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4th Circuit: Jury should decide venue in ‘bath salts’ case

4tth Circuit Seal FEAA divided federal appeals panel has overturned the convictions of three accused drug distributors because a jury never was asked if the charges were brought in the right locality.

A two-judge majority of a panel of the 4th U.S. Circuit Court of Appeals said the trial judge sitting in Charlottesville, committed reversible error by keeping those venue issues from the jury.

The three defendants – from Chicago and North Carolina – all were charged with being part of a conspiracy to import and sell synthetic drugs known as “bath salts” manufactured in China. But they argued they had no direct connection with a man from Harrisonburg also alleged to have sold the synthetic drugs. The government had relied on that Harrisonburg merchant to establish venue in the Western District of Virginia.

The 4th Circuit’s Aug. 19 unpublished opinion came in Taylor v. US (VLW 019-2-239).

Synthetic drugs

The term “bath salts” describes various designer drugs alleged to mimic the effects of known recreational drugs, including ecstasy. The government brought its case in Charlottesville, naming several participants in an operation that imported two variations of such synthetic drugs for sale in U.S. smoke shops and convenience stores.

Five of those charged pleaded guilty and admitted their involvement in the scheme. Three defendants went to trial before a Charlottesville federal jury in the summer of 2017, with U.S. District Judge Norman K. Moon presiding.

Trial evidence showed Jason Bradley of Chicago actually traveled to China with his wife and arranged for shipments of analog drugs back to the states. Nayna Taylor, with husband Edward, sold some of the products at her “Queen City Smokes and Novelties” store in Charlotte, the evidence showed.

A middleman in the operation was Robert Schroeder, who allegedly supplied drugs to both the Taylor store in Charlotte and to Chris Kaestner in Harrisonburg. Among the products were packets of powder labeled as “Crystaal Bubbly” hookah cleaner. The powder was said to be the analog drug “a-PVP.” The conspiracy also distributed a drug known as MDPV.

While the government contended Schroeder tied the whole package together with testimony about his suppliers and his distribution to both Charlotte and Harrisonburg, the defendants said the evidence was cloudy about the origin of the drugs Schroeder was distributing to the Virginia dealer.

After the jury convicted all three defendants, Moon sentenced Bradley – the China connection – to 262 months in prison, nearly 22 years. Charlotte shopkeeper Nayna Taylor was sentenced to 48 months. Her husband got 15 months.

Venue questioned on appeal

On appeal, the defendants faulted Moon for refusing their proffered instruction on venue, among other issues. They contended there was simply no reliable connection to the Harrisonburg drug merchant.

“My clients had no aim or no knowledge of anything happening in Harrisonburg,” said W. Rob Heroy of Charlotte, representing Edward Taylor at oral argument May 9. “I don’t think Mr. Kaestner in the Western District of Virginia had any contact whatsoever with the Taylors. I don’t think there’s any evidence that they had ever met,” Heroy told the 4th Circuit judges.

“The implications of your argument are simply terrible,” responded Judge J. Harvie Wilkinson III, who authored an 11-page dissent. He said undoing convictions over the venue issue would undermine conspiracy law.

“We would have a dramatic reduction in multi-defendant trials. We would have individual trials here, there and elsewhere across the circuit and beyond. Witnesses would be called again and again in separate trials,” Wilkinson said from the bench in May. But the government contended there was ample evidence the overall drug conspiracy had a Virginia arm.

“There is no concern, at least from the government’s perspective, that this conspiracy did absolutely touch the Western District of Virginia. The drugs that were imported from China were distributed here by the conspirators,” said Jean B. Hudson, appellate chief of the U.S. attorney’s office in Charlottesville.

Issue was for jury

It was the jury role that turned the case for the defendants. The 4th Circuit majority acknowledged that evidence of a Virginia connection was sufficient to proceed with trial in Virginia. But the judges said Moon erred by then failing to submit the venue questions to the jury. The court said there were genuine issues of material fact with regard to proper venue.

“In these circumstances, although there may have sufficient evidence for jury findings of proper venue, there was not substantial and uncontroverted evidence such that the venue issues could be withheld from the jury,” wrote Judge Robert B. King for the court.

“Simply put, in light of the government’s evidence of a more than four-year drug trafficking operation reaching from China into and throughout the United States, the jury was able to convict the defendants of the offenses charged without an implicit finding that the acts used to establish venue – Chris Kaestner’s participation … as a Harrisonburg, Virginia, subdistributor – had been proven,” King wrote [internal quotation removed].

King’s majority opinion was joined by U.S. District Judge Irene C. Berger of the Southern District of West Virginia, sitting by designation.

Dissent

Wilkinson wrote in dissent that he worried the “real damage is to conspiracy law itself.”

“[W]hile packaged as an argument about venue, the majority’s position is in reality an attempt to assess merits arguments in favor of severance that would falter under substantive conspiracy law,” Wilkinson said.

The majority dismissed Wilkinson’s dissent as based on a harmless error argument. “We are not entitled … to judge whether the district court’s venue error was harmless by applying a ‘clearly guilty’ rule,” the majority responded in a footnote.

The court vacated the criminal judgments against Bradley and the Taylors and remanded for further proceedings as deemed appropriate. Aside from venue issues, the appeals court said the trial court might have to address challenges to the constitutionality of the federal Controlled Substance Analogue Enforcement Act and other issues.

Nayna Taylor was represented on appeal by Paul A. Tharp of Charlotte. Bradley was represented by Jeffrey M. Brandt of Covington, Kentucky.

A spokesperson said the U.S. attorney’s office for the Western District of Virginia declined comment.