Ronell Whitehead v. United States
1. Section 846 of title 21 provides that the available penalties for a controlled
substances conspiracy violation are "the same ... as those prescribed for the offense,
the commission of which was the object of the ... conspiracy." Under id. § 841(b)(1),
the penalties for "the offense" of drug distribution — which was the object of the
conspiracy for which petitioner was convicted — vary according to whether a given
substantive "violation" is one "involving" at least a certain amount of a particular
controlled substance. A course of drug dealing is not an "offense" and cannot be
prosecuted as a count of "distribution," so as to aggregate the quantities involved in
a series of transactions and thus increase the penalties. In this case, petitioner was
sentenced to serve 22 years on the conspiracy count, based on the sum of the
amounts involved in all distributions that were found to be within the scope of the
conspiratorial agreement and foreseeable to him. The question presented, on which
the Circuits are divided, is:
How is the quantity of controlled substances "involved" determined for
purposes of sentencing for conspiracy under 21 U.S.C. § 846, when the offense
of drug distribution is the object of the conspiracy?
2. Does Federal Evidence Rule 704(b) bar a governmental expert witness only
from testifying in so many words to a defendant's "mental state ... that constitutes an element of the offense," or does it also bar, for example — in a prosecution
for drug trafficking conspiracy, where an element of the offense is that the
defendant intended to agree with others to distribute drugs — that the trial
evidence suggests the defendants were acting as a "group" rather than as
individual dealers in a common territory? (And should this case be held pending
disposition of Diaz v. United States, No. 23-14, cert. granted 11/13/2023?)
How is the quantity of controlled substances 'involved' determined for purposes of sentencing for conspiracy under 21 U.S.C. § 846, when the offense of drug distribution is the object of the conspiracy?