An ancient maxim of the law is ignorantia juris non excusat, or ignorance of the law does not excuse. Put another way, it is presumed that the public knows the laws, and a defense of ignorance is typically not allowed. This principle is at the heart of the recent decision by the state supreme court in State v. Miller, ___ N.C. ___, (June 9, 2017). Continue reading
Tag Archives: controlled substances
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading →
Today, the court of appeals reversed a defendant’s drug convictions because the indictments identified the controlled substances in question using terms that are widely used to describe the drugs, but that are neither the chemical names listed in the controlled substance schedules nor – according to the court – “trade names” for the drugs. Because more and more drug cases involve pharmaceuticals that have many names, it is worth reviewing the case. Continue reading →
I’ve recently been asked several variants of this question: If a suspect sells drugs to an undercover officer on multiple occasions over a few days or weeks, can the drug quantities involved in each sale be aggregated to reach the trafficking threshold? That led me to spend some time looking at the more general issue of when multiple caches of drugs can be combined. This post lays out the law. Continue reading →
When a person is arrested while in possession of drugs and is taken to the jail in handcuffs, may the person properly be convicted of possessing drugs in a confinement facility? The question has divided courts across the country. Last week, a majority of the court of appeals concluded that the answer is yes. State v. Barnes, __ N.C. App. __ (2013) (Ervin, J.) (McGee, J., dissenting).
Facts. The defendant was arrested for DWI, and while he was being processed at the jail, a bag containing 4.05 grams of marijuana fell out of his pants. He was eventually convicted of, inter alia, possession of marijuana at a confinement facility in violation of G.S. 90-95(e)(9).
Mens rea issue. The court first addressed the defendant’s argument that there was insufficient evidence to convict him, as there was no evidence that he intended to bring the drugs to a confinement facility. The court of appeals disagreed, unanimously on this issue, ruling that the offense is a general intent crime, requiring only that the defendant knowingly possessed drugs at a confinement facility, which he did.
Voluntariness issue. The issue that divided the court was the defendant’s argument that he did not commit the offense voluntarily, as he was brought to the jail under arrest. Although agreeing that criminal liability generally requires a voluntary act, the majority nonetheless rejected the claim. It noted that the statutory language defining the offense says nothing about voluntariness, and that the apparent purpose of the statute – to minimize drugs in jails – would be best served by giving it broad application. But the heart of the opinion stated that a majority of other jurisdictions (7 out of 10 cited in the opinion) have upheld convictions for similar crimes under similar circumstances, and endorsed the reasoning of many of those courts that “a defendant who is arrested with controlled substances in his possession has options other than simply taking the controlled substances with him into the confinement facility. For example, the defendant always has an opportunity to disclose the existence of these controlled substances to the arresting officer before he ever reaches the jail.”
Dissent. Judge McGee dissented on the voluntariness issue, reasoning that “[t]he officer took Defendant to the confinement facility. Defendant had no ability to choose his own course of action regarding his location,” and so did not voluntarily possess the drugs at the jail. As to the majority’s suggestion that the defendant had the option of disclosing the presence of the drugs before reaching the jail, Judge McGee concluded that requiring the defendant to do so would violate his Fifth Amendment privilege against self-incrimination. (The majority stated in a footnote that the defendant did not raise the Fifth Amendment issue but that, in any event, the dilemma was of the defendant’s own making and did not involve testimony under coercion.)
Further review. I couldn’t find any indication on the supreme court’s electronic docket that the defendant is seeking further review based on the dissent, but that would be a natural next step. So, stay tuned for further developments.
Side issue regarding conviction for simple possession. It’s worth mentioning briefly that the defendant argued, the State conceded, and the court of appeals ruled that the defendant should not have been convicted of both the confinement facility offense and the lesser-included offense of simple possession.
Cyclist Lance Armstrong has recently confessed to using performance enhancing drugs during each of his seven Tour de France victories. Public discussion has focused on whether his apology, during an interview with Oprah Winfrey, was genuine or not. I want to consider whether his conduct was criminal. (By “conduct,” I mean the doping and related activity, not the interview!)
There’s a North Carolina connection. This article observes that at Beech Mountain, near Boone, you can ride “the route Lance Armstrong used to train for his final Tour De France.” And in one of his autobiographies, Armstrong recounts a North Carolina ride that renewed his faith in cycling. (I think it was his first book, It’s Not About the Bike. As an aside, I think it’s a red flag when a person writes more than one autobiography.)
