For almost a year, we have been waiting for United States v. Collazo, --- F.3d --- (9th Cir. 2020) (en banc). It landed today.
Collazo addressed the government's burden of proof in prosecutions for conspiracy to distribute (and substantive distribution of) controlled substances under 21 U.S.C. §§ 846 and 841.
The main question was whether the government needed to prove the defendant(s) knew the drug type and quantity involved: "We must [] determine whether Congress intended to require proof of a defendant’s mens rea with respect to the requisite drug type and quantity for the penalties in § 841(b)(1)(A)–(B) to apply."
The en banc majority said no.
Here are a few key quotes (with my thoughts after):
For purposes of § 846, "in order to convict a defendant of conspiracy, the government must prove beyond a reasonable doubt that (1) the defendant agreed with another person that some member of the conspiracy would commit the relevant underlying offense (here § 841(a)), and that (2) the defendant had the requisite intent necessary for a conviction of the underlying offense."
But "the structure of § 841(a)–(b) compels the conclusion that Congress did not intend to require the government to prove a defendant’s knowledge with respect to the drug type or quantity."
"In sum, we conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 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 of (or intent) with respect to that type and quantity."
"We have established in Section II.A, supra, 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 a § 841(a) offense, and that each defendant had the requisite intent necessary for a § 841(a) conviction. We have also established in Section II.B, supra, that the requisite intent necessary for a § 841(a) conviction (and for the imposition of the penalties specified in § 841(b)(1)(A)–(B)) does not include knowledge of the relevant drug type or quantity. This concludes our explication of the elements of a § 846 conspiracy to commit a violation of § 841(a), and the imposition of penalties under § 841(b)(1)."
Further "we conclude that to obtain a conviction and a 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. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b)."
"As we have explained, a defendant convicted of conspiracy under § 846 is subject to a penalty under § 841(b)(1)(A)–(B) if the government has proven beyond a reasonable doubt that the underlying § 841(a)(1) offense involved the drug type and quantity set forth in § 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."
As I read Collazo, the main takeaways are:
1. For both drug conspiracy and substantive offenses, the government does not need to prove any defendant knew the drug type or quantity involved.
2. As result of point 1, the court does not need to instruct the jury that any knowledge is required for a drug type / quantity finding. Instead, so long as the government proves the fact of drug type and quantity involved, that is enough to establish liability for that type / amount. Accordingly, courts are no longer going to give jury instructions that require the jury to determine "whether the government proved beyond a reasonable doubt that the amount of [the specified drug] was reasonably foreseeable to [each defendant] or fell within the scope of his particular agreement." The new instruction will simply require the government to prove the offense involved the type and quantity alleged with no mens rea component.
The dissent is compelling. This issue is likely headed for the SCOTUS.
