Voter-approved marijuana legalization initiatives are running into problems with elected officials, federal prosecutors say the Honduran president was taking big bribes from drug traffickers, and more.

Marijuana Policy

Montana Legislature Refuses to Fund Implementation of Voter-Approved Marijuana Legalization. The state's Republican-dominated House Appropriations Committee voted overwhelmingly last Wednesday to refuse to allocate funds to the Department of Revenue to implement the voter-approved marijuana legalization plan. The department had sought $1.35 million to hire 20 staffers and cover administrative costs of getting the program up and running. Now, that means implementation of a legal marijuana market could be delayed.

New Jersey Marijuana Legalization Legislation Hits Snag. Bills to decriminalize marijuana and set up a taxed and regulated legal marijuana industry are in limbo after the governor and legislative leaders failed to reach agreement on how to punish underage pot smokers. A floor vote set for today has been postponed indefinitely until Gov. Phil Murphy (D) and Democratic leaders can reach some sort of agreement.

South Dakota Governor Uses Executive Order to Challenge Voter-Approved Marijuana Legalization. Gov. Kristi Noem (R) issued an executive order last Friday okaying a legal challenge to the voter-approved constitutional amendment to legalize marijuana. She argued that the initiative "was not proper and violated the procedures set forth in the South Dakota Constitution." Her order also said Highway Patrol Superintendent Col Rick Miller, who earlier sued to block the initiative from being implemented, could do so because he is acting on her behalf.  At the same time, Noem's attorney general, Jason Ravnsborg, is defending the initiative in court.  

Medical Marijuana

South Carolina Medical Marijuana Bill Pre-Filed. Once again, state Senator Tom Davis (R-Beaufort County) has filed a medical marijuana bill, S 150, the Compassionate Care Act. Davis has filed similar bills for nearly a decade. This year could be the charm, he predicted. "The bill has been thoroughly vetted," said Davis. "It’s been looked at by the SC Medical Association. It has been looked at by law enforcement. We have a very good tightly regulated medical cannabis bill, and what it seeks to do is empower physicians."

Drug Treatment

California Lawmakers Seek to Expand Contingency Management Treatment for Meth. Senator Scott Weiner (D-San Francisco) has filed legislation, Senate Bill 110 that seeks to expand contingency management as a treatment for methamphetamine addiction. Contingency management is controversial becomes it uses cash payments as incentives for users to stay off the drug, but it has been shown to be a proven treatment for meth and cocaine addiction. "We need to embrace this proven, effective approach to meth addiction, make it clearly legal and start reimbursing for it, so we can address this health epidemic," he said.

International

Amsterdam Mayor Wants to Ban Foreigners from Cannabis Coffee Shops. Mayor Femke Halsema has proposed allowing only Dutch residents to enter the city's famous cannabis coffee shops in what she said was an effort to blunt the flow of hard drugs and organized crime linked to the marijuana business. "The cannabis market is too big and overheated," Halsema said in emailed comments. "I want to shrink the cannabis market and make it manageable. The residence condition is far-reaching, but I see no alternative." She submitted her plan to the city council last Friday, setting the stage for an energetic political debate.

Honduran President Accused of Helping Drug Traffickers in US Court Filings. Federal prosecutors in New York City last week laid out evidence implicating Honduran President Juan Orlando Hernandez in drug trafficking. They accused him of using Honduran armed forces to protect large cocaine shipments in return for bribes. Prosecutors quoted Hernandez as saying he wanted the DEA to think Honduras was fighting drugs while he was instead going to "shove the drugs right up the noses of the gringos." Honduras has received hundreds of millions of dollars in US anti-drug aid.

 

 

As we wave an eager goodbye to 2020 in the rearview mirror, it's time to assess the good, the bad, and the ugly when it comes to drug policy and drug reform at the international level. As in other realms of human behavior, the coronavirus pandemic is inescapable, but even as the pandemic raged, drug policy developments kept happening. Here are the biggest world drug policy stories of 2020:

The Coronavirus Pandemic and the World of Drugs

As with virtually every other aspect of human affairs, the year's deadly coronavirus pandemic impacted the world of drugs, from disruptions of drug markets and anti-drug policing to drug trafficking groups as social distancing enforcers, fallout on efforts to reform drug policies, and beyond.

Early on, there were reports that Mexican drug traffickers were raising wholesale meth and fentanyl prices because of disruptions in the precursor chemical supply, and that pandemic lockdowns had disrupted the cocaine supply chain, driving down the farmgate price for coca and endangering the livelihoods of nearly a quarter-million coca-producing families in the Andes.

