In United States v. Benjamin, No. 18-13091 (May 8, 2020) (Marcus, Ed Carnes, Luck), the Court affirmed the defendant’s convictions for distributing fentanyl.
First, the Court found sufficient evidence that the fentanyl was the but-for cause of the victim’s death, triggering the sentencing enhancement in 841(b).
Second, the defendant argued that the DEA did not criminalize furanyl fentanyl until after he was charged, depriving the court of jurisdiction. The Eleventh Circuit concluded that his claim was not actually a jurisdictional challenge, but rather a challenge to the sufficiency of the evidence. And the Court rejected that argument because he distributed a controlled substance analogue.
Third, the defendant argued, for the first time on appeal, that the district court erred by failing to instruct the jury that he had to know that furanyl fentanyl was a controlled substance analogue. The Court rejected that argument, because the district court instructed the jury on both knowing and willful distribution. And the jury could find scienter by finding that the defendant knew the identity of the substance he possessed, even if he did not know it was a controlled substance analogue.
Fourth, the Court found that the defendant gave voluntary consent for officers to search his luggage at the airport. There was no coercion, and the defendant understood his right to refuse. Although an officer falsely suggested that TSA had found ammunition in his luggage, that ruse did not vitiate the consent because it was limited and came after the consent was given.
Fifth, the Court found no abuse of discretion when the district court declined to investigate juror misconduct. After the jury returned its verdict, a clerk discovered a list of “30 Dos and Don’ts of Jury Deliberations” in the jury room. However, there was no evidence that the jury considered extraneous information. The list was not inherently prejudicial, it did pertain to this particular case, and it was not more likely to lead to a conviction.