State of Minnesota, Respondent, vs. Mohamed Abdulgani Ahmed, Appellant
Greg Widseth, Polk County Attorney, Scott A. Buhler, First Assistant Polk County Attorney, Crookston, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
S Y L L A B U S
Under
Reversed in part, vacated in part, and remanded.
PROCACCINI, Justice.
This case relates to a prosecution under Minnesota’s controlled substance conspiracy statute,
We granted review to decide whether the prosecutor plainly erred by misstating the law to the jury in the State’s closing argument. In particular, we review the prosecutor’s statement that the State did not need to prove that Ahmed knew that he was in a сonspiracy that “involved more than fifty grams” to prove Ahmed guilty of conspiracy to commit first-degree sale of controlled substances. Because we conclude that this statement was plain error that requires reversal, we remand for a new trial on the controlled substance conspiracy charge. And because the erroneous statement affected
FACTS
In 2022, police officers received information about alleged fentanyl sales occurring at an apartment in East Grand Forks. Based on that information, officers surveilled the apartment. They observed and spoke to people coming and going from the apartment, аnd at least one of these people admitted to purchasing fentanyl from the apartment.
The officers obtained a search warrant and went to the apartment. When the officers knocked, Ahmed answered the door. The officers handcuffed Ahmed and searched the apartment. In the bedroom, officers found Ahmed’s roommate, A.F., asleep on a mattress. Inside the bedroom closet, officers found a sandwich-sized Ziploc bag containing 775 pills, a plastic bag containing at least $2,000 in cash, and Ahmed’s wallet. Later forensic analysis suggested that the pills in the bag contained fentanyl and weighed approximately 77.5 grams.
The officers arrested Ahmed and took him to the police station. They seized nine pills that Ahmed had in his pocket at the time of his arrest, as well as his cell phone. Ahmed аdmitted to the officers that he had sold fentanyl to the person whom the officers
Police officers obtained a report of text messages extracted from Ahmed’s cell phone. Those messages showed Ahmed’s involvement in the sale of fentanyl pills. He had sent messages to A.F. about selling fentanyl pills, including price and quantity, and he had sent messages to other people about purchasing pills from him and A.F. In one text conversation, Ahmed noted that he usually sells the pills for “50 a pop,” but charges “30” to people who bring in “sales and customers.” The messages suggested that Ahmed agreed to sell a few fentanyl pills on multiple occasions.
The State charged Ahmеd with conspiracy to commit first-degree sale of controlled substances (a first-degree controlled substance conspiracy)2 in violation of
The case proceeded to a jury trial. The State argued that if Ahmed participated in a conspiracy to sell controlled substances under
The dispositive issue in this appeal involves the State’s closing argument to the jury. During that argument, the State addressed the first-degree controlled substance conspiracy charge, stating:
But I don’t need to prove that the defendant knew this conspiracy involved more than fifty grams, just that there was a conspiracy to do so, and
ultimately this conspiracy involved more than fifty grams. If you look at the Court’s jury instructions, it doesn’t say that I have to prove that he knew that this conspiracy involved more than fifty grams of fentanyl.
Ahmed did not object to this statement. The jury found Ahmed guilty on all counts.5 Relevant to this appeal, the district court entered convictions for the first-degree controlled substance conspiracy, first-degree controlled substance sale, and second-degree controlled substance possession counts, but it imposed sentences for the first-degree controlled substance conspiracy and first-degree controlled substance sale counts.
Ahmed appealed the convictions for first-degree controlled substance conspiracy, first-degree controlled substance sale, and second-degree controlled substance possession. The court of appeals generally affirmed the district court, but it reversed and remanded for the district court to vacate the second-degree possession conviction because the entry of that conviction—for a lesser-included offense of first-degree controlled substance sale—violated
ANALYSIS
Ahmed challenges the prosecutor’s statement in closing argument that the jury could find Ahmed guilty of first-degree controlled substance conspiracy without proof that Ahmed “knew this conspiracy involved more than fifty grams.” Because Ahmed did not object to this statement at trial, we apply our modified plain error test. See State v. Thompson, 3 N.W.3d 257, 263 (Minn. 2024). This test allows for reversal in some circumstances, despite a defendant’s failure to object. Id. (explaining that the modified plain error test “provides a limited exception to the harsh consequences of the common law forfeiture rule“). Under the modified plain error test, the defendant bears the initial burden to demonstrate that the statement at issue was an error and the error was plain. State v. Portillo, 998 N.W.2d 242, 248 (Minn. 2023). If the defendant meets their burden, “the burden then shifts to the State to demonstrate that the error did not affect the defendant’s substantial rights.” Id. (citation omitted) (internal quotation marks omitted). If the State fails to carry its burden, we then assess whether reversal is required to ensure the fairness and integrity of the proceedings. Id. We address each step of the modified plain error test below.
A.
We first determine whether the State erred when it asserted that the jury could find Ahmed guilty of first-degree controlled substance conspiracy without finding that Ahmed
Because the statement could have been based on two sources of law, we consider each source of law in turn. We first examine whether
1.
We begin by considering Ahmed’s liability under the theory that he personally conspired to commit a first-degree controlled substance crime under
As we explained in State v. Kuhnau, to prove controlled substance conspiracy, the State must show (1) an agreement between two or more people to commit a crime; (2) an overt act in furtherancе of the conspiracy; and (3) a conscious and intentional purpose to break the law. 622 N.W.2d 552, 556 (Minn. 2001). The third element requires “both knowledge of an agreement and evidence of intent to commit the crime or act that is the object of the conspiracy.” Id. Accordingly, for a jury to find a defendant guilty of conspiracy to commit first-degree controlled substance sale, it must find “evidence of
Here, the object of the alleged controlled substance conspiracy was first-degree sale, and our reasoning in State v. Kuhnau controls our assessment of the State’s assertion. Our analysis in Kuhnau was rooted in the critical requirement that the State prove every element of a crime beyond a reasonable doubt. See Kuhnau, 622 N.W.2d at 558 (“The conspiracy instruction’s omission of an element of the offense of sale in the first degree did not fairly and adequately explain the law of the case and was error.“); see also State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994) (explaining that every element of an offense “must be proven by the state and proven beyond a reasonable doubt“).6
The defendant in Kuhnau was charged with controlled substance conspiracy under
In Kuhnau, we held that the district court abused its discretion because its instruction did not require the jury to find evidence of intent to commit all the elements of the substantive crime that was the object of the controlled substance conspiracy. Id. at 557–58. Specifically, the jury wаs not asked to find whether the defendant knew that the plan was to sell genuine methamphetamine. Id. at 558.
Applying Kuhnau’s holding to this case means that the jury needed to find that Ahmed intended the commission of every element of the underlying first-degree controlled substance offense, including the sale of at least 50 grams of a mixture or mixtures containing fentanyl. Ahmed was charged with first-degree controlled substance conspiracy for allegedly conspiring to sell fentanyl in the first degree. At the time of Ahmed’s alleged conduct, the elements of first-degree controlled substance sale under
As discussed above, under Minnesota law, the weight threshold is an element of first-degree sale of a controlled substance. See Robinson, 517 N.W.2d at 339 (noting that “[t]he weight of the mixture is an essential element” of the charged controlled substance sale crime). Relevant here, to prove first-degree controlled substance sale, the State was required to prove that “on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of 50 grams or more containing a
2.
To the extent that the State argues that the expansive liability provision in
A defendant is generally liable only for criminal acts that they personally commit. State v. Ezeka, 946 N.W.2d 393, 407 (Minn. 2020). But Minnesota’s accomplice liability provision,
Here, the State told the jury that it did not “need to prove that the defendant knew this conspiracy involved more than fifty grams, just that there was a conspiracy to do so, and ultimately this conspiracy involved more than fifty grams.” Even if the State’s theory were that Ahmed could have been found guilty of first-degree controlled substance conspiracy because he conspired to commit some other controlled substance crime, the jury could not have found him guilty by finding only that “there was a conspiracy” and the conspiracy “involved more than fifty grams.” Instead, the jury would have also needed to find that it would have been reasonably foreseeable to someone in Ahmed’s position that a first-degree controlled substance conspiracy was a probable consequence of whatever other controlled substance crime Ahmed conspired to commit. This reasonable foreseeability requirement must be considered by the jury and proven by the State.11 See Atkins, 543 N.W.2d at 646 (explaining that whether the crime was reasonably foreseeable is a “question of fact for the jury“). Here, nothing in the record shows that the jury considered, or that the State proved, that first-degree controlled substance conspiracy
Because neither the controlled substance conspiracy statute nor the expansive liability provision supports the assertion that the State need not “prove that the defendant knew this conspiracy involved more than fifty grams,” that assertion was an error.
