UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARY PATRICIA CURETON, ROBERT SCOTT SHEPPARD, and TONY G. PETREY, Defendants-Appellants.
Information “that there was a lot of activity” at an abandoned Whitley County (Kentucky) trailer led to the uncovering of a multi-defendant, interstate, drug-trafficking conspiracy and to the convictions of defendants Mary Cureton, Robert Sheppard, and Tony Petrey. On appeal, the three defendants raise challenges to the reasonableness of the prison sentences imposed upon them. Additionally, Cureton argues that the prosecution failed to adduce sufficient evidence to support her conviction for conspiracy to distribute methamphetamine, that the district court erred in certain evidentiary determinations, that the district court gave an unnecessary jury instruction, and that the cumulative effect of the alleged errors deprived her of due process of law. We find no reversible error and affirm the judgments against all three defendants.
On February 19, 2014, Sergeant Tony Dingess of the Kentucky State Police received information regarding activity at an abandoned trailer that law enforcement officials associated with numerous drug-related incidents, despite the fact that the trailer had neither running water nor working electricity. Dingess, other officers, and Wayne Bird, the chief of the Williamsburg Police Department, knocked on the door of the trailer and asked Tony Petrey, the person who answered the knock, whether they “could step in and speak with him.” After Petrey allowed the officers to enter, he admitted that his girlfriend, Mary Cureton, was in the back bedroom of the trailer and that he had drugs in one of his shirt pockets.
During the subsequent search of Petrey's person and of the trailer, the police recovered five Xanax pills, a bag of crystal methamphetamine, three rocks of black tar heroin, a separate baggie of black tar heroin, digital scales, four Suboxone strips, and $2,416 in cash. As a result, Petrey was placed under arrest, and Cureton also was taken to the police station where she was arrested after a warrant check indicated that she was wanted on an outstanding failure-to-appear warrant. After arresting Cureton, a deputy jailer searched her belongings and found in her purse a baggie containing a crystalline substance that later tested positive for high-quality methamphetamine.
At the police station, both Cureton and Petrey indicated a willingness to speak with law enforcement officials. In her initial statement on February 20, 2014, Cureton explained to Trooper Les Moses of the Kentucky State Police that, prior to meeting Petrey, she had not used methamphetamine for seven or eight years. Approximately two weeks after meeting Petrey, however, she relapsed into her methamphetamine habit and even began using heroin in the last week before her arrest. She nevertheless was adamant that, during the six weeks or so that she and Petrey were together, Petrey never sold any illegal drugs in her presence nor was she aware of how Petrey came into possession of the narcotics found on his person and in the trailer.
Four days later, on February 24, 2014, Cureton's attorney approached Moses and Dingess and stated that his client wished to speak again with the law enforcement officers. In a second recorded interview, Cureton changed many aspects of her prior statement, leading Dingess to conclude that she had “much detailed knowledge about the inner workings of Tony Petrey's operation.” Specifically, she detailed how Petrey obtained the drugs that he then sold to other individuals. According to Cureton, she would accompany Petrey to Walmart stores where Petrey would purchase MoneyGrams in $1000 amounts. Even though Cureton had in her possession a receipt for such a purchase on February 11, 2014, she denied that she ever sent the MoneyGrams herself. Instead, she said, Petrey would wire the money to a California resident that Cureton knew only as “Quick.” Upon receipt of the MoneyGram, Quick then would mail Petrey a package containing methamphetamine that Petrey would sell to various buyers in Kentucky.
Contrary to her earlier statement to Trooper Moses, Cureton also admitted during the second taped conversation that she indeed had seen Petrey selling methamphetamine on occasion. Furthermore, at Petrey's request, Cureton once waited at an address for delivery of Quick's package. However, before the mail delivery occurred, Petrey returned from an errand he had been running, relieving Cureton of the responsibility of retrieving the package from the designated mailbox.
Cureton offered that Petrey received shipments of methamphetamine from Quick once a week, but that in the week prior to being arrested, Petrey had wired extra money to Quick in order to receive a shipment of heroin from California in addition to the usual methamphetamine delivery. Petrey intended to continue receiving both drugs from Quick but needed more cash to pay for the shipments. Consequently, Cureton loaned Petrey $180 to help pay for the MoneyGram to cover the increased cost of the drug purchase.
For his part, Petrey provided substantial assistance in obtaining evidence against defendant Larry Gutierrez, the person also known as Quick. After agreeing to cooperate with authorities, Petrey made several recorded phone calls to Gutierrez in California arranging a shipment through the U.S. mail of methamphetamine from California to Kentucky. The shipment then was intercepted by the postal service and determined to contain somewhat less than 30 grams of methamphetamine.
Additionally, Petrey provided evidence of Cureton's involvement in the drug-trafficking conspiracy, even though he testified at Cureton's trial that he “never considered Mary to be a part of the organization or to have a part in the drug crime.” He explained that he met Gutierrez when the two men were serving time in prison. Once released from custody, Petrey contacted Gutierrez and would wire him money in exchange for packages of drugs sent in priority mail packages. Cureton went with Petrey “[e]very time” he picked up the packages from Gutierrez, knowing full well what the packages contained. Indeed, according to Petrey, Cureton “was with [him] the whole time, whenever [he] dropped off dope or picked up money.” Moreover, he alleged, she loaned him money to purchase drugs, helped him count bags of methamphetamine that he had repackaged for sale, oftentimes to David Powers and Jessie Mays, and she herself once sold a bag of methamphetamine to one of her friends for $50.
[H]e had been staying at the residence with Mr. Sheppard and another female. He advised that that night he and Sheppard were there by their selves [sic], that they did hear someone in the woods.
Johnny Hill stated that when he was on his return to the residence, he said that he could see Mr. Sheppard on the front porch. He said Sheppard then turned and fired in his direction striking him.
As a result of the information obtained by the various law enforcement agencies, the federal grand jury charged Cureton, Sheppard, and Petrey, as well as Gutierrez, Powers, and Mays, in various counts of a six-count indictment. Sheppard pleaded guilty to two counts of being a felon in possession of a firearm—one count involving the shooting of Johnny Hill and the other involving his constructive possession of the firearms found in David Powers's home—and was sentenced to an effective prison term of 162 months, to run consecutively to any incarceration imposed in the related state prosecution. Petrey also pleaded guilty to two counts of the indictment—one charging him with conspiracy to distribute methamphetamine and one charging him aiding and abetting the use of the U.S. mail to commit a felony. The district court imposed upon Petrey an effective sentence of 200 months in prison, again to be served consecutively to any state sentence imposed in connection with the same activities.
Cureton, however, chose to go to trial on the charge against her. Although the jury in her initial trial could not reach a verdict, a new jury in the retrial found Cureton guilty of conspiring to distribute methamphetamine. Then, at sentencing, the district court imposed upon her a 90-month prison sentence to run consecutively to any sentence imposed by the state court in conjunction with the same illegal activity.
The convictions and sentences of co-conspirators Gutierrez, Powers, and Mays are not before this panel. Cureton, Sheppard, and Petrey, however, appeal various aspects of their convictions and/or sentences. We examine each allegation of error in turn.
