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Part 2 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 again 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. These issues are presented to provoke critical thinking about the issues identified below.

Hypothetical argument:

COMES NOW Defendant, Roger Mortified, by and through the undersigned Attorney, and files this Motion to Dismiss Information Count 1: Trafficking in Cannabis over 25 Lbs; and Count 2: Possession of Drug Paraphernalia, Filed Pursuant to Fla. R. Crim. P. 3.190 (B), as Florida Statutes §§ 8 9 3 .135 (1) (A) 1.; 8 9 3 . 0 3 (1) (C) 7.; 893.147; as Amended by Florida Statute § 893.101, Are Unconstitutional, as Applied to the Specific Facts of this Case, and states:

Issues I. and III. are of first impression in the State Of Florida. Issue II. was briefly addressed in State v. Adkins, infra, but is distinguishable here through related United States Supreme Court cases, one Eleventh Circuit Court case, and the relevant Florida Model Jury Instructions related to Defendant’s case presented below. See also, n. 6, infra.

LEGAL ARGUMENTS FOR PRESENTED ISSUES I-III:

I. JURY INSTRUCTIONS 3.7 AND 25.9 READ TOGETHER, OVER DEFENSE OBJECTION, CONSTITUTE FUNDAMENTAL ERROR

II. FLORIDA STATUTES § 893.135, AS AMENDED BY § 893.101 IS UNCONSTITUTIONAL AS A VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT AT ALL STAGES OF A TRIAL

Model Jury Instruction 3.7 (2018) provides in pertinent part:

3.7 PLEA OF NOT GUILTY; REASONABLE DOUBT; AND BURDEN OF PROOF

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.

The defendant is not required to present evidence or prove anything.. Id.

Model Jury Instruction for 25.9 provides in pertinent part:

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. ...

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. Id.

Florida Statute § 893.101 (3) (2018) provides in pertinent part:

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. Id.

Jury Instruction 25.9 is impermissible and Florida Statutes § 893.101 is unconstitutional pursuant to the 5th Amendment to the United States Constitution, and Article 1 § 9 of the Florida Constitution, as a due process of law violation, because Defendant has a constitutional right to be presumed innocent “through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt”, and as such cannot constitutionally be ‘presumed’ to know of the illicit nature of the substance without production of evidence by the State to the exclusion of and beyond a reasonable doubt.

Moreover, Florida Statutes § 893.101 (2) provides in pertinent part:

(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. Id.

Here the Florida Legislature is affirmatively stating that knowledge of the illicit nature of a controlled substance is not an element of trafficking in cannabis, yet related Jury Instruction 25.9 states: “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.” Model Jury Instruction 25.9 (2018)(Again this is based upon an ‘inference’ as written and not a ‘presumption’ as mandated in Florida Statutes § 893.101)

So, in sum the Florida Legislature has effectively made Florida Statutes Chapter 893.13 drug offenses general intent crimes, while still requiring the State to prove specific intent beyond a reasonable doubt, whenever a hapless defendant attempts to state “they did not know”; but only after the State gratuitously gets a presumption of specific intent held by a defendant with no factual basis required to support that presumption, contrary to both Model Jury Instruction 3.7, Coffin v. U.S., and Morissette v. United States, 342 U.S. 246, 256 (1952), which states in pertinent part:

[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 with 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.

CONCLUSION FOR ISSUES I. AND II.:

The Florida Legislature took a prior element of the offense of trafficking in cannabis, e.g. element 4 that previously required the State to prove that defendant had knowledge of the illicit nature of the substance, a specific intent element, and replaced it with a constitutionally unsound presumption of specific intent. The Florida Supreme Court cannot save the constitutionally unsound § 893.101(3) by calling this ‘presumption’ an ‘inference’. Florida Statutes § 893.101 not only violates United States Supreme Court caselaw, it causes absurd Model Jury Instructions to be read side-by-side, rendering those jury instructions 3.7 and 25.9 read together a falsehood. Since they are a falsehood, it would represent fundamental error to read them both to a jury over defense objection.

§ 893.101 (3) presumption in favor of the State to the detriment of defendant with no required factual basis or specific evidence to support that presumption flies in the face of a defendant’s constitutional right to be presumed innocent at every stage of a trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. The Florida Legislature removed the State’s obligation to prove specific intent by removing specific intent as an element of trafficking.

