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Part 1 Of 2 Parts: Does Florida's Drug Trafficking Statute Sec. 893.101 'Knowledge'

This Article describes a possible new 2018 approach for attacking Florida's Drug Trafficking statutes as unconstitutional under the 5th amendment, due process grounds, looking at the issues as a horse of a different color. All Florida Drug Trafficking statutes under Chapter 893 are intertwined with Florida Statute Sec. 893.101, the 'knowledge' statute. The Author believes that Florida Statute Sec. 893.101 (2002) remains unconstitutional as a 5th amendment due process violation, as both void for vagueness; and as creating an impermissible presumption of specific criminal intent that violates a putative defendant's 5th amendment rights to presumption of innocence. This Article is presented for your consideration and is an invitation for you to attempt to poke holes in the logic presented. The Article is intended solely to provoke critical thinking regarding the issues presented.

The 2011-2012 constitutional challenges to Florida's Drug Trafficking Statutes Chapter 893:

In 2011 there were hundreds of defensive motions filed in Florida criminal drug trafficking cases attempting to have Florida's drug trafficking statutes declared unconstitutional. See Sun Sentinel Article here. Those Motions were filed in response to a Federal District Court Judge's ruling in Shelton v. Secretary, Dep't Of Corrections, Granting Shelton's Petition For Writ Of Habeas Corpus, finding Chapter 893 Florida Statutes to be facially unconstitutional, as not requiring the State to prove mens rea element [specific knowledge of the illicit nature of the substance being possessed by a putative defendant], as a violation of the 5th amendment due process clause. Thereafter, the Florida Supreme Court in State v. Adkins, 96 So. 3d 412 (Fla. 2012) specifically found Chapter 893 to be constitutional. And so, Florida's drug trafficking laws, which many consider constitutionally defective as well as unduly oppressive, remain the law of the land in Florida to this day. You be the judge, whether they are constitutional or not after reading this Article and considering the limited caselaw peripherally reviewing Chapter 893 since Adkins.

The root of the 'knowledge' element(s) problem lies with Florida Statutes Section 893.101 which reads:

893.101 Legislative findings and intent.—

(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So.2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

History.—s. 1, ch. 2002-258.

What exactly does that mean in layman's terms you might ask?

Well lets take a look at the related 2018 Jury instruction for drug trafficking for some insight. That reads, as excerpted in pertinent part [for trafficking in cannabis]:

Florida Standard Jury Instructions 2018

25.9 TRAFFICKING IN CANNABIS § 893.135(1)(a), Fla. Stat.

To prove the crime of Trafficking in Cannabis, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly [possessed] [sold] [purchased] [manufactured] [delivered] [brought into Florida] a certain substance.

2. The substance was cannabis.

3. The cannabis [weighed more than 25 pounds] [constituted 300 or more cannabis plants]...

Florida Statutes 893.101 and Jury Instruction 25.9 mean the following:

1. You can knowingly possess [through actual or constructive possession] something by being in close proximity to it, whether or not you're actually touching it.

2. You can be arrested and prosecuted for drug trafficking regardless of whether you know you are unwittingly possessing a substance that is contraband under Florida's drug laws.

3. In the event you try to raise a defense that you didn't actually know that you were possessing an illicit substance, either actual or constructive possession, then the State is entitled to another jury instruction that you are presumed to know of the illicit nature of the substance that you are possessing.

Others have opined that Florida's drug statutes require 'general intent' instead of 'specific intent' to sustain a conviction. In other words, one can possess something without knowing specifically what they are possessing. That may be enough to convict under current Florida law, when there is no lack of knowledge defense raised, but still not enough to maintain a Florida conviction under Federal law, at least where a properly preserved federal constitutional due process violation is preserved by a putative defendant in Florida state court.

Both the Adkins and Shelton decisions remain good caselaw to this day. So how can that be?

Here is the long and the short of the interplay between the Adkins decision butting heads with the Shelton decision.