In her first appellate issue, defendant Cureton argues that the prosecution failed to adduce sufficient evidence to establish her guilt of the charged conspiracy beyond a reasonable doubt. When challenging the legal sufficiency of the evidence to support a guilty verdict, a defendant bears a “heavy burden.” United States v. Pritchett, 749 F.3d 417, 431 (6th Cir.), cert. denied, 135 S. Ct. 196 (2014) (citation omitted). In fact, when reviewing such a challenge, we ask simply “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Moreover, when engaged in such a review, “[w]e do not insert our own findings of fact; rather we give full credit to the responsibility of the jury to weigh the evidence, to make credibility determinations, and to draw inferences.” United States v. Washington, 715 F.3d 975, 979 (6th Cir. 2013) (citing Jackson, 443 U.S. at 319).
In order to prove a drug conspiracy, the prosecution must show “(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.” United States v. Caver, 470 F.3d 220, 232 (6th Cir. 2006) (internal quotation marks and citations omitted). The agreement, however, need not be formal or express, and the “evidence linking an individual defendant to that conspiracy need only be slight.” Id. at 233.
In advancing her argument on this issue, Cureton seeks to highlight snippets of trial testimony that downplay her role in any drug-trafficking operation. For instance, she contends that Petrey did not consider her to be a part of his criminal organization, that the police initially did not identify her as a drug trafficker, that her name did not appear on any of the MoneyGram receipts, and that the police possessed no audio or video evidence of her participation in any of Petrey's drug sales to other individuals. In short, she submits that the government established only her mere association with Petrey, proof that we have held to be insufficient to support a conspiracy conviction absent other evidence of participation in the alleged wrongdoing. See United States v. Copeland, 321 F.3d 582, 600 (6th Cir. 2003).
Cureton's argument in this regard fails to take into account countervailing testimony that was credited by the jury. For example, Petrey testified at trial that Cureton had accompanied him on drug sales and on trips to purchase MoneyGrams to secure the delivery of additional drugs, with full knowledge of the purpose of those activities. She also agreed to watch for delivery of a drug shipment while Petrey was running another errand and even loaned Petrey $180 to cover a shortfall in the purchase price for methamphetamine and heroin from Gutierrez. Furthermore, Petrey claimed that Cureton helped him count bags of methamphetamine for sale and actually sold one such bag to a friend of hers.
“Testimony by co-conspirators alone can be sufficient to prove the existence of a conspiracy.” Id. However, in this case, tape-recorded statements heard by the jury included Cureton's own admissions that she knew what the money wired to Gutierrez was meant to purchase, that methamphetamine and heroin were delivered through the mail to Petrey, that she observed Petrey making drug sales to other individuals, and that she loaned Petrey money to purchase more illegal drugs. This combination of Petrey's testimony and Cureton's own admissions on tape is more than sufficient to establish Cureton's knowledge of, and agreement to participate in, the drug-trafficking conspiracy. The challenge to the sufficiency of the convicting evidence thus is without merit.
During the course of Cureton's trial, the jurors heard testimony both that Cureton began using heroin in the week or so before her arrest and that Petrey began receiving and selling heroin, along with methamphetamine, in that same timeframe. Because Cureton was not charged with any heroin-related offense, she now claims that the introduction of such testimony at trial was both prejudicial and tantamount to an improper reference to other crimes, in violation of the proscriptions of Federal Rule of Evidence 404(b).
We generally review a district court's evidentiary rulings for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); United States v. Olive, 804 F.3d 747, 754 (6th Cir. 2015), cert. denied, 136 S. Ct. 2511 (2016). “[R]eversal is appropriate only if the abuse of discretion was not harmless error, that is, only if the erroneous evidentiary ruling affected the outcome of the trial.” United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011) (quotation marks and alterations omitted). Cureton has failed to convince us that any such error occurred in this regard.
Cureton correctly notes that Rule 404(b)(1) explicitly prohibits the introduction of evidence of a crime, wrong, or other act if that evidence seeks “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Before evidence of such other crimes, wrongs, or bad acts may be introduced, a district court must assure itself that the other act did, in fact, occur; that the challenged evidence is being offered for a proper purpose, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident”; and that the probative value of the evidence is not outweighed by it prejudicial effect. See Fed. R. Evid. 404(b)(2); Olive, 804 F.3d at 754.
Here, the district court did not engage in the multi-step Rule 404(b) analysis. Instead, the district court determined that the references to Petrey's purchase and sale of heroin and to Cureton's use of that scheduled drug were admissible as res gestae or as intrinsic or background evidence. “Res gestae” or “intrinsic acts” “are those that are inextricably intertwined with the criminal act charged or a part of the criminal activity as opposed to extrinsic acts, which are those that occurred at different times and under different circumstances from the offense charged.” United States v. Churn, 800 F.3d 768, 779 (6th Cir. 2015) (citation omitted). Clearly, Petrey's purchase and sale of heroin and Cureton's experimentation with the drug are facts that “ar[ose] from the same events as the charged offense.” Id. (citation omitted). The testimonial references to such acts merely completed the story of the offenses charged in the indictment and were not calculated to prejudice Cureton by raising the specter of her guilt of other crimes.
Absent extraordinary situations, “we adhere to the crucial assumption underlying our constitutional system of trial by jury that jurors carefully follow instructions.” Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985); see also United States v. Lawrence, 735 F.3d 385, 403 (6th Cir. 2013), cert. denied, 135 S. Ct. 753 (2014). Cureton has failed to offer any evidence that would rebut that presumption. Consequently, we conclude that the district court did not abuse its discretion in terming testimony concerning Cureton and Petrey's heroin use and trafficking res gestae and allowing mention of those facts when relating the circumstances surrounding Cureton's arrest and the investigation into her complicity in the conspiracy to distribute methamphetamine.
Cureton next submits that the district court erred in offering, sua sponte, a jury instruction that was not contained in the Sixth Circuit Pattern Jury Instructions, and by refusing to give another instruction specially requested by the defense. Neither allegation of error has merit.
We know from the fact of her own statements, which have been corroborated by the evidence – no MoneyGrams, no evidence of drug sales, no discussion of her statements to the police – that when Tony Petrey tried to get her to do these things, she refused to do so. Ladies and gentlemen, that's evidence of a lack of an agreement, not evidence of an agreement.
And ordinarily, had you not attempted to argue and confuse the jury that [proof of an overt act] was required, I wouldn't necessarily be giving it. But I think that's been attempted in the case, and I think to avoid any jury confusion, it is necessary under the circumstances, although not included in the pattern instruction.
“A district court enjoys broad discretion ‘in crafting jury instructions and does not abuse its discretion unless the jury charge fails accurately to reflect the law.’ ” United States v. Maslenjak, 821 F.3d 675, 681 (6th Cir. 2016), petition for cert. filed (U.S. Sept. 8, 2016) (No. 16-309) (quoting United States v. Ross, 502 F.3d 521, 527 (6th Cir. 2007). Consequently, “[a]n improper jury instruction requires reversal only where the instructions, when viewed as a whole, are found to be confusing, misleading, or prejudicial.” Id. at 681-82 (internal quotation marks and citation omitted).
The jury instruction given by the district court in this case unquestionably is an accurate statement of the law. Indeed, the United States Supreme Court has made clear that “21 U.S.C. § 846, the drug conspiracy statute, [does not] require[ ] the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy.” United States v. Shabani, 513 U.S. 10, 11 (1994). Nor was the clearly worded instruction given by the district court confusing or misleading. In any event, the evidence before the jury clearly indicated that Cureton did indeed take overt steps in furtherance of the conspiracy. Even though she did not physically retrieve the packages of drugs shipped through the mail to Petrey by Gutierrez, she did keep watch for such deliveries, she did accompany Petrey when he purchased the MoneyGrams and sold the illegal drugs, and she did provide Petrey with money to purchase additional drugs for resale. Under these circumstances, the additional jury instruction given by the district court cannot be deemed either confusing, misleading, or prejudicial.
