Takeaway: (1) IONSCAN technology is sufficiently reliable for admission at trial in MDLEA cases, and (2) based the evidence available (i.e. testimony of the size and number of packages jettisoned), a court can reasonably calculate the quantity of narcotics trafficked even if they are jettisoned and unable to be recovered.
The Eleventh Circuit’s decision in United States v. Newball May, 846 F. App’x 831 (11th Cir. 2021) addresses numerous issues often presented in jettison cases. Of note, the Eleventh Circuit affirmed the district court’s decision denying defendants’ motion to exclude IONSCAN evidence at trial because the evidence presented by the Government at a Daubert hearing revealed that IONSCAN technology was sufficiently reliable for admission. Likewise, the Eleventh Circuit concluded that the district court did not err when it calculated defendants’ base offense level under the sentencing guidelines as 38 even though the narcotics were jettisoned and not recovered.
On December 1, 2018, a U.S. Coast Guard (USCG) airplane conducting counter-narcotics surveillance observed four persons on a tarp-covered go-fast vessel floating in a known drug-trafficking area about 100 miles southwest of Jamaica. A nearby Canadian vessel, the HMCS Moncton, with a USCG Tactical Law Enforcement Team (TACLET) on board was directed to intercept the go-fast vessel. Upon counter-detection, the go-fast vessel began to move erratically and the USCG air personnel saw multiple crewmembers on the go-fast vessel tying together and jettisoning groups of white, rectangular packages. When the HMCS Moncton arrived on scene, the USCG boarding teams found a black, 30-foot by 7-foot vessel that had no engines, no navigation lights, no electronic equipment except a cellphone, lines or ropes hanging over the side that had been cut, and about a dozen 55-gallon fuel drums set up so the crew could switch quickly between them. The two outboard engines had been removed and jettisoned along with the packages. The USCG was unable to recover the packages; however, at trial, multiple witnesses testified that the packages were consistent with 20-kilogram packages of cocaine that they had personally recovered and handled during prior interdictions of similar go-fast vessels. Additionally, video footage from the USCG aircraft depicted the crew jettisoning packages.
As a result of the interdiction, the four individuals were brought to the Middle District of Florida for prosecution. The captain of the vessel plead guilty prior to trial and a jury convicted the three remaining crewmembers for violations of the MDLEA. The crewmembers thereafter appealed their conviction and sentence to the Eleventh Circuit. The appellants made multiple arguments, including (1) the district court abused its discretion in denying the defendants’ motion to exclude evidence of the IONSCAN testing at trial, and (2) the district court clearly erred in calculating a drug weight of 450 kilograms or more of cocaine since none of the drugs were recovered.
The Eleventh Circuit held that the district court did not abuse its discretion when it admitted at trial—following a Daubert hearing—IONSCAN evidence that included testimony of an expert from the USCG and the results of multiple IOSCAN samples taken from the go-fast vessel at the time of the interdiction. The IONSCAN results revealed trace amounts of cocaine on both sides of the vessel, near the cargo hold of the vessel, and on all four of the vessel’s crewmembers. In evaluating whether the district court abused its discretion, the Eleventh Circuit held that the IONSCAN technology was sufficiently reliable for admission at trial based on the testimony from the USCG expert at the Daubert hearing:
At the Daubert hearing, the government’s expert, [], who had extensive training and experience with Ionscan testing, testified in relevant part that Ionscan testing was “generally accepted as a method of detecting trace amounts of narcotic substances on surfaces”; was widely used by the Coast Guard and other federal agencies, including at airports, the border, and the U.S. Capitol; had a published error or false-alarm rate of less than one percent, with false negatives more likely than false positives; and was supported by peer-reviewed studies showing that ion mobility spectrometry, the technology used by the Ionscan machine, was “highly reliable in detecting specifical molecules that it’s looking for.”
Newball May, 846 F. App’x at 837. Based on this testimony, “which suggests that the Ionscan technology has been tested, peer reviewed, has a low error rate, and is generally accepted, see Daubert, 509 U.S. at 592–94, 113 S.Ct. 2786, the district court reasonably concluded that the expert testimony and evidence was sufficiently reliable for admission under Rule 702.” Id.
Similarly, concerning the district court’s calculation of the base offense level for the jettisoned narcotics, the Eleventh Circuit held that the district court did not clearly err in finding a drug quantity of 450 kilograms or more of cocaine since the evidence presented at trial and sentencing hearing was a reasonable and conservative estimate of the amount. In making this finding, the Eleventh Circuit relied on the following: (1) the go-fast vessel’s captain post-arrest interview whereby he stated that 38 bales of cocaine were jettisoned; (2) the captain’s testimony was broadly consistent with surveillance video and with a crewmember’s statement to authorities that there were 30 packages; and (3) testimony from USCG witnesses that the packages observed in the surveillance video were consistent with 20-kilogram cocaine bales, which was standard size in maritime cocaine trafficking. Therefore, the Eleventh Circuit determined that the record supported the district court’s finding of more than 450 kilograms of cocaine were jettisoned from the go-fast vessel, triggering the highest base offense level under the sentencing guidelines. Newball May, 846 F. App’x 831 at 843.
The full decision can be found here.
DOJ’s press release can be found here.