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United States v. Shamo.

No. 20-4116. D.Utah. Judge Hartz. Fentanyl Distribution—Continuing Criminal Enterprise—Sufficiency of the Evidence—Admissibility—Harmless Error—Prosecutorial Misconduct—Constitutionality of Life Sentence.

June 10, 2022

Defendant bought fentanyl over the internet from China, prepared pills with his own press, took orders over the internet, and shipped the pills to customers by mail. US Customs and Border Protection seized a package from China containing fentanyl, and following an investigation and execution of a search warrant, defendant was indicted on 13 counts arising out of drug-trafficking activities. Counts 1 and 6 carried the possibility of life sentences. Count 1 alleged that defendant knowingly and intentionally engaged in a continuing criminal enterprise (CCE), and count 6 alleged that defendant distributed fentanyl, resulting in the death of a person. A jury convicted defendant on 12 of the 13 counts but was unable to reach a verdict on count 6. The conviction on count 1 carried a mandatory life sentence due to the findings that defendant was a leader of the CCE and the amount of drugs at issue was more than 300 times the amount prohibited by the Controlled Substances Act (CSA).

On appeal, defendant argued that there was insufficient evidence that he (1) distributed the statutory chemical and (2) knew that what he was distributing was the statutory chemical. He maintained that the relevant CSA provision does not use the word “fentanyl” but refers to the substance by its chemical name, and no trial witness used the chemical name. Although no trial witness used the chemical name, defendant waived this argument by tendering a jury instruction that expressly linked fentanyl with its chemical name. Second, it was sufficient that defendant knew he was distributing fentanyl, and it was not necessary for the government to establish that defendant knew that fentanyl was a controlled substance.

Defendant also argued that the district court erred in admitting screenshots of customer reviews left on defendant’s website to prove the amount of drugs sold. However, any error was harmless in light of other compelling evidence establishing the minimum required quantity of fentanyl-containing drugs.

Defendant further contended that the court erred in permitting the government’s expert to testify on the law. While the district court erred in permitting the witness to testify as to his understanding of the statute, defendant failed to show how he was prejudiced by the testimony, as he did not explain how the challenged testimony misstated the law or confused the jury.

Defendant also argued that the prosecutors engaged in misconduct by attempting to tie uncharged overdose deaths to him despite an agreement with the government to not refer to the customers’ deaths as overdose deaths. In this regard, he claimed that (1) the district court improperly denied his motion for mistrial and (2) the prosecutor improperly remarked in closing argument regarding defendant’s role in the opioid epidemic. However, the record does not show that the district court abused its discretion in denying the mistrial motion, and defendant did not satisfy his burden of demonstrating that the prosecutor’s closing remarks affected his substantial rights.

Lastly, the Tenth Circuit rejected defendant’s argument that the Eighth Amendment precluded the imposition of a mandatory life sentence under the CCE statute because the Tenth Circuit has upheld sentences of similar severity for drug crimes of lesser magnitude.

The convictions and sentence were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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