Federal Criminal Lawyer Blog

Federal criminal cases here in Atlanta, throughout Georgia, in Alabama or Florida, and anywhere around the country are all brought after a federal prosecutor makes an independent decision as to whether the matter truly should be brought in federal court. Making this decision involves the time-honored concept of discretion. The recent publicity about the fact that the IRS seemed to have harsher standards for some politically conservative "non-profit" organizations has brought the white-hot light of scrutiny on the whole idea that federal officials use their discretion to go after some groups, while leaving others alone.

First, let's look at the recent furor over the IRS practices. There has been a report by the Treasury Inspector General for Tax Administration Office of Audit, and this document shows how "Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention." This Report was only issued a couple of days ago, but it caused a firestorm. The other day President Obama stated that the Reports findings are "intolerable and inexcusable," and last night he fired the Acting IRS Commissioner. The Report made several recommendations, including "develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities."

For starters, it is not really all that controversial to stand up and say that politics do not belong in the agencies of our government. Whether it is the Department of Justice making decisions on what crime to prosecute, or the Securities and Exchange Commission excersizing discretion in making cases against some but not all securities fraudsters, when politics clearly is driving these discretionary decisions, someone should immediately stop this from happening. We all know about internal compliance programs in the corporate world, so maybe we need to beef up compliance programs and monitoring within the government world.

What truly startles me is that this process of targeting certain groups has been going on for years, but it only becomes a big issue when politically conservative organizations and their outsized ability to scare elected officials are targeted. No one uttered a peep back in the 1980's when prosecutorial discretion in bringing federal drug cases decimated an entire generation of young African American men, with wholesale use of the draconian crack cocaine drug laws and their utterly unfair mandatory minimum penalties that were 100 times more stringent than penalties for powder cocaine that was preferred by most White Americans who used the drug. I never heard the political class up in arms when federal prosecutors used harsh penalties from the Armed Career Criminal Act of 1986 to take over street crime cases and hand out life or near-life sentences when some poor mope merely had a gun and was doing yet one more stupid thing. Nobody said anything when federal prosecutors over the past 15 years have engaged in wholesale prosecutions of aliens, imposing harsh sentences on people who may have committed crimes but who have no political power in that they are from another country.

I always tell young lawyers that federal criminal cases are ALWAYS political. Prosecutorial discretion is always exercised with an eye towards the ballot box. While I am glad that the nattering nabobs are at least discussing the concept that prosecutorial discretion should be even-handed, I just wish they would be as loud when it involves folks with less political clout.

Sitting here in Atlanta, I really like when I find out about bright, energetic lawyers handling federal criminal cases all around the country. One such case is Burrage v. United States, where this past Tuesday the United States Supreme Court agreed to review important questions as to what it means when "death results" from drug dealing. To many lawyers and others in this field, it might seem that a case like this only really matters to folks defending drug cases. However, this is an important appeal on issues related to causation, the appropriateness of jury instructions, and construing federal statutes.

Mr. Burrage was like too many folks, caught up in the drug business, selling relatively small amounts of controlled substances. His life intersected with Joshua Banka, another lost soul who was a long-standing poly-substance abuser. Burrage sold some heroin to Banka, who died after using some of the drug. Banka had lots of other drugs in his system as well, and his girlfriend acknowledged he'd used some of these other drugs in the day before he died. The experts who testified at trial gave complex answers about the cause of Banka's death, but they could not say that Banka would not have died if he had not used heroin (this method of saying the word "not" three times in the same sentence appears in the briefs for each side of the case).

A federal statute requires a 20-year mandatory minimum sentence for a person dealing drugs "if death results." At trial, the Defendant wanted the judge to tell the jury that selling heroin "played a substantial part" in bringing about the death, and that the death was a "direct result of or a reasonably probable consequence of" using the heroin. Mr. Burrage's attorney also wanted a jury instruction on the well-known first-year law school concept of "proximate cause" . The trial judge and the court of appeals rejected the Defendant's contentions, and said it was OK to tell the jury that it was enough if they decided that the heroin was a "contributing cause" of Mr. Banka’s death. The instruction told the jury that "a contributing cause is a factor that, although not the primary cause, played a part in the death[.]” The jury found Burrage guilty, the Court of Appeals rejected his arguments, and his very competent Iowa lawyer asked the United States Supreme Court to look at the case.

