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.

Striking Unvaccinated Jurors for Cause not Sixth Amendment Violation

US v. Colon: Colon and his codefendant went to trial during the height of the COVID-19 Delta variant spike. As a result, the district court employed mailed in juror questionnaires to help determine strikes for cause. As part of the questionnaire, potential jurors were asked eight questions related to COVID-19, including whether they had been vaccinated. When the questionnaires were returned and a group of potential jurors answered that they were not vaccinated, the district court struck them for cause (several of them had alternative grounds for being struck as well) due to the health risks of having them come and participate in the trial. The defendants objected to their exclusion, making clear he was not making a Batson challenge, but that the district court’s decision “excludes a section of the potential jurors” and noting that the defendants themselves were not vaccinated. The defendants were convicted at trial.

On appeal, the Fourth Circuit affirmed the district court’s decision to strike the jurors. Specifically, the court concluded that the Sixth Amendment’s fair-cross-section requirement was not implicated because it does not apply to the district court’s decisions to strike jurors for cause. Distinguishing between the “jury venire” (the larger group of those summoned for jury duty in a particular case) and the “petit jury” (the jurors who actually hear the case), the court concluded that the fair-cross-section requirement applied only to the assembly of the jury venire. Because the district court’s decision to strike unvaccinated jurors occurred after that assembly (even if it happened on paper rather than in person) it could not violate that portion of the Sixth Amendment.

Court Affirms Conviction for Maintaining Drug House

US v. Hicks: A confidential informant told police that Hicks was selling drugs out of his North Carolina home. Two controlled buys were made from Hicks, which were followed by the execution of a search warrant that uncovered drugs, cash, and ammunition in the house as well as two guns in a car parked on the property. Hicks was charged, and eventually convicted, on numerous drug and firearm charges, including a count of maintaining a place for the purpose of distribution a controlled substance (he was acquitted of possessing a firearm in connection with a drug trafficking crime). He was sentenced to concurrent terms of 108 months in prison on each count of conviction.

On appeal, the Fourth Circuit affirmed Hicks’ convictions and sentence. As the court stated, it “calendared this case for oral argument primarily to consider Hicks’ challenge to his conviction for maintaining a place for the purpose of manufacturing, distributing, or using a controlled substance.” The court agreed that “a defendant’s drug related purpose need not be his sole purpose for maintaining his property,” but that it “must be one of the defendant’s specific purposes for maintaining the property and not merely incidental to some other purpose.” The court recognized that some courts required that the drug related purpose be “one of the primary or principal uses,” at least “in the residential context,” while others required that purpose to be a “significant or important” reason for maintaining the property. Ultimately, the court concluded it didn’t need to decide one way or the other, as the evidence was sufficient to support Hicks’ conviction either way. That the evidence “suggested Hicks had multiple purposes for the residence” that “does not undercut the sufficiency of this evidence to prove that drug distribution was one specific purpose for which Hicks maintained the residence.” The court also found there was sufficient evidence to support Hicks’ other convictions and that the district court did not err in denying his motion to suppress the evidence collected pursuant to the search warrant.