Lets assume for purposes of argument that a putative drug trafficking defendant in Florida files a Motion To Dismiss based upon the allegations that Florida's drug trafficking statutes remain facially unconstitutional, notwithstanding the Adkins decision, because Florida never had to prove specific knowledge for the crime of trafficking by actual or constructive possession. Then there is a state of Florida conviction for drug trafficking, and appeal, and the same 5th amendment violation issues is raised again and preserved again. Then the entire State Of Florida Appeals process is completed without success, because the State appellate courts are looking at the Adkins decision, and finding the putative defendant's arguments to be without merit. The Florida state defendant exhausts his or her State Of Florida processes and remedies under State law. Then the putative drug trafficking defendant files a timely petition for writ of habeas corpus in federal court under United State law 28 U.S.C. Sec. 2254. Depending on which federal judge hears that case, that federal judge may just find that defendant was convicted in Florida in violation of his or her 5th amendment rights to due process of law, pursuant to the Shelton decision, and the current divide in the M.D. Fla. on the issues presented by Shelton.

At least one other federal district court judge disagrees with the Shelton decision [U.S. v. Bunton, 2011 WL 5080307], however, the issue of whether or not Florida's drug statutes are facially unconstitutional under federal jurisdiction and pursuant to federal laws [including the 5th amendment due process clause] has not been decided by the Eleventh Circuit Court Of Appeals. At the moment there is a conflict in the federal middle district of Florida between Judge Mary Stenson Scriven's decision in the Shelton case vs Judge James S. Moody, Jr.'s decision in the Bunton case.

It should be noted that Shelton was reversed by the Eleventh Circuit Court Of Appeals as found at 691 F. 3d 1348 (11th CTA 2012) on unrelated grounds, without reaching the issue of whether Florida's Drug Trafficking Statutes were facially unconstitutional or not. The Eleventh Circuit said: "To be clear, this Court expresses no view on the underlying constitutional question, as we limit our analysis to AEDPA’s narrow inquiry. That inquiry leads us to conclude that nothing in the U.S. Reports decides or implies resolution of the novel issue of the Florida Act’s constitutionality, and we cannot find Florida’s adjudication to be unreasonable under AEDPA." Id. @ 1355. So the Shelton decision was reversed, but reversed based upon grounds unrelated to determination of the constitutionality of Florida Statutes Sec. 893.101-tied at the hip to all Florida Drug Trafficking laws. In sum, the Eleventh Circuit punted on 3rd down to avoid the duck in the room. The duck in the room was hundreds of Florida drug traffickers that potentially would require new trials by finding Florida's drug trafficking statute unconstitutional.

The Eleventh Circuit in Shelton hinted that the matters presented in Shelton by Judge Scrivens would be a matter of first impression- even for the United States Supreme Court, on the specific issues presented by Scrivens. Then they insulted Scrivens by calling her arguments 'novel'. It was obvious that the Eleventh Circuit declined invitation to declare Florida Statute Sec. 893.101 unconstitutional without supreme court precedent directly on point. Judge Scrivens attacked the lacking mens rea element, but did not otherwise argue that Florida Statutes Sec. 893.101 was a void for vagueness, or based upon an impermissible presumption of specific intent, when a defendant has a constitutional right to presumption of innocence. There are indeed United States Supreme Court cases addressing both of those issues that cross over to Florida's Drug Trafficking Statutes, infra.

It appears that in 2012 the Florida Senate in SB 732 proposed substantial changes to Florida's drug laws [including repealing Sec. 893.101 Affirmative Defense Provision], based upon the Shelton decision, and an Adkins decision still under attack, but that Senate Bill "died in budget". It is now the Author's belief that the Florida Legislature prepared SB 732 as a fail-safe Bill to pass on an emergency basis in the event Florida's Drug Laws were declared unconstitutional by a higher appellate authority in 2012, namely the Eleventh Circuit reviewing the Shelton decision. When Shelton was reversed on unrelated grounds, SB 732 went into the garbage heap! Read the two links provided in this paragraph. The Florida Legislature was clearly preparing for the worst in January, 2012, and they dodged the proverbial incoming duck. Interesting stuff here.

