(CN) --- Counsel for a man sentenced to 120 years in federal prison for selling synthetic drugs urged a Fifth Circuit panel Tuesday to reverse his convictions, arguing the trial judge incorrectly instructed the jury on the burden of proof.
In 2011, Rasheed Muhammed, of Bridgeport, Connecticut, started selling methylone, a compound similar to MDMA, also called ecstasy, and AM2201, a synthetic cannabinoid that is sprayed on plant material and sold with the generic name “spice." He ordered the substances from suppliers in China after his research revealed it was not illegal to sell them in the U.S.
After federal regulators added the drugs to the list of those barred under the Controlled Substances Act, police in Ocean Springs, Mississippi, pulled over Roslyn Chapman for a traffic violation and found a box containing synthetic marijuana and a-PVP -- street name “bath salts” -- in her vehicle.
Police learned Chapman was Muhammed’s girlfriend and he had been mailing drugs to her, and to customers who placed orders on several websites he had set up, through fraudulent United Parcel Service accounts.
Several months after Chapman’s arrest, police raided Muhammed’s Connecticut home and found methylone, bath salts and 4-MEC, a synthetic drug with effects similar to cocaine, in a bag in his bedroom.
A federal grand jury in Jackson, Mississippi, indicted Muhammad and Chapman in April 2014 on eight counts of drug conspiracy and possession with intent to distribute.
Chapman pleaded guilty to the conspiracy charge and testified for the government against Muhammad in a five-day trial in January 2015 that ended with the jury convicting him on six of eight charges.
U.S. District Judge Halil Suleyman “Sul” Ozerden sentenced Muhammad to 1,440 months in federal prison, imposing consecutive sentences for each count, and ordered him to pay $121,000 in restitution to UPS.
Muhammad appealed to the New Orleans-based Fifth Circuit. A three-judge panel heard arguments Tuesday.
His counsel Josh Kadel, an assistant federal public defender, told the panel Muhammad intended to run a legitimate business.
“His intention at all times was to stay on right side of the law and not to sell illegal drugs,” Kadel said.
Muhammad testified in his trial he did extensive research on chemicals before ordering them from his contacts in China, even examining 3D illustrations of their structures, to ensure they were not on the U.S. government’s list of controlled substances.
But federal prosecutors can bring charges against people selling substances similar to those listed as illegal under the Controlled Substance Analogue Enforcement Act of 1986, as long as they are intended for human consumption.
Synthetic marijuana dealers label their packages “herbal incense” or “potpourri” and “not intended for human consumption” to try to evade this statute. The packets used to be sold at corner stores and gas stations across the U.S., but most states have passed laws imposing stiff criminal and civil penalties for sales.
Kadel told the panel Ozerden had erred by instructing the jury that for them to convict Muhammad, prosecutors only had to prove he knew what the substances were when he possessed and sold them.
But the correct standard, Kadel said, is proof beyond a reasonable doubt Muhammad knew the substances he had were illegal controlled substance analogues.
Assistant U.S. Attorney Gaines Cleveland told the panel there was plenty of circumstantial evidence Muhammad knew he was dealing illegal drugs.
After Muhammad was jailed in 2012 for an unrelated offense, Cleveland said, he sent letters to his cousin and business associate, Michael Young, instructing him how to run their synthetic drug enterprise.
Cleveland said Muhammad told Young to get a new phone every month, to burn all his letters and buy a police scanner. He also warned him there were federal agents in New Haven, Stamford and Bridgeport, Connecticut.
U.S. Circuit Judge Andrew Oldham, a Donald Trump appointee, asked Kadel why a legitimate businessman would take such precautions.
Kadel said Mohammad felt he was being harassed by police, that they were investigating him and wanted to arrest him.
“For what?” Oldham said.
“Whether or not this was a rational belief, he felt he was being persecuted. So it makes sense for him to be less visible to the government in his business,” Kadel said.
U.S. Circuit Judge Cory Wilson, another Trump appointee, noted to win a reversal of his convictions Muhammad has to show the result would have been different had the jury been properly instructed.
Five months after Muhammad’s conviction, the U.S. Supreme Court clarified in McFadden v. United States that a defendant’s knowledge they were selling illegal drugs can be established in two ways: by evidence they knew the drug was banned by the Controlled Substances Act or Controlled Substance Analogue Enforcement Act, or if they knew the specific analogue they were selling.
Muhammad claims that given the new guidelines, Ozerden’s jury instructions constitute reversible error for each of his six convictions.
Kadel argued that the jury instructions were faulty even analyzing them against Fifth Circuit precedent that dictated the standard or proof for such cases before the Supreme Court’s McFadden decision.
The public defender claims the instructions undermined Muhammad’s trial strategy of arguing that neither he, Young or Chapman knew the substances they were selling were illegal.
Wilson tried to get at the heart of the government’s argument Muhammad was properly sentenced. The judge asked Cleveland, the federal prosecutor, if the panel could affirm Muhammad’s sentence by finding the jury instructions harmless because the government had proven Muhammad knew what analogues he was selling.
“Yes,” Cleveland said, repeating his claims there’s ample evidence Muhammad knew he was dealing illegal drugs.
“There may be other people involved in the conspiracy but he himself was centrally involved,” Cleveland added.
U.S. Circuit Judge James Ho, another Trump appointee, rounded out the panel. The judges did not indicate how or when they would rule.
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