B.
Having concluded that the State erred, we turn to whether the error was plain. An error is plain when it is “clear or obvious.” Portillo, 998 N.W.2d at 250 (citation omitted) (internal quotation marks omitted). A prosecutor’s closing argument constitutes plain error when it “contravenes case law, a rule, or a standard of conduct.” Id. (citation omitted) (internal quotation marks omitted). As explained above, the prosecutor’s statement here contravened Kuhnau, Atkins, and the plain language of
The State nevertheless argues—and the court of appeals agreed—that the error was not plain because thе State’s assertion was consistent with a statement of the court of appeals in State v. Aviles-Alvarez, 561 N.W.2d 523, 526 (Minn. App. 1997). But Aviles-Alvarez is distinguishable. In Aviles-Alvarez, the court of appeals stated that “[a] defendant need not know the exact quantity of an illegal drug he sells to be guilty of the crime of conspiring to sell methamphetamine in the first degree.” Id. The court of appeals, however, made that statement in the context of distinguishable facts and a different procedural posture. The facts are distinguishable because the defendant in Aviles-Alvarez conceded to having more knowledge than Ahmed did. The defendant in
Even if Aviles-Alvarez were not distinguishable, Kuhnau overruled any holding that first-degree controlled substance conspiracy does not require proof of intent that the conspiracy would result in a controlled substance crime at or above the statutory weight threshold. If an opinion of the court of appeals is inconsistent with a subsequent opinion of this court, the opinion of this court controls. See, e.g., State v. Porte, 832 N.W.2d 303, 312 n.1 (Minn. App. 2013); State v. Foster, 630 N.W.2d 1, 4 (Minn. App. 2001); see also Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). Because Aviles-Alvarez was decided four years before Kuhnau, any contrary holding in Aviles-Alvarez was abrogated when we issued Kuhnau. Kuhnau has been the controlling law in Minnesota since 2001, and so the error here was plain.
C.
Having concluded that the prosecutor’s statement was plain error, wе next examine whether the State has met its burden to show that the error did not affect Ahmed’s substantial rights. See Portillo, 998 N.W.2d at 251. To meet that burden, the State must show that the error was not prejudicial. Id. at 253. To do so, the State must
Turning first to the strength of the evidence, there is no doubt that the evidence that Ahmed agreed to sell fentanyl is strong. But the evidence that Ahmed agreed to sell a mixture or mixtures containing fentanyl weighing at least 50 grams is more limited. When assessing the strength of the State’s evidence, we have looked for “overwhelming,” “considerable,” and “ample” evidence of a defendant’s guilt. See, e.g., State v. Huber, 877 N.W.2d 519, 526–27 (Minn. 2016); see also Portillo, 998 N.W.2d at 253. Such evidence is generally of a “large quantum” and is not “entirely circumstantial.” See Portillo, 998 at 252 n.7 & 253.
Here, evidence in the State’s favor includes an extensive exhibit of text messages in which Ahmed discusses selling fentanyl with A.F. These discussions touch on price and quantity, as well as whether any of Ahmed’s existing customers should receive a deal for bringing in new customers. Some of these messages imply that Ahmed and A.F. sold fentanyl to at least one regular customer. The State also presented evidence that the bag of fentanyl pills, Ahmed’s wallet, and a bag of cash were all found in a closet in the
We turn next to the pervasiveness of the State’s improper suggestion. When anаlyzing pervasiveness, we often examine the frequency of the improper statement. Contrast State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007) (concluding that statements were not pervasive when they were limited to one page of a 64-page transcript of the defendant’s testimony), with State v. Mayhorn, 720 N.W.2d 776, 791 (Minn. 2006) (concluding that statements were pervasive when the prosecutor repeated them on at least 20 pages of an 80-page cross-examination transcript). Here, the statement occurred only once at closing, so it was not pervasive by this measure.