Not much is said anymore about Florida's Drug Laws being unconstitutional in 2018. Although most Florida Attorney's gave up with the Adkins decision, there still are a few Florida Attorney's that preserve the 5th Amendment due process issue in Florida Court regardless. Those few Attorneys likely understand how jurisdiction is derived for federal habeas corpus filings, e.g. federal constitutional issues must be preserved in State Court, even when doing so is against all odds and existing caselaw. That seems to be a wise thing to do, in consideration that when a federal appellate court gets original jurisdiction over the specific issue of whether Florida's drug laws are constitutional or not-that could be a real game changer. That issue plus the void for vagueness and impermissible intent presumption issues presented below for your consideration all constitute different flavors of the identical basic 5th amendment due process violations.

This is what the Eleventh Circuit Court Of Appeals had to say about Florida's Drug Trafficking statutes in 2013 in the Donawa case, post Adkins and post Shelton reversal. In Donowa the only issue presented was whether a Florida drug trafficking conviction constituted an aggravated felony for purposes of federal deportation processes. It did not, because the knowledge element(s) of Sec. 893.101 (2002) did not comport with the knowledge element required by federal law for an identical federal crime. Did the Eleventh Circuit hint that Florida's Drug Trafficking Statutes has serious problems? I think so. Also, the Eleventh Circuit made a legal finding in Donawa that creates legal fodder for different 5th amendment challenges, albeit the Court likely did that unwittingly. You be the judge whether the Eleventh Circuit trashed the Adkins Court's logic.

In Donawa v. U.S. Attorney General, 735 F. 3d 1275 (11th CTA 2013), the Eleventh Circuit initially found that a Florida Drug Trafficking conviction could not be used as an aggravated felony for purposes of federal deportation processes due to Florida Statute Sec. 893.101 (2002):

“This is not the first time we have been called upon to consider whether Fla. Stat. § 893.13(1)(a)(2) qualifies as an aggravated felony. See Fequiere v. Ashcroft, 279 F.3d 1325, 1326 n. 3 (11th Cir.2002) (noting that the then-effective version of the statute qualified as a drug trafficking aggravated felony). After our decision in Fequiere, however, Florida passed Fla. Stat. § 893.101, significantly changing the nature of the offense: (1) The Legislature finds that the [Florida Supreme Court] cases ... holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession[ ] were contrary to legislative intent. (2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter. (3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. This amendment thus eliminated from the Florida statutory scheme what had been, at the time of our Fequiere decision, a required element with the burden of proof resting on the government: mens rea with respect to the illicit nature of the substance. The federal analogue to this offense is 21 U.S.C. § 841(a)(1), which is among the drug trafficking offenses listed under 18 U.S.C. § 924(c)(2). The federal statute, in contrast to Florida’s current law, requires the government to establish, beyond a reasonable doubt and without exception, that the defendant had knowledge of the nature of the substance in his possession. See United States v. Sanders, 668 F. 3d 1298, 1309 (11th Cir.2012). B. [11] The first—and, given the posture of this case, only—question we consider is whether Fla. Stat. § 893.13(1)(a)(2) is, as a matter of law, a drug trafficking crime as defined in 18 U.S.C. § 924(c)(2). The answer is that it is not.” Id.

Where are we left with Florida Drug Trafficking laws in 2018? We are left in the exact same place we were at in 2002 when Florida Statutes Sec. 893.101 was enacted, and the exact same place after it was subjected to a partial, yet ineffective frontal assault by Florida Attorneys in 2011-2012, based on a facially unconstitutional challenge. Bear in mind that the Eleventh Circuit balked in Shelton, suggesting that the Shelton mens rea (general intent or strict liability) issue was never decided by the United States Supreme Court. As such, the Shelton issue represents fertile ground and remains ripe for the United States Supreme Court to decide the issue now in 2018. Added to that fresh for 2018 will be both a void for vagueness constitutional challenge, as well as an impermissible specific intent presumption statutes, all violative of the 5th amendment right to due process of law.

