Court Sidesteps Issue of Conspiracy-Based Liability for Drug-Caused Death

US v. Coby: Coby was charged with conspiracy to distribute fentanyl and heroin, as well as two substantive counts of distribution of a “mixture and a substance containing” fentanyl that resulted in the death of two people, Counts 5 and 6. At trial, the district court gave confusing instructions to the jury as to whether it could convict Coby on either of the two death-resulting counts based on Pinkerton-style conspirator liability. Although the district court recognized the confusion, it ultimately did not instruct the jury otherwise and Coby did not object to the instructions given. Coby was convicted on all counts, but on Count 5 the jury found that the Government had proven that  “the use of the fentanyl distributed by” Coby “resulted in the death” of that victim, but found otherwise on the Count 6. Coby was ultimately sentenced to 480 months in prison, “including 420 months on the count involving” death.

On appeal, the Fourth Circuit affirmed Coby’s convictions, but vacated his sentence. Coby argued that the district court’s jury instruction was erroneous “for permitting liability in situations where the fatal drugs were distributed by the defendant’s co-conspirators.” The Government argued that the instruction was correct, but that Coby had forfeited the issue for failing to object, anyway. The court was able to sidestep the issue by pointing to the interrogatory answered by the jury, which related only to “the fentanyl distributed” by Cody, not any of his coconspirators. The court also concluded that there was sufficient evidence to support  Cody’s convictions. As to sentencing, while the court found no clear error in the application of a Guideline enhancement for Cody being a leader or manager of criminal activity, it did conclude that the district court erroneously applied a four-level enhancement for misrepresenting fentanyl as heroin. That was because the enhancement was not in effect at the time of Cody’s conduct, although it was at sentencing, and thus violated the Ex Post Facto Clause. The error was plain, prejudicial, and the court noticed it, vacating Coby’s sentence.