http://www.bloomberglaw.com/public/document/United_States_v_Gates_No_162193_2017_BL_879_7th_Cir_Jan_04_2017_C/1.

Hypothetically Summing Up Case Improper

The prosecution may not ask a hypothetical question to an expert that would ask them to assume a piece of disputed evidence as fact.

State v. Simms, 2016 BL 78140, N.J., No A-14, 3/15/16

     The New Jersey Supreme Court ruled that experts are forbidden to summarize disputed evidence or give opinions on ultimate issues that most jurors could resolve without any help. It also indicated that prosecutors may not use an expert's hypothetical as a proxy for closing argument.

     "A hypothetical question in a drug case should not be used as a prosecutorial tool to sum up an entire case in a single question for the purpose of eliciting an expert's opinion on a defendant's guilt," the court ruled. In this case, the hypothetical question was improper because it called on the expert to assume facts that weren't established through testimony.

http://www.bloomberglaw.com/public/desktop/document/State_v_Simms_No_A14_September_Term_2014_2016_BL_78140_NJ_Mar_15_?1459440312

Specific Mens Rea Required For Drug Analogues

It is not rational to presume beyond a reasonable doubt that a defendant knew that just because one drug gives similar effects as another, the two drugs share similar chemical structures.

 

United States v. Makkar, 2015 BL 384626, 10th Cir., No. 14-5147, 11/23/15

    The 10th Circuit Court of Appeals overturned the convictions of two men selling controlled substance analogues. The convictions were reversed because the trial court jury had been instructed to infer that because the drug's effects were similar to marijuana, the men knew that it was an illegal drug.

    The court said that "[a]s a matter of common experience and logic, the fact that one drug produces a similar effect to a second drug just doesn't give rise to a rational inference-let alone rationally suggest beyond a reasonable doubt-that the first drug shares a similar chemical structure with the second drug."

    The convictions followed a method of proving mens rea given in McFadden v. United States (U.S. 2015). In that case, and this one, mens rea was proven by showing that the defendants knew the analogue had a similar chemical structure to the illegal drug and produced a similar effect. Those are two separate questions.

    In this case the government never showed that the defendant's knew anything about the chemical structure. Instead they had the jury instructed to infer that the defendants knew the structure was similar based on what they knew the effects to be. This conflated two independent statutory inquiries, and did so by "resorting to a logical fallacy, a hasty generalization or associational error-an unwarranted assumption that because certain things share one characteristic they must share others."

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Makkar_No_145147_2015_BL_384626_10th_Cir_Nov_23_2/1?1451492900