The Department of Justice has finite resources.


Beginning in 2013 and continuing through 2016, the DOJ adhered to its Smart on Crime Initiative designed to focus prosecution in drug cases on high-level traffickers. The stated goal of this prosecution initiative was to reserve resources by confining prosecutions under statutes with harsh mandatory minimums to the most dangerous offenders, not petty marijuana users or other small-scale drug dealers.


AG Sessions Not Smart on Crime


This past May, Attorney General Jeff Sessions broke with the Smart on Crime Initiative by ordering all federal prosecutors to seek the maximum punishment for any drug offenses, no matter how small.


The attorney general, as reported in the Denver Post, pointed out that Sessions has a history of spreading “egregious lies about marijuana” and the dangers it poses to the nation.


In a memo to federal prosecutors, Session said this change “affirms our responsibility to enforce the law, is moral and just, and produces consistency.”


Fed Prosecutors Bring Flimsy Case and Seek Harsh Punishment


Sessions, who has brought in all new U.S. Attorneys, had better put these federal prosecutors through training seminars on prosecuting drug conspiracy cases. The courts will not tolerate the Attorney General sloppiness, like lying or misrepresenting issues to Congress.


This was illustrated in a July 10, 2017 decision by the Eleventh Circuit Court of Appeal in United States v. Louis.


This case began in September 2015 when Customs and Border Protection agents received information that a freighter, the Ana Cecilia, returning from Haiti to Miami was carrying narcotics.


After four days of searching the vessel in a Miami port, Customs agents were unable to locate any drugs.


During this extended search, agents observed Terry Pierre Louis, an employee for the owner of the Ana Cecilia, bring the confined crew members food.


Leaving the vessel empty-handed, Customs agents set up a surveillance of the freighter. They observed a deck watchman board the vessel and remove two large cardboard boxes from one of its compartments. A forklift arrived and removed the two boxes from the vessel. The owner of the Ana Cecilia, Ernso Borgella, followed the forklift whose driver deposited the two boxes on the deck. Another man covered the boxes with a tarp.


A short time later two men loaded the two boxes on the backseat of a vehicle. Louis drove the vehicle out the front gate of the shipyard where it was stopped by Customs agents. Louis exited the vehicle and took flight.


A search of the two sealed boxes in the vehicle discovered 111 bricks of cocaine.


Louis was indicted on two counts: 1) conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and 2) possession with intent to distribute cocaine in violation 21 U.S.C. § 841(a)(1) and (b)(1)(A).

Evidence Clearly Fails to Demonstrate Intent


In a subsequent two-day trial, federal prosecutors presented evidence of the following:


  • Surveillance photos and videos showing Louis near the Ana Cecilia;
  • That Louis drove the vehicle containing the two boxes of cocaine; and
  • That Louis ran when confronted by the Customs agents.


Defense counsel for Louis filed a motion for directed verdict of acquittal following the Government’s presentation of this flimsy evidence. The trial court denied the motion. A jury found Louis guilty, and he was sentenced to an extremely harsh 151 months in prison.


The law is clear in the Eleventh, and other federal circuits, that the Government must prove under § 846 and § 841 that the defendant had actual knowledge that his alleged crime involved a controlled substance.


Further, the Government must prove beyond a reasonable doubt in a prosecution under § 846 that “two or more persons agreed to commit a drug-related offense, that the defendant knew of the conspiracy, and that he agreed to become a member.”


There are a number of legal caveats federal prosecutors must be aware of in prosecuting an § 846 conspiracy case:


  • Association with a co-conspirator or presence at the scene of the crime is insufficient to prove participation in a conspiracy.”
  • While federal prosecutors are not required to prove that the defendant knew every detail of the conspiracy, “the government must prove that he ‘knew the essential nature of the conspiracy.’”
  • “A defendant who is unaware that he is in the process of possessing drugs that are the object of the conspiracy is not, by any stretch of the imagination, aware of the essential nature of the conspiracy.”


As for a prosecution under § 841, federal prosecutors must prove beyond a reasonable doubt that the defendant knowingly possessed a controlled substance with the intent to distribute it; and that the defendant knew the substance was a controlled substance.


Government Must Prove Knowledge of Controlled Substance


In 2015, the U.S. Supreme Court in McFadden v. United States reemphasized the knowledge requirement. Writing the majority opinion, Justice Thomas said that § 841 “requires the government to establish that the defendant knew he was dealing with ‘a controlled substance.’”


The Court specifically rejected the Government’s attempt to expand the requisite knowledge requirement by arguing that this burden is met if the “defendant knew he was dealing with an illegal or regulated substance under some law.”


McFadden and these other legal caveats should notice Attorney General Sessions that his new “war on drugs” must be waged within strict legal and constitutional boundaries.


The recent Louis case illustrates this point.


Federal prosecutors came nowhere near proving that he knew the “essential nature of the conspiracy” or that he knew the two sealed boxes contained cocaine.


The federal appellate courts, and even the Supreme Court, will not tolerate flimsy drug prosecutions as the one undertaken in the Louis case.


Criminal defense attorneys should not be cowed by Attorney General Sessions. We must always make sure that his prosecutors not only follow but meet the rule of law. We cannot, and will not, let the Attorney General politicize federal drug prosecutions.