Why would the State need to prove specific intent when specific intent is a foregone conclusion, because it is to be ‘presumed’? The answer is that the State doesn't.

§ 893.101 (1) (2002) “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.” represents the exact same Legislative conduct proscribed by the United States Supreme Court in Coffin v. United States, 156 U.S. 452 (1895), and Morissette v. United States, 342 U.S. 246, 256 (1952).

The Florida Legislature has already considered the prospect that § 893.101 would be deemed unconstitutional in 2012 and had a fix in place that was never used. [Attachment #1, SB 732 January 9, 2012, inter alia, draft Bill repealing § 893.101][Attachment #2, SB 732, Bill ‘died in budget’]

§ 893.101 is unconstitutional based upon the grounds expressed in Arguments I. and II. above and this Court should deem § 893.135, as Amended by § 893.101, unconstitutional as applied to the specific facts of Defendant’s case.

III. FLORIDA STATUTES § 893.101 IS VOID FOR VAGUENESS:

The arguments made for issues I.-II. above are included here.

In State v. Adkins, 96 So. 3d 412, 423 (Fla. 2012) the Florida Supreme Court addressed the issue of whether § 893.101 impermissibly shifted the burden of proof onto defendant, stating in pertinent part:

Here, the Legislature’s decision to make the absence of knowledge of the illicit nature of the controlled substance an affirmative defense is constitutional. Under section 893.13, as modified by section 893.101, 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 of one of the defined offenses. The conduct the Legislature seeks to curtail is the sale, manufacture, delivery, or possession of a controlled substance, regardless of the defendant’s subjective intent. As a result, the defendant can concede all elements of the offense but still coherently raise the ‘‘separate issue,’’ Patterson, 432 U.S. at 207, 97 S.Ct. 2319, of whether the defendant lacked knowledge of the illicit nature of the controlled substance. The affirmative defense does not ask the defendant to disprove something that the State must prove in order to convict, but instead provides a defendant with an opportunity to explain why his or her admittedly illegal conduct should not be punished. ‘‘It is plain enough that if [the sale, manufacture, delivery, or possession of a controlled substance] is shown, the State intends to deal with the defendant as a [criminal] unless he demonstrates the mitigating circumstances.’’ Patterson, 432 U.S. at 206, 97 S. Ct. 2319. Thus, the affirmative defense does not improperly shift the burden of proof to the defendant. Id.

Donawa v. U.S. Attorney General, 735 F. 3d 1275 (11th Cir. 2013) was a case where the sole issue was whether a Florida drug trafficking conviction under the amended § 893.101 (2002) statute could lawfully constitute an ‘aggravated’ felony, that hinged on whether an alien was eligible to petition for discretionary cancellation of removal, inasmuch that an aggravated felony prior would be a bar to the petition. In order to constitute an aggravated felony for removal, the Florida drug trafficking conviction and elements had to be akin to a similar federal crime and elements.

The United States in Donawa argued State v. Adkins in it’s attempt to have a Florida drug trafficking conviction deemed an aggravated felony for purposes of deportation laws. In it’s zeal to find similarity between the Florida drug trafficking conviction and it’s concomitant federal sister, the United States Attorney argued:

The government argues that, while the basic offense does not include a mens rea element with respect to the nature of the substance, the affirmative defense defined by Fla. Stat. § 893.101 effectively creates a separate offense under Fla. Stat. § 893.13(1)(a)(2) that does include that mens rea element. Id. @ 1282

This argument by the United States Attorney caused the Eleventh Circuit to comment harshly about the Florida Supreme Court ruling in State v. Adkins, to wit:

We cannot acquiesce in the government’s approach. An affirmative defense generally does not create a separate element of the offense that the government is required to prove in order to obtain a conviction. Rather, ‘‘[t]he defendant bears the burden of proving an affirmative defense.’’ Black’s Law Dictionary 482 (9th ed.2009) (defining affirmative defense). In stark contrast, the elements of a crime are the ‘‘constituent parts of a crime ... that the prosecution must prove to sustain a conviction.’’ Id. at 597 (defining elements of crime). ...

