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Sufficiency of Evidence – Drug Purity

7th Circuit Court of Appeals

Case Name: United States of America v. Antwain Moore

Case No.: 21-2485

Officials: Hamilton, Kirsch, and Jackson-Akiwumi, Circuit Judges.

Focus: Sufficiency of Evidence – Drug Purity

Moore was sentenced to 120 months in federal prison for multiple drug offenses. One factual foundation for the sentence was the district court’s finding that 55.6 grams of methamphetamine found in Moore’s home were 100% pure. Moore argued that a chemist’s affidavit that he submitted was “some evidence” sufficient to call the purity finding into question and that the government failed to support the finding on purity. See, e.g., United States v. Mustread, 42 F.3d 1097, 1101 (7th Cir. 1994) (if defendant produces “some evidence” that calls information in presentence report into question, government bears burden of persuasion on factual issue). Moore contends that the district court erred by placing a burden on him to perform independent testing and by assuming, without supporting evidence, that the DEA’s methods for testing purity are reliable and were applied correctly.

Because the government submitted no evidence in response, the district court erred when it accepted the government’s unsupported assertions and effectively shifted the burden of persuasion to Moore.

Vacated and Remanded

Decided 11/07/22 

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