Drug Crimes

Case law Update: United States v. Barnes, et al (5th Circuit Court of Appeals - 2016)

Defendants Martel Barnes, Randale Jones, and Kentorre Hall were each charged with (1) conspiracy to possess illegal drugs, (2) maintaining a drug-involved premises, (3) conspiracy to possess firearms in furtherance of drug crimes, and (4) possession of a firearm in furtherance of a drug-trafficking crime for their involvement. In 2012, law enforcement grew suspicious of the group when investigating a triple murder where circumstantial evidence linked the Defendants to a network of drug trafficking in Mississippi, based out of a home rented by Hall. After interviewing witnesses and corroborating stories of informants, the Mississippi Bureau of Narcotics executed a search warrant on the home which netted firearms, digital scales, and plastic baggies. Law enforcement linked the drug trafficking to the triple murder by analyzing shell casings from the murder scene and comparing them with casings found during the search. In addition to the murders and the drug distribution ring, the men were eventually linked to a string of armed robberies.

At trial, the Government called thirty-four witnesses in total. After hearing testimony for over a week, the jury found the Defendants guilty on all counts, and they were each sentenced to life in prison, followed by five years of supervised release. The Defendants appealed to the Fifth Circuit Court of Appeals, arguing insufficient evidence for each charge in the indictment. The Fifth Circuit had to determine whether a reasonable jury would have found that the evidence established the guilt of the Defendant(s) beyond a reasonable doubt. Below, we examine each charge and discuss the Court’s analysis of conclusions reached on appeal.

Charge #1: Conspiracy to Possess Illegal Drugs

Each Defendant was charged with conspiracy to possess illegal drugs, a violation of 21 U.S.C. §§ 841(a)(1) and 846. Under the law, it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; any person who attempts or conspires to commit any offense [herein] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

On appeal to the Fifth Circuit, the Defendants argued that the witnesses used by the Government at trial lacked credibility. The Defendants argued that the witnesses were criminals with their own convictions and that their testimonies should not have been used at trial. Here, the Fifth Circuit stated, “this argument holds no weight given the quantity and consistency of the evidence presented at trial.” Moreover, held the Court, “credibility issues are for the finder of fact and do not undermine the sufficiency of the evidence.” United States v. Morgan, 117 F.3d 849, 854 n.2 (5th Cir. 1997). The Court affirmed the district court’s holding regarding the conviction for this charge.

Charge #2: Maintaining a Drug-Involved Premises

Second, each Defendant was charged with maintaining a drug-involved premises pursuant to 21 U.S.C. § 856(a) and 18 U.S.C. § 2. Under this section of the code, it is unlawful to knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance; whoever commits an offense…or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal. “In determining whether a person maintained a drug-involved premises under Section 856, the Court typically considers whether a Defendant (1) has an ownership or leasehold interest in the premises; (2) was in charge of the premises; or (3) exercised supervisory control over the premises.” United States v. Soto-Silva, 129 F.3d 340, 346 (5th Cir. 1997). Surprisingly, the Fifth Circuit declined to resolve this issue, as the Defendants were “subject to criminal liability for aiding and abetting” Hall, who rented the house where the criminal activity had taken place.

To prove up aiding and abetting, the Government had to have established that (1) the elements of the substantive offense occurred and (2) the Defendant(s) associated with the criminal activity, participated, and acted to help it succeed. United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th Cir. 1997).

Here, said the Fifth Circuit, the Government sufficiently proved up that Hall rented the home where the criminal activities were taking place, and that the other Defendants helped him in furtherance of the crimes. The Defendants spent hours a day at the home where the drugs were measured and sorted, “we conclude that a reasonable jury could find that [the Defendants] were guilty of the charged offenses.”

The Defendants also appealed that the word “place” in the statute was ambiguous and therefore, should not have been applied to include their cars and the area surrounding their cars, where more incriminating evidence supporting this charge was eventually seized. The Fifth Circuit stated that according to the Oxford Dictionary, “the definition of ‘place’ is not limited to buildings or structures…[although] the term ‘premises’ is commonly defined as a house or building.” The Fifth Circuit held that the district court did not error when instructing the jury that “place” could mean “house” or the “yard area” [where cars are parked] around a house.