The full story of Armstrong’s systematic doping and his campaign to cover it up is told in this report from the United States Anti-Doping Agency, USADA. Briefly, the agency concludes that Armstrong masterminded “a massive team doping scheme, more extensive than any previously revealed in professional sports history” and engaged in a “fraudulent course of conduct that extended over a decade and leave no doubt that Mr. Armstrong’s career . . . was fueled from start to finish by doping.”
Obviously, Armstong and his foundation have also done a great deal of good, and the purpose of this post isn’t to assess Armstrong’s legacy. My personal view is that the doping and the lying are pretty much par for the course in professional sports, but that Armstrong’s willingness to threaten, sue, slander, and destroy the livelihoods of those who told the truth about his drug use will forever disgrace him.
Anyhow, the basic criminal law issues are these:
Perjury. Armstrong has repeatedly denied, under oath, using performance enhancing drugs. Fox News reports here that “Armstrong, by the USADA’s count, has made seven statements under oath . . . that could lead to criminal charges.” The facts seem to be quite clear-cut, but Armstrong may have some defenses unrelated to factual guilt, as I discuss below.
Obstruction of Justice. In addition to lying about his doping, Armstrong attempted to prevent others from telling the truth about his conduct and the conduct of others. He reportedly told one cyclist who testified in a doping case, “[y]ou made a mistake when you testified . . . I can destroy you,” told another witness that he would make his life a “living . . . hell,” and successfully used his stature within cycling to have another witness fired from his job. This type of conduct would support charges of obstruction of justice or witness intimidation.
Fraud. Armstrong received sponsorship money, race appearance fees, and prize money, all based in part on his representations that he was clean. He is already facing multiple civil suits alleging fraud, and criminal fraud charges, state or federal, may also be possibilities.
Controlled substance charges. Among the drugs Armstrong admitted using as part of his doping regimen was testosterone. Testosterone is a Schedule III controlled substance. Furthermore, it appears that Armstrong provided drugs to other riders on his team and/or pressured them to use drugs, meaning that he may be guilty of drug distribution and conspiracy, not merely simple possession.
Possible defenses or bars to prosecution. Some commentators that have considered the possibility of criminal charges against Armstrong have concluded that the statute of limitations is likely to bar prosecution. (For example, this Sports Illustrated article suggests that the statute of limitations may preclude any perjury or drug charges.) But those articles have generally focused on federal law, which has defined limitations periods for almost all criminal offenses. State laws vary. As readers of this blog know, North Carolina has no statute of limitations for felonies, and other states may also have long or no limitations periods. Given the many jurisdictions across which Armstrong’s conduct took place, including some foreign countries, it strikes me as likely that there are jurisdictions where prosecution remains possible. Furthermore, while it is true that the federal government not long ago publicly declined to prosecute Armstrong, that doesn’t pose a barrier to a new investigation. Jeopardy never attached, the government never entered into a non-prosecution agreement, and the available evidence now is very different. And of course, appropriate state or local authorities may also investigate.
To sum up, Armstrong’s doping-related conduct likely violated multiple criminal laws. I disagree with the comment by prominent defense lawyer Mark Geragos that “I am sure Lance’s lawyer has vetted [his confession to Oprah] and doesn’t see any criminal exposure.” It seems to me more likely that his legal team sees considerable potential criminal exposure, but simply concluded that confessing to Oprah wouldn’t make the danger any greater. Whether prosecuting Armstrong is a good use of resources is a separate question, but the legal basis for possible prosecution appears quite sound.
G.S. 90-95(a)(1) makes it a crime to knowingly sell or deliver a controlled substance to another person. As a general rule, the delivery of marijuana—a Schedule VI controlled substance—is a Class I felony. G.S. 90-95(b)(2). However, the statute provides that it is not a delivery to transfer for no remuneration less than 5 grams of marijuana or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such a substance. Id. This provision sometimes is called the “pot exception.” Here’s how it might apply: Two friends are sitting on a bench. One is smoking a joint. After taking a few hits, he passes it to his buddy, who does the same. No money changes hands. In this scenario, unless the joint is a monster-sized one, less than 5 grams of marijuana is likely to be involved. (Before you start pummeling me with questions and innuendo about how I know this, let me clarify: I googled it! Web sites with names like “Weedy” and “Grass City” and informed me that a joint typically contains less than 1 gram of marijuana.) But let’s get back to our example. In this scenario, there is no delivery because less than 5 grams of marijuana was transferred and no remuneration was involved. Of course, both friends are guilty of simple possession. And yes, for you zealous officers, possession of paraphernalia (the rolling paper) applies as well.