But some things couldn't be disrupted: Just a day after closing its famous cannabis cafes in response to the pandemic, the Dutch reopened them as the government was confronted with long lines of people queuing up to score after the ban was initially announced. In France, the price of hashish nearly doubled in a week as increased border controls due to the pandemic put the squeeze on. By midyear, the UN Office on Drugs and Crime reported pandemic-related border closures, lockdowns, and flight shortages were making drugs more expensive and difficult to obtain around the world.

Those same drug organizations struggling with the pandemic took on roles normally assumed by government in some countries. In Mexico, the Gulf Cartel and Los Viagras handed out food to poor families in Tamaulipas and the Sinaloa Cartel and the Jalisco New Generation Cartel did the same in Guadalajara, spurring President Andres Manuel Lopez Obrador to acknowledge their efforts and implore them to knock it off and just stay home. Instead, the Sinaloa Cartel locked down the city of Culiacan, its home base, and patrolled the streets in heavily armed convoys to enforce a curfew. In Brazil, Rio de Janeiro drug gangs enforced social distancing and handed out cash and medications as the government of rightist authoritarian populist President Jair Bolsonaro was largely absent and in denial about coronavirus. In Colombia, with the government missing in action, drug gangs and armed groups enforced lockdown orders, even killing people who didn't comply, according to Human Rights Watch.

Some countries took positive steps to ameliorate these effects of the pandemic. In Great Britain, the government agreed to hand out methadone without a prescription to those already receiving it and shortly later began allowing monthly buprenorphine injections for heroin addicts. In Canada, British Columbia early on moved to increase a "safe supply" of drugs that registered nurses and registered psychiatric nurses to prescribe, make more medications available, and expand eligibility to people who are at risk of overdose, including those who may not necessarily be diagnosed with a substance use disorder. The province followed that move by lowering barriers to prescription medications, increasing the supply of opiate maintenance drugs and even dispensing some of them via a unique vending machine. By providing a safe supply of legal drug alternatives, the province hoped to lower a sudden spike in drug overdose deaths that coincided with the coronavirus outbreak in Vancouver.

Not everybody let a measly little coronavirus get in the way of their drug war. In Colombia, President Ivan Duque ordered a nationwide lockdown in March, but exempted coca eradicators and launched a major offensive against small producer coca farms. And Filipino President Rodrigo Duterte let his drug war rage on in the midst of the pandemic despite imposing a national partial lockdown in March. At least nine people were killed by unknown gunmen in Cebu Province alone. "Reports of drug-related killings continuing amid the lockdown order are deeply concerning, but not surprising," said Rachel Chhoa-Howard of Amnesty International. "The climate of impunity in the Philippines is so entrenched that police and others remain free to kill without consequence." In September Human Rights Watch noted the pace of acknowledged drug war killings by police had doubled. Duterte has also threatened to have the police and military shoot people who violate quarantine.

The coronavirus also wreaked havoc with drug reform initiative signature gathering campaigns in the US, preventing several marijuana legalization and one drug decriminalization initiative from qualifying for the ballot this year, and played a role in delaying marijuana legalization in Mexico when its Senate shut down in the spring because of the pandemic.

UN Commission on Narcotic Drugs Votes to Remove Cannabis from Most Restrictive Drug Schedule

In an historic move on December 2, the 53 member states of the Commission on Narcotic Drugs (CND), the UN body charged with setting drug policy, voted to remove cannabis from Schedule IV of the United Nations' drug classification system as they met in Vienna. Cannabis was both a Schedule I and a Schedule IV drug under the international drug treaties. Schedule I includes "substances that are highly addictive and liable to abuse or easily convertible into those (e.g. opium, heroin, cocaine, coca leaf"), while Schedule IV includes Schedule I drugs with "particularly dangerous properties and little or no therapeutic value" (e.g. heroin, carfentanil).

The vote removing cannabis from Schedule IV means the global anti-drug bureaucracy now recognizes the therapeutic value of cannabis and no longer considers it "particularly liable to abuse and to produce ill effects." With medical marijuana legal in dozens of countries in; one form or another, the ever-increasing mountain of evidence supporting the therapeutic uses of cannabis, not to mention outright legalization in 15 American states Canada and Uruguay, with Mexico about to come on board, this decision by the CND is long past due, but nonetheless welcome.

The UN Common Position on Drug Policy Gains Traction

Change at the United Nations comes at a glacial pace, but it can and does come. The shift away from punitive, law enforcement-heavy approaches to drug use has been building for years and picked up steam at the 2016 UN General Assembly Special Session (UNGASS) on Drugs in 2016 and advanced further with the adoption of the UN Common Position on Drug Policy in 2018.

