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AND WHAT MIGHT THIS BE?
A drug is a drug is a drug.
It has been the law for at least 30 years that a defendant doesn’t have to know what illegal drugs he might be involved with, as long as he knows that whatever he possesses is illegal. This may make some sense, until you stop to think that carrying around a kilo of crack will get you a dramatically higher sentence than, say, a kilo of pot (the difference between six months and 10 years).
Trontez Mahaffey was busted at Cincinnati Airport with 40 lbs. of vacuum-sealed marijuana. But hidden in one of Tron’s bales was a packet containing 4 lbs. of meth. Tron claimed he knew about the pot, but not about the meth. He argued that under Rehaif v. United States – which required that a felon in possession of a gun really know he was a felon – the government has to show that Tron was aware of what drugs he possessed, not just that he knew he had some kind of illegal substances.
Tron said a drug is not a drug is not a drug.
Last week, the 6th Circuit disagreed. Instead, it joined the 1st and 5th in holding that while there is a “longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct,” the ordinary meaning of 21 USC § 841(a)(1) only “requires a defendant to know only that the substance he is dealing with is some unspecified substance listed on the federal drug schedules.”
Under the statute’s plain language, the Circuit ruled, the government need only show “the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was.” Not know what he was carrying cost Tron a 10-year mandatory minimum sentence. Forty lbs. of pot, by contrast, carries no mandatory minimum sentence and a Guidelines range of about six months.
I guess a drug is not a drug is not a drug. But to a defendant, it is…
United States v. Mahaffey, Case 19-6061, 2020 U.S. App. LEXIS 39797 (6th Cir. Dec 18, 2020)
– Thomas L. Root