The government protested that the Supreme Court should not review the case because the "if death results" issue rarely comes up in federal criminal prosecutions, and that any dispute among the lower federal courts on these questions is really more of a tempest in a teapot. However, it seems that the Supreme Court believes this really is an important case, for they accepted Mr. Burrage's case for review and argument next Fall. The case will have important lessons for many other federal criminal prosecutions, issues as diverse as how to read a statute written in the passive voice ("if death results" is different than the active voice "caused death"), whether it is OK to construe a criminal statute with mandatory penalties in a manner akin to strict liability, and varying levels of "causation", a concept that applies in criminal and civil cases alike.

We look forward to the Briefs and arguments, and how this decision might affect the matters we handle for our clients. Stay tuned.

Here in Georgia a Defendant was stopped by the police, who thereafter found 1.3 grams of marijuana. Because of our State's relatively harsh drug laws, he was forced to plead guilty to drug distribution, although his lawyers were able to get the conviction expunged if the Defendant successfully completed a period of probation. However, the Defendant was not a U.S. Citizen. Two years later, immigration authorities threw him into custody to begin deportation proceedings. After a fight that took several more years, the United States Supreme Court yesterday held that this man was not automatically subject to deportation. The Supreme Court said that not all marijuana distribution offenses rise to the level of being an "aggravated felony", which in the immigration context means that the person is just about automatically deportable. The case is Moncrieffe v. Holder.

Mr. Moncrieffe is originally from Jamaica, but has legally lived here in the U.S. for many years. His lawyers faced the same dilemma we face when representing aliens accused of crimes, the question of whether a guilty plea might make the person subject to deportation (or "removal" as the term is now called). Like many people, Mr. Moncrieffe seemed ready to accept a deal that called for no jail time and expungement. Little did he know that the feds wanted to kick him out of the country for this relatively minor offense.

Under the immigration laws, a drug distribution crime falls into the category of "aggravated felonies". These more serious crimes make it almost impossible for an alien to avoid removal once the immigration authorities start their machinery in that direction. Pursuant to the immigration laws, a noncitizen convicted of an “aggravated felony” is not only deportable, but also is not eligible for discretionary relief. Under the immigration laws, an “aggravated felony” includes anything that is the “illicit trafficking in a controlled substance.” To understand yesterday's ruling, it is also important to realize that pursuant to the federal drug laws, marijuana distribution is a felony, but if it only involves "small amounts" that are distributed for no remuneration, then the offense is merely a misdemeanor.

The emerging star of this Supreme Court Term, Justice Sonia Sotomayor, wrote for the majority in the 7-2 opinion. Justice Sotomayor noted that under Georgia law, marijuana distribution encompasses a range of conduct from social sharing to distribution of larger amounts. She also noted an issue that has regularly bedeviled the federal courts: how to categorize a person's prior offenses. Over the recent decade, the Court seems to be inclined to use something called the "categorical" approach. Under this analysis, courts examine what the state conviction necessarily involved and not the facts underlying the case. In using this approach, the federal court assessing the impact of a prior conviction presumes that the conviction rested upon nothing more than the least of the acts criminalized. After using this "least serious version of the crime" approach, a judge is then supposed to determine whether even those acts are encompassed by the generic federal offense that is similar to the state crime at issue.

Justice Sotomayor then turned to how drug offenses are analyzed to see if they fall into the "aggravated felony" pigeonhole. She said that a state drug offense must meet two conditions: it must proscribe conduct that is an offense under the federal drug laws, and the federal drug laws must “necessarily” prescribe felony punishment for that conduct. Although possession of marijuana with intent to distribute is clearly a federal crime, as noted above it turns into a misdemeanor when it involves only a small amount distributed for no remuneration. The Georgia drug distribution statute includes people (like Mr. Moncrieffe here) who had small amounts of pot with no desire to be paid for sharing their stash. Using the categorical approach, federal courts must assume the least serious version of the crime, and therefore violation of this statute cannot be the "aggravated felony" that causes almost automatic deportation.

Again, this kind of case reveals the difficulty in defending clients who are not citizens. It also shows the problem in dealing with seemingly minor drug cases. People need to be careful when hiring lawyers for such matters, to make sure their attorney is up on the law and possible consequences of a conviction.

In a earlier posts, I wrote about the Supreme Court's "dog sniff" cases, the former in which the Defendant was stopped while driving his truck and a drug dog eventually alerted to the presence of dogs, the latter case where (based on a "tip") the police walked a drug detector dog on the Defendant's porch, the pooch alerted, and based on that they got a warrant to search the house. As I predicted, the Supreme Court affirmed the search of the truck, and yesterday, they sided with the homeowner in the sniff that took place on the porch of the home. Yesterday's case is Florida v. Jardines, and by a 5-4 margin the Court held that the sniff on the porch was illegal as being a search not done pursuant to a warrant.

The opinion resulted in a somewhat unusual alignment of justices. Justice Scalia, perhaps the Court's most conservative member, wrote the majority decision. He was joined by Justice Clarence Thomas, a frequent ally, and three of the court’s more liberal members, Justices Ginsburg, Sotomayor and Kagan.

Justice Scalia said the Fourth Amendment, which prohibits unreasonable searches, is particularly concerned with the home and its immediate surroundings. When a dog on a leash roams around the outside of a residence, this is a tremendously different intrusion than visits from Halloween trick-or-treaters. “To find a visitor knocking on the door is routine (even if sometimes unwelcome),” Justice Scalia wrote. “To spot that same visitor exploring the front porch with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to — well, call the police.”

Justice Scalia grounded his opinion in property rights. This is the same theory he espoused when he wrote the opinion last year in Jones v. United States, the now-famous GPS case where a unanimous Court overturned years of practice by holding that placing a GPS monitor on the underside of a suspect's vehicle is a "search" that must be supported by a warrant.

In yesterday's case, Justice Kagan wrote a concurring opinion, joined by Justices Ginsburg and Sotomayor. They would also have relied on the "usual" rationale that looks to a person's "reasonable expectation of privacy." This seems to set up future battles, as noted by Justice Sotomayor's spirited concurrence in the GPS case where she wrote: "[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. ...This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. ... I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

Again, we watch these cases closely, not only to help our clients, but also to predict future cases. Stay tuned!

My law partner, Carl Lietz, has previously had good results when we represented medical doctors accused of over-prescribing pain medication. He has written earlier posts on this subject. We are seeing more and more of these cases, as shown by recent press releases and news reports. Today, the United States Court of Appeals for the Eleventh Circuit, just a few blocks away here in Atlanta, affirmed the conviction of a doctor, a pharmacist, and a physician's assistant for conspiracy and dozens of counts of over-prescribing pain medications. The case is United States v. Joseph.

The case was prosecuted in the Middle District of Georgia where Dr. Green ran a clinic. His Physician's Assistant was Ms. Mack, and most of the prescriptions were filled by a local pharmacist, Mr. Joseph. The Court of Appeals' opinion recounts the usual evidence we see in such cases involving "pill mills", hundreds of patients paying in cash or credit cards, no insurance, patients traveling long distances just to go this particular clinic, and limited or non-existent medical exams prior to writing or re-filling prescriptions for addictive pain medications.

There are several notable features of this case. One is that both sides called expert witnesses on the "standard of care" to be used by doctors and pharmacists. This is a crucial aspect when defending such cases. Many lawyers fail to recognize they need to prepare for a government "expert" who routinely tells juries the same thing: "I would never do what this doctor did." However, these government experts often fail to recognize the true need many patients have for pain medicines. My partner Carl has previously used a well-recognized defense expert witness who was able to at least counter what the government doctor was prepared to say.

Another important aspect of the case is that most of the defense arguments were rejected by the Court of Appeals under the "plain error" standard, because the trial lawyers failed to properly object to a mistake by the trial judge. Even very good lawyers often fail to preserve objections, which makes it very hard to win a case on appeal. Our firm does lots of appeals, and while we are far from perfect, we believe our appellate cases helps us do a better job in trial when trying to preserve an issue for appeal.

Finally, the case is instructive in that the doctor was given a sentence of 30 years in prison, because patients died or suffered serious bodily injury stemming from their use of the excessive pain medications. Such a sentence demonstrates the serious nature of these cases, and why medical practitioners need to find lawyers who are skilled in federal court when defending such matters.

