Winston McGhee (aka Pooh) sold cocaine base to a confidential informant in a controlled buy, witnessed by the State Police, who then followed him back to his hotel. ¹A hotel employee told the officers that McGhee, who’s name they did not know was staying in room six. The officers got a search warrant.

That evening they stopped McGhee as he entered the hotel and searched the room. They found a knife on McGhee. They strip searched him, finding marijuana in his shoe and a baggie in his buttocks. The baggie contained 31 smaller baggies of cocaine base.

After McGhee was indicted he moved to suppress the cocaine claiming that the strip search was illegal. Precedent in the First Circuit Court of Appeals holds that normally a search pursuant to an arrest calls for a search of the person. But with increasing justification searches involving more intrusive measures (strip search, visual inspection of genitals and buttocks, and manual intrusions into such orifices) may be appropriate.

The District Court held that a strip search was appropriate. As the appellate court pointed out McGhee had hidden marijuana in his shoes and put up a struggle during the strip search indicating that he would try to hide drugs. ²McGhee challenged the characterization of the search as a strip search, claiming that the officers pulled his legs apart to inspect his buttocks but the Court ruled that such actions were necessary, in light of his struggling, to complete the strip search.

McGhee was not charged with the sale to the informant but it was put into evidence to show that he intended to sell part or all of the cocaine base found in his buttocks. He objected to the use of the chemist who tested the cocaine base found in his buttocks testimony in so far as she testified about the work of a different chemist who tested and weighed the cocaine sold to the informant. He claimed, citing the Supreme Court cases: Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) that the use of the hearsay violated his right of confrontation. However the Court ruled that even if it violated his right of confrontation the violation was harmless. There was plenty of other evidence (the quantity, the packing, multiple cell phones significant sums of money even though McGhee was unemployed, etc.) indicating that McGhee meant to sell at least some of the cocaine base. The weight of the sample was irrelevant, according to the Court.

As a result the Court upheld the conviction.

A study conducted by the Drug Policy Alliance and the California State Conference of the NAACP found that minorities were significantly more likely to be arrested for marijuana possession in twenty-five cities in California than Whites. ¹

The study found that African Americans are arrested four to twelve times as often as Whites.This happens despite the fact that Whites way outnumber African Americans in each of the cities and Federal government statistics show that more Whites use marijuana than African Americans. For example in Los Angeles seven times as many African Americans as Whites are arrested for possession of marijuana. While African Americans are 9.6 per cent of the population in Los Angeles nearly 35 per cent of those arrested for marijuana possession are African American. Likewise in San Diego, 6.5 per cent of the population is African American, but they comprise 29.5 per cent of the possession arrests. In the City of Torrence African Americans are only two per cent of the population but they account for 24 per cent of the marijuana possession arrests. In Sacramento 13.7 per cent of the population is African American and they are the subjects of over half of the possession arrests. In none of the cities examined did the African American percentage of the population begin to reach the percentage of marijuana possession arrests.

As Michelle Alexander stated in The New Jim Crow, the authors of the Drug Policy Alliance study argue that the extraordinary number of arrests of African Americans is not caused by the racism of individual officers. ² Rather it is a systematic result of police being assigned primarily to high crime areas where indigent people, often minorities, live.

In a postnote the authors point out that possession of marijuana is scheduled to become an infraction next year in California and that legalization is on next month’s ballot. But the authors point out that making marijuana possession an infraction is unlikely to change the racial composition of the arrests and that only legalization can change that. However marijuana legalization will not change the racial nature of arrests for other drug crimes. The penalties for crack cocaine, under Federal law, remain much higher than the penalties for powder cocaine despite the fact that African American arrests for crack cocaine are significantly greater than the percentage of African Americans who use crack and White arrests for crack are much lower than the percentage of Whites who use crack. ³

The Eighth Circuit’s decision in United States v. Brewer is rather meaningless and for the most part unworthy of comment. There is a decent search issue but it is based upon confusing testimony in the District Court and once the Court of Appeals settles the evidentiary question or thinks it has settled the question the decision to uphold the search is predictable. The other issues raised by the defendant such as the sufficiency of the evidence or the failure of the trial court to inform the jury of the possible sentence in the case are clearly inane and equally unworthy of comment.

