Do cops "distribute" drugs by "planting" them?



Chief Judge Sutton issued an interesting concurrance today, in his own majority opinion in United States v. Michael Wallace, to "acknowledge some uncertainty" about whether "planting drugs counts as distributing them." 

The case involved the conviction of Michael Wallace, a former Kentucky constable, who received nearly 12 years in federal prison for conspiring to violate people's civil rights and for possessing meth with intent to distribute it. The drug crime was the primary focus on appeal because it came with higher sentencing penalties. 

Wallace didn't plan to sell drugs. Instead, prosecutors charged Wallace with a pattern of planting meth to drum up fake criminal charges. Nonetheless, the Sixth Circuit upheld Wallace's convictions, finding sufficient evidence that he distributed drugs by unlawfully planting them on citizens.

In his concurrence from his own opinion, Chief Judge Sutton expounded on the "distribute" versus "plant" question. He observed that the court didn't need to address the issue because Wallace did not challenge this interpretation of the statute, which is supported by United States v. Cortes-Caban, 691 F.3d 1 (1st Cir. 2012), and United States v. Figueroa, 729 F.3d 267 (3d Cir. 2013)

But Judge Sutton emphasized reasons to push back on this interpretation, based on statutory context and ambiguity in the term "transfer." He emphasized that the drugs laws are intended to target detrimental effects of drugs on health and general welfare, and that "drugs can do little harm without a recipient." So, he reasoned, "speaking of temporarily 'transferring' drugs by planting them seems as strange as 'using' a cane by hanging it in the hall." 

Judge Sutton added that the "statutory distinction between distribution and simple possession also lends support to a more limited reading of 'transfer,' one that requires an intended conveyance between two parties." He reasoned as follows:
Addicts invariably move their drugs between the moment of purchase and the moment of consumption. Yet few would say that a drug user is engaged in a distribution when he 'moves' drugs from his right pocket to his left or returns home with drugs after a purchase. If merely 'disposing of' drugs counts as a distribution, moreover, that would convert a possession crime into a distribution crime when a defendant flushes drugs down a toilet or throws them into a lake while fleeing the police. 
Planting drugs would still be a civil-rights-violation crime, but the sentencing guidelines for those crimes is generally lower than for drug crimes. Judge Sutton ended with a call for a "careful examination" of this issue "if the government opts to seek further convictions under this broad interpretation of the drug distribution laws."

Also of note: The Sixth Circuit upheld an enhancement for using firearms in connection with his drug crime. Wallace argued that he possessed guns for his work in law enforcement. But the court recognized that "it would be strange for us to say, as we frequently do, that guns facilitate run-of-the-mine crimes by traditional drug distributors yet for us to be unwilling to follow the same logic when the shoe is on the other foot—when guns are used to facilitate atypical crimes by law enforcement officers bent on planting drugs on unsuspecting citizens."

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