That approach, which seeks to get all the UN agencies involved in drug policy, public health, and human rights on the same page, explicitly calls for the decriminalization of drug use and possession for personal use. Among the position's directions for action is the following: "To promote alternatives to conviction and punishment in appropriate cases, including the decriminalization of drug possession for personal use, and to promote the principle of proportionality, to address prison overcrowding and overincarceration by people accused of drug crimes, to support implementation of effective criminal justice responses that ensure legal guarantees and due process safeguards pertaining to criminal justice proceedings and ensure timely access to legal aid and the right to a fair trial, and to support practical measures to prohibit arbitrary arrest and detention and torture."

At least 30 countries have instituted some form of drug decriminalization (although in many it is only marijuana that has been decriminalized), and the Common Position is providing breathing space for others that may be inclined to take the plunge. In 2020, the US state of Oregon broke ground by becoming the first state to decriminalize the use and possession of all drugs, and just a few hundred miles to the north and across the Canadian border, the city council of Vancouver, British Columbia, voted to decriminalize and seek an exemption from the federal government to do so.

Decriminalization could also be around the corner in Norway, where a proposal first bruited in 2017 could pass some time next year. And Ghana (see below) has also effectively decriminalized drug use and possession. With a more consistent message from the UN, which the Common Position represents, we can expect further progress on this front in years to come.

The Philippine Drug War Faces Increasing Pressure

Four years into the government of Rodrigo Duterte, the Philippines remains embroiled in a bloody war on drug users and sellers, but is facing increasing pressure from human rights groups, domestic critics, and international institutions over mass killings that are believed to now total more than 30,000. In a June report, the UN Office of the High Commissioner on Human Rights said that tens of thousands of people had been killed in President Rodrigo Duterte's bloody war on drug users and sellers amid "near impunity" for police and the incitement of violence by top officials. The report said that rhetoric may have been interpreted as "permission to kill."

Michelle Bachelet, UN High Commissioner for Human Rights, called for independent investigations into the killings and said her office was ready to help credible domestic Philippine or international efforts to establish accountability. Two months later, during the 45th session of the UN Human Rights Council, Bachelet called for an end to the policies and rhetoric that led to abuse and killings. She acknowledged some small steps taken by the Duterte government but warned "there is clearly an urgent need to revoke the policies that continue to result in killings and other human rights violations, to bring to justice the perpetrators, and to halt the use of rhetoric inciting violence against people who use or sell drugs."

In October, Duterte said he accepted responsibility for drug war killings, but only those acknowledged by police, not the thousands committed by shadowy vigilantes. That same month, global civil society groups including StoptheDrugWar.org (the publisher of this newsletter) and Movement for a Free Philippines launched the Stand for Human Rights and Democracy campaign to keep the pressure on. The campaign launch included an "Autocrat Fair" demonstration outside Trump International Hotel in Washington, DC; and an accompanying video, "Trump and Duterte -- Allies in Violence." An event organized by StoptheDrugWar.org on December 22 discussed the role of the International Criminal Court (ICC).

The pressure on the Duterte government only heightened at year's end, when the ICC's Office of the Prosecutor issued a report saying there was "reasonable basis to believe" Filipino forces committed crimes against humanity in Duterte's drug war. That leaves one stage left in the Office's "preliminary examination," admissibility. For the ICC to have jurisdiction, prosecutors must show that the Philippine justice system lacks a legitimate or capable response to the killings. Chief Prosecutor Fatou Bensouda has promised a decision will be by mid-2021, when her term ends, over whether to seek authorization from the court to open a formal investigation. She has also pointedly warned that the court's resources fall badly short of what's needed to carry out their mission, which affects how cases are prioritized, and may affect whether the new prosecutor initiates cases.

Even as Drug War Violence Continues Unabated, Mexico is About to Become the World's Largest Legal Marijuana Market

There is no end in sight to Mexico's bloody drug wars. The year began with the announcement that 2019 was the most murderous year in recent history, with some 35,588 recorded homicide victims. As the year ends, 2020 appears on track to equal or surpass that toll, with the country registering about 3,000 murders a month.

As mass killing after mass killing took place throughout the year, the number of dead wasn't the only thing rising either. In January, the government announced that the number of "disappeared" people in the country was around 61,000, up from an estimated 40,000 in mid-2019. By July, the number of those officially missing had risen to 73,201 as prohibition-related violence ripped through the country.

While President Andres Manuel Lopez Obrador came into office in 2018 critical of the role of the military in the drug war, and with a plan to reduce crime and violence by focusing on their root causes, in May he renewed orders keeping the military on the streets for another four years. "His security strategy is not working and that is why he has had to order with this decree for the Armed Forces to support public security," security specialist Juan Ibarrola told the Milenio newspaper at the time.