But Judge Bright’s dissent on the 370 month sentence for sales of 150 grams (5 plus ounces) of rock cocaine are compelling and something that more people ought to understand. Judge Reade who was the sentencing judge sentenced the defendant to 370 months in compliance with the advisory Sentencing Guidelines. If the case happened on the other side of the freeway which runs through the Northern District of Iowa it would have been assigned to Judge Bennett. Judge Bennett generally, using the discretion assigned to Federal judges by the Supreme Court in Kimbrough and treats rock cocaine the same as powder cocaine. Judge Reade, to the contrary used the 33:1 ratio found in the Guidelines at the time Brewer was sentenced. At the time of the sentencing Brewer would have been sentenced to 240 months (including a 20 year mandatory sentence that has now been reduced to 10 years) when treating rock and powder cocaine the same. Under 18 U.S.C. 3553(a) Federal judges are supposed to consider the sentences imposed by other judges in similar cases in order to prevent significant disparity in sentencing for defendants who commit similar crimes. Yet this apparently does not happen in the Northern District of Iowa or in a number of other jurisdictions.

As Bright points out that although Whites use drugs more often that African Americans it is African Americans who get prosecuted for crack cocaine and get the higher sentences.

The guidelines for crack cocaine are plainly unreasonable. They are the same as the guidelines for second degree murder. In fact the average Federal prison term for crack is greater than the average sentence for murder.

Furthermore at the current cost of imprisonment it will cost the Federal government $780,000 to keep Brewer in prison throughout his term. If he lives to complete the term the government will then have to pay for ten years of supervised release.

This makes no sense. Brewer will be imprisoned until he is approximately 60 years old and studies have shown that few people commit major crimes when they are 60 years old. The lengthly prison sentence is not necessary to protect society. Nor is it an appropriate for punishment. The message it gives is that a series of relatively small sales of rock cocaine to a government agent is more horrendous than murder. I doubt we want to give that message. The other message it gives is that we prefer to lock up significant numbers of African American men for relatively small sales of crack than deal with the race problems in this country.

The irrationality of our sentencing laws promotes lack of respect for out criminal justice system and actually increases the amount of crime. Knowing that regardless of what they do African American men are likely to end up in prison, for long periods of time, only encourages them to use and sell drugs. Yet they still use it less frequently and in smaller numbers than Whites who are not targeted by law enforcement and are less likely to be incarcerated.

The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.

Glen Ray Briggs plead guilty to a series of crimes involving methamphetamine and cocaine. The most serious charges related to his participation in a reverse sting operation organized by government agents to rob an alleged stash house.

As part of the plans for the robbery Briggs was to brings guns to be used in the robbery. He was arrested after he got into a vehicle that was going to be used in the robbery. No guns were found.

While the Ninth Circuit court refused refused to allow him to withdraw his plea it found that the two level enhancement for possession of a weapon was inappropriate since no weapon was found.

Briggs claimed that he should be allowed to withdraw his plea since he did not understand the consequences of the plea. Specifically he expected a sentence of approximately 200 months and the actual sentence was 324 months. He pointed to the fact that he has an IQ of 70 as a reason he did not understand the possible consequence. But the court pointed out that it is only in rare circumstances that a plea can be withdrawn for misunderstanding the possible sentence. It examined the plea transcript and the psychiatric records. Both point to Briggs understanding the plea and asking questions when he did not understand the proceedings.

Briggs also claimed that he should be allowed to withdraw his plea because of sentencing entrapment. Sentencing entrapment occurs when the government pushes the quantity of drugs up beyond the expectation of the defendant in order to increase the possible sentence. While in a reverse sting the government has practically total control over the amount of drugs and the court must be leery of drug quantities the facts here showed that Briggs was excited over the large quantity to be seized and he had no problem with it. In this circumstance there is no sentencing entrapment since Briggs agreed to the quantity.

The case was remanded for reconsideration of the gun enhancement.

The statistics are shocking. Human Rights Watch reported in 2000 that in seven states 80 to 90 percent of those sent to prison for drug offenses were African American. ¹ In at least fifteen states African Americans were sent to prison from twenty to fifty-seven times as often as white men. In 2000 twenty-six times as many African Americans were sent to prison for drug offenses as in 1983. Likewise the number of Latinos sent to prison increased by 22 times between 1983 and 2000. While the majority of drug users and drug dealers in this country are white over three quarters of those sent to prison are African American and Latino.