Charges #3 and #4: Conspiracy to Possess and Possession of Firearms in Furtherance of Drug Crimes

Third, each Defendant was charged with conspiracy to possess firearms in furtherance of drug crimes and possession of firearms in furtherance of drug crimes, violations of 18 U.S.C. § 924(o) and 2. At trial, the Government presented extensive circumstantial evidence linking all the Defendants with the triple murder. Some of the evidence included Facebook and text messages with incriminating statements. On appeal, the Defendants argued that the social media and text messaging evidence was irrelevant to prove their involvement with the alleged crimes, and that it was to have been considered improper character evidence. The Fifth Circuit held that “the evidence of the Smith Triple Murder was directly relevant to the conspiracy charges because it showed that the [Defendants] were willing to use firearms in furtherance of their drug trafficking activities.”

The Fifth Circuit affirmed the Defendant-Appellants’ convictions.

Between the Driver and Two Passengers, who is in Possession of the Drugs Found in the Middle Compartment in Plain View?

The Court of Criminal Appeals recently handed down an opinion dealing with legal sufficiency of evidence in the context of possession of a controlled substance when it was not found in the exclusive possession of the defendant. The issue facing the Court was whether Appellant Tate intentionally or knowingly possessed methamphetamine by exercising “control, management or care” of the methamphetamine and he knew it was methamphetamine. Tex. Penal Code §1.07(a)(39). The Court found that a rational jury could infer that the owner and driver of a vehicle possessed the controlled substance found in the vehicle in plain view even when there were two other passengers.

Tate v. State (Tex. Crim. App. 2016)

The Facts—Trial Court Found Sufficient Evidence

Tate was pulled over by Detective Beckham due to his outstanding warrants. When pulled over Tate had two passengers. Tate explained that he owned the vehicle but did not have any proof of ownership. Tate was arrested after officers confirmed his outstanding warrants. The police searched Tate, the two passengers, and their belongings, but did not find any weapons or contraband. During Officer Beckham’s inventory search of the vehicle, he found a syringe loaded with a substance later identified as .24 grams of methamphetamine. He found the syringe in "plain view" in a compartment underneath the air conditioner and heating controls.

Tate, the owner of the vehicle, was charged with possession of a controlled substance. At trial, Officer Beckham described the compartment as “directly to the right” of Tate, accessible to Tate and the front-seat passenger but not the backseat passenger. He also testified that even though he couldn’t tell exactly what the front-seat passenger was doing, he observed her moving a lot but never towards the compartment. Tate argued that one of the passengers put the syringe there when Tate was talking to Beckham at the rear of the vehicle. The trial court found Tate guilty, relying on Tate’s “self-purported” ownership of the vehicle and his proximity to the syringe.

The Court of Appeals Reversed the Trial Court’s Decision

The Court of Appeals held that there was “insufficient evidence to prove that Tate had intentionally and knowingly possessed methamphetamine.” The court rejected the proximity argument made by the trial court for two reasons:

1. There was insufficient evidence to show the syringe was in the car before Tate got out.
2. Officer Beckham observed the front-seat passenger moving a lot but couldn’t tell exactly what she was doing.

Additionally, the court said that since Tate’s ownership could not be proven it was insufficient evidence to prove possession.

The Court of Criminal Appeals Reverses the Court of Appeals—Holding Defendant’s Ownership and Control of Vehicle Where Controlled Substance was Found in Plain View and Within Defendant’s Reach is Sufficient Evidence to Convict for Possession of a Controlled Substance

The CCA held that a rational jury, with these facts, could reasonably infer that the syringe was in the car the entire time. In coming to that decision the Court relied on the fact that the jury believed Beckham’s testimony that he never saw her reach for the compartment, that the back-seat passenger could not reach it, Tate said he owned the vehicle, and that the syringe was found in plain view. Therefore, a rational jury could infer that Tate would be aware of items in his vehicle in plain view, thus find he intentionally or knowingly possessed the methamphetamine in the syringe.

