943 F.3d 909
11th Cir.2019Background
- Achey (operating as "EtiKing") sold drugs on the dark web; a customer died on Feb 27, 2017 from an overdose involving tetrahydrofuran fentanyl obtained from EtiKing.
- Federal indictment charged Achey with one count of conspiracy to distribute/possess with intent to distribute a controlled-substance analogue and two distribution counts; jury convicted on all counts.
- Investigation showed Achey bought at least two fentanyl types (including 50 g of tetrahydrofuran fentanyl) from a China-based supplier (“LS”), and used resellers, repackagers, and his wife to ship orders.
- Count One’s indictment referenced specific substances (tetrahydrofuran fentanyl and 4‑ACO‑DMT) and cited the sentencing provision 21 U.S.C. § 841(b)(1)(C).
- Achey appealed arguing (1) the government was required to prove a conspiracy to distribute the specific drugs charged (fentanyl/DMT) and (2) insufficient evidence supported a conspiracy; district court had sentenced Achey to life imprisonment on the counts at issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government must prove a conspiracy to distribute a specific drug (fentanyl/DMT) rather than a generic controlled substance | Government: indictment charged conspiracy to distribute a controlled substance; specific-drug references are for sentencing, so mens rea as to a generic controlled substance suffices | Achey: indictment’s specific-drug language charges a subset offense, so the government must prove knowledge of the specific drugs | Court: specific-drug references were fairly read as sentencing language; government needed only to prove conspiracy to distribute a generic controlled substance |
| Whether the evidence was sufficient to show Achey entered an agreement with others to distribute controlled substances | Government: purchases (50 g fentanyl), repeated sales, use of suppliers/resellers/packagers/wife support an agreement inference | Achey: transactions were at most buyer-seller or insufficient to prove an agreement to distribute | Court: evidence (large purchases, reseller sales, wife dropping packages, repackagers’ role) permits a reasonable jury to infer a conspiracy with multiple co-conspirators; conviction affirmed |
Key Cases Cited
- United States v. Sanders, 668 F.3d 1298 (11th Cir. 2012) (explains when indictment’s specific-drug language narrows offense vs when it pertains to sentencing)
- United States v. Narog, 372 F.3d 1243 (11th Cir. 2004) (indictment that substitutes a specific substance for the generic element charges a subset and requires mens rea as to that substance)
- McFadden v. United States, 135 S. Ct. 2298 (2015) (interprets § 841(a)(1) to require knowledge only that the substance is some controlled substance)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact that increases statutory maximum must be found by the jury)
- United States v. Rutherford, 175 F.3d 899 (11th Cir. 1999) (drug type relevant to sentencing, not an element of § 841(a))
- United States v. Abdulle, 564 F.3d 119 (2d Cir. 2009) (mens rea for conspiracy satisfied by intent to distribute any controlled substance)
- United States v. Browne, 505 F.3d 1229 (11th Cir. 2007) (standard of review for sufficiency-of-evidence challenges)