In another study published in 2000 white students used cocaine seven times as often as African American students, used crack eight times as often, and used heroin seven times as often. White youth between 12 and 17 are a third more likely to have sold illegal drugs than African American youth. Yet African American Americans are more likely to be prosecuted, convicted and imprisoned.

Among youth who have never been sent to prison, African American are more than six times as likely to be sent to prison for identical crimes. African Americans account for 16 per cent of all youth, 28 per cent of juvenile arrests, 35 per cent of juveniles tried in adult court and 58 per cent of juveniles sent to adult prisons.

Approximately 90 per cent of those sent to prison for drug crimes in Illinois are African American and 55 per cent of the African American men in Chicago have felony records. Nationwide one in three young African American men are either in prison or jail or on parole or probation.

Alexander says that the mass incarceration of the last thirty years serves the same function of racial control that slavery and Jim Crow held for prior generations. While it is no longer acceptable to openly express racist ideas, But the vast difference in drug arrests, prosecutions, and convictions between Whites and minority, despite evidence that Whites violate the law at least as often as African Americans and Latinos can leave no doubt that racism plays an important role in our criminal justice system.

While the laws appear to be colorblind, Alexander points out the tremendous degree of discretion granted to police and district attorneys in deciding which cases to arrest and prosecute. Recently there have been articles in press regarding the large database of citizens in New York City who have been stopped and who have either been frisked or consented to searches, some leading to arrest. The vast majority are African American or Latino. Consent searches or incidents where officers “stop and frisk” citizens happen nationwide. Despite the tremendous invasion of privacy that occurs when officers stop an individual without probable cause and often even without a reasonable suspicion, “consent” searches occur regularly and the police have the discretion to decide who to stop, search and frisk. The vast majority of times it is a young African American male who is stopped and searched. It is this discretion on who to stop and who to search that leads to the extraordinary increase in the number of African Americans who are incarcerated as part of the War on Drugs.

The lifelong effect of these convictions, as pointed out by Alexander is overwhelming. Once convicted of a felony the person can not get public housing or governmental benefits. They are unlikely to be able to get a job or schooling. Furthermore while incarcerated they learn skills to use in future crimes. The inability to get jobs affects their families and future generations.

Charles Dickens started Tale of Two Cities with “It was the best of times. It was the worst of times. . .” Well if you are in San Francisco and you’re charged with a drug crime it may be the best of times and if you work for the police crime lab it may be the worst of times.

Last December the Police Department was notified that one of its supervising chemists, Deborah Madden was stealing cocaine from the laboratory for her own use. But the District Attorney office was not notified until February. By then other allegations had come up regarding the crime lab including problems involving chain of custody issues and contamination of the tested substances. Now we learn that Madden was not only using cocaine but she may also have taken oxycontin from the laboratory,

Furthermore it has been learned that Madden was convicted of domestic violence charges in nearby San Mateo County. The failure to notify defense counsel of the conviction may be a Brady issue. In Brady v. Maryland the Supreme Court ruled that a prosecutor and the police department must turn over evidence that may be helpful to a defendant to his/her attorney. This would include evidence that a prosecutorial witness committed a crime of moral turpitude. But evidence of Madden’s charges and conviction were only partially turned over earlier this month to defense counsel.

The crime lab was closed last month and drugs have been sent out to other communities for testing.

The number of cases affected is unclear. But the District Attorney’s most recent count is that 500 cases have been dismissed and another 1900 will be dismissed. This only includes open cases. Other cases, where convictions have been obtained may be reversed on writs of habeas corpus.

Mexico has removed custodial penalties for possession of personal use quantities of drugs. But many law enforcement agents along the border are upset that the change in Mexican law will make it easier for Americans to go to Mexico, purchase drugs, and bring them back across the border.

Other countries in Central and South America have taken similar steps. Brazil and Uruguay have removed jail penalties for possession of personal use quantities. Columbia has removed jail as a penalty for personal use amounts of marijuana and cocaine. The Argentine Supreme Court has ruled out jail as a penalty for marijuana possession.

Portugal has limited the penalties for possession of up to a ten day supply to treatment, a fine or probation.

If there are four things we know about drug use they are:

1. Drug use leads to addiction.
2. Addiction is a chronic disease with relapse as a common result.
3. Putting people in prison or jail does not cure the disease.
4. The cost of putting addicts in prison is much greater than treating the disease

While legalization may be a while off in the United States bills legalizing the use of marijuana have been introduced in Massachusetts and California.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.