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Double jeopardy issue was not preserved

Appellant’s failure to present a written motion in the trial court that charging him with multiple conspiracies to distribute drugs violated his double jeopardy protections precludes him from appealing his convictions on that basis.

Further, his failure to object to a jury instruction precludes his argument that to prove a conspiracy to distribute drugs, the commonwealth had to prove that he and the co-conspirator agreed to distribute a particular controlled substance.


Appellant Terry was convicted of conspiracy to distribute heroin, fentanyl and furanyl fentanyl. He appeals the fentanyl and furanyl fentanyl convictions.

Hunt purchased heroin, fentanyl, furanyl fentanyl or mixtures of these drugs from Terry. Hunt would repackage and resell the drugs. Terry would “front” the drugs to Hunt and receive payment after Hunt made the sales.

Hunt testified that he only wanted “to sell heroin only, not fentanyl or furanyl fentanyl. He expressly disavowed that he knew at the time of the enterprise that the appellant was providing him with either of those two substances.

“He explained that he repeatedly insisted to the appellant that he did not want any fentanyl and that the appellant continually reassured him that he did not sell him any.”

A jury convicted Terry of the conspiracy charges. He was given sentences totaling 86 years.

Double jeopardy

“The appellant contends that his constitutional right against double jeopardy was violated when he received multiple punishments for a single offense of conspiracy to distribute a controlled substance.”

Terry never made a pretrial motion to dismiss the conspiracy charges on double jeopardy grounds. He never raised the double jeopardy issue during argument on his motion to strike the three conspiracy charges, although he did raise it in his motion to strike the charges for possessing fentanyl and furanyl fentanyl.

“Further, during trial proceedings, the appellant did not argue that the convictions for conspiracy violated his constitutional protection against double jeopardy. Instead, he contended that in order to support the convictions for conspiracy to distribute fentanyl and furanyl fentanyl, the Commonwealth needed to prove that he and Hunt agreed to distribute those particular substances.

“Conversely, in the context of his challenge to the possession offenses, the appellant did suggest that the charges implicated double jeopardy. Although he contends on appeal that his double jeopardy challenge equally applied to the conspiracy charges, the record does not support this suggestion.

“Below, the appellant simply did not argue that the conspiracy charges violated his constitutional protection against double jeopardy, and the trial court did not rule on such a claim.”

As a result, “appellant waived and failed to preserve a double jeopardy challenge to the conspiracy convictions.”

Jury instructions

“The appellant contends that it was error for the trial court to instruct the jury that it had to find only that he and Hunt had agreed to distribute a controlled substance, not the particular substances of fentanyl or furanyl fentanyl.

“On appeal, he specifically challenges Jury Instructions 6, 7, and 12. Below, the appellant objected to two jury instructions. Instruction 6 informed the jury that in order to prove the crime of conspiracy to distribute fentanyl, second offense, the Commonwealth had to prove the following elements:

“‘(1) That the defendant entered into an agreement with one or more other persons; and (2) That the agreement was that they were to distribute a controlled substance; and (3) That both the defendant and at least one other party to the agreement intended to distribute a controlled substance and that the substance was fentanyl; and (4) That the defendant had been previously convicted of a felony offense substantially similar to Virginia Code §[ ]18.2-248(C)[.]’ …

“Instruction 7, the instruction for conspiracy to distribute furanyl fentanyl, was the same except the third element named the substance as ‘furanyl fentanyl.’

“During the discussion about jury instructions, the appellant objected to Jury Instructions 6 and 7 on the basis that the jury should be told that in order to support the conspiracy convictions, the conspirators needed to have agreed to distribute the specific substances of fentanyl and furanyl fentanyl. The trial court overruled the objection and gave the instructions.

“Despite this challenge to Instructions 6 and 7, the appellant did not object to Instruction 12. The appellant did not object to this instruction either of the two times that the trial court stated that it would give the instruction to the jury. In Instruction 12, the trial court told the jury: ‘The Commonwealth must prove beyond a reasonable doubt that the defendant knew that the substance he conspired to distribute or possessed with intent to distribute was, in fact, a controlled substance. The Commonwealth is not required to prove that the defendant knew precisely what controlled substance it was.’ …

“When the appellant did not object to Instruction 12, it became the law of the case that the Commonwealth did not need to prove that he ‘knew precisely what controlled substance[s]’ were to be distributed pursuant to the conspiracy. Instruction 12 directly relates to the appellant’s knowledge.

“As a result, by not objecting to Instruction 12, he waived his argument on appeal that in order to convict him of conspiracy to distribute a controlled substance, the Commonwealth was required to prove that both he and Hunt agreed regarding the particular types of controlled substances to be distributed.”


Terry v. Commonwealth, Record No. 1364-18-4, Nov. 26, 2019. CAV (Decker) from Alexandria Cir. Ct. (Kemler). Emily R. Beckman for appellant, Katherine Quinlan Aldelfio for appellee. VLW 019-7-213, 14 pp. Unpublished.

VLW 019-7-213

Virginia Lawyers Weekly