But a statement that does not recur may still be prejudicial. In Portillo, the State misstated the law in its closing argument by telling the jury that the defendant “no longer has [the] presumption of innocence” and that the defendant had “been proven guilty beyond a reasonable doubt.” Portillo, 998 N.W.2d at 246–47. The State made similar statements twо more times before the jury deliberated. Id. at 253–54. Because this
The State’s assertion here was similarly prejudicial. Although the State made only one misstatement about the weight threshold, this misstatement was central to the State’s overall theory of the case, which was that Ahmed and A.F. were working to sell fentanyl out of the apartment and that Ahmed was guilty of any sale or possеssion of fentanyl done in furtherance of that operation. When the State introduced the first-degree controlled substance conspiracy charge in its closing argument, it explained: “[O]ne reason I start with that count is because if you find the defendant guilty beyond a reasonable doubt of this offense, it’s pretty easy to find him guilty of the remainder of the offenses.” The State then supported its argument by directing the jurors’ attention to the jury instructions, stating: “If you look at the Court’s jury instructions, it doesn’t say that I have to prove that he knew that this conspiracy involved more than fifty grams.” Here, not only did the jury instructions fail to correct the harm, but the State also used the jury instructions to emphasize its erroneous view of the law, lending authority to its argument that the jury could disregard an element of first-degree controlled substance conspiracy.
The effect of the misstatement likely reached beyond the jury’s deliberation on the first-degree controlled substance conspiracy charge, influencing the jury’s understanding
We recognize that Ahmed had the opportunity to rebut the State’s improper suggestion, and this factor disfavors Ahmed. Although we are more likely to find that this factor favors the dеfendant when an error occurs during closing—as it did here—Ahmed nevertheless had an opportunity to address the error in his own closing argument. See Portillo, 998 N.W.2d at 253–54 (noting that the fact that the State made an erroneous statement during the State’s rebuttal argument was important because the statement was part of the final argument heard by the jury); see also State v. Buggs, 581 N.W.2d 329, 340–41 (Minn. 1998) (holding that the State’s remarks during cross-examination were not prejudicial error because the defense had the opportunity to address the remarks on redirect and in closing argument), overruled on other grounds by State v. McCoy, 682 N.W.2d 153 (Minn. 2004).
Our “overarching concern” in cases involving prosecutorial error is whether the error “may [have denied] the defendant’s right to a fair trial.” State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). Prosecutorial error may deprive a defendant of a fair trial even in a case in which the evidence of guilt is strong or when the misstatement is made only a couple of times. Portillo, 998 N.W.2d at 253–54. And even where there is sufficient
Here, the basis for the jury’s verdict is unclear. The jury may have found Ahmed guilty based on an inference that he agreed tо sell 50 grams or conspired to commit a crime in which the sale of 50 grams was reasonably foreseeable. But it also may have believed that Ahmed did not agree to sell 50 grams and that such a sale was not reasonably foreseeable, but nevertheless found him guilty based on the State’s erroneous direction to disregard an element of first-degree controlled substance conspiracy.12
D.
Finally, we assess whether reversal is necessary “to ensure the fairness, integrity, or public reputation of the judicial proceedings.” State v. Bustos, 861 N.W.2d 655, 663 (Minn. 2015). The State’s closing argument instructed the jury that it could disregard an element of first-degree controlled substance conspiracy. In Watkins, we concluded that the omission of an element of a crime from the jury instructions was plain error that required reversal when such an omission prevented the jury from considering the defendant’s primary defense. 840 N.W.2d 21, 30–31 (Minn. 2013). The logic set forth in Watkins is all the more compelling here, where the error at issue involved more than an omission. The State’s affirmative statement in this case may well have prevented the jury from considering Ahmed’s primary defense—his assertion that he did not know the extent of the fentanyl dealing. As in Watkins, allowing a jury to consider Ahmed’s defense in a new trial “will protect the fairness, integrity, and public reputation of judicial proceedings.” See id. at 31.
For the foregoing reasons, we reverse in part and vacate in part the decision of the court of appeals and remand for further proceedings consistent with this opinion.
Reversed in part, vacated in part, and remanded.
HENNESY, J., took no part in the consideration or decision of this case.