A recent case, State v. Land, addressed a couple of issues regarding this offense. In Land, the defendant gave Andrew Demaioribus, an undercover officer, a bag containing 2.03 grams of marijuana. He was charged with, among other things, delivery of marijuana and after being convicted he appealed. On appeal, the defendant first argued that the indictment charging delivery of marijuana was defective because it failed to allege an essential element of the offense. Specifically, he asserted that because he was charged with delivery of less than 5 grams of marijuana, the indictment was defective in that it failed to allege that he received remuneration. Over a dissent, the majority rejected this argument. It cited State v. Pevia, 56 N.C. App. 384, 387 (1982), for the proposition that G.S. 90-95 creates a single offense of delivery of a controlled substance, with no separate offense of delivery of marijuana. As a result, it concluded, an indictment is valid when it alleges, as here, that the defendant “did unlawfully, willfully and feloniously deliver to [a specified person] a controlled substance, to wit: marijuana, which is included in Schedule VI of the North Carolina Controlled Substances Act.” It continued, explaining that under Pevia the State can prove delivery of marijuana with evidence either (1) of a transfer of 5 or more grams of marijuana, or (2) of a transfer of less than 5 grams of marijuana for remuneration. It concluded: “Since the methods of proof set out in [G.S.] 90-95(b)(2) are mere evidentiary matters, they need not be included in the indictment.” The dissenting judge agreed with the defendant’s argument, noting that in State v. Partridge, 157 N.C. App. 568, 570 (2003), the court had vacated the defendant’s conviction of felony possession of marijuana because the indictment failed to allege the amount of marijuana that he possessed.
Notwithstanding this disagreement about charging language, all three judges agreed that the trial court erred by failing to instruct the jury that a transfer of less than 5 grams of marijuana for no remuneration is not a delivery. The trial court had instructed the jury as follows:
The Defendant has been charged with delivering marijuana, a controlled substance. For you to find the Defendant guilty of this offense, the State must prove beyond a reasonable doubt that the Defendant knowingly delivered marijuana to Mr. Demaioribus. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant knowingly delivered marijuana to Mr. Demaioribus, then it would be your duty to return a verdict of guilty. If you do not so find or if you have a reasonable doubt then it would be your duty to return a verdict of not guilty.
The court concluded that because the evidence showed a transfer of only 2.03 grams of marijuana, the trial court erred by not instructing the jury that in order to prove delivery, the State was required to prove that defendant transferred the marijuana for remuneration. However, the court found that the error did not rise to the level of plain error.
Obviously, because of the dissenting opinion, we’re likely to be hearing from the Supreme Court on the indictment issue. When that happens, I’ll be sure to give you an update.
In State v. Huerta, the court of appeals recently reaffirmed its controlled substance “combination decisions.” Here’s what happened. Huerta was convicted of, among other things, trafficking by possession of more than 400 grams of cocaine. During a search of Huerta’s house, officers found three caches of what turned out to be cocaine: (1) one kilogram-sized brick of white powder, (2) a plastic bag containing ten individually wrapped packets of white powder, and (3) a grocery bag containing two large plastic ziplock bags, each with twelve individual packages of white powder. Because the officers wanted to have the packaging material tested for fingerprints, they separated the substance in the packages from the packaging. Specifically, they emptied the ten individual packets in the second cache into one bag and emptied the contents of the packages in the third cache into another bag. They then sent the three bags to the SBI for testing. After receiving the bags, an agent weighed them and performed initial chemical testing on the material in each. The powder in each bag responded consistently to the chemical reagent. The agent then combined the material in the three bags for further testing. At trial the agent explained that if evidence is collected from the same location, packaged in the same manner, appears the same, and gives the same preliminary test, it is combined for analysis to confirm its identity. In this case, that analysis consisted of an infrared spectrophotometer test, which showed the material to be cocaine hydrochloride. The combined material weighed 1,729.5 grams. Although the agent tested the material in the bags for a broad range of controlled and non-controlled substances, she did not find any substances in the mixture other than cocaine hydrochloride. At trial, her testing was admitted to establish that the substance was cocaine and that it weighed more than 400 grams. As noted Huerta was convicted.
