In United States v. Pauling, the Second Circuit (Katzmann, Kearse, and Chin) affirmed the District Court’s post-trial order granting Pauling’s motion under Federal Rule of Criminal Procedure 29 to set aside his conviction for Conspiracy to Distribute or Possess with Intent to Distribute 100 Grams or More of Heroin. The Court concluded that the District Court had correctly found that the evidence at trial was insufficient to establish the quantity element of the offense (100 grams or more), and therefore entered judgment of conviction instead to a lesser included offense that did not have a quantity requirement (and did not carry a mandatory minimum sentence).
Pauling was convicted based on his involvement in a conspiracy with an individual named “Low.” It was uncontested at trial that Pauling and Low conspired to distribute 89 grams of heroin based on four transactions documented by the government. However, Pauling argued that the government had not proved that the conspiracy included at least 11 more grams beyond a reasonable doubt. The government, in turn, relied on two different theories to demonstrate the necessary, additional 11 grams. First, the government argued that it had established these additional grams based on a July 3 phone call in which a customer ordered 14 grams from Pauling. These 14 grams were already included in the 89, but the government asserted that another 14 grams could be inferred from this phone call because the customer stated that he wanted the “same thing as last time” in placing his order. Second, the government argued that the jury could infer the additional 11 grams from the course of dealings between Pauling and Low, which indicated that they may have engaged in other similar transactions that were not recorded by the government and that Pauling was willing to continue buying drugs from Low for already-existing customers.
The Court rejected both of the government’s arguments in turn. In short, the Court concluded that while both of these theories might support reasoned speculation that the additional 11 grams of heroin had been involved in the conspiracy, neither one allowed for a sufficient inference that would establish the inclusion of 11 or more addition grams beyond a reasonable doubt. As to the government’s first theory, the Court concluded that the “same thing as last time” language might be susceptible to the interpretation that the customer had purchased 14 grams of heroin from Pauling previously, but there was no reason to believe that that prior purchase had been linked to the conspiracy with Low, especially because Pauling was known to have other suppliers. Without more, therefore, the Court concluded this phone call could not establish any quantity of heroin attributable to the conspiracy beyond a reasonable doubt. Similarly, with regard to the evidence of Pauling and Low’s ongoing relationship, the government’s case ultimately rested on a statement from Low that he had a “nice amount” left for Pauling to purchase, which the court concluded, without more specificity, could not carry the weight of establishing an additional 11 grams were involved in the conspiracy.
Judge Chin’s careful, searching analysis of the facts is a reminder that, while the defendant’s burden to overturn a verdict under Rule 29 based on insufficient evidence is a high one, so too is the burden that the government must carry to prove every element of its case beyond a reasonable doubt. Since Apprendi v. New Jersey, 520 U.S. 466 (2000), if the government seeks to increase the statutory maximum based on drug quantity, the trial jury is charged with finding drug quantity in order to make sure that this element of the offense is also proved beyond a reasonable doubt. District courts, in turn, must assess that aspect of the verdict under Rule 29. Put simply, proving a defendant “probably guilty” is not enough, and, where there is a quantity of drugs involved, the government must prove that quantity with specific evidence sufficient to show the actual amount that was involved in the charged offense. Juries are not perfect, and it is up to district court judges to step in and prevent an unjust result. The decisions here by the District Dourt to recognize the insufficiency and by the Court of Appeals to let the District Court’s decision stand notwithstanding the government’s appeal are models for other judges to follow when confronted with iffy evidence of drug quantity.