The following month, Lopez Obrador signaled that perhaps it wasn't security strategy that wasn't working, but drug prohibition. He released a plan to decriminalize drugs, and urged the US to do the same. Mexico's current "prohibitionist strategy is unsustainable," the plan said.

As the drug war chugged along, US-Mexico relations took a hit in October, when DEA agents arrested Mexico's former defense minister in Los Angeles on drug and money laundering charges. Loud protests from Mexico eventually resulted in his release, but in December, Mexican lawmakers chafing at US heavy-handedness voted to restrict the activities of foreign agents in the country.

Even as the drug wars rage, there is significant progress on another drug policy track. As the year comes to an end, Mexico is one vote in the Chamber of Deputies away from legalizing marijuana. The government-supported legalization bill, crafted in response to a ruling from the country's Supreme Court that said marijuana prohibition must end, passed the Senate in November after delays caused by political infighting and shutdowns due to the coronavirus.

Under an order from the Supreme Court, the Congress had until December 15 to act, but the Chamber of Deputies delayed the vote, saying it needed more time to study the bill, and the Supreme Court agreed to grant one more extension, giving the Chamber of Deputies until the end of the next legislative session in April to get the job done. President Lopez Obrador downplayed the delay, calling it a matter of "form not substance." And Mexico is waiting to inhale.

Bolivia Returns the Coca-Friendly Movement to Socialism to Power

Long-time Bolivian leader Evo Morales, a former coca growers union leader who won the presidency in 2005 and was reelected twice, was forced from office and fled the country after extended protests in the wake of disputed elections in November 2019. The self-appointed interim right-wing government worked to suppress Morales' Movement to Socialism and harassed harassed coca producers in the name of the war on drugs.

The coca growers stood firm, however mobilizing to blockade roads to protest delays in promised elections. When those elections finally came in October, voters returned the MAS to power, electing Morales' former economics minister, Luis Arce, without the need for a runoff election.

Arce said that while he has no problem with the United States, he will maintain Morales' coca policy, under which legal coca cultivation was allowed, and that he wants to expand the country's industrial coca production.

Colombia, Coca, Cocaine, and Conflict

Four years after the truce between the Colombian government and the leftist rebels of the FARC was supposed to bring peace to the country, peace remains elusive as the rightist government of President Ivan Duque continues to wage war against other leftist rebels, drug traffickers, and coca-growing peasants.

Under pressure from the US, the Duque government began the year by moving to resume the aerial spraying of coca fields. This plan was rejected by state governors, who said they supported alternative development and voluntary crop substitution and wanted President Duque to actually implement the 2016 peace accords.

Instead, the government attempted to pull out of a crop substitution monitoring program with the UN, preventing a pending evaluation of the effectiveness of planned forced coca eradication, although it later backtracked. That prompted coca farmers to call "bullshit" on Duque's duplicity, not only around crop substitution and eradication, but on the government's efforts to downplay a campaign of assassination against coca substitution leaders.

Indeed, human rights remained a major concern throughout the year, as a UN peace mission condemned a spike in massacres in August, and a month later, the International Crisis Group demanded the government stop the killing of activists. The group said the government must prioritize communities' safety over military operations against armed groups and coca eradication efforts. Human rights were no concern for US Secretary of State Mike Pompeo, however, who promised Colombia more anti-drug aid the following month.

On another track, efforts to reform the country's drug laws continue. Bills to legalize marijuana were defeated late in the year, as right-wing factions aligned with Duque killed them. A bill to legalize cocaine was introduced in December, with cosponsor Senator Ivan Marulanda saying the bill would allow a legal cocaine supply for Colombian cocaine users -- use and possession is legal in Colombia -- and that the government could buy up the entire coca crop.

The year ended as it began, with the government still talking about plans to restart aerial fumigation even it claimed it would meet its coca eradication goal. Meanwhile, coca and cocaine production remain at world-leading levels.

Progress in Africa

Attitudes towards drugs and drug users are changing in Africa, and 2020 saw significant advances. It was in July 2019 that health, drug control and population ministers from member states of the African Union met in Cairo to forge a continental action plan for adopting more balanced policies toward drug use.

At that meeting, the Union's Department for Social Affairs called on member states to adopt master plans for drug policy by 2023. Such plans create a national framework for deciding which agencies should deal with illicit drug use in a way that deals with both drug supplies and demand reduction and ensure that not just law enforcement but also treatment and rehabilitation issues are addressed.

