by David M. Reutter

On July 7, 2023, the U.S. Court of Appeals for the Third Circuit, in a precedential ruling, ordered a defendant to be resentenced after it found there was insufficient evidence to support a conviction for possession with intent to distribute 500 grams or more of cocaine hydrochloride.

Damon Todd Carey was arrested on April 6, 2018, by a fugitive task force of U.S. Marshals in Harrisburg, Pennsylvania, after a stakeout of his residence. After he put a large bag in the trunk of his rental car and drove away, the task force effected a containment maneuver, which Carey unsuccessfully tried to avoid before crashing into a parked car. The bag contained $79,320 in cash.

At his residence, his pregnant girlfriend, Mikia Slone, heard the commotion. She immediately located two “lime-sized bags of cocaine and a baby bottle of PCP … ran to the bathroom, and flushed what [she] could” down the toilet. A narcotics expert estimated there was a total of 112 grams of cocaine.

When police arrived at the home, Slone refused to consent to a search, but she told police there was a loaded firearm in the upstairs bedroom and that “there were some drugs” in the house. Based upon that information, a search warrant was obtained. Police recovered five pounds of marijuana, 310 grams of cocaine, as well as “two blenders[,] [f]ive cellular phones, a money counter, a loaded 9 millimeter hand gun, [ ] .45 caliber ammunition, a holster, two sifters, [f]our digital scales, [a] considerable amount of cutting agent, baking soda, … confectionary sugar, baggies, a kilo press … and measuring spoons.” Carey was recorded on a jail phone admonishing Slone for not hiding or destroying what was seized during the search. He also instructed her to collect drug debts on his behalf.

Carey was indicted in the U.S. District Court for the Middle District of Pennsylvania for (1) possession with intent to distribute 500 grams or more of cocaine hydrochloride, (2) possession with intent to distribute marijuana, (3) possession of a firearm in furtherance of a drug-trafficking crime, and (4) conspiracy to possess with intent to distribute marijuana and 500 grams or more of cocaine. His motion to suppress evidence was denied, and after a trial, a jury convicted Carey on all counts.

At sentencing, the District Court concluded there was sufficient evidence to estimate Carey’s drug weight as a Level 30 under the Sentencing Guidelines. Other enhancements took Carey to Level 34. The District Court sentenced Carey to a total of 228 months. Carey timely appealed.

The Third Circuit found merit in his claim that the Government failed to prove he possessed 500 grams or more of cocaine on April 6, 2018. On that date, only 310 grams of cocaine were recovered from his residence, so the Government attempted to account for the remaining 190 grams in three ways.

First, it argued that the two lime-sized bags of cocaine Slone disposed of down the toilet can account for the 190 additional grams, despite the fact its own narcotics expert estimated them “conservatively” at 112 grams at trial. The Government noted that the expert also suggested that the bags could have weighed up to 200 grams if “recompressed into a powder form with a press.” Consequently, on appeal, the Government argued that the higher estimate can establish that Carey possessed 500 grams or more on April 6, 2018.

The Court rejected this argument, explaining that this approach failed to provide notice to Carey so that he would have known to question Slone at trial whether she disposed of loose powder or “recompressed” cocaine down the toilet. The answer to that question now on appeal is unknown, the Court stated, adding principles of fairness and forfeiture bar the Government from relying on their expert’s higher estimate on appeal. See United States v. Minarik, 875 F.2d 1186 (6th Cir. 1989) (“Notably, the government shifted its position concerning … allegations central to its case…. As the district court noted when it granted judgment notwithstanding the verdict, the government’s changing theories ‘presented defendants with a moving target as they attempted to prepare a defense.’”).

Second, the Government argued, essentially, that the Court should take its word for it that Carey possessed at least 500 grams because he’s a drug dealer. But the Court refused to do so, stating that the fact Carey is a drug dealer “might be a basis for speculation” that he possessed the requisite quantity of drugs, but “it is not proof beyond a reasonable doubt.” United States v. Rowe, 919 F.3d 752 (3d Cir. 2019). The Court admonished the Government that simply because Carey is generally “blameworthy” as a drug dealer isn’t sufficient to convict him of a specific crime in the absence of sufficient proof. United States v. Salamanca, 990 F.2d 629 (D.C. Cir. 1993).

Finally, the Government attempted to include alleged instances of Carey possessing at least 190 grams of cocaine on several occasions going back several months and in multiple cities to equal the requisite 500 or more grams on April 6, 2018.

Again, the Court rejected the Government’s final attempt at imputing 500 grams of cocaine in Carey’s possession on the date in question. It stated that the indictment put him on notice that he would have to defend against the Government’s accusation he possessed at least 500 grams of cocaine at a specific location (in Dauphin County) on or about April 6, 2018, not alleged possession over several months in different cities. See United States v. Daraio, 445 F.3d 253 (3d Cir. 2006) (the trial evidence materially differed from the facts alleged in the indictment); see also Real v. Shannon, 600 F.3d 302 (3d Cir. 2010). The Court explained that upholding Carey’s conviction based on the Government’s argument “would be prejudicial to Carey and would place him at risk of double jeopardy.”

Thus, the Court vacated Carey’s Count I conviction “insofar as the Government argues for a permissible variance.” See United States v. Schoenhut, 576 F.2d 1010 (3d Cir. 1978) (recognizing that defendants have the right to an indictment that sufficiently informs them of the charges against them).

Accordingly, the Court reversed the District Court’s judgment on this issue and remanded for resentencing. See: United States v. Carey, 72 F.4th 521 (3rd Cir. 2023).  

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