Second Circuit Reverses Drug Conspiracy on Insufficiency Grounds

It is not often that the Second Circuit reverses a drug conspiracy on insufficiency grounds, but it did so in United States v. Wexler, 06-1571-cr, 2008 WL 878582 (2d Cir. April 03, 2008), a case involving a Manhattan dermatologist, sentenced to twenty years after a jury trial at which he was found to have distributed, as an object of a large-scale prescription drug conspiracy, a quantity of Dilaudid that caused the death of his co-conspirator Barry Abler. Relying on the buyer-seller rule, the majority concluded that the evidence was insufficient as a matter of law to permit any reasonable jury to find that Wexler participated in a conspiracy to distribute the drug Dilaudid, because no evidence showed an agreement between Wexler and Abler for Abler to redistribute the Dilaudid that Wexler supplied. Critical to the Court's decision was the fact that the conspiracy charge in the indictment specifically alleged "that the part and object of the conspiracy resulting in death was one to distribute Dilaudid, not a 'variety of drugs.'"  In a statement that is worth quoting in any insufficiency motion/appeal in a drug case, the Court held "[w]here, as here, the type of drug is a critical determinant of the length of a defendant's sentence, the Government should be required to prove what it alleges."