The Supreme Court today issued one of the two dog cases on its docket, Florida v. Harris. Recall that we blogged on this case when it was accepted for review. In today's unanimous ruling, the Supreme Court held that just because there are no performance records for how a dog does in the field, this by itself does not mean that a dog's positive alert cannot form the basis for a probable cause search.

The pooch in this case is "Aldo." His handler obviously had it out for Mr. Harris. The officer stopped Harris two times, and had Aldo run around the truck, sniffing for the odors of dope, etc. The first time, Aldo "alerted", but the officer did not find any of the substances for which the dog was trained to alert. However, they did find chemicals used to make methamphetamine, so they arrested Harris. The same officer again stopped Harris while the latter was out on bail. Once again, the loyal pooch ran around the vehicle, again alerted, but this time no illegal substances or precursors were discovered.

Mr. Harris moved to suppress the results of the first search, arguing that the dog alert was insufficient so as to allow a warrantless search of the truck's interior. The prosecution presented evidence about Aldo's extensive training in sniffing out illegal substances. Defense counsel did not challenge this evidence, but instead focused on the lack of any field performance records, along with the fact that Aldo had obviously given two false positives when alerting at the exterior of Mr. Harris's truck. The Florida Supreme Court agreed with the defense, noting that the lack of performance records for the dog's earlier work demonstrated that an alert from this animal was simply insufficient evidence to form the basis for probable cause.

Justice Kagan wrote for the unanimous Supreme Court. She noted that the Florida Supreme Court created a rule with specific requirements for establishing probable cause in dog alert cases, and that such specificity is the antithesis of the flexible totality-of-the-circumstances approach in such matters. Courts should not require that the prosecution introduce comprehensive documentation of the dog’s prior hits and misses in the field. The Court noted that looking at field-performance records as the evidentiary gold standard is erroneous. Such records may not capture a dog’s false negatives or may markedly overstate a dog’s false positives. While field records may sometimes be relevant, the court should evaluate all the evidence, and should not prescribe an inflexible set of requirements.

This case was not a huge surprise. Courts have for years been calling drug dogs "four-legged probable cause." Also, for many years the Supreme Court has rejected any specific rules in the probable cause analysis other than the "totality of the circumstances" test, which, obviously, puts a whole lot of power in the hands of the first judge who looks at a case.

I am looking down from my office here in Atlanta at the U.S. Court of Appeals for the Eleventh Circuit, the federal appellate court that handles cases from Georgia, Florida and Alabama. Yesterday, that court issued a huge decision in which they decided that Congress violated the Constitution by enacting a law that allows for prosecuting international drug dealers in U.S. courts. It's kind of complicated, and even after this case there still can be similar prosecutions using different laws, but the case is nevertheless worth looking at. The case is U.S. v. Bellaizac-Hurtado.

United States surveillance detected a vessel sailing in international waters near Panama with no flag or lights. They informed the Panamanian navy, which went after the boat, eventually capturing its crew and the boatload of drugs inside the vessel. Eventually, the crew were brought to Florida and prosecuted in federal court. The defense lawyers wisely argued that a U.S. court did not have jurisdiction, and in yesterday's decision, the Court of Appeals agreed and threw out their convictions.

As we all know, the Constitution is the beginning point for all laws enacted by Congress. Under the Constitution, Congress has the power “define and punish . . . Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10. Using the Maritime Drug Law Enforcement Act (MDLA), prosecutors got an indictment against the sailors alleging they had the intent to distribute five kilograms or more of cocaine, and actual possession with intent to distribute five kilograms or more of cocaine, on board a vessel subject to the jurisdiction of the United States. See 46 U.S.C. §§ 70503(a), 70506; 21 U.S.C. § 960(b)(1)(B).

Prosecutors argued that the MDLA, as applied to the defendants, was a constitutional exercise of the power granted to Congress “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” In rejecting this claim, the Court of Appeals first discussed how the power of Congress to define and punish conduct under the Offences Clause is limited by customary international law. Second, the court explained that drug trafficking is not a violation of customary international law and, as a result, fell outside of the power of Congress under the Offences Clause. As a result, the Panel took the highly unusual step of deciding that a federal law (the MDLA) was unconstitutional.

There still are other federal laws that prosecutors can use when trying to haul an international criminal into a court sitting in the U.S. However, this decision is important for a variety of reasons, not the least of which is that it shows that lawyers need to try each and every avenue available in trying to assist their clients.

While most of our federal white collar criminal cases do not involve drug detection dogs, I noted last week in this post that the Supreme Court will soon hear arguments in a case to decide whether an "alert" on a motor vehicle by a drug-detecting dog is enough to let the police then search the car. In "Going to the Dogs: Part 2", the Supreme Court comes at the same issue from a different context: the pooch is on the porch of a home. The case is Florida v. Jardines, and it will be argued on Halloween Day.

Here is what happened in the lower courts. Miami police got a tip that Mr. Jardines was growing marijuana in his house. Based on that tip, a dog handler took the certified drug detecting dog (named "Franky") to the door of Jardine's house. Franky indicated that he had smelled drugs, and a detective then went to the door, where he too smelled marijuana. The police got a warrant, and found several live marijuana plants growing inside.

Jardines moved to suppress the drugs, arguing that the dog sniff at his door violated the Fourth Amendment, which prohibits unreasonable searches and seizures. The Florida Supreme Court agreed, holding that the dog sniff was a “search” that itself required a warrant. It was very important to the ruling by the Florida Supreme Court that the sniff took place at the front door of a house, because such activity invades the sanctity of the home, which generally gets more protection under the Fourth Amendment.

The State of Florida convinced the U.S. Supreme Court to review the case. The prosecution relied on several earlier Supreme Court cases holding that dog sniffs in other contexts are not searches. For example, the Supreme Court previously held that a sniff of a car or luggage in an airport is not a search because the sniff merely uses the circulating air to indicate whether drugs are present. Because here the dog merely signaled that he smelled drugs in Jardines’ house, the prosecution contends that this case is more like the other dog sniff cases. The State of Florida also noted that the Florida Supreme Court decision conflicts with the rulings by two federal appellate courts, each of which held that a dog sniff of a residence is not a search.

Mr. Jardines is relying significantly on Kyllo v. United States, as did the Florida Supreme Court. In Kyllo, the Court held that the warrantless use of an infrared device to detect a marijuana-growing operation in a house was unconstitutional because the device could reveal otherwise private information about legal activities within the home.

As mentioned earlier, dog searches only come up in a fraction of our cases, but constitutional principles are always important. We are always interested in cases where the Court is called on to protect the sanctity of a person's home, so we will watch this matter closely.

Here in Atlanta, in both federal court and in state court criminal cases, we regularly see situations where the police stop a person's vehicle, and walk a drug detecting dog around the car. If the dog "alerts", the police contend they have sufficient grounds, or "probable cause", to search the vehicle. I am currently litigating just such a case in the Georgia Court of Appeals, but the issue turns on whether they had the right to keep the driver at the side of the road long enough so as to let the dog do his thing. This term, the United States Supreme Court will confront a case out of Florida that presents a clear question: whether the police may conduct a warrantless search for drugs based solely on an alert by a drug-sniffing dog without any other evidence of the dog’s reliability so long as the dog has been “trained” or “certified.” The case if Florida v. Harris, and it will be argued in a few weeks.

Here's how the case got to the Supreme Court. In rural Liberty County, a sheriff’s deputy was on patrol with his trusty drug-detecting dog named Aldo. The dog had been trained to detect the illegal drug methamphetamine. The deputy pulled over Clayton Harris, because his truck's license plate had expired. The officer noticed that Harris was shaking badly, and was breathing rapidly — telltale signs, for the officer, that Harris might be on drugs. The officer wanted to search the truck, but Harris refused. The officer then had the dog walk around the truck, and the animal “alerted” to a drug on the door handle of the driver’s side of the truck. With that “alert” as legal justification, the officer searched the interior of the truck’s cab, and found ingredients for making methamphetamine.

Harris was charged with possessing materials for making meth. His very able public defenders argued that the search of the truck’s interior violated the Fourth Amendment because the deputy had no legal basis for conducting such a search. The Florida Supreme Court subsequently agreed, concluding that Aldo’s “alert” to a substance on the truck door handle was not sufficient to justify searching the cab. The state Supreme Court said that an "alert" is not enough by itself to satisfy a court that the dog is properly trained and certified for the detection of a specific illegal drug. Instead, the highest court in Florida held that an “alert” can provide the basis for a search only if the evidence shows how the particular dog was trained, what was done to satisfy an expert that the dog was adequately trained, how the dog had actually performed in “alerting” to drugs in other situations, and how well trained and how experienced was the dog’s police handler.