[15] If Florida’s statutory scheme did in fact place the burden of proof on the prosecution, the government might be right that the statute is divisible and subject to the modified categorical analysis. But it simply does not. 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. [, n. 4 in Donawa] The case cited by the government in support of its argument, State v. Adkins, 96 So.3d 412 (Fla.2012), holds only that placing the burden of the affirmative defense on the defendant is not an unconstitutional shift in the burden of proof. Id. at 423. 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) (‘‘Consistent with the Court’s decision in State v. Adkins, instructions 25.9–25.13 are amended to remove element 4, the requirement that the defendant have knowledge of the illicit nature of the substance, and to add language that lack of knowledge of the illicit nature of the substance is an affirmative defense.’’ (citation omitted)). With no such burden placed on the government, we cannot say that the statute creates separate crimes defined by distinct elements so as to permit application of the modified categorical approach. Id. @ 1282-1283

As previously stated, the Florida Legislature removed element 4 from the prior version of Florida’s drug trafficking statutes and supplanted that element with a presumption of specific intent in favor of the State, pursuant to § 893.101 (3). Moreover, in consideration of the Model Jury Instructions in Florida cited above, once a putative defendant raises a lack of specific knowledge defense, the State automatically becomes entitled to a presumption for what amounts to specific intent, e.g. actual knowledge of the illicit nature of the substance constructively possessed; , and thereafter, the State must still prove specific intent beyond a reasonable doubt.

With these things as a foundation, one can see why the United States Attorney in Donawa argued “..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”...because, “while the basic offense does not include a mens rea element with respect to the nature of the substance, the affirmative defense defined by Fla. Stat. § 893.101 effectively creates a separate offense under Fla. Stat. § 893.13(1)(a)(2) that does include that mens rea element”, that the State must then prove beyond a reasonable doubt. Yet, this interpretation leads one to absurd results on a variety of fronts.

Various legal conclusions and legal arguments regarding § 893.101 lead to the same inevitable conclusion, that § 893.101 is unconstitutional because it is void for vagueness, is subject to arbitrary and capricious enforcement and prosecution, does not give fair notice as to the element(s) of knowledge necessary to sustain a drug trafficking conviction, supplants an element with an impermissible presumption, and is otherwise prohibited by United States Supreme Court caselaw.

Johnson v. U.S., U.S. , 135 S. Ct. 2551 (2015) is a fairly recent United States Supreme Court decision dealing with, inter alia, criminal statutes that are void for vagueness, under the 5th Amendment to the United States Constitution, and therefore, are violative of the Due Process Clause.

[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 standard less 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) .... [10] This Court has acknowledged that the failure of ‘‘persistent efforts ... to establish a standard’’ can provide evidence of vagueness. United States v. L. Cohen Grocery Co., 255 U.S. 81, 91, 41 S.Ct. 298, 65 L.Ed. 516 (1921). Here, this Court’s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy. Id. @ 2556-2558.

CONCLUSION FOR ISSUE III.:

5th Amendment void for vagueness analysis applies equally to statutes defining elements of crimes, such as § 893.101. In consideration of everything set forth above in the instant Motion, including Attachments, it appears that there is absolutely no court consensus as to how or why § 893.101 can have 3 listed elements and be a general intent crime, yet the State must still prove that defendant specifically knew of the illicit nature of the substance constructively possessed, but only when the defendant says “I didn’t know’, as an implied 4th element, ‘sometimes’!

More importantly, whether this Court interprets § 893.101 as ‘reviving’ and element specifically removed by the Florida Legislature, or creating a new criminal offense under § 893.135, the void for vagueness analysis is the same and the result is the same. Florida Statutes § 893.135, et seq., as amended by § 893.101 are still void for vagueness. The more § 893.101 is interpreted by courts the more obvious it becomes that the statute is void and should be deemed unconstitutional once and forever. WHEREFORE DEFENDANT PRAYS that this Court will GRANT Defendant’s Motion To Dismiss Information Count 1: Trafficking in Cannabis over 25 Lbs.; and Count 2: Possession of Drug Paraphernalia, Filed Pursuant to Fla. R. Crim. P. 3.190 (B), as Florida Statutes §§ 8 9 3 .135 (1) (A) 1.; 8 9 3 . 0 3 (1) (C) 7.; 893.147; as Amended by Florida Statute § 893.101, Are Unconstitutional, as Applied to the Specific Facts of this Case.

A newspaper article from the Sun Sentinel describing the prior 2011 constitutional challenges to Florida's drug laws based upon M.D. Florida, Federal District Court Judge Mary Scriven's ruling is found here.

2018 Horse of a different color found here for your consideration and comment.

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