Wednesday, March 02, 2016

U.S. v. Lemus (9th Cir. - March 2, 2016)

You say you want to buy two ounces of methamphetamine.  I say "Okay," but point out that this will be a hassle, since I'm a big-time player, and generally only deal in pounds.

We arrange to meet for the two ounces, but at that meeting, I tell you it's a no-go, since it'll be too big of a hassle for me to rip up my pound packages of methamphetamine just to sell you two ounces, but I reiterate that I'll sell you a pound, and offer to give you a sample.  I also say I have "pictures" of the pound that I'm happy to show you.

You say, smartly, that there'd be no proof that the sample would be representative of the rest of the package, so don't feel like seeing a (meaningless sample).  And as for the "picture" of the pound you want to sell me, come on.  That could be anything.  From anywhere.  And, in any event, I don't want a pound.

So we part ways.

Notice that you've never actually seen any drugs from me.  I've talked a big game, to be sure.  I've said I could get you a pound.  Which means I've said I have at least a pound.  Hell, I might have said I have a ton.  Or fifty tons.  Or a million.  You never saw anything.

Surely I can be convicted of lots of crimes.

But can I be convicted of possession?  Or, in particular, possession with intent to distribute over 50 grams?

The Ninth Circuit says yes to the first question, but no to the second.


Maybe that's right.  What do I know?

But as to the former, I mean, it seems eminently plausible to me that the dude has utterly nothing.  I never saw any drugs.  Including but not limited to the drugs we're now saying -- beyond a reasonable doubt -- that they guy purportedly "possessed".  And I have a sneaking suspicion that the guy may not have had any drugs to begin with.  Maybe he was just trying to rip me off.  Which is why he wanted me to agree to buy at least a pound.  Sure, maybe he in fact had a pound.  But do I know that for sure?

The Ninth Circuit says so.  Based solely on the guy's word, essentially.  Since there's no actual drugs anywhere that we can actually find.

But as for whether it's actually 50 grams, the Ninth Circuit says, that'd be total speculation.  Because we don't know for sure the purity of those purported drugs.

I'm not exactly sure why what's true for purity isn't also true for their mere existence.  Or vice-versa.  But the Ninth Circuit says we can be sufficiently sure (beyond a reasonable doubt) of the one but not the other.

Okay.  That's the law, apparently.  At least after today.

But it still seems weird.

There are, I think, some circumstances when I'd be extraordinarily confident that you actually had an item you said you had based merely on your word and the fact that you were trying to sell it to me.

But if I meet a guy in a bar and he says he has a pound of methamphetamine to sell to me, there's surely a chance he's actually got a pound.  But if you think it's beyond a reasonable doubt that he in fact has a pound, rather than is actually just trying to rip you off . . . well, I think you may need to hang around more criminals.

'Cause they ain't exactly the trustworthy type.