Why isn't Florida's Drug Trafficking Statute Void For Vagueness?

The following is excerpted from Johnson v. United States, 135 S. Ct. 2551, 2556 (2015):

"[3–5] The Fifth Amendment provides that ‘‘[n]o person shall ... be deprived of life, liberty, or property, without due process of law.’’ Our cases establish that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Kolender v. Lawson, 461 U.S. 352, 357–358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The prohibition of vagueness Johnson v. U.S. 2557 Cite as 135 S.Ct. 2551 (2015) in criminal statutes ‘‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,’’ and a statute that flouts it ‘‘violates the first essential of due process.’’ Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)." Id.

In Donowa the Eleventh Circuit took a hard look at the Florida Supreme Court's [faulty] logic in Adkins relative to the knowledge element(s) of drug trafficking stated in Florida Statutes 893.101:

"It does not follow from the Florida Supreme Court’s holding in Adkins that a defendant revives an element of a criminal statute that has been expressly removed by the Florida legislature merely by asserting an affirmative defense. Indeed, the Adkins court stated without qualification, ‘‘the State is not required to prove that the defendant had knowledge of the illicit nature of the controlled substance in order to convict the defendant.’’ Id.; see also In re Standard Jury Instructions in criminal Cases—Instructions 25.9–25.3, 112 So.3d 1211, 1211 (Fla.2013) (per curiam)". Donowa @ 1282.

...

"Although the government represented to this Court that the Florida Supreme Court has held that the prosecution bears the burden to prove knowledge of the illicit nature of a substance beyond a reasonable doubt whenever a defendant raises the affirmative defense, it has done no such thing. [note 4, infra]

[note 4] Because we are ‘‘bound by the Florida Supreme Court’s interpretation of state law,’’ we defer to its interpretation of the allocation of the burden under the statutory scheme. Johnson v. United States, 559 U.S. 133, 138,130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010).

Indeed, the Adkins court stated without qualification, ‘‘the State is not required to prove that the defendant had knowledge of the illicit nature of the controlled substance in order to convict the defendant.’’ Id.

In 2018 does anybody really know with certainty what the knowledge element(s) of Florida Statutes Sec 893.101 really are? I think not. Consider how Florida's Jury Instructions meld into this fiasco.

Now we go back to a different provision of the 2018 Jury Instructions for Trafficking In Cannabis, which reads, as excerpted in pertinent part:

Florida Standard Jury Instructions 2018

25.9 TRAFFICKING IN CANNABIS § 893.135(1)(a), Fla. Stat.

"Affirmative defense: Lack of knowledge of illicit nature. Give if applicable. § 893.101(2) and (3), Fla. Stat. Lack of knowledge of the illicit nature of a controlled substance is a defense to Trafficking in Cannabis. You are permitted to infer that (defendant) was aware of the illicit nature of the controlled substance if you find that [he] [she] knew of the presence of the substance and exercised control or ownership over the substance. Give if applicable. See McMillon v. State, 813 So. 2d 56 (Fla. 2002).

...

If you are convinced beyond a reasonable doubt that (defendant) knew of the illicit nature of the controlled substance, and all of the elements of the charge have been proved, you should find [him] [her] guilty of Trafficking in Cannabis.

If you have a reasonable doubt on the question of whether (defendant) knew of the illicit nature of the controlled substance, you should find [him] [her] not guilty of Trafficking in Cannabis. See State v. Weller, 590 So. 2d 923 (Fla. 1991)."

It seems clear from those Jury Instructions that when a defendant raises lack of knowledge [e.g. lack of specific intent] in their defense case, that a new element is ipso facto spawned that did not previously exist [that the defendant specifically knew of the illicit nature of the substance], that the State would then need to prove beyond a reasonable doubt to convict. That is a legal anomaly. How can a putative defendant have authority from the Florida Legislature to revive an additional element of a drug trafficking offense merely by presenting a defense case, that was specifically removed by the Florida Legislature through the enactment of Florida Statutes Sec. 893.101. Answer: It cannot.