Zimbabwe had begun work on its own master plan years earlier -- back in 1999 -- but that effort had stalled until 2016 when, thanks to a civil society group, the Zimbabwean Civil Liberties and Drug Network (ZCLDN), the effort was reignited. The country hasn't passed a reformist master plan yet, but thanks to years of organizing and alliance-building, reform is coming.

In July, ZCLDN and regional ally groups worked with the Ministry of Health and Child Care to draft treatment and rehabilitation guidelines that formally incorporated harm reduction practices, a big step forward. In September, the group brought together civil society groups and the government's inter-ministerial committee charged with creating the master plan, helping to lay the groundwork for the plan to be adopted early in 2021. But first, it has to be approved by the cabinet, the attorney general's office, and then parliament. The work was not finished in 2020, but it is well underway.

Meanwhile in West Africa, Ghana actually passed a major drug reform law, the Narcotics Control Commission bill, in March. It only took five years from the time the bill was first introduced. Drafted with the intent of treating drug use as a public health issue, the law effectively decriminalizes drug possession, replacing prison terms of up to ten years with fines of roughly US $250 to $1,000. The new law also clears the way for the implementation of harm reduction services, which had previously been outlawed. And it allows for the production of low-THC cannabis products, such as industrial hemp and CBD.

The colonial legacy weighs heavy on Africa, but when it comes to drug policy, African nations are beginning to forge their own, more humane paths.

Thanks to a Plant, Afghanistan Becomes a Meth Producer

For years now, Afghanistan has been the world's number one supplier of opium poppies and the heroin derived from it, accounting for about 90% of global production. Now the war-torn country is diversifying, becoming a big-time player in the methamphetamine trade thanks to a plant common in the country and low-tech techniques for using it to make meth.

That plant is ephedra, from which meth's key ingredient -- ephedrine -- is created, and in a November report, the European Monitoring Center for Drugs and Drug Addiction (EMCDDA) warned that while its findings were provisional, "the data reported here on the potential scale of ephedrine and methamphetamine production emanating from this remote corner of Afghanistan, the income it generates and the speed at which it has emerged are both surprising and worrying." The report cited seizures of Afghan meth in Sri Lanka, Indonesia and Australia, and tax revenues in the millions for the Taliban.

New Zealand Narrowly Rejects Marijuana Legalization

New Zealand had a chance to become the next country to legalize marijuana but rejected it. Early on, polling suggested that a referendum to legalize marijuana faced an uphill battle, and as early election results came in in October, the polls proved accurate, with the referendum faltering with only 46% of the vote. In the final tally, the margin narrowed, but the referendum still lost narrowly, garnering 48% of votes.

Kiwis were not ready to become the second commonwealth country to legalize marijuana, after Canada, On the other hand, voters approved a referendum to allow voluntary euthanasia for the terminally ill by a margin of two-to-one.

How to Regulate Stimulants: A Practical Guide by Steve Rolles, Harvey Slade, and James Nicholls (2020, Transform Drug Policy Foundation, 304 pp., $20 PB)

Marijuana is now legal, taxed and regulated in 15 states, with most of the Northeast likely to join them next year. The movement for psychedelic liberation is flexing its muscles. Oregon just voted to decriminalize the possession of personal use amounts of all drugs. Brick by brick the wall of drug prohibition is crumbling in the United States.

And now, the good folks at Britain's Transform Drug Policy Foundation are out with a how-to guide for turning that wall into nothing more than a pile of bricks. When it comes to attacking prohibition, marijuana and psychedelics are the low-hanging fruit -- it's easier for members of the public to consider that the harms attributed to their potential abuse or misuse may be far outweighed by the harms of prohibiting them -- but with stimulants such as meth, Ecstasy, and cocaine, the case for prohibition is more popular because the potential harms of their abuse or misuse are much greater.

Still, Steve Rolles and his coauthors make a strong, thoughtful case for dealing with these drugs as we do other non-banned psychoactive substances: Regulating and offering them to consumers with restrictions based on the degree of risk involved. Caffeine is a stimulant, but one with low risk levels for users and society. It is subject only to the regulations of normal commerce -- quality control, informational packaging, and the like.

Coca leaf, coca tea, and oral coca products (lozenges, hard candies, pouches) have a similar risk profile to caffeine -- that is, not much. But both international and US law fail to differentiate between such products with low levels of the cocaine alkaloid and cocaine itself. A regulatory regime based on reason and science would treat coca tea like coffee, not cocaine. But that doesn't mean cocaine would be prohibited.

Indeed, Rolles et al. explicitly differentiate between different forms of stimulants to create a three-tiered regulatory system based not only on science, public health, human rights, but also recognizing the need to prevent corporate takeover and promote social equity. The first tier is the tier of coca tea and coffee.

The second tier, that of medium risk drugs in their typology, produces what they call their "standard model" for dealing with stimulants. Included here are MDMA pills, amphetamine pills (or meth pills -- Desoxyn, anyone?), and cocaine powder. For this tier, they recommend pharmacy-style retail sales at state-owned shops where specially trained druggists dispense not only the dope but also targeted harm reduction information.

And they recommend rationing of these substances, either by purchase amount limits or by means of licensing requirements. The idea is to limit harm by restricting access to these particularly binge-inducing drugs. Rationing is what we do with legal marijuana by restricting purchases, typical to one ounce per day. We don't do that with alcohol, however; you can walk in and buy multiple kegs of beer or cases of hard liquor and no one bats an eye.

Purchase limits -- say one gram of 70% pure powder cocaine per month -- would probably work for most cocaine consumers, who use it recreationally and infrequently. But it wouldn't work for the party host who wants to supply his guests, and more importantly, it wouldn't suffice for the needs of serious drug users, who make up a huge percentage of the sales of any drug.

If the object is to take drug consumers out of the illicit market, rationing is going to have to be flexible enough to address their needs and demands. The authors suggest a tiered system that would allow larger purchases contingent on periodic brief discussions of risks and harm reduction with trained pharmacy vendors.

When it comes to the hardest forms of stimulants, such as injectable meth or cocaine or smokable meth or crack, the model shifts from regulatory retail to harm reduction. The authors advocates measures such as supervised consumption sites and harm reduction kits for crack users. They envision no retail sales of drugs in such forms, but also no criminalization of their users. That might leave users to get their goodies in the black market (or get creative with less harmful forms of the drug, such as converting cocaine powder into crack at home), which could undercut one of the primary rationales for regulation: killing off the illicit market.

But instead of sticks, Rolles et al. offer carrots. Perhaps hardcore tweakers and cokeheads can be induced into using less harmful forms of their drugs of choice, switching from shooting meth to eating oral amphetamines or being offered less-potent powder cocaine formulations with a price incentive. Not discussed is whether users of tier three substances would have some way of obtaining a regulated supply of them through a medical or other non-sales framework.

Regulating stimulant drugs is tricky, with all sorts of different considerations to undertake. But we have a freedom interest, a social justice interest, and a public health interest in moving away from coercive drug prohibition. The Transform Drug Policy Foundation shows us some of the possible paths and is acutely aware of the intricacies of the task. This is very useful stuff. We should all probably send copies of this book to our state and federal elected officials, but not wait for them before starting down the path ourselves.

Criminal Court & Legal Affair Investigative Journalist Clarence Walker can be reached at [email protected].

A Fifth Circuit appeals court reversed a recent drug conviction against an Austin, Texas man based on the prosecutor's  illegal use of an "out-of-court" hearsay statement made by a snitch who told a DEA agent that the defendant had purchased a substantial amount of methamphetamine from another person. Federal prosecutors never brought the snitch forward to testify at trial that Coy Jones had, in fact, done a drug deal. Instead, prosecutors allowed a DEA agent to testify to the jury that the snitch had told the agent that the deal had gone down, and that Jones was in possession of big-time dope. The appeals court mandate in Jones case was issued on May 19, 2019. 

Following four days of testimony, a jury in the Western District of Texas in Austin convicted Coy Jones in October 2017. On January 29, 2018, federal judge Sam Sparks gave Jones, a Native American, 30 years in a federal joint for methamphetamine trafficking and gun-related charges as a result of an alleged witness (the snitch) -- who never appeared in court, and whom Jones never got a chance to confront and cross-examine, as required by law under the Sixth Amendment of the Constitution.

The Confrontation Clause of the Sixth Amendment of the U.S. Constitution provides that "in all criminal prosecutions the accused shall enjoy the "right" to be confronted by the witnesses against him." Under the statute, accused defendants are given the opportunity to face prosecution witnesses against them in order to dispute the witnesses' testimony. This guarantee applies to both statements made in court, including statements made outside of court that are offered as evidence during trial. 

In a lengthy ruling, the Fifth Circuit said: "The government has therefore failed to meet its burden to show harmless error as to Jones' conviction for possession with intent to distribute 500 grams or more of methamphetamine and possession of a firearm." Here, the court added, "the inadmissible evidence was highly incriminating. Jones denied possessing the drugs and no drugs were found in his possession and no officer witnessed a drug transaction on May 3,2017.

"We hold that Jones' rights under the Confrontation Clause were violated when a law enforcement officer testified, he knew Jones had a large amount of methamphetamine because of what the officer was told by a confidential informant. We therefore vacate Jones convictions and the related revocation of his supervised release and remand for a new trial,” the Fifth Circuit panel said. 

