THE TRUTH ABOUT LOOPHOLES

I've been told, more than once, that what we've uncovered in the government's approach to prosecuting drug law violations is a "loophole." Let me be clear: it is not a loophole.

What we've discovered is that the government has been incarcerating people for alleged drug law violations without ever proving or even alleging that the accused knew they were dealing with an illegal substance. People assume this is a loophole because it stems from what appears to be a grammatical error in the language of the indictment.

But this is no mistake. And this is no loophole.

What is a loophole?

A loophole is generally seen as an unintended error or gap in the law that someone exploits to their benefit. Those who dismiss this discovery as a loophole are implying that incarcerated individuals are exploiting an unintentional oversight by the government. But the truth is far more insidious: the so-called "error" is not an error at all. It is deliberate.

Here is what we're talking about. Federal drug conspiracy indictments often read something like this:

          the defendant "did conspire and agree to unlawfully, knowingly and intentionally distribute a mixture or substance containing a detectable amount of a controlled substance."

At first glance, this language might seem appropriate. But pay attention to the placement of "knowingly." It appears in the future tense describing the intention to distribute a controlled substance. What it does not do is allege that the defendant knew the substance was illegal at the time of the offense, because one can not know something before it happens.

This is not just bad grammar; it's a fundamental failure to accuse someone of a crime. Why? Because under U.S. law, distributing a controlled substance is not a crime unless the defendant knew the substance was illegal.

This is a scheme, not a mistake. Even if this were a loophole, defendants would have every right to challenge their convictions based on it. But this isn't an innocent oversight, it's a calculated manipulation of language.

The government has chosen to draft indictments in this way because it allows them to sidestep a crucial element of the crime: proving the defendant's knowledge. By placing "knowingly" in the future tense, they avoid directly accusing someone of knowingly committing a crime. This is not a small technicality; it's a violation of due process and the rule of law.

Why would they do this? To answer that fully would require diving into a complex discussion of politics, systematic racism, and the history of drug law enforcement in the United States. What I will do is give you a simple example of why the government would want to disregard their duty: At a jury trial, the government will present expert witness testimony. Let's say that the criminal investigation recovered drugs that was found to be cocaine. At trial, the government will ask the expert chemist who preformed the test on the substance, how they came to know the substance was in fact cocaine? The chemist would testify to how many years of schooling and training he/she had. The chemist would also detail the tests preformed on the substance. But this kind of testimony cuts both ways in a trial - because most defendants are not trained chemist and there is likely no evidence to prove that the defendant tested the substance. In short, the government would be, at best, left with only circumstantial evidence to prove a person's knowledge while having to deal with the fact that the only way a trained chemist came to know the substance was cocaine was throught testing. The government is lazy and their court battle would be all the more difficult if they had to prove that the defendant knew what the substance was.

But one thing is clear: the government knew exactly what they were doing.

If you're skeptical, consider this: jury instructions for drug conspiracy charges, even before the 2015 Supreme Court decision in McFadden v. United States, explicitly stated that the government must prove the defendant knew they were dealing with an illegal substance. This requirement was codified in the 2013, 6th edition of the Jury Instructions Manual for the 4th Circuit.

This means the government knew, as far back as 2013 and likely long before that knowledge of the substance's illegality is a critical element of a drug offense. Despite this, they continued to draft indictments and craft cases that bypass this requirement.

Let's be clear: the government's actions in these drug cases are not just unfair or unethical they are criminal. Drafting indictments that fail to allege a complete offense, while incarcerating individuals based on those indictments, is a violation of basic legal principles. It's not just a scheme; it's kidnapping.

The government has taken the liberty of thousands of people your friends, your family, your fellow citizens without the force of law. They have abused the public's trust, relying on ignorance and apathy to perpetuate their actions.

This is not a time for passive acceptance. The truth is in the public record. Indictments and jury instructions that prove the government has been acting outside the bounds of the law. They think we're too ignorant, too lazy, or too complacent to care.

But we must prove them wrong. We must demand accountability. We must demand justice. Because when the government incarcerates people without charging them with a crime, it undermines the very foundation of democracy.

This is not a loophole. This is a violation of human rights. And we will not stand for it.