On appeal Huerta argued that the trial court erred by admitting the evidence regarding the testing on the single bag. He asserted that because the three bags were combined into a single bag before being tested with the infrared spectrophotometer, the evidence failed to establish that all three bags contained cocaine. He further argued that he could have only been convicted of trafficking in cocaine based upon the weight of the cocaine in the smallest of the three bags (250 grams). This would have significantly lowered his sentence. Citing prior case law, State v. Worthington, 84 N.C. App. 150 (1987) (upholding a conviction where a chemical analyst combined the contents of three separate containers of powder before testing the combined mixture); State v. Horton, 75 N.C. App. 632 (1985) (same as to six packets of heroin); State v. Dorsey, 71 N.C. App. 435, 438 (1984) (same as to 105 bags of heroin), the court disagreed stating:
[I]n each of these cases, several containers of powder suspected to be a controlled substance were seized from the defendant and combined prior to the performance of chemical testing. Even so, on each occasion, we held that the jury should decide whether the defendant possessed the requisite amount of contraband and that speculation concerning the weight or concentration of the substance in each container did not render expert testimony that the combined mixture had a specific total weight inadmissible.
It thus concluded that the evidence was admissible and that the issue of whether the defendant possessed more than 400 grams of cocaine was a question for the jury not the judge.
This makes sense. There was no real challenge to the expert’s opinion as to the identity and weight of the substance. Rather the defendant’s argument was that the State failed to prove that prior to combining the bags the defendant possessed more than 400 grams of cocaine or a mixture containing cocaine. Clearly the jury thought otherwise. And that’s not surprising given the facts. Recall that before she did the definitive test, the agent found that all three bags reacted similarly in preliminary testing. Also, it appears that the whole mixture contained pure cocaine hydrochloride. There may be cases in which the practice of combining bags creates a better factual issue for defense counsel to develop and argue to the jury. But Huerta confirms that any such argument won’t get the defense very far in terms of contesting the admissibility of the expert’s opinion as to the nature and weight of the combined substance.
This weekend, the New York Times carried an article entitled Risky Rise of the Good Grade Pill. The piece concerns the abuse of certain prescription medications by high school and college students trying to stay awake to study, or trying to stay focused during exams. The most popular drug seems to be Adderall, which is the brand name of an ADHD medication composed of amphetamine and dextroamphetamine. (The NIH describes the drug and its uses here.)
In some instances, students are selling Adderall to one another, while in others, students with a prescription simply give some of their pills to friends. The article suggests that the sharing of Adderall and similar drugs is quite widespread in a certain demographic. The practice seems to be viewed as somewhere between totally harmless (like sharing ibuprofen) and sneaky-but-not-too-serious (like smoking an occasional cigarette). I work with a high school debate team, and although as far as I know, the kids I coach don’t use unprescribed medication, they talk about the subject with a casualness that suggests that there’s not a major social taboo against it. One gets a similar feeling from this piece, several years back, about the abuse of Adderall at UNC.
Social taboo or not, of course, there are legal risks associated with the behavior in question. I thought I’d take a moment to note some of the potential criminal liability under North Carolina law.
- It is apparently common for students to obtain prescriptions for the drugs by faking symptoms of ADHD. This violates G.S. 90-108(a)(13), obtaining a prescription by misrepresentation. At a minimum, that’s a Class 1 misdemeanor, and it is a Class I felony if done intentionally. I can imagine an argument that such conduct is inherently intentional, and so is always a felony, which is how the court of appeals has treated violations of G.S. 90-107(a)(10) (obtaining controlled substances by fraud). See State v. Church, 73 N.C. App. 645 (1985).
- Because it contains amphetamine, Adderall is a Schedule II controlled substance. See G.S. 90-91(3) (any material containing a salt or isomer of amphetamine). That means it is a Class G felony to sell or deliver (with or without compensation) the drug to another. G.S. 90-95(a)(1), (b)(1).
- Even possessing a Schedule II drug without a prescription is a
Class 1 misdemeanorClass I felony. G.S. 90-95(a)(3), (b)(3)(d)(2).
- If a student possesses or distributes a large enough quantity of Adderall in violation of the law, he or she would be guilty of amphetamine trafficking, G.S. 90-95(h)(3c), and its long mandatory prison terms. The minimum trafficking quantity for amphetamines is 28 grams, but that is the weight of the mixture – the entire pill or capsule – not just the active ingredient. I don’t know how much Adderall pills or capsules typically weigh, so I don’t know how many a person would need to have in order for the trafficking laws to apply.
I also don’t know how often those criminal penalties are invoked. A few minutes on Google didn’t turn up any sign of criminal prosecutions for Adderall abuse in North Carolina. However, in other states, some lawyers are advertising themselves as Adderall defense attorneys (examples here and here), so I suspect there are at least some cases being brought. If you know of cases in North Carolina, please let me know or post a comment.