Cureton contends, however, that the mere offering of the overt-act instruction “create[d] an appearance of judicial bias towards the prosecution.” Cureton's Br. at 36. To support that assertion, she cites our decision in United States v. Slone, 833 F.2d 595 (6th Cir. 1987), for the proposition that a trial judge must “always be calmly judicial, dispassionate and impartial. He should sedulously avoid all appearances of advocacy as to those questions which are ultimately to be submitted to the jury.” Id. at 597 (internal quotation marks and citations omitted).
In Slone, however, the trial judge “interjected himself into the record and took over the examination of witnesses” before the jury. Id. at 598. By contrast, the district judge in this case explained his reasons for offering an additional jury instruction outside the presence of the finders of fact. Moreover, although it is possible that other jurists might not have deemed it necessary to clarify further the charge on the crime of conspiracy to distribute drugs set forth in the pattern instructions, the district judge's desire here to ensure that the jurors were not confused about the requirements necessary to convict a defendant clearly did not amount to an abuse of the court's broad discretion.
Nor did the district court err in refusing to give the special jury instruction requested by Cureton. “A refusal to give requested instructions is reversible error only if (1) the instructions are correct statements of the law; (2) the instructions are not substantially covered by other delivered charges; and (3) the failure to give the instruction impairs the defendant's theory of the case.” United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993). “It is of course well established that an instruction should not be given if it lacks evidentiary support or is based upon mere suspicion or speculation.” United States v. James, 819 F.2d 674, 675 (6th Cir. 1987) (citations omitted).
Cureton requested the district court to charge the jury that a simple buyer-seller relationship alone is insufficient to tie an individual to a conspiracy. However, as defense counsel admitted upon questioning from the district judge, the record contains no evidence of a buyer-seller relationship between Cureton and any other member of the conspiracy. Although Cureton was aware of Petrey's plans and accompanied him both to purchase MoneyGrams and to sell the drugs he received in return for those payments, she herself neither bought nor sold the drugs. The only drug sale she herself initiated was with a personal friend who was not tied in any way to the wider conspiracy. Thus, the buyer-seller instruction requested by Cureton “should not have been given because there was absolutely no evidence in the record to support its applicability.” United States v. Bryant, 716 F.2d 1091, 1094 (6th Cir. 1983).
Even if the district court's ruling could be considered erroneous, any such error clearly was harmless. First, any answer that counsel could have received from Bird regarding the lack of mention by Powers or any other co-conspirator of Cureton's role in the conspiracy would have been cumulative. Bird already had testified that Petrey, the individual most knowledgeable about Cureton's role, had not mentioned the defendant in his statement to police. Second, the failure of Powers or anyone else to state that Cureton was a member of the conspiracy was irrelevant to the question of the defendant's guilt because every member of the conspiracy need “not know the identities of every other member” and need not be “involved in all the activities in furtherance of the conspiracy.” United States v. Martinez, 430 F.3d 317, 333 (6th Cir. 2005). Thus, this issue also is without merit.
Cureton next argues that even if no single allegation of error should lead to reversal of her conviction, the cumulative effect of otherwise harmless errors rendered her trial “fundamentally unfair in violation of due process.” United States v. Blackwell, 459 F.3d 739, 770 (6th Cir. 2006). However, as discussed in conjunction with Cureton's other arguments on appeal, the evidence adduced by the prosecution was sufficient to support Cureton's conspiracy conviction, and the district court's trial rulings were not so egregious, either individually or cumulatively, as to deprive Cureton of a fair trial.
In her final issue on appeal, Cureton challenges the appropriateness of her 90-month prison sentence. She argues that the district court relied upon an improper presentence investigation report in calculating her Guidelines range and that she should have been deemed a minimal participant, rather than a minor participant, in the conspiracy. She further alleges that when formulating her sentence, the district court failed to give due consideration to the abuse she suffered as a child and erred in basing the sentence on the fact that “actual” methamphetamine was distributed in furtherance of the conspiracy without any expert testimony to establish the purity of the drug.
We review a district court's imposition of a sentence for reasonableness, employing a deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007); United States v. Pearce, 531 F.3d 374, 384 (6th Cir. 2008). Such a reasonableness review “has both a procedural and a substantive component.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall, 552 U.S. at 51). Procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. A review for substantive reasonableness “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. “A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). Furthermore, “we may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,” Pearce, 531 F.3d at 384, and may not reverse a district court's sentencing determination simply because we “might reasonably have concluded that a different sentence was appropriate.” Gall, 552 U.S. at 51.
Cureton's first challenge to her sentence can be resolved quickly. Prior to sentencing, Cureton's lawyer received from the U.S. Probation Office a presentence investigation report dated July 17, 2015, which calculated a Guidelines base offense level of 12 and recommended a two-level reduction for the defendant's minor role in the offense. Consequently, the report recommended that Cureton be sentenced within the range of 8 to 14 months. The following day, a second presentence investigation report was issued, setting the defendant's base offense level at 30, prior to the two-level reduction for a minor role in the offense. Under that second calculation, Cureton was subject to a Guidelines sentencing range of 87 to 108 months.
Not surprisingly, Cureton argues that the initial report should be used to determine her appropriate sentence. However, the Probation Office explained that the initial “report was never intended for disclosure to the parties” and “was inadvertently disclosed with the incorrect guideline calculation.” The fact that an initial, incorrect draft of the presentence report was forwarded to the defendant in error does not vest Cureton with a right to have that erroneous report serve as the basis for the district court's investigation into her background.
Moreover, the evidence before the district court justified assigning an initial base offense level of 30 to Cureton. Even discounting Cureton's involvement in Petrey's purchases of heroin, a conservative estimate of Cureton's involvement in the drug-trafficking establishes that she loaned Petrey money for the purchase of at least one ounce of methamphetamine and agreed to serve as a lookout for a mail delivery of another ounce. Those two ounces alone, equal to 56 grams of the substance, would place Cureton in base offense level 30 if the methamphetamine were considered to be “actual” methamphetamine or “ice.” USSG § 2D1.1(c)(5). Although Cureton is correct that the government introduced no scientific proof regarding the purity of the methamphetamine purchased and later distributed by Petrey, Cureton herself referred to the drug as “ice,” saying “that was real ice ․ the real stuff, the good stuff.” And Petrey admitted in his plea agreement that the shipments he received from Gutierrez contained, in addition to heroin, “crystal methamphetamine.” Furthermore, field tests confirmed the methamphetamine's quality.
Nor did the district court err in rejecting Cureton's claim that she was a “minimal,” rather than a “minor,” participant in the conspiracy. As a minor participant, defined as a defendant “who is less culpable than most other participants, but whose role could not be described as minimal,” USSG § 3B1.2, comment. (n.5), Cureton received a two-level reduction from her base offense level of 30. Had she been deemed a minimal participant in the drug-trafficking conspiracy, she would have been entitled to a four-level decrease in her base offense level, USSG § 3B1.2(a), resulting in a Guidelines sentencing range of 70 to 87 months, rather than the range of 87 to 108 months calculated by the district court.
Subsection (a) applies to a defendant ․ who plays a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.
USSG § 3B1.2, comment. (n.4) (emphasis added). Although Cureton clearly was one of the least culpable members of the interstate conspiracy, she had full knowledge of Petrey's pivotal role in the process and willingly accompanied and assisted him in many of his activities related to the conspiracy once she and Petrey became romantically involved. Even though we might have cast a more forgiving eye on Cureton's role in the conspiracy, in light of the Guidelines description of “minimal participants,” we cannot say the district court committed clear error in concluding otherwise.
In short, the district court considered the relevant factors set forth by statute before determining the appropriate sentence to be imposed upon Cureton. Although Cureton continues to advocate for a more lenient punishment, she has adduced no evidence that would rebut the presumption that her sentence at the lower end of the applicable Guidelines range is substantively reasonable. See, e.g., Pearce, 531 F.3d at 384.
Defendant Sheppard also contends that the sentence imposed upon him is both procedurally and substantively unreasonable. He first alleges that the district court unreasonably added four points to his base offense level pursuant to the provisions of USSG § 2K2.1(b)(6)(B) for use of a firearm “in connection with another felony offense,” specifically, the December 22, 2012, shooting of Johnny Hill. According to Sheppard, the district court should not have used that prior shooting as a basis for increasing his offense level in the present case because he was protecting his home and its occupants at that time under Kentucky's “stand-your-ground” statute and because the testimony providing evidence of his participation in that 2012 shooting was unreliable hearsay.
Both of these challenges to the procedural reasonableness of Sheppard's sentence are without merit. Sheppard does not dispute that the district court added four levels to his base offense level because he used a firearm on December 22, 2012, in such a way as to constitute assault in the second degree. He also does not contest the fact that Kentucky Revised Statute § 508.020(1)(b) provides that “[a] person is guilty of assault in the second degree when ․ [h]e intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument.” However, Sheppard does claim that he cannot be found to have committed such an assault because, when he shot Hill, he was standing his ground, as allowed by the provisions of Kentucky Revised Statute § 503.055. Pursuant to the pertinent provision of that statute, a person may use even deadly force against another individual if “[t]he person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle.” Ky. Rev. Stat. § 503.055(1)(a). Of course, even Sheppard's account of the December 2012 shooting does not place Hill within or attempting to enter Sheppard's home or vehicle. Instead, all persons involved in the incident agree that Hill was shot in the back and outside of Sheppard's home. Consequently, Sheppard was not entitled to invoke the defense afforded by Kentucky's stand-your-ground statute.
Sheppard additionally claims that the testimony about the shooting came from individuals other than Johnny Hill himself and, therefore, must be considered inadmissible hearsay. However, the Federal Rules of Evidence, including the rules concerning the inadmissibility of hearsay testimony, do not apply to sentencing proceedings. See Fed. R. Evid. 1101(d)(3). The Guidelines also recognize the relaxation of ordinary evidentiary rules during sentencing hearings, providing that sentencing courts “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial.” USSG § 6A1.3(a). See also United States v. Paull, 551 F.3d 516, 527 (6th Cir. 2009).
Even so, such hearsay testimony still must have “sufficient indicia of reliability to support its probable accuracy.” USSG § 6A1.3(a); United States v. Robinson, 898 F.2d 1111, 1115 (6th Cir. 1990) (“The district court may consider hearsay evidence in determining sentence, but the accused must be given an opportunity to refute it, and the evidence must bear some minimal indicia of reliability in respect of defendant's right to due process.”). Sheppard's own admissions provide the necessary indicia of reliability in this case. Indeed, although Sheppard insists that Johnny and Melvin Hill were attempting to rob him, he offers no evidence that either brother actually entered Sheppard's residence and, more damningly, “advised that he intended to shoot Johnny Hill in the buttocks, but missed, instead striking him in the back.” Such an admission not only is incompatible with a stand-your-ground defense but also corroborates the testimony of law enforcement officers at the sentencing hearing that Sheppard intentionally shot an individual who was not attempting to enter Sheppard's residence. The district court thus did not abuse its discretion in applying a four-level increase to Sheppard's offense level for use of a firearm in the commission of an assault on Johnny Hill.
Furthermore, in challenging the substantive reasonableness of his sentence, Sheppard does not allege that the district court failed to consider the relevant sentencing factors set forth in 18 U.S.C. § 3553(a). Instead, he simply argues that his troubled upbringing, his acceptance of responsibility, and his desire to end his abuse of illegal drugs should have led the district court to impose a more lenient sentence within the relevant Guidelines range. However, because the district court did consider those factors, such an argument is insufficient to rebut the presumption that Sheppard's within-Guidelines sentence was reasonable. See Pearce, 531 F.3d at 384. We thus find no merit to Sheppard's challenges to his sentence.
Although defendant Petrey was subject to a sentence in the advisory Guidelines range of 262 to 327 months, the government, in exchange for the assistance Petrey provided to prosecutors, suggested that the district court instead sentence him within the range of 158 to 197 months. Despite that recommendation, the district court departed downward four levels, arrived at a sentencing range of 168 to 210 months, and imposed a sentence of 200 months in prison. In doing so, the district court noted that, had the government so chosen, it could have charged Petrey such that he would have been subject to a mandatory life sentence.
Petrey first submits that the district court should have considered a greater downward departure than it did. However, “[w]here, as in this case, the district court grants a downward departure for substantial assistance and the defendant's claim on appeal goes only to the extent of the departure, this Court has no jurisdiction over the appeal.” United States v. Jones, 417 F.3d 547, 551 (6th Cir. 2005). We thus cannot address this portion of Petrey's appellate challenge.
Petrey also claims that the 200-month sentence that was imposed upon him was substantively unreasonable because the district court failed to take into account the facts that he was convicted of a non-violent crime, that he cooperated with authorities, that his criminal acts were caused in large part by his drug dependency, and that the district court improperly relied upon the possibility that Petrey could have faced a life sentence. Those arguments are not persuasive. The district court did take into account the assistance provided by Petrey when it reduced the applicable Guidelines range by four levels. Moreover, the sentencing court took into account Petrey's extensive, “troubling” criminal record, his personal history, and the recognition that, at some point in his life, the defendant must accept the blame for his failure to abide by duly enacted laws. The district court further noted that prior sentences imposed upon Petrey failed to deter him from criminal activity and that the court continued “to have concerns with issues of protecting the public once the defendant is released.” The district court extensively discussed all relevant § 3553(a) factors before imposing a sentence that it felt took into consideration the nature and circumstances of the offense, the defendant's history and characteristics, and the need to reflect the seriousness of the offense, to promote respect for law, to provide just punishment and deterrence, to protect the public, and to avoid unwarranted sentencing disparities.
Petrey cannot rebut the presumption that the sentence within the sentencing range that was determined to be appropriate was reasonable. See Pearce, 531 F.3d at 384. Consequently, his challenge also is without merit.
The defendants have not been able to point us to any reversible error committed by the district court in this matter. As a result, we AFFIRM the judgments entered against all three of them.


text:
Messrs. Vernon E. West and A. S. Worthington, both of Washington, D. C., for plaintiff in error.
Mr. F. H. Stephens, of Washington, D. C., for the District of columbia.
To aid in defraying the espenses of the District of Columbia Congress laid a tax of three-tenths of 1 per cent. on the value of the intangible property of persons resident, or engaged in business, within the District. Act of March 3, 1917, c. 160, § 9, 39 Stat. 1004, 1046. This tax was assessed upon such property held by Heald and others, as committee of Peters, an insane person. They and their ward were residents of the District; the property was located there; and none of it consisted of municipal bonds or was otherwise of a character exempt by law from taxation. The committee, asserting that the taxing act violated the federal Constitution, paid the tax under protest, and brought this action in the Supreme Court of the District to recover the amount so paid. Judgment was there entered for the defendant. The case was then taken to the Court of Appeals of the District which sought by certificate to obtain from this court instructions as to the constitutionality of the act. The certificate was dismissed for want of jurisdiction. Heald v. District of Columbia, 254 U.S. 20, 41 Sup. Ct. 42, 65 L. Ed. 106. Thereupon the case was heard in the Court of Appeals, and it affirmed the judgment of the lower court. 50 App. D. C. 231, 269 Fed. 1015. The case is now here on writ of error. Peters having died, his executors, of whom Heald is the survivor, were substituted as plaintiffs in error.
Plaintiff contends that the act is void: (a) Because it requires every nonresident of the District who engages in business therein to pay a tax on all his intangible property wherever situated or from whatever source derived; (b) because it requires a nonresident engaged in business within the District to pay a tax on all his credits or choses in action, whether due from residents or nonresidents, including those which have not been reduced to concrete form; (c) because it taxes bonds of states and their municipalities. The District insists that such is not the correct construction of the act, that it has not in fact been so construed or applied by the taxing officials, and that, even if it had been, the whole act would not thereby be rendered void, as these provisions are clearly severable from the rest of the act. Compare Hatch v. Reardon, 204 U.S. 152, 161, 27 Sup. Ct. 188, 51 L. Ed. 415, 9 Ann. Cas. 736; Ratterman v. Western Union Telegraph Co., 127 U.S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; Texas Co. v. Brown, 258 U.S. 466, 42 Sup. Ct. 375, 66 L. Ed. . But these objections, even if otherwise well founded, would not entitle plaintiff to challenge the validity of the tax. The property taxed is located within the District; those who hold it and the owner are residents; and there is no state or municipal bond among the property taxed. It has been repeatedly held that one who would strike down a state statute as violative of the federal Constitution must show that he is within the class of persons with respect to whom the act is unconstitutional and that the alleged unconstitutional feature injures him. 1 In no case has it been held that a different rule applies where the statute assailed is an act of Congress; nor has any good reason been suggested why it should be so held. Compare United States v. Changler-Dunbar Co., 229 U.S. 53, 73, 33 Sup. Ct. 667, 57 L. Ed. 1063; Straus v. Foxworth, 231 U.S. 162, 171, 34 Sup. Ct. 42, 58 L. Ed. 168; Fairchild v. Hughes, 258 U.S. 126, 42 Sup. Ct. 274, 66 L. Ed. .
Then it is contended that one clause of the act is void, because, in enumerating classes of property exempt from the tax on intangibles, it recites 'the shares of stock of business companies which by reason of or in addition to incorporation receive no special franchise or privilege.' The argument is that the meaning and application of this clause is so uncertain that the taxpayer is left without a guide in making his return. We have no occasion to inquire into the meaning or effect of this provision or whether it is open to the criticism leveled against it; for this plaintiff would likewise not be entitled to raise this objection, even if well founded, since it is not shown that any tax was levied on the basis of this clause or that it has subjected plaintiff either to injury or to embarrassment.
Albany County v. Stanley, 105 U. S. 305, 311, 26 L. Ed. 1044; Hatch v. Reardon, 204 U. S. 152, 160, 27 Sup. Ct. 188, 51 L. Ed. 415, 9 Ann. Cas. 736; Citizens' National Bank v. Kentucky, 217 U. S. 443, 453, 30 Sup. Ct. 532, 54 L. Ed. 832; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 34 Sup. Ct. 359, 58 L. Ed. 713; Thomas Cusack Co. v. City of Chicago, 242 U. S. 526, 530, 37 Sup. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136 Ann. Cas. 1917C, 594; Arkadelphia Co. v. St. Louis Southwestern Ry. Co., 249 U. S. 134, 149, 39 Sup. Ct. 237, 63 L. Ed. 517.
Compare Gibbons v. District of Columbia, 116 U. S. 404, 6 Sup. Ct. 427, 29 L. Ed. 680; Metropolitan Railroad Co. v. District of Columbia, 132 U. S. 1, 8, 10 Sup. Ct. 19, 33 L. Ed. 231; Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170; Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270; Wilson v. Lambert, 168 U. S. 611, 18 Sup. Ct. 217, 42 L. Ed. 599; Parsons v. District of Columbia, 170 U. S. 45, 50, 18 Sup. Ct. 521, 42 L. Ed. 943; District of Columbia v. Brooke, 214 U. S. 138, 29 Sup. Ct. 560, 53 L. Ed. 941.
PREMIER-PABST SALES CO. v. GROSSCUP et al.
SHEARER v. BURNET, Com'r of Internal Revenue. STEWART v. SAME.
MERCHANTS' MUT. AUTOMOBILE LIABILITY INS. CO. v. SMART.

matches:
§ 9
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.
v.


text:
Keywords: Adolescent, tobacco, alcohol drinking, street drugs.
Palabra Clave: Adolescente, tabaco, consumo de bebidas alcohólicas, drogas ilícitas.
Descritores: Adolescente, tabaco, consumo de bebidas alcoólicas, drogas ilícitas.
OBJECTIVE: The present study sought to verify the prevalence and association of the use of tobacco and other drugs by school adolescentsin the city of Olinda, Pernambuco.
METHODS: This is a pilot study of epidemiological character with a transversal design. 202 adolescents participated, aged between 14 and 19 years, of both sexes, duly enrolled in the high school of the state public school system. The data collection was carried out through the translated and validated version for the Brazilian Portuguese of the questionnaire Youth Risk Behavior Survey (YRBS). The data were tabulated using the Epi-data program, version 3.1. For the analysis of the data was used the program Statistical Package for the Social Sciences (SPSS), version 22.0 for Windows.
RESULTS: In relation to licit drugs, about 23% of adolescents surveyed have already tried cigarette, most of them (80,4%) between 15 and 17 years old. Regarding the consumption of alcoholic drinks, most adolescents (66.7%) have already drank at least one dose of alcoholic beverage in their lives, while 43.3% of adolescents have ingested alcohol in the last 30 days. As for illicit drugs, approximately 15% have tried marijuana and 1.5% have used cocaine at least once in their lives.
CONCLUSION: This research showed that the prevalence of cigarette and alcohol use by school adolescents are still high, showing be in many cases the "gateway" to street drugs use.
OBJETIVO: El presente estudio buscó verificar la prevalencia y la asociación del uso de tabaco y otras drogas por los adolescentes escolares del municipio de Olinda, Pernambuco.
MÉTODOS: Se trata de un estudio piloto, de carácter epidemiológico con delineamiento transversal. Participaron 202 adolescentes, con edad variando entre 14 y 19 años, de ambos sexos, debidamente matriculados en la enseñanza media de la red pública estadual de enseñanza. La recolección de datos se realizó a través de la versión traducida y validada para el portugués de Brasil del cuestionario Youth Risk Behavior Survey (YRBS). La tabla de datos se realizó a través del programa Epi-data, versión 3.1. Para el análisis de los datos se utilizó el programa Statistical Package for the Social Sciences (SPSS), versión 22.0 para Windows.
RESULTADOS: En relación a las drogas lícitas, cerca del 23% de los adolescentes encuestados ya experimentaron cigarrillo, siendo la mayor parte de ellos (80,4%) entre 15 y 17 años. En lo que se refiere al consumo de bebidas alcohólicas, la mayoría de los adolescentes (66,7%) ya bebieron al menos una dosis de bebida alcohólica en la vida, mientras que el 43,3% de los adolescentes ingirieron alcohol en los últimos 30 días. En cuanto a las drogas ilícitas, aproximadamente el 15% ya experimentaron marihuana y el 1,5% ya hicieron uso de cocaína al menos una vez en la vida.
CONCLUSIÓN: Esta investigación mostró que el predominio del uso de cigarrillo y alcohol por los adolescentes escolares todavía es alto, mostrando ser en muchos casos la "puerta de entrada" para el uso de drogas ilícitas.
OBJETIVO: O presente estudo buscou verificar a prevalência e a associação do uso de tabaco e outras drogas pelos adolescentes escolares do município de Olinda, Pernambuco.
MÉTODOS: Trata-se de um estudo piloto, de caráter epidemiológico com delineamento transversal. Participaram 202 adolescentes, com idade variando entre 14 e 19 anos, de ambos os sexos, devidamente matriculados no ensino médio da rede pública estadual de ensino. A coleta de dados foi realizada através da versão traduzida e validada para o português do Brasil do questionário Youth Risk Behavior Survey (YRBS). A tabulação dos dados foi realizada por meio do programa Epi-data, versão 3.1. Para a análise dos dados foi utilizado o programa Statistical Package for the Social Sciences (SPSS), versão 22.0 para Windows.
RESULTADOS: Em relação às drogas lícitas, cerca de 23% dos adolescentes pesquisados já experimentaram cigarro, sendo a maior parte deles (80,4%) entre 15 e 17 anos. No que diz respeito ao consumo de bebidas alcoólicas, a maior parte dos adolescentes (66,7%) já beberam pelo menos uma dose de bebida alcóolica na vida, enquanto 43,3% dos adolescentes ingeriram álcool nos últimos 30 dias. Quanto às drogas ilícitas, aproximadamente 15% já experimentaram maconha e 1,5% já fizeram uso de cocaína pelo menos uma vez na vida.
CONCLUSÃO: Esta pesquisa mostrouque a prevalênciado uso de cigarro e álcool pelos adolescentes escolares ainda são altas, mostrando ser em muitos casos a "porta de entrada" para o uso de drogas ilícitas.
According to the Ministry of Health, adolescence corresponds to the age group between 10 and 19 years of age1. It is a phase of great impact on human development, characterized by strong cognitive, emotional, social and biological changes, which expose the individual to risk behaviors and the adoption of new habits inherent in this phase. Among these behaviors can be cited smoking, inadequate nutrition, sedentary lifestyle, and the experimentation of alcohol and other drugs2,3.
Smoking is one of the leading avoidable causes of early death and death in the world. Diseases such as lung, mouth and throat cancers are considered to be the most incidents in smokers and cause serious damage to health4. These diseases impose a heavy economic cost for countries, both in productivity and in terms of direct medical assistance. The use of tobacco is considered by the World Health Organization (WHO) a significant obstacle to development gains worldwide5.
In Brazil, studies show the increase in the prevalence of smoking in adolescents, due to the increasingly early age of smoking initiation. There is also a greater likelihood that young tobacco users will become adult smokers, since cigarette dependence generally occurs before age 18.4,6,7.
The WHO points to alcohol as the most consumed psychoactive substance in the world and also as the main drug of choice among children and adolescents. Its experimentation usually occurs early, around 12 years of age and its excessive consumption is one of those responsible for the increase in deaths, mainly in adolescence8,9.
Among the illicit drugs most used by adolescents are marijuana and cocaine. Marijuana, being the most commonly used illicit drug, produces effects that impair motor control and learning, as well as neurovegetative effects. These effects can lead to a drop in school performance which, in turn, can increase anxiety and lead to increased use10-12.
The consumption of these substances brings with it a considerable social and economic burden from the perspective of public health. In this way, knowing the existence or not of the association of the use of these drugs is of great importance, since it will allow interventions on behaviors and risk factors with a view to inhibiting the possible advance in the use of drugs, a vice that is progressively harmful for the adolescent .
The objective of this study was to verify the prevalence and association of the use of tobacco and other drugs by school adolescents in the municipality of Olinda, Pernambuco.
This is a pilot study of a larger, epidemiological and cross-sectional project entitled "Attention to adolescent health in the public services of Olinda". The study was conducted in the municipality of Olinda-PE and its sample was composed of 202 adolescents from 14 to 19 years of age, of both sexes, duly enrolled in the middle school of the state public education network in the current year.
Data collection was done in February 2016, through a questionnaire, which was applied in the classroom, without the presence of the teacher, to avoid confusion for the students. The average application time was 30 minutes.
The instrument used was a translated and validated version for the Portuguese of the Youth Risk Behavior Survey (YRBS)13. The YRBS is a self-administered questionnaire, developed by the WHO, in partnership with the Center for Diabetes Control Prevention (CDC), to monitor health risk behaviors among adolescents. The variables used in this study were removed from questions regarding the modules on tobacco use and consumption of alcoholic beverages and other drugs (Table 1).
For the tabulation of data, the Epi-data program, version 3.1, was used, using the input function to avoid possible writing errors. For the analysis of the data, the Statistical Package for the Social Sciences (SPSS) program, version 22.0 for Windows, was used. Descriptive prevalence and inference analyzes were performed through the chi-square test.
This project was approved by the Research Ethics Committee of the University of Pernambuco (CEP / UPE), opinion no. 672,711, as recommended by the National Council of Research Ethics, resolution CNS No. 466/2012. It also possesses consent of the Regional Management of North Metropolitan Education. To participate in the study, the framed students sign the agreement term, in addition to receiving authorization from their parents or guardians through the term of Negative Consent.
The majority of the adolescents surveyed was female, between 15 and 17 years old and came from families with incomes up to 2 minimum wages (Table 2).
In relation to licit drugs, about 23% of the adolescents surveyed already had a cigarette and 7% smoked in the 30 days prior to the investigation. The use of cigarettes in life presented significant association with age, being more prevalent in adolescents between 15 and 17 years. There was no difference between the sexes.
With regard to the consumption of alcoholic beverages, most adolescents have already drunk at least one dose of alcoholic beverage in their lifetime, while 43.3% of adolescents ingested alcohol in the past 30 days. With regard to illicit drugs, approximately 15% have already experienced marijuana and 1.5% has already used cocaine at least once in their lives (Table 3).
A statistically significant association was verified between the use in the life of the cigarette and the experience with alcohol by adolescents. Cigarette consumption in the last 30 days has been associated with the consumption of alcohol in life and in the last 30 days (Table 4).
The early experimentation of drugs by adolescents can be related to different social, cultural and economic factors. In addition, it is one of the main triggers of situations of vulnerability for this age group8. The misuse of these substances often determines the appearance of other problems, such as respiratory diseases, increased incidence of cancer and risk of accidents. In addition, it brings difficulties not only for the user, but also for his family, school and society in general2,3,6.
In this study, about 23% of the adolescents surveyed already experienced smoking at least once in their lives. According to the data of PeNSE (2015), in the age group of 13 to 17 years, the experimentation was 48%, a much higher number than that found in our sample.
Age, 6.5% of adolescents aged 14 or younger have already experienced cigarette in life. Corroborating with studies conducted by Nader6 eCavalcante14 and who verified the use of cigarettes for the first time at 14.9 years and 12 years, respectively4,10,15,16.
According toTondowski et al.17, cohabitation with fathers or older siblings smokers is associated with the greater likelihood that adolescents will smoke, as well as progress in this use. In this aspect, the family context plays an important role in the young person's life. The fact that at least one parent of smoking is directly associated with the child's smoking. In the same way, the consumption of alcoholic beverages by parents is associated with alcohol consumption during adolescence6,7. In this study, however, it wasn´t possible to evaluate these aspects.
Regarding the current consumption of cigarettes, measured by the consumption occurred in the last 30 days prior to the date of the investigation, this represented 7% of the sample, given very similar to that found in the last PeNSE, where approximately 8, 0% consumed cigarettes in that period. It should be noted that this "current consumption" is relative and should be evaluated with caution, since adolescents are in their first decades of life, experimentation phase and adoption of new habits. In this way, the use of the cigarette in the last 30 days may coincide with your first contact with this drug, not constituting a habit.
Alcohol consumption was the most prevalent substance among adolescents. When it refers to consumption in the last 30 days, the data found represented almost half of the sample (43.3%). The studies observed that its use among adolescents has been quite common in Brazil and in the world6,18,19. According to the latest survey carried out by the Brazilian Center for Information on Psychotropic Drugs (CEBBRID) among students of primary and secondary education in 27 Brazilian capitals, alcoholic beverages and cigarettes have been the substances most consumed by adolescents18.
Currently, alcoholic beverages are present in most social occasions, which facilitate greater access and social incentive consumption. In addition, the media play an important role in the propagation of advertisements on beverages and cigarettes, without adequate warning of their risks, in addition to strengthening the idea of rite of passage to adult life9,14,20. According to Cavalcante et al.14 this drug is considered a gateway for consumption and vice in other drugs, such illicit drugs.
In relation to illicit drugs, such as marijuana and cocaine, there was an association with the use of tobacco both in life and in the last 30 days. A study conducted by Lopesy Rezende19 showed figures close to that of the research (6.3%) in terms of marijuana use. However, the data found in the present study show that almost half of adolescents (48.9%) who have already used cigarettes in their lives have also experienced marijuana. With regard to cocaine, consumption similar to that observed by Lopes and Rezende was verified in his study.
It is important to note that, when questioned about the use of illicit drugs, many adolescents don´t feel safe enough to tell about their experiences. In this way, it is pertinent that this situation be studied by exposing the factors that may influence the use of licit and illicit drugs, so that they can contribute to the decrease of experimentation and consequently of the regular use of these drugs. As well as knowing the hexes that this use can bring in short, medium and long term.The early experimentation of drugs by adolescents can be related to different social, cultural and economic factors. In addition, it is one of the main triggers of situations of vulnerability for this age group8. The misuse of these substances often determines the appearance of other problems, such as respiratory diseases, increased incidence of cancer and risk of accidents. In addition, it brings difficulties not only for the user, but also for his family, school and society in general2,3,6.
The search for adolescents' understanding in this phase of transition for adult life is fundamental, providing subsidies so that they can make conscious decisions and aim for their health. This research showed that the prevalences of the use of cigarettes and alcohol are still high and that illicit drugs are still associated with the use of licit drugs. In this way, it is necessary that there be an open dialogue between school, family and adolescents responsible, in which the consumption of these drugs is discussed, emphasizing its negative effects and the consequences that consumption brings.
From this study can be created projects of health promotion actions among adolescents and, in addition to that, the strengthening of family ties in the prevention of risk behaviors among young people and adolescents is an extremely important factor.
3. Bittencourt ALP, FrançaLG,Goldim JR. Adolescênciavulnerável: fatoresbiopsicossociais relacionados ao uso de drogas. RevBioet 2015; 23(2): 311-319.
4. Figueiredo VC, Szklo AS, Costa LC, Kuschnir MCC, Silva TLN, Bloch KV et al. ERICA: prevalência de tabagismoem adolescentes brasileiros. RevSaúde Pública 2016;50(supl 1):12s.
6. Nader L, Aerts D, Alves G, Câmara S, Palazzo L, Pimentel Z. Consumo de álcool e tabaco em escolares da rede pública de Santarém-PA. Aletheia ago 2013;(41):95-108.
7. Freitas JS, Lima MVP, Santos JS; Lopes DR, Barbosa VM; Pachú CO. Consumo de álcool: influência familiar entre escolares. Journal of Biology&Pharmacy and Agricultural Management, 2015;v. 10, n. 3.
8. Jesus FB, Lima FCA, Martins CBG, Matos KF, Souza SPS. Vulnerabilidade na adolescência: a experiência e expressão do adolescente. RevGaúchaEnferm, Porto Alegre (RS) 2011.
9. Elicker E, Palazzo LS, Aerts DRGC, Alves GG, CâmaraS.Uso de álcool, tabaco e outras drogas por adolescentes escolares de Porto Velho-RO. Brasil. EpidemiolServSaúde, set 2015;v. 24, n. 3, p. 399-410.
10. Marques ACPR, Cruz MS. O adolescente e o uso de drogas. Rev Bras Psiquiatr, dez 2000;v. 22, supl. 2, p. 32-36.
11. Crippa JA, et al. Efeitoscerebrais da maconha:Resultados dos Estudos de neuroimagem. Rev Bras Psiquiatr, março 2005;v. 27, n. 1, p. 70-78.
12. Ferreira LP, Heringer MRC, Pompeu ATS, Pedra AM, Latorre MRDO. Efeitosdeletérios do tabagismo e da maconha na voz de estudantesuniversitários. Distúrbios da Comunicação. Março de 2016. ISSN 2176-2724, [S.l.], v. 28, n. 1. ISSN 2176-2724.
13. Guedes DP, Lopes CC. Validação da Versão Brasileira fazerYouthRiskBehaviorInquérito 2007. Rev. Saúde Pública, outubro 2010; v. 44(5), p. 840-850.
14. Cavalcante MBPT, Alves MDS, Barroso MGT. Adolescência, álcool e drogas: umarevisão na perspectiva da promoção da saúde. Esc Anna Nery RevEnferm, 2008;v. 12(3), p. 555-9.
15. Pechanskya F, Szobota CM, Scivolettob S. Uso de álcool entre adolescentes: conceitos, características epidemiológicas e fatoresetiopatogênicos. RevBrasPsiquiatr, 2004; v. 26, n. Supl I, p. 14-17.
16. Silva ERP, Fonseca FLA, Pinto JLF, Oliveira LC, Fonseca ALF, Gehrke FS. As principaisdoençasassociadasaotabagismo e o tratamento medicamentoso no combate aovício. Saúde e meio ambiente: Revista interdisciplinar, 2014: v. 3(1), p. 51-58.
17. Tondowski CS, Bedendo A, Zuquetto C, Locatelli DP, Opaleye ES, Noto AR.Estilosparentais Como Fator de Proteçãoao consumo de tabaco entre adolescentes brasileiros. Cad. Saúde Pública, dezembro 2015; v. 31, (12), p. 2514-2522.
18. Carlini ELA, Noto AR, Sanchez ZUDM, Carlini CMA, Locatelli DP, Abeid LR, et al. VI Levantamento Nacional sobre o Consumo de Drogas Psicotrópicas entre Estudantes do Ensino Fundamental e Médio das Redes Pública e Privada de Ensinonas 27 Capitais Brasileiras, São Paulo: CEBRID; 2010.
19. Lopes AP, Rezende MM. Consumo de substânciaspsicoativasemestudantes do ensinomédio. Psicologia: teoria e prática, 2014; v. 16(2), p. 29-40.
