Jury improperly instructed regarding drug quantity findings

U.S. v. Johnson, 878 F.3d 925 (12/22/17) (Kan.) - The 10th finds a reversible plain Alleyne error. The district court instructed the jurors on drug quantity, but did not tell them they had to find at least 280 grams of cocaine base beyond a reasonable doubt. Preponderance was all the court required. The sentence to a 10-year mandatory minimum was plain error. It was reversible because, although the government presented sufficient evidence of Ms. Johnson's connection to the requisite quantity, that evidence wasn't overwhelming. The CI never saw Ms. Johnson sell or cook crack, or handle lots of money, she didn't drive co-conspirators to the drug transactions that made up the bulk of the quantity, no drug-related stuff was found in her home, discussed quantity amounts were often inflated; and coded language in wiretapped phone calls was subject to wildly different interpretations.

The 10th does find sufficient evidence to support the quantity calculation for guideline purposes because of the evidence that Ms. Johnson was a member of the conspiracy during the period the CI bought drugs from co-conspirators. And the 10th says it was not error to employ the preponderance-of-the-evidence standard to the question whether the wire-tapped calls were initiated in the territorial jurisdiction of the state court.