A DEA agent testified in open court about what the snitch allegedly told him about Jones meeting up with another narcotics dealer, which amounted to unsubstantiated hearsay. Although police never saw Jones purchase drugs, they and prosecutors relied on the words of the undercover snitch who said he made calls to other individuals who, in turn, told him the transaction had taken place. So, at this point, the government used double hearsay to convict Coy Jones.

"Everyone deserves the right to confront their accusers in court," retired criminal defense attorney Craig Washington told Drug War Chronicle.

But no such confrontation took place in this case. Federal prosecutors Matt Harding and Daniel Guess argued the use of "out-of-court" hearsay testimony by the informant was only to explain the officers" investigative tactics during the investigation.

Fifth Circuit judges concurred that the trial judge in Jones' case shouldn't have allowed prosecutors to elicit the snitch's hearsay testimony from the DEA agent about what he was told concerning the alleged drug purchase that Jones supposedly made with another suspect.

When Jones attorney Santosh Aravind objected at trial to the snitch's testimony and other detailed information the officers received from the missing witness against Jones, the judge overruled Aravind's timely objection, agreeing with the prosecutors that  the officers' references to what the informant told them was more to explain the officers' actions rather than vouch for the truth about what the informant said. 

Prior to trial, Jones' attorney Santosh Aravind filed a 403 motion to force the government prosecutors to disclose the identity of the informant. In response, prosecutors argued against identifying and bringing forth the informant because "the informant only gave a tip, and that the informant was not on the scene on any of this and would not be a fact witness." 

The Arrest of Coy Jones

The long, winding road to Coy Jones' federal conviction was the result of a hearsay statement by a "streetwise snitch." The showdown encapsulated a cast of dubious characters on Wednesday, May 3, 2017. On this eventful day in Jones' life, DEA agent Royce Clayborne received a tip from his prize-winning informant.

The informant told Claiborne that a drug deal would go down at a Valero gas station in Travis County, Texas. The DEA surveillance team, along with Austin police officers, observed Jones arrive in a vehicle. Jones parked next to a truck driven by a roommate of Fredy Cruz-Ortiz. DEA agents initially targeted Cruz-Ortiz, not Jones, because Cruz-Ortiz was the ring-leader of a meth trafficking ring. DEA agents and Cedar Park Detective Michelle Langham would later testify that they observed Coy Jones make a gesture to the other driver. Following the gestures, both vehicles drove off simultaneously.

 DEA agents had no direct knowledge that a drug deal had gone down until the informant told agent Claiborne by phone that a transaction had taken place and that the drivers had left the Valero parking lot. Officers immediately followed both vehicles as they headed towards County Road 213. This area is a lightly traveled rural road. When both vehicles briefly passed out of view and then reappeared into sight, Detective Langham spotted both drivers on County road 213 talking. When Jones and the other man departed, they drove off in different directions. 

Keep in mind, at this point, the officers never saw a dope exchange between Coy Jones and the other man he met on the night of May 3, 2017 nor did officers see Jones in a drug transaction on two prior occasions when he met with the alleged meth dealer. And on that night, the officers never saw Jones with a gun. They only had suspicions about drugs based on the tip from the informant.

The unidentified man, who was suspected to be the roommate of the meth ringleader identified as Cruz-Ortiz, was not  followed or stopped after his separate encounters with Jones. Officers instead continued to follow Jones as he finally turned onto County road 201. Detective Langham dispatched a sheriff's deputy to stop Jones by using a pretext traffic violation. 

When the deputy activated his emergency red light to pull over Jones' vehicle, Jones' vehicle sped up, accelerating up to 90 miles per hour with the officers in hot pursuit. The chase lasted for at least two miles.

During the ensuing chase, none of the officers or agents saw Jones throw a weapon from his vehicle, yet when Jones' vehicle came to a screeching halt both windows rolled down. With guns drawn, officers arrested Jones and searched his vehicle, but no drugs or firearms were found.

Where is the Dope?

Unable to find dope on Coy Jones--either in or around his vehicle -- the officers grew increasingly frustrated. 

Perhaps the officers should have freed Coy Jones because they did not have an iota of evidence that he was guilty of a crime, right? 

But these hounds smelled blood.

"Let's get a K-9 out here," an officer said. Officers used the K-9 dog to retrace the route of the road that Jones and the officers had traveled during the chase. After 'one to two' hours of searching, officers discovered an unloaded pistol in a 'cactus patch'. Then, finally, on the opposite side of the road, approximately 'a half mile' from where the gun was found, an officer recovered a zip lock bag containing 982 grams of methamphetamines.