In making this decision the Court relied on the Jackson standard: “Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The Court found that the court of appeals incorrectly applied this standard. The Court pointed to a few links that the jury could reasonably rely on to find Tate guilty, which include:

1. the contraband was found in the vehicle that Tate owned and was driving;
2. the contraband was in plain view and conveniently accessible to Tate; and
3. the jury could reasonably believe Beckham’s testimony that the front-seat passenger did not reach over to the compartment and that the back-seat passenger could not reach the compartment.

Thus, when the standard is applied here a rational jury could find the evidence sufficient to find Tate intentionally or knowingly possessed the methamphetamine beyond a reasonable doubt.

Decision of the Criminal Court of Appeals—Evidence is Legally Sufficient Where a Rational Jury Could Infer Guild Beyond a Reasonable Doubt

The CCA found that the evidence at trial was sufficient for the jury to reasonably find Tate guilty beyond a reasonable doubt and that the court of appeals overstepped its bounds in assessing the legal-sufficiency of the evidence.

Synthetic Cannabinoids became popular in the 2000's when they were first marketed as "legal herbs." In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000's, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?

 

United States v Malone (5th Circuit Court of Appeals - 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

The Fugitive, The Doctrine of Chances, and The Texas Rules of Evidence Collide: CCA Reviews a “Movie Plot” Defense Strategy

Dabney v. State (Tex. Crim. App. 2016)

Have you ever seen a movie like The Fugitive or Double Jeopardy where the main character finds himself in suspicious circumstances, only to be arrested and convicted, with the rest of the movie focused on proving the main character’s innocence? The defense counsel in Dabney v. State used this sort of analogy as the theme of his case to the jury—that the defendant was trapped in a bad movie plot and wasn’t actually guilty of any crime.

A Mystery Meth Lab Was Constructed at the Defendant's Home

Defense counsel made a memorable opening statement at Ronnie Dabney’s trial. Dabney had been arrested and charged with manufacturing meth. Defense counsel told the jury that the evidence would show that the meth lab found on Dabney’s property was set up by others, without his knowledge, and that Dabney arrived home mere moments before law enforcement arrived to discover the lab. Defense counsel offered a movie-plot defense theory, “Have you ever seen a movie like The Fugitive or Double Jeopardy where a person is found in suspicious circumstances and [they] arrest and convict them?” The defense added, “Ronnie Dabney has been living this movie where he’s innocent, found in suspicious circumstances, and he’s trying to prove himself not guilty.”

In response to the movie-plot defense theory, the State filed a brief arguing that it should be permitted to present evidence of a previous incident years ago, in which Dabney was present when a search warrant was executed on his property and an active meth lab was found. The State argued that the opening statements about the movie-plot amounted to a defensive theory, where evidence or mistake is at issue, worthy of a rebuttal argument supported by rebuttal evidence allowed under Rule 404(b) of the Texas Rules of Evidence.

Before trial, Dabney submitted a request for “notice” of the State’s intent to use evidence of past “extraneous” offenses under the Texas Rules of Evidence 404(b). The state failed to give proper notice of any 404(b) allegations. However, after hearing the defense opening statement, the State argued that the similarities between the case at bar and a previous case “rebutted [Dabney’s] defensive theory of accident or mistake” and requested permission to use the previous incident as 404(b) evidence to show the absence of mistake. The judge concluded the evidence of the previous crime was admissible. During closing remarks, the State averred, “[Dabney is] the unluckiest man in the world…[he] wants you to think [he] is Harrison Ford from the Fugitive…[with] a confluence of unfortunate events that frame him…but…common sense says it’s not an accident if it has happened twice…it’s the Doctrine of Chances.” Ronnie Dabney was found guilty of manufacturing meth and the jury sentenced him to 30 years imprisonment.