Several earlier posts (here, here, here and here) and this article discuss the North Carolina Supreme Court’s ruling in State v. Ward, 364 N.C. 133 (2010), that the identification of a controlled substance based upon mere visual inspection is insufficiently reliable to serve as the basis for an expert’s opinion pursuant to Rule 702 of the North Carolina Rules of Evidence. Though Ward’s holding was “limited to North Carolina Rule of Evidence 702,” the court pronounced in broad terms that “[u]nless the State establishes before trial that another method of identification is sufficient to establish the identity of the alleged controlled substance beyond a reasonable doubt, some form of scientifically valid chemical analysis is required.” Id. at 147. Thus, though the issue was not before the court, Ward’s dicta questioned the State’s ability to establish the identity of a controlled substance beyond a reasonable doubt without a chemical analysis. Court of appeals opinions in Ward’s wake have treated the sufficiency pronouncement as a new rule, explaining that expert testimony based on a scientifically valid chemical analysis generally is required to identify a controlled substance beyond a reasonable doubt.
Among these opinions is State v. Nabors, ___ N.C. App. ___, 700 S.E.2d 153 (2010), a case arising from a undercover drug transaction in which the defendant allegedly sold crack cocaine to an informant while being monitored by police. At the defendant’s trial, the informant testified that he “knew” the substance he bought “to be crack cocaine,” a drug with which he had significant personal experience. A police officer who was part of the take-down team also testified that the substance the informant purchased was crack cocaine. The defendant did not object to this testimony.
During his case in chief defendant called as a witness Quinton Smith, who was in the car with the defendant when the crack cocaine was sold. Smith testified that he, not the defendant, sold the drugs to the informant.
On appeal, defendant argued that the trial court committed plain error by admitting into evidence the officer’s testimony that the substance the informant bought from the defendant was “crack cocaine.” He also argued that the trial court erred in denying his motion to dismiss for insufficiency of the evidence, contending there was “no properly admitted evidence” that proved the existence of the substance defendant sold.
Relying on Ward, a unanimous panel of the court of appeals vacated the defendant’s convictions on the basis that the sole evidence that the substance was crack cocaine consisted of lay opinion testimony from the charging police officer and an informant based on their visual observation of the substance. The appellate court concluded that the absence of a scientifically valid chemical analysis of the substance sold rendered the evidence insufficient as a matter of law to establish its identity.
The state supreme court granted discretionary review and, in an opinion issued earlier this month, reversed. State v. Nabors, ___ N.C. ___, ___ S.E.2d ___ (December 9, 2011). In considering defendant’s challenge to the sufficiency of the evidence, the court noted the well-established rule that both competent and incompetent evidence that is favorable to the State must be considered by the trial court in ruling on the motion. Furthermore, the court noted that evidence proffered by the defendant may be used to explain or clarify State’s evidence when it is consistent therewith.
The court determined that Smith’s testimony that he, rather than the defendant, sold “cocaine” to the informant “provided substantial evidence that the substance . . . sold . . . was cocaine.” Slip op. at 9. Noting that defendant’s defense at trial was that Smith, not he, orchestrated the drug transaction, the high court held that “when a defense witness’s testimony characterizes a putative controlled substance as a controlled substance, the defendant cannot on appeal escape the consequences of the testimony in arguing that his motion to dismiss should have been allowed.” Slip op. at 10.
Nabors is tough to square with post-Ward progeny deeming a defendant’s admission that a substance was a controlled substance insufficient to establish that fact. See State v. Williams, ___ N.C. App. ___, 702 S.E.2d 233, temp. stay allowed, ___ N.C. ___, 705 S.E.2d 382 (2010) (rejecting State’s argument that officers’ and defendant’s identification of the substance as cocaine rendered the error harmless; explaining that State is required to “present evidence as to the chemical makeup of the substance”). Indeed, the high court’s opinion casts doubt on whether Ward in fact established a new rule governing evaluation of the sufficiency of the evidence in drug prosecutions. After all, if visual identification of a controlled substance by a witness for the State is insufficient as a matter of law to establish the chemical makeup of the substance, how can testimony from a witness for the defendant identifying a substance as cocaine, without further explanation of the basis for the identification, shore up the State’s evidence? If Smith had testified for the State, fingering the defendant as the purveyor of the cocaine, then his testimony identifying the substance sold as crack cocaine, even when combined with that of the officer and informant, presumably would have been deemed insufficient under the general “rule” thought to have been minted in Ward dicta. Perhaps Nabors signals the state supreme court’s retreat from the sufficiency analysis it ostensibly sanctioned in Ward.