Florida, most of the various states, and the federal government, are all asking that the U.S. Supreme Court reverse the decision by the Florida Supreme Court. They want a ruling that the fact that a trained and certified dog does make an “alert” should be enough, all by itself, to justify a police officer’s further search of a vehicle for illegal drugs.

Frankly, it appears that the Florida Supreme Court's ruling stands alone. Most states, and virtually all federal courts, hold that an alert by a drug dog is sufficient for searching a vehicle. Some folks in law enforcement call the detector dogs "four-legged probable cause." While we will watch the case closely, it will be a surprise if the U.S. Supreme Court says that anything more is required for a search in this context.

Federal crimes often involve questions about whether a person "possesses" an item. The concept of "constructive possession" allows a jury to convict a Defendant if he or she does not have actual possession, but has the power and intention to take control of the item at a later point. The United States Court of Appeals for the Eleventh Circuit, here in Atlanta, recently confronted a case where the trial judge used faulty language when telling the jury about the concept of constructive possession. Although the instruction was bad, the Court of Appeals refused to reverse the Defendant's conviction. The case is U.S. v. Cochran.

Roderick Cochran was seen outside a house, and a police officer claimed she observed him from a block away going in and out of the property. When the police used a warrant to go inside and search the house, they found drugs in the kitchen, and ammunition hidden in a bedroom. Cochran's driver's license listed him as living two doors down, and a piece of mail was found inside addressed to he and his niece, who had also lived there. Like some of the early scenes in "My Cousin Vinny", the defense established that trees and other obstructions made it impossible for the officer to have observed Cochran from a block away. Additionally, the defense showed that including Mr. Cochran's name on the letter addressed to his niece was a standard format, but it did not show he lived with the niece.

Like most federal courts, the Eleventh Circuit publishes Pattern Jury Instructions for use in federal criminal trials. The Pattern Instruction on possession tells jurors that even if a Defendant does not actually possess an item, he or she can have "constructive possession" if the Defendant has power and intention to take control of it later. In Mr. Cochran's trial, prosecutors convinced the trial judge to add a sentence that read:“Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.” Cochran's very able lawyers from the Federal Public Defender objected to the instruction. The jury was quite confused, asking questions about how it should decide if Mr. Cochran possessed either the ammunition or the drugs. “If you have free access to a home then do you have constructive possession of the contents?” The district court replied that it could not answer the question and instructed the jury to consult the jury instructions. During deliberations the next day, the jury again sent a note to the district court, this time asking: “Regarding Count 1 [the ammunition charges] does the definition of constructive possession apply to the phrase ‘knowingly possess?’”
Again, the trial judge wold not answer the questions. The jury ultimately acquitted Cochran of the charge concerning the ammunition, but convicted on the drug crimes.

The Court of Appeals agreed that the government’s addition that, “[c]onstructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing,” eliminated the “power and the intention to take control over it later” language. That omission was especially troubling given that the definition of “constructive possession” immediately follows the instruction that “[a]ctual possession of a thing occurs if a person knowingly has direct physical control of it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010) . According to Judge Wilson (who wrote the opinion) "such a juxtaposition could create an inference that constructive possession, as defined by the government’s instruction, lacks an intentionality requirement."

Judge Wilson found a second problem with the prosecutor's extra language for the constructive possession instruction. The supplemented constructive possession instruction said that control over the premises—rather than control over the contraband itself—was sufficient to convict. However, the jury makes all choices about the facts and what inferences can be drawn from such evidence. Judge Wilson noted that the Court regularly "disapproves" of jury instructions that invade the jury’s province by implicitly mandating an inference.

Despite these problems, the Eleventh Circuit nevertheless upheld Mr. Cochran's drug convictions. "We find that although the wording of the final sentence of the constructive possession instruction would have been more clear if it included language about knowledge or intent, that flaw is mitigated by the totality of the instructions." The Court noted that the trial judge did tell jurors that it had to find "knowing possession, and that the prosecutors repeatedly argued that Cochran did in fact know about the drugs found in the home. These twin factors led the Court to affirm the conviction.