Dabney appealed to the Second Court of Appeals arguing the State failed to give proper notice of intent to use evidence of Dabney’s past crimes in its rebuttal argument under Texas evidentiary rules. The Fort Worth Court of Appeals reversed the trial court’s judgment, holding that the evidence of Dabney’s past crimes was inadmissible without proper notice from the State. Dabney v. State, No. 02-12-00530-CR, 2014 Tex. App. LEXIS 11496 (Tex. App.—Fort Worth, Oct. 16, 2014) (mem.op., not designated for publication). The State petitioned the Court of Criminal Appeals for review, arguing that notice is not required for rebuttal evidence because defensive theories cannot be predicted ahead of time. Dabney asserts that the State has a duty to anticipate all defensive issues that may come up in rebuttal.

The Court of Criminal Appeals considered the following issues (among others not discussed in this article):

(1) Did the court of appeals incorrectly add a “notice requirement” for rebuttal evidence?
(2) Did the court of appeals improperly ignore the overwhelming evidence of Dabney’s guilt?

Texas Evidentiary Rules Regarding Other Crimes, Wrongs, or Acts

Rule 404(b) of the Texas Rules of Evidence states

evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity [of the crime being prosecuted].” “However, [such evidence] may be admissible for other purposes, such as…intent, preparation…knowledge…absence of mistake or accident, provided that upon timely request by the [defendant], reasonable notice is given in advance of trial of intent to introduce in the State’s case.

A defense opening statement can open the door for the admission of extraneous-offense evidence to rebut the defensive theory presented in opening statements. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008).

The Doctrine of Chances tells [the court] that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” LaPaz v. State, 279 S.W. 3d 336, 347 (Tex. Crim. App. 2009).

Rule 404(b) is a rule of inclusion, rather than of exclusions—it excludes only evidence that is offered solely for the purpose of proving bad character and conduct in conformity with that bad character. Id. at 343.

The CCA Holds that the Court of Appeals Improperly Added a Notice Requirement for Rebuttal Evidence

Here, the CCA reversed the decision of the court of appeals, holding that the court of appeals improperly added a notice requirement for rebuttal evidence and ignored the overwhelming evidence pointing to Dabney’s guilt. Because of the exception to the notice requirement when the defense opens the door to rebuttal evidence by presenting a defensive theory that the State may rebut using extraneous-offense evidence, the evidence of the prior crime was proper at trial, even without notice to defense beforehand. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of any trial, any and all potential defenses that a defendant may raise.” Also, there was no evidence that the prosecution acted in bad faith, or attempted to willfully avoid a discovery order. “Under the Doctrine of Chances, [Dabney’s] defense that he found himself in an unfortunate, highly unlikely situation becomes less credible when presented with evidence that he has been found in the exact same situation before.”

In sum, [Dabney] presented his defensive theory in opening statements and the State could use extraneous-offense evidence to rebut this theory in its case-in-chief, instead of waiting until the defense rested. Bass at 563. Defendants who are planning to use the “movie plot” defensive theory in the future, must be prepared to have the theory tested in front of a jury with 404(b) rebuttal evidence of other crimes, wrongs, or acts.

Brian Cuban: The Addicted Lawyer

Be it alcohol, drugs, or something else, many of our clients struggle with addiction.  We work everyday to counsel them and help them get plugged into the right places that assist in recovery.  But we sometimes forget that addiction issues aren't limited to our clients.  Many of our friends and colleagues in the legal community struggle with addiction.  Overworked and overstressed, many lawyers turn to alcohol or drugs as an escape.

Recently, a friend of mine connected me with Brian Cuban. For those of you who don't know of Brian Cuban, he is a lawyer, speaker, and activist, and the brother of Mark Cuban (the owner of the Dallas Mavericks).  Brian has been fighting (and winning) his battle against addiction since 2007.  He is also a writer with a new book coming out soon - The Addicted Lawyer.  I asked Brian if he would write a guest blog post about addiction.  The story below is from Brian.  Our hope is that this story will help to remind us to remember to help our colleagues in times of need and be on the lookout for the warning signs of addiction.

Gary Was a Lawyer, A Friend, An Addict

I drove past the same bus-stop every day. To the average person on his/her way to their next “stop” of the day, in life, nothing to set it off from any other.

