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On February 29, 2024, the Eleventh Circuit released its opinion in United States v. Gray. Gray was charged with conspiracy to possess with intent to distribute methamphetamine after he was involved in a traffic stop where he was the passenger in the car. During the traffic stop, officers found methamphetamine, marijuana, and ecstasy. Gray denied his involvement, but other evidence showed that he was involved.

During deliberations, the jury sent a note to the district court. That noted explained that the jury believed Gray was guilty of conspiracy, but not for methamphetamine. The district court then instructed the jury:

The Government is required to prove beyond a reasonable doubt that the Defendant knew that the unlawful purpose of the plan was distribution of a controlled substance. The Government is not required to prove that the Defendant knew the substance was methamphetamine. The government need only prove that it was methamphetamine.

The jury returned a guilty verdict less than twenty minutes later.

On appeal, Gray challenged this instruction on the basis that he was specifically indicted for a conspiracy involving methamphetamine and that the district court’s supplemental instruction to the jury was an unlawful amendment of the indictment. The Eleventh Circuit rejected this argument based on its recent decision in United States v. Colston, 4 F.4th 1179 (11th Cir. 2021).

In Colston, the Eleventh Circuit determine that when prosecuting a defendant for possession with intent to distribute or conspiracy to possess with intent to distribute, the government is not required to show that a defendant knew he possessed a specific controlled substance, even if the indictment is specific. The applicable statutes—21 U.S.C. §§ 841 and 846—concern intent to distribute controlled substances in general. Therefore, for guilt, the government only has to show a controlled substance. Or as the Court said in Colston “the defendant must knowingly possess, and intend to distribute, a controlled substance, but need not know which substance it is.”

When an indictment specifies a certain controlled substance—like methamphetamine in Gray’s case—the government must prove that drug for sentencing purposes under § 841(b). Section 841(a)(1) creates the offense of possession of a controlled substance with intent to distribute. In contrast, Section 841(b) addresses the penalties for the specific drugs involved in an § 841(a)(1) violation.

What does all this mean? It means that when a person is indicted for possession with intent to distribute a specific controlled substance—like methamphetamine—or conspiracy to do so, the government is not required to prove that a person knew that he or she was possessing to distribute methamphetamine or conspiring to do so. Any controlled substance is sufficient to prove guilt under §§ 841 or 846. But the government must prove the specific drug for the sentencing aspects.