The Tenth Circuit recently reversed the conviction in U.S. v. Dahda.  Roosevelt Dahda was convicted on a drug conspiracy with over 1,000 kilograms or more of marijuana.  On appeal, Dahda alleged 7 grounds for appeal, including that the District Court erred setting [Dahda’s] base-offense level by miscalculating the amount of marijuana attributed to [Dahda].

While the rest of the grounds were overruled on appeal, ground 5, which alleged that the district court erred in estimating that each pallet of drugs in this case contained 80 pounds of marijuana, was sustained.  The court indicated that “the government bears the burden to prove drug quantity through a preponderance of the evidence,” and the base-offense level may consist of an estimate if it contains some record support and is based on information bearing “minimum indication of reliability.” Basically that means that the amount of marijuana was discussed in the trial or the sentencing and that the information was reliable.

However, in this case, the information wasn’t reliable.  The appellate court found that the quantities in the pallets varied.  The government’s witnesses indicated that each pallet had “between five or ten to eighty pounds of marijuana.”  Near the end of the conspiracy, each pallet usually contained 80 pounds but there “could have been” times when the pallets contained more than 80 pounds.  The government witnesses also failed to mention a time frame for when the pallets contained 80 pounds.  The court indicated there was no way to tie the testimony of the government’s witnesses to the shipments that were attributed to Roosevelt and, as such, it was insufficient.  The court also rejected the government’s harmless error analysis because while the government’s argument on harmlessness refers to other drugs that were found on other co-defendants, the drugs that were found in total were not even close to the amount of drugs that the defendant was found  to be responsible for.

The Tenth Circuit Reversed, U.S. v. Dadha, No. 15-3237

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