Detective Langham testified at trial that both the gun and the meth were found in an area "where the sheriff's deputy lost sight of Jones as he sped down County road 201."

DEA agents interrogated Coy Jones on the same night he was arrested.  When agents accused him of intentionally fleeing to avoid being caught with the methamphetamines and the gun, Jones explained that he was attempting to avoid an individual who tried to fight him at the Valero. 

On Appeal

Attorney Santosh Aravind appealed Coy Jones' conviction based on these four key points:

1.The District Court erred by admitting evidence of Jones' prior conviction.

2. Testimony regarding the confidential informant (aka snitch) violated Jones' rights under the Confrontation Clause.

3. The District Court erred by not ordering disclosure of the identity of the confidential informant.

4, The evidence was insufficient to support the jury's verdict.

During the trial, as stated, Jones' attorney objected multiple times to the prosecutor's use of information from a snitch that was spoken to in court by a DEA agent. To determine whether the Sixth Amendment (Confrontation Clause) had been violated, the Fifth Circuit focused on the exchange of testimony between the prosecutor and DEA agent Royce Clayborne.

Prosecutor: "Based on the information you had received; Coy Jones received a large amount of methamphetamines."

Defense Attorney: "Objection hearsay."

Judge: "That objection is overruled."

Prosecutor: "Why did you follow Coy Jones as opposed to the other guy?"

Agent Clayborne: "Well, we knew Coy Jones had just received methamphetamines."

Clayborne further told the prosecutor that their purpose there forward was to stage a traffic stop of the vehicle driven by Coy Jones and arrest him. 

During cross-examination, defense attorney attacked Agent Clayborne's knowledge of whether Jones obtained meth from another person at the Valero.

Defense attorney: "[You] did not see any interaction between Mr. Jones and the person in the silver truck, right?"

Agent Clayborne: "That's correct."

Defense: "But you did not know that, right? You had not seen anything. You had not seen an exchange of methamphetamines or money."

Clayborne: "But I knew it was."

Defense: "You believed it, but you did not know it."

Realizing Clayborne's testimony created doubts as to whether he saw the drug deal go down between Jones and the other guy in the silver truck, the prosecutor took the agent on re-direct examination.

Prosecutor: "The defense confronted you about when you said you knew a drug deal had gone down, but that you had not seen anything; how did you know that a drug deal occurred?"

Clayborne: "Once we saw (other officers included) what looked like a drug deal; I made a phone call to my confidential source (the snitch) who got back to me -- and said the deal had happened."

Prosecutor: "Based on that information, you decided to stop Coy Jones?"

Clayborne: "That's correct."

Bottom Line

Coy Jones' case exemplifies how federal prosecutors flagrantly violate the law in drug cases. Here, prosecutors violated Jones' constitutional rights to a fair trial and to have the right to confront his accuser(s) in court. The accuser was a police informant who prosecutors failed to bring forward to testify about what he did or did not see. Prosecutors knew beforehand that they were bypassing the constitutional limits of the Confrontation Clause, which enshrines the use of the Sixth Amendment to confront accusers(s). The trial court judge was equally responsible for the reversal of Jones conviction because Jones trial lawyer made timely objections to the judge about the prosecutors not bringing forth the "drug informant" to testify to the jury of whether he saw Jones do a dope deal.

Trapped in the system, unable to make bail, Coy Jones was bullied into pleading guilty all over again to the same charges that the Fifth Circuit had reversed in his favor. A federal judge gave Jones only eight years this time around on November 1, 2019.

Jones attorney, Santosh Aravind told the Drug War Chronicle that "if the case would've been retried, then it's likely the government would have to bring in the actual informant to testify." Prosecutors had already figured they could win the case outright if the informant testified in open court during a new trial for Jones. 

Attorney Craig Washington viewed the situation differently. Washington said the new plea raises the possibility that Coy Jones pleaded guilty to crimes that amount to "Fruit of the Poisonous tree." Under this doctrine the law says that "if the evidential tree is tainted, so is its fruit.”

"Once the Fifth Circuit granted a new trial, prosecutors shouldn't have been able to use the same evidence that was overturned in the first place to get Coy Jones to plead guilty to it."

Prosecutors have not responded to the Drug War Chronicle’s inquiry about Washington’s allegations as of this writing.

Meanwhile inmate Coy Jones#63245-280 is serving his prison sentence at FCI in Three Rivers, Texas. Although his projected release date is in 2024, the word in the legal arena is that another round of appeals will hit the court by the end of this year or early 2021.

Drug War reporter Clarence Walker can be reached at: [email protected]