United States v. Shamo, 36 F.4th 1067 (10th Cir. 2022) concerning the “inexplicable peculiarity in the Controlled Substances Act” and continuing criminal enterprises and online illicit drug sales on the darkweb. Aaron Shamo stumbled into drug dealing – it started by selling his prescribed Adderall online. Then he realized he could purchase other drugs (from places like China and India) with higher resale values and sell them. And then he realized he could make pills. He could make fentanyl pills! (Or more accurately he told someone else to make the pills with his pill press and fentanyl.) And then he needed people to pick up the imported drugs; package his orders; mail the orders; and respond to “customer service requests.” The government charged Mr. Shamo with a bunch of drug crimes, some money laundering, using the US postal system improperly (it just sounds more fun that way). Two charges carried life sentences (distributing a controlled substance resulting in death and being a criminal mastermind, i.e. principal leader of a continuing criminal enterprise 21 U.S.C. § 848(b).) As there was a lot of evidence of the online illicit pharmacy, at trial the defense focused on the life sentence charges. They beat the resulting in death but lost the criminal mastermind. On appeal, tactics change and they challenge the sufficiency of a conviction for possession with intent for fentanyl and manufacturing generic Xanax. The challenge to fentanyl is that the statute gives the chemical name (like H2O for water, but it is long and complicated and I’m not putting it here). At trial no one used the chemical name (because long and complicated) and instead just said fentanyl. Thus, the evidence was insufficient [Jazz Hands]. Except the defense offered an instruction saying “fentanyl [long complicated chemical name] is a controlled substance within the meaning of the law.” The Tenth said this effectively waived that issue. Next Mr. Shamo said the government didn’t prove he knew fentanyl was a controlled substance and no way did he know that he was possessing long complicated chemical name because only a chemist would know that! The Tenth doesn’t say this is waived but still doesn’t buy it. They point out, “he Supreme Court has identified two ways in which § 841(a)(1)’s knowledge requirement can be satisfied: (1) “by showing that the defendant knew he possessed a substance listed on the [federal drug] schedules, even if he did not know which substance it was” or (2) “by showing that the defendant knew the identity of the substance he possessed,” even if he did not know it was listed.” So Mr. Shamo is outta luck there. So in an unrelated investigation, an agent screen shot customer reviews on one of the many dark websites that Mr. Shamo sold his wares. Each comment had the associated product – so “quick delivery!” would be paired with 100 30mg Adderall. These were admitted into evidence – Mr. Shamo argued that the screen shots were not properly authenticated and the webmaster needed to testify (which would have been himself?). The agent also created an excel sheet that tallied the different products and amounts sold. Anyhoo, the Tenth neatly ducked the issue by harmless error – that its only helpful use would be to establish 12,000g of fentanyl for mastermind of continuing criminal enterprise (the life sentence). And agents seized 12,825g in just one of the raids. Oops. The government also called an expert cop who testified all about how drug trafficking works: there is a boss who makes the most money, makes decisions, delegates & there are workers who prepare and ship/deliver the drugs. He does say a few odd things like “that sometimes a conspiracy ‘just starts happening’ and that often ‘[i]t's very fluid and it just evolves into an organization and everybody has their role that's defined by someone’.” And explains his understanding of the continuing criminal enterprise statute. The defense says (and the 10th agrees, miracle of miracles) that “testimony crossed the line.” But once more, the 10th declares there is no actual harm from this. Of note, they do acknowledge there could be an issue if the cop was an expert in Mr. Shamo instead of drug trafficking generally. The defense filed a motion in limine to limit any mention of dead people to those named in the indictment; the government opposed this but eventually agreed “it won't tie deaths of unavailable witnesses to Defendant or say that the deaths resulted from overdoses.” The government honored the letter of the agreement if not the spirit. Then the DOJ paid travel expenses for families of dead people to be at the trial. In a shocking turn of events surprising exactly nobody, the families cried (loudly) when the deaths were referred to but were not overtly referred to as overdose deaths and the agent specifically said Mr. Shamo was not charged with these deaths. The Tenth in a move reminiscent of one New Mexico’s Appellate Courts favorite dismissals (In re Adoption of Doe, 1984–NMSC–024, ¶ 2, holding where a party cites no authority to support an argument, we may assume no such authority exists) stated “Defendant provide[d] no case law or other authority to suggest that the assistance provided to victims’ families to attend trial was improper.” So, no mistrial for you! In closing argument, the government said “He knew the nation was on fire with opioids, and he poured fuel on those flames over and over and over again, never getting burned himself, but causing pain and misery wherever his fire spread.” Once more, the Tenth circuit again relied upon harmless error and said because the evidence was so overwhelming this could not possibly have any effect on the verdict. Lastly, the defense pointed out that a life sentence for being a criminal mastermind was inherently cruel and unusual. The Tenth was remarkably unsympathetic to this truth.