Question 1: If proof beyond a reasonable doubt that a Florida drug trafficking defendant knew of the illicit nature of the controlled substance they were constructively possessing were not an element of the crime of drug trafficking then why would the State Of Florida need to prove it beyond a reasonable doubt as a 'revived' element. Adkins, supra.

Question 2: Why should the State be required to prove that a Florida drug trafficking defendant knew of the illicit nature of the controlled substance when Florida Statutes Sec. 893.101 specifically states that is not an element of the crime of drug trafficking by possession?? Johnson, supra.

Question 3: Why does the State need to prove 2 different knowledge factors if lack of knowledge is raised as an affirmative defense, but only 1 knowledge factor if lack of knowledge is not raised as an affirmative defense; and does this abnormality mean that 893.101 is void for vagueness on it's face for that one reason? Johnson, supra.

Question 4: Does Florida Statutes Sec 893.101 create arbitrary enforcement as well as arbitrary application of varying elements of the crimes of drug trafficking in Florida? Johnson, supra.

Question 5: Are Florida Jury Instructions that state the defendant is presumed innocent in direct conflict with other Chapter 893 Jury Instructions that state defendant is presumed to know of the illicit nature of the substance in their constructive possession (e.g. presumption of specific intent with the absence of credible evidence), whenever an affirmative defense of lack of knowledge is raised? Morissette, infra.

Question 6: Is it fundamental error, over defense objection, for a Judge to read both Jury Instructions that conflict with each other relative to a defendant's constitutional right to presumption of innocence verses a State presumption pursuant to Florida Statute Sec. 893 that defendant is presumed to know of the illicit nature of the substance in their constructive possession, thereby violating the defendant's presumption of innocence via an impermissible jury instruction regarding the defendant's state of mind?

Conclusion:

Florida Statutes Sec. 893.101 is Void for Vagueness because the element(s) of mens rea that the State must prove beyond a reasonable doubt are impossible to discern, as the State must still prove that defendant knew of the illicit nature of a substance being possessed, notwithstanding that the Florida Legislature specifically stated that specific knowledge was not an element of drug trafficking in Florida. The Florida Jury instructions bear that out. Johnson, supra.

Florida Statutes Sec. 893.101 also violates the 5th, 6th and 14th Amendments to the United States Constitution "presumption of innocence" as first espoused in Coffin v. United States (1895) by creating a presumption of mens rea [specific intent] for the crime of drug trafficking by possession, in the absence of evidence of specific intent, whenever a putative defendant tries to convince a jury of their innocence and lack of specific knowledge. Morissette, infra.

Florida Statutes Sec. 893.101 creates an impermissible presumption of specific intent, pursuant to Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240 (1952):

"[11, 12] We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from, an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. [] In either case, this presumption would conflict wit'h the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U. S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519." Id. @ 256.

It's time for Florida Attorney's to take a revised look at Florida's Drug Trafficking Statutes as being unconstitutional under these new varying theories representing matters of first impression in Florida.

The Eleventh Circuit in Donawa has unwittingly breathed new life into due process constitutional challenges for Florida's Drug Trafficking statutes in areas that may very well hold more water than the 2011-2012 facial attack specifically on lack of the mens rea element raised in the Shelton case.

Here we are in 2018 and now know that the statute does have a mens rea element, but has different, and therefore uncertain, mens rea elements that must be proven beyond a reasonable doubt by the State, depending, that is contrary to Legislative intent of Sec. 893.101. Donawa, supra. Sec. 893.101 is void for vagueness simply because it is not absolute and is subject to various applications. It does not provide adequate notice to putative defendants and is subject to arbitrary and capricious application. It is a due process violation under the 5th amendment to the United States constitution for that reason. Johnson, supra.

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This article is for informational and educational purposes only and should not be construed as constituting legal advice. It is intended to provoke critical thinking related to the issues presented. The opinions rendered are the opinions of the Author, a non attorney. Nothing presented in this Article should be interpreted as legal advice as any such interpretation is unintended. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida