Drug Purchase Requires Possession: Florida Supreme Court hands win to federal prosecutors while making it harder for state attorneys to prosecute.

This past summer, the Florida Supreme Court decided whether a “purchase” under Florida’s drug trafficking statute, § 893.135(1), necessarily entails some form of possession—either actual or constructive—of the drug being purchased. The U.S. Court of Appeals for the Eleventh Circuit certified the question to the Florida Supreme Court to clarify the meaning of the word “purchase” in Florida’s drug trafficking law in order to determine its compatibility with a federal sentencing scheme.

The battle lines drawn in this case are peculiar, as Justice Charles T. Canady pointed out in oral arguments, and Holly L. Gershow, appearing for the United States, summed up in her response: “It is an unusual situation where you have the United States government arguing for a narrow definition of the statute and the federal defender arguing for a broad definition of the statute.”[1]

Michael Conage’s appeal arose out of a conviction and subsequent mandatory minimum prison sentencing under the federal Armed Career Criminal Act (ACCA), which imposes higher sentences on repeat offenders who are convicted of gun-related crimes.[2] The trial court determined that Conage had three previous convictions of a “serious drug offense,” as defined by the ACCA. At issue was one of his convictions in violation of Fla. Stat. § 893.135(1)(b)1. (2006). Conage appealed his sentence, arguing that it was erroneous to conclude that his 2006 conviction falls within the scope of ACCA predicate offenses.

To determine whether a previous conviction meets the ACCA definition, federal courts use the “categorial approach” as mandated by the Supreme Court in Taylor v. United States, 213 L. Ed. 2d 349, 142 S. Ct. 2015, 2020 (2022). Under the categorical approach, courts look at the statutory elements of an offense, rather than the specific facts of a particular case, to determine whether a prior conviction fits within a federal predicate definition. Id.

The ACCA defines a “serious drug offense” as one “involving manufacturing, distributing, or possession with intent to manufacture or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). By contrast, under Fla. Stat. § 893.135(1), a person commits drug trafficking when he knowingly (1) “sells,” (2) “purchases,” (3) “manufactures,” (4) “delivers,” (5) “brings into this state,” or (6) is “in actual or constructive possession of” a trafficking quantity of illegal drugs. Therefore, in order for a Florida drug trafficking conviction to qualify as an ACCA predicate offense, each of the six ways of violating the Florida statute must meet the ACCA’s definition of a serious drug offense. Conage’s appeal focused on trafficking by purchase and rested on the notion that a drug purchase is complete upon payment by the defendant. The United States, however, contended that a drug purchase is not complete until a defendant has obtained the purchased drugs. Accordingly, trafficking by purchase under Fla. Stat. § 893.135(1) meets the ACCA definition of a serious drug offense if a completed drug purchase requires possession of the purchased drugs.

If it does not, the implications would be “enormous,” as highlighted by the Eleventh Circuit. Conage, 976 F.3d at 1248. It would mean that “no Florida drug trafficking conviction under § 893.135(1) can ever qualify as an ACCA predicate offense, notwithstanding that statute’s status as Florida’s most serious criminal drug statute.” Id.

The Florida Supreme Court ultimately sided with the United States, holding that for purposes of Fla. Stat. § 893.135(1), a completed purchase requires proof that the defendant both (1) gave consideration for and (2) obtained control of a trafficking quantity of illegal drugs. In reaching this conclusion, the court considered the ordinary meaning of the word “purchase,” determining that various dictionary definitions of purchase entail both giving consideration for and obtaining the good being purchased.[3] The court also looked at the word “purchase” in light of how it has previously interpreted “sale” in Milazzo v. State, 377 So. 2d 1161, 1163 (Fla. 1979). There, it stated that along with consideration, “delivery is one of the essential elements of a sale” and thus should be relevant here. The court lastly considered the statutory context of the word “purchase” and the fact that each of the five other ways of committing the crime of drug trafficking requires a degree of control over the illegal drugs being trafficked, and therefore, trafficking by purchase must as well in order to preserve the statute’s consistency.[4]

Conrad B. Kahn, the federal defender for Conage—and St. Thomas University College of Law alumnus[5]—argued zealously, raising several counterarguments, such as the analogy to an online purchaser who makes a payment for goods and then patiently awaits delivery, among others. Justice Carlos G. Mu?iz, writing the opinion, acknowledges that it was a “fair point” but “not strong enough to carry the day.” Conage made a seemingly fail-safe argument invoking the codified canon of statutory interpretation, the "rule of lenity,” which states that “when the language [of a statute] is susceptible to differing constructions, it shall be construed most favorably to the accused.” Fla. Stat. §  775.021(1) (2021). Justice Mu?iz again recognized that “at most, Conage has proposed a plausible interpretation of Fla. Stat. § 893.135(1) and fought the United States to a draw.” In a twist on this particular issue, the court stated that “the accused” referenced in the statute has to mean “a person being prosecuted for allegedly violating a criminal law of Florida” and here “that would be a generic defendant accused of trafficking by purchase, not Conage in his contest with the United States.” Furthermore, the court discussed that even if it resorted to the rule of lenity, it would in fact compel the adoption of the United States government’s interpretation of the statute (requiring consideration and control), which makes prosecution under Fla. Stat. § 893.135(1) “more difficult than Conage’s consideration-only interpretation, and so favors the accused in a prosecution to enforce the statute.”

Herein lies the irony of the outcome of this case: the court handed down a victory for the United States prosecutors in this matter but ultimately made it more difficult moving forward for Florida prosecutors to prove a crime of drug trafficking under a theory of purchase, now requiring proof that a defendant both gave consideration and obtained control of the illegal drugs.

[1] Florida Supreme Court, Oral Arguments: Thursday, September 2, 2021, YouTube (Sept. 2, 2021), https://www.youtube.com/watch?v=GqRq0ABaQwk&t=3743s.

[2] 18 U.S.C. § 924 (2022)

[3] The American Heritage Dictionary defines “purchase” as “[t]o obtain in exchange for money or its equivalent; buy.” In turn, “obtain” is defined as “[t]o succeed in gaining possession of, as the result of planning or endeavor; acquire.”

[4] Fla. Stat. § 893.135(1) identifies five other ways of committing the crime of drug trafficking: to sell, to manufacture, to deliver, to bring into the state, or to possess a trafficking quantity of illegal drugs. The opinion imparts, as a practical manner, a requisite of control onto each of these five ways.

[5] Conrad Kahn, Esq.: Federal Defender - District of Florida Middle, Conrad Kahn, Esq. | Federal Defender - District of Florida Middle, https://flm.fd.org/employees/attorneys/conrad-kahn-esq (last visited Oct 24, 2022).