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88.3 Drugs, Controlled Substances: Quantity Issues

    88.3.2 Quantity Issues: Defenses And Defense Theories

    88.3.2.1 Drugs, Controlled Substances: Quantity-- Defense Theory That Mixing Agent Did Not "Facilitate Distribution" Of The Drug
    88.3.2.2 Drugs, Controlled Substances: Quantity--Defense Theory That The Substances Were Not A "Mixture"
    88.3.2.3 Drugs, Controlled Substances: Quantity Of Drugs Involved In Crime Is Not The Amount Promised By The Government Informant
    88.3.2.4 Drugs, Controlled Substances: Quantity--Lack Of Knowledge As Defense Theory
    88.3.2.5 Quantity: Weight Must Be Based Upon Presently Existing Drug Not Future Intentions
    88.3.2.6 Quantity: Individually Packaged Drugs Must Be Separately Tested

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RATIONALE: Unusable waste material should not be considered in determining drug quantities because it does not facilitate the use, or marketing of the drug.

POINTS AND AUTHORITIES: For sentencing purposes the federal courts have had occasion to consider issues relating to quantities of drug mixtures. (See U.S. v. Robins (9th Cir. 1992) 967 F2d 1387, 1389-90, discussing several such cases.) According to Robins, a mixing agent should only be computed in the overall weight if it was used to facilitate distribution of the drug. Hence, cornmeal added to cocaine to trick a purchaser should not be added to the weight calculation. (Robins, 967 F2d at 1391; see also United States v. Rolande-Gabriel (11th Cir. 1991) 938 F2d 1231, 1237 [rule of lenity was required to be applied to defendant who was found guilty of importing 72 grams of a white powder substance containing cocaine which was mixed with a liquid to create a total weight of 241.6 grams, and sentencing would be based only on the 72 grams which constituted a usable or consumable drug mixture].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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RATIONALE: Under some statutes either the substantive crime or a penalty enhancement requires a determination of the quantity of the substance involved. If two substances are involved (i.e., the drug and a "mixing agent") an explanatory instruction may be necessary for the jury to understand whether it may consider the aggregate of the two substances. If there was no "mixture" then the aggregate quantity should not be considered. Even if the aggregate weight of a mixture of a controlled substance or drug with another noncontrolled substance is generally used to determine quantity, there may be an issue as to whether the substances are actually "mixed" together.

POINTS AND AUTHORITIES: For purposes of the federal statute (18 USC 841(b)) a mixture is defined as "two substances blended together so that the particles of one are diffused among the particles of the other." (Chapman v. U.S (1991) 500 US 453, 462 [111 SCt 1919; 114 LEd2d 524]; see also Neal v. U.S. (1996) 516 US 284, 287 [116 SCt 763; 133 LEd2d 709] [for LSD the weight of both the LSD and the blotter paper containing it may be used]; U.S. v. Richard (10th Cir.1996) 87 F3d 1152, 1157; People v. Barajas (MI 1993) 499 NW2d 396, 398-99[controlled substance and filler must be "mixed" together to form a mixture that is reasonably uniform]; but see People v. Barajas (MI 1994) 513 NW2d 772 [affirmed by Michigan Supreme Court but "the analysis employed by the Court of Appeals is limited strictly to the facts of this case"].)

    See also FORECITE National™ 88.3.1.2 [Quantity: Includes Cutting Agent].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

    A mixture is two substances blended together so that the particles of one are diffused among the particles of the other.

[Source: Chapman v. U.S (1991) 500 US 453, 462 [111 SCt 1919; 114 LEd2d 524].]

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    88.3.2.3    Drugs, Controlled Substances:  Quantity Of Drugs Involved In Crime Is Not The Amount Promised By The Government Informant

PRACTICE NOTE: See U.S. v. Cambrelen (E.D.N.Y. 1998) 29 FSupp2d 120, 124-26.

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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RATIONALE: It would be fundamentally unfair to increase the defendant's sentence based on a factor about which he or she was unaware.

POINTS AND AUTHORITIES: It is well established that knowledge of both the presence and nature of the controlled substance are requisite elements of a drug charge. (See FORECITE National™ 88.6.3.8 [Sale Or Transportation Of Drugs: Defense Theory That Defendant Had No Knowledge Of The Presence Of The Drugs Or Controlled Substance];  see also FORECITE National™ 88.4.3.14 [Drugs, Controlled Substances: Defendant Must Have Knowledge That The Item Possessed Was The Contraband Charged].) Knowledge of the quantity or weight of the substance should be a requirement of the quantity enhancement for two reasons.

    First, unless a mens rea element is associated with the weight of the drug, the enhancement would in essence be imposed as a matter of strict liability. (See FORECITE National™ 54.1 [Strict Liability Limited To Public Welfare Offenses].)

    Second, the legislature's purpose in enacting the quantity enhancements was "'to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.' [Citation.].)" (People v. Pieters (CA 1991) 52 C3d 894, 898 [276 CR2d 918]; see also People v. Estrada (CA 1995) 39 CA4th 1235, 1239 [46 CR2d 385].) It does not further this purpose to impose a quantity enhancement upon a person unless that person had actual knowledge of the quantity involved. Thus, the individual must be aware of the level of possession to justify the corresponding level of punishment. (See e.g., People v. Ryan (NY 1993) 626 NE2d 51, 53 [82 NY2d 497]; People v. Sanchez (NY 1995) 652 NE2d 925, 928 [86 NY2d 27] [when quantity is close to the threshold requirement defendant's knowledge of the weight cannot be presumed but must be proven by factors such as the type of packaging]; but see People v. Meza (CA 1995) 38 CA4th 1741, 1747 [45 CR2d 844] [the defendant does not need to have knowledge of the quantity of drugs involved in order to be given the 15 year quantity enhancement].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: In California, the quantity enhancement is only applicable where the presently existing controlled substance exceeds the statutory weight limit. Therefore, the statute is not applicable to larger quantities of precursor chemicals. Nor is it applicable to a plan or conspiracy to produce or traffic in significant quantities. (See People v. Lopez (CA 1993) 20 CA4th 897, 903 [24 CR2d 649]; see also Valenzuela v. Superior Court (CA 1995) 33 CA4th 1445, 1453 [39 CR2d 781] [quantity enhancement not applicable to offers to sell a large amount of cocaine where there was no evidence the cocaine existed; legislature intended the enhancement to apply to the amount of the drug in existence or the amount of the drug seized]; People v. Estrada (CA 1995) 39 CA4th 1235, 1239 [46 CR2d 385].)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: When the defendant is arrested for possession of multiple units of individually packaged drugs, random testing of some of the packages is insufficient to establish beyond a reasonable doubt that all the packets contain the same substance. In such a case, any increased criminal liability based upon quantity must be limited only to those packages actually tested. (See State v. Robinson (MN 1994) 517 NW2d 336, 339.) However, People v. Peneda (CA 1995) 32 CA4th 1022, 1029 [38 CR2d 312] held that the quantity enhancement may be proven by sampling part of the drugs seized and using a table developed by the DEA to determine if the entire amount contains the requisite weight.

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].