That morning, I saw one such story I was intimately familiar with. There was Gary waiting for the bus. A lawyer. Undergraduate of Boston College Summa Cum Laude. Near the top of his class at Antioch School of Law. On to a great job with NBC. On to the NYC nightlife and the genetic pull of a family line ripe with alcohol use. Gary was an alcoholic and drug addict long before that bus stop. An addict trying to keep the shreds of his life and legal career together.

I had met Gary years before when we both worked of-counsel to a local Dallas firm. I was trying to hold my life together between addiction and an eating disorder. High functioning was a blessing and a curse. I needed no help. I showed up to court sober. I only did cocaine in the bathroom of the firm when I had no appointments. The pick up I needed after all night cocaine and alcohol benders. It all made perfect sense to me. In my mind, I was not an addict.

I had actually tried my last case with Gary. A bench trial contract matter. He ran the show. He was sober and brilliant. I didn’t want that show. I hated the practice of law. I was not afraid of a courtroom but I was sickened by them. A reminder of how much I hated my life and the career I had chosen for all the wrong reasons. We had a good result. Then Gary disappeared as he had sporadically done over the years since I first met him. I knew what that meant. We all knew. Periods of sobriety and stellar representation of his clients, periods of complaints of neglect and even showing up to client meetings apparently high.

Gary does not see me drive by him at the bus stop. He is looking at the ground. Waiting. My calls to him were never heard as his voicemail was full. I knew what that meant. Most addicts and their families know what that means. I went further down the road and turned around so I could drive up along side him. He got in. He had been to a 12-step meeting and was headed down to the Dallas 24-Hour club where he was a resident. He asked if I knew he had been disbarred. I had seen it in the local legal periodical. As what often happens with lawyers and addiction, clients money never made it to the client. State Bars take a dim view of stealing from clients and addiction is not an excuse. A common story. A common explanation from Gary. It was all a mistake. He had lost everything and was still in denial. I thought back to what my shrink had said to me April 8th 2007, the day I began my sobriety journey. "Brian, you have a law degree but you’re not a lawyer, you’re an addict."

I drove Gary down to the 24 Hour Club. I bought him lunch. A familiar request for money until “he got back on his feet.” It became our routine. The bus stop. The drive. The excuses. The helplessness. Then he was gone again. The full voicemail. No longer at the transitional living home. He had tested dirty.

August 2013. My cell phone rings. A 516 area code. Long Island. Where some of Gary’s family lived. He had moved back home much as I had moved to Dallas to be with my brothers after finishing Pitt Law deep in alcohol use disorders. My family would save me. If recovery was only that simple. A quick conversation. He said he was sober and working as an attorney. He was also licensed in New York. I hid my annoyance at the fact that he had just been disbarred and yet was right back participating in another jurisdiction that may not know about his past. Was I ethically bound to say something? I struggled with the conflict between my view as a lawyer and as a recovering addict. It was not my recovery. It was his.

The day is finally here! My first book, “Shattered Image” is going to be released. Looking forward to the release party! A Facebook message from Gary. I had not heard from him in a while. The message was cheerful. A photo of a plane ticket to come to Dallas for my book signing. It would be the last time I would hear from Gary.

The message came from his ex-wife. The google explosion of his name told the story.

“Gary Abrams , 54 Fatally Struck By Truck Tractor Trailer” walking along a highway.

It is unknown whether he had been drinking but it does not matter. He is gone. He never “got it” in recovery. It’s not that he didn’t want it. He tried. I miss him and wish he had gotten it. Gary was a lawyer, a friend, a husband, a sibling, an alcoholic. an addict. In his passing, he also helped me. I know my recovery is only as good as today. Thank you Gary.

***************************

Brian Cuban: An authority on body dysmorphic disorder, male eating disorders and addiction(including steroids), Brian Cuban is the author of the best-selling book, Shattered Image: My Triumph Over Body Dysmorphic Disorder. It chronicles his first-hand experiences living with, and recovering from, twenty-seven years of eating disorders, alcoholism, drug addiction and Body Dysmorphic Disorder (BDD).

www.briancuban.com