United States v. Salah Dado
2014 WL 3360853, 2014 U.S. App. LEXIS 13043, 759 F.3d 550 (2014)
Rule of Law:
While Alleyne v. United States requires that any fact increasing a mandatory minimum sentence must be found by a jury beyond a reasonable doubt, it does not establish a new mens rea (knowledge) requirement for the specific type and quantity of drugs under 21 U.S.C. § 841(b).
Facts:
- On October 13, 2009, officers executed a search warrant at the residence of Rocky and Cory Corlew in Gladwin, Michigan, after observing suspicious activity and marijuana in plain sight.
- Officers confiscated over 93 pounds of processed marijuana and 1,287 growing marijuana plants from the Corlews’ residence.
- Salah Dado, a businessman operating liquor stores, funded the marijuana growing operation by providing substantial capital for tools and equipment, and also purchased and distributed most of the processed marijuana.
- The marijuana growing operation produced between 4,000 and 5,000 marijuana plants in 2009.
- Before the operation was discovered, Dado purchased approximately fifteen of twenty pounds of processed marijuana, yielding $7,000-$8,000 in cash for Rocky and Cory Corlew.
- Jon Abbott, Dado’s friend, testified that Dado encouraged him to invest in the operation, claimed to have invested at least $1,500, expressed concern about law enforcement detection of 3,000 outdoor plants, expected to receive marijuana in return, and had already received at least 5.5 pounds of processed marijuana.
- When Dado was arrested, officers recovered marijuana, a digital scale, and a loaded semi-automatic handgun from his liquor store, and small containers of marijuana from his car.
Procedural Posture:
- Salah Dado had a prior felony drug conviction in 2005 for possession with intent to deliver over 5 kilograms of marijuana.
- On May 13, 2011, Dado was indicted in federal district court for conspiracy to manufacture marijuana plants (21 U.S.C. § 846) and aiding and abetting in manufacturing marijuana (21 U.S.C. §§ 841(a)(1) and (b)(1)(A)).
- Dado opted to proceed to trial in the district court, unlike his co-defendants who pleaded guilty.
- The jury in the district court found Dado guilty of both charges, specifically finding that the conspiracy as a whole involved 1,000 or more marijuana plants/kilograms and the manufacturing offense involved 1,000 or more marijuana plants.
- After the verdict, Dado fired his retained trial attorneys and, with new counsel, filed a post-verdict motion for a new trial in the district court, alleging Brady violations (prosecutorial withholding of evidence) and Strickland violations (ineffective assistance of counsel).
- The district court held three days of evidentiary hearings and denied Dado's motion for a new trial in a comprehensive opinion.
- On April 22, 2013, the district court sentenced Dado to concurrent, mandatory minimum sentences of 20 years, followed by 10 years of supervised release, due to the drug quantity involved and his prior felony drug conviction.
- Dado, as the appellant, timely appealed his convictions and sentence to the United States Court of Appeals for the Sixth Circuit.
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Issue:
Does the Supreme Court's decision in Alleyne v. United States, which holds that any fact increasing a mandatory minimum sentence is an element that must be found by a jury beyond a reasonable doubt, also require the government to prove that a defendant knew the specific type and quantity of drugs involved to impose such a mandatory minimum sentence under 21 U.S.C. § 841(b)?
Opinions:
Majority - Clay, Circuit Judge
No, Alleyne v. United States does not rewrite 21 U.S.C. § 841(b) to add a new mens rea requirement that a defendant must have known the specific type and quantity of drugs involved in the offense to trigger a mandatory minimum sentence. The court affirmed Dado's convictions and sentence, addressing three grounds of appeal. First, the court upheld the district court's denial of Dado's motion for a new trial based on alleged Brady and Strickland violations. The court found no Brady violations, concluding that the suppressed impeachment evidence concerning witness Jon Abbott (arson accusation, false claim of immunity, aggressive pursuit of immunity) was either not proven false, largely corroborated by other witnesses, or cumulative to impeachment already conducted. Thus, it was not material and did not undermine confidence in the verdict. Similarly, the court found no Strickland violations for ineffective assistance of counsel, deeming counsel's decisions (e.g., not calling a specific witness, not objecting to certain testimony, or 'opening the door' to prior bad acts evidence) as either strategic, not prejudicial due to overwhelming corroborating evidence, or admissible under the rules of evidence. Second, the district court did not abuse its discretion in refusing to deliver a 'buyer-seller' jury instruction. The proposed instruction was an incomplete and inaccurate statement of Sixth Circuit law, was substantially covered by existing jury instructions on conspiracy and accomplice liability, and would have confused the jury given Dado's role as a financier and primary distributor rather than a mere buyer or seller. Finally, regarding the Alleyne argument, the court acknowledged that Alleyne extended Apprendi to require that facts increasing a mandatory minimum sentence be found by a jury beyond a reasonable doubt. However, the court distinguished between the quantum of proof (what must be proven by a jury) and the mens rea requirement (what the defendant must know). The court reaffirmed its precedent that 21 U.S.C. § 841(b) establishes a strict liability punishment scheme as to drug type and quantity; meaning the government does not need to prove the defendant knew the specific quantity involved to apply the mandatory minimum, provided the jury found the quantity fact.
Dissenting - Merritt, Circuit Judge
Yes, Justice Merritt dissented, arguing that Alleyne v. United States removes the legal basis that previously allowed courts to separate the mens rea requirement of 21 U.S.C. § 841(a) from the quantity element of § 841(b), and therefore, the government should be required to prove that the defendant knew the specific quantity of drugs to impose a mandatory minimum sentence. Justice Merritt contended that Alleyne's central holding—that 'the core crime and the fact triggering the mandatory minimum sentence' (e.g., drug quantity) 'together constitute a new, aggravated crime, each element of which must be submitted to the jury'—means that §§ 841(a) and (b) are intrinsically linked. According to the dissent, this linkage implies that the 'knowingly or intentionally' mens rea requirement of § 841(a) should apply to all elements of this aggravated crime, including the drug quantity. Citing Flores-Figueroa, the dissent emphasized that 'knowingly' in a criminal statute typically applies to each element. Therefore, if Dado 'knowingly manufactured over 1000 marijuana plants,' it should mean he knew it was marijuana and that it was over 1000 plants. The dissent contended that isolating the intent for a general 'controlled substance' without regard to quantity separates the act from its punishment, violating the spirit of Apprendi and Alleyne. Furthermore, the dissent highlighted the strong presumption against strict liability in criminal law, especially when facing severe penalties like a 20-year mandatory minimum. It urged the court to reconsider its precedent in light of Alleyne and the changing societal attitudes towards marijuana, advocating for a policy that requires prosecutors to prove a defendant's knowledge of the scope of the conspiracy.
Analysis:
This case significantly clarifies the interpretative boundaries of Alleyne v. United States in the context of federal drug sentencing, specifically distinguishing between the constitutional requirement for jury findings on sentence-enhancing facts and the mens rea for those facts. By reaffirming its strict liability interpretation of 21 U.S.C. § 841(b)'s quantity element, the Sixth Circuit aligns with other circuits and maintains a consistent approach to drug offense sentencing despite Alleyne's impact on jury roles. The detailed review of Brady and Strickland claims further reinforces the high burden on defendants challenging convictions post-trial, demonstrating the deference given to trial court findings and strategic counsel decisions when evidence is robust. The dissent, however, presents a compelling counter-argument, highlighting the ongoing tension between statutory interpretation, constitutional rights, and the strong presumption against strict liability in criminal law, which could influence future legislative or Supreme Court considerations of mens rea in sentencing.