20. Alves MVQ. Uso de bebidas alcoólicas entre adolescentes: perfil de experimentação, uso regular e fatores de risco. Feira de Santana-Bahia. Revista baiana de saúde pública, 2014; v. 29(1), p. 91.

matches: v. v. v. v. v. v. v.


text:
On November 22, 2013, the International Tribunal for the Law of the Sea (ITLOS, the Tribunal) announced its Order in The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation). The case focuses on the Netherlandsâs request for provisional measures in relation to the Russian Federationâs arrest and continuous detention of thirty Greenpeace International (Greenpeace) crew members (the so-called Arctic 30) on board the vessel Arctic Sunrise. The ship, operated by Greenpeace, was flying the flag of the Netherlands. At the time of arrest it was within Russiaâs Exclusive Economic Zone to protest against the operation of the offshore fixed oil platform Prirazlomnaya. The Arctic Sunrise was towed to the Russian port of Murmansk and was subsequently seized by the Leninsky District Court. By its Order of November 22, 2013, ITLOS ordered that Arctic Sunrise and all detained persons be released and be allowed to leave the territory of the Russian Federation upon the Netherlandsâs posting of a financial security in the amount of 3,600,000 euros with the competent authority of the Russian Federation. After serving two months in detention the charges of hooliganism against the Arctic 30 were dropped and they were released. The Dutch Government has prepared the bank guarantee pursuant to the Tribunal Order to secure the release of the ship.
While the case raises a number of issues, including the Russian Federationâs rejection of the Tribunalâs jurisdiction and its non-appearance, this Insight examines only one aspect: Greenpeace International, the coordinating body of the Greenpeace organizations around the world and operator of the Arctic Sunrise, submitted an amicus curiae brief to the Tribunal. The Tribunal decided not to include the brief as part of the case file, yet distributed it to the parties and the members of the Tribunal. The Tribunal gave the Netherlands and the Russian Federation the opportunity to provide comments on Greenpeaceâs request. The Netherlands did not object to the petition. Russia stated that it did not find a legal basis for granting the petition due to the ânon-governmental natureâ of the submitting organization. This Insight discusses the Tribunalâs approach to the Greenpeace amicus curiae submission in light of the role that nongovernmental organization (NGO) amicus curiae submissions have so far played in international law.
ITLOS is a judicial body entrusted with the adjudication of disputes that arise from application and interpretation of the United Nations Convention on the Law of the Sea (UNCLOS). The Tribunal has jurisdiction in contentious and advisory proceedings. Neither the ITLOS Statute nor its Rules mention the term amicus curiae. The Rules do provide for non-party intergovernmental organizations to furnish the Tribunal with unsolicited briefs related to a particular case. Nevertheless, the exact meaning of the term âintergovernmental organizationâ in the ITLOS Statute and Rules has been contested. Under Article 48 of the Rules, the parties may propose modifications to the Rules, for example that the Tribunal permit amicus submissions, which the Tribunal will allow if it considers them appropriate in the circumstances of the case.
ITLOS responded to an NGO amicus curiae submission previously, in an advisory proceeding. On August 17, 2010, the ITLOS Registry received a request by Stichting Greenpeace Council and the World Wide Fund for Nature (WWF) to permit them to participate as amici curiae in the advisory proceedings in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area. The Tribunal informed the requesting organizations that their statement would not be included in the case file, for it was not submitted in accordance with the procedure. However, the Tribunal transmitted the brief to the states and intergovernmental organizations that had submitted written statements and posted the brief on its website. Thus, the Tribunal was at least partially receptive to hearing NGO views.
The Arctic Sunrise case is the first time an NGO has made an amicus curiae submission in a contentious proceeding. The brief, dated October 30, 2013, aimed to assist the Tribunal in adjudicating the Netherlandsâ request for provisional measures. In particular, the brief argues the applicability of international human rights law to the Russian Federation authoritiesâ actions, which it claims violated the rights of those on board the Arctic Sunrise.
Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings. The first international court to legally adopt a procedure for NGO amicus submissions was the European Court of Human Rights (ECHR). In 1983, revised procedural rules granted states, individuals, and organizations not party to the proceedings the right to make unsolicited submissions to the ECHR, though the ECHR may reject the briefs âin the interests of the proper administration justice.â Currently, NGOs are very active participants in litigation as amici. However, they have no legal entitlement to be heard by the ECHR.
The Inter-American Court of Human Rights formalized the amicus procedure for NGOs in 2009. Under the 2009 amendments to the Rules of Procedure, an amicus curiae submission may be submitted within 15 days following a hearing or, if there is no hearing, within 15 days after the Resolution setting the deadline for partiesâ final written submissions; the brief is then transmitted to the parties. Thus, the Inter-American Court is even more welcoming to civil societyâs participation than its European counterpart.
In 1998, the World Trade Organization (WTO) Dispute Panel confronted the issue of NGO amicus curiae briefs in the U.S.-Shrimp case (commonly referred to as âShrimp-Turtleâ). The Panel received two amicus briefs written by NGOs. The United States also designated a part of the brief jointly authored by the Centre for Marine Conservation and the Center for International Environmental Law as an Annex to its own submission. The number of NGO amicus curiae submissions grew on appeal. The Appellate Body held on November 6, 1998, that â[i]n the present context, authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not.â Although WTO panels routinely admit NGO briefs and share them with parties, US-Tuna II case is the rare case where the Panel considered the NGO amicus briefs as relevant. Yet, on appeal the Appellate Body âdid not find it necessary to relyâ on the briefs.
Rule 103 and Rule 149 of the Rules of Procedure and Evidence of the International Criminal Court indicate the power of the Chamber and Appeals Chamber to invite a State, organization, or a person to submit written or oral observations. NGOs have used this procedure a number of times. For instance, on May 12, 2012, the ICC Pre-Trial Chamber I agreed to hear the views of Lawyers for Justice in Libya and the Redress Trust in the Prosecutor v. Saifal-Islam Gaddafi and Abdullah Al-Senussi case.
The International Court of Justice (ICJ) adheres to a more restrictive model of accepting NGO amicus submissions. Article 34 of the ICJ Statute allows only âpublic international organizationsâ and States to submit their views about a case before the Court. In 2004, the ICJ adopted Practice Direction XII, regulating amicus curiae submissions by international NGOs. It states that while NGO submissions will not be treated as part of the case file, they will be saved in the Peace Palace; entities presenting written or oral statements under Article 66 of the Statute will be informed as to the location of documents submitted by NGOs for consultation.
The Greenpeace submission of an amicus brief in the Arctic Sunrise case and the Tribunalâs resulting treatment of it are interesting from a number of perspectives.
First, Greenpeaceâs petition before ITLOS in this case shows that NGO requests to be heard in the capacity of amici persist despite the rejection in the earlier case. Greenpeace has now petitioned to participate in both advisory and contentious proceedings. The nature of the dispute in the Arctic Sunrise case may explain the Tribunalâs decision not to publish the amicus submission on its website. In contrast to the advisory proceedings in Case No. 17, the Arctic Sunrise case is adversarial. The Russian Federation, a party to the case, refused to participate in the proceedings and expressed a negative view in relation to the admission of the Greenpeace brief. Furthermore, when one of the parties is absent, as indicated by the Tribunalâs Order, the Tribunal is obliged to protect the procedural rights of both parties and to facilitate the implementation of the principle of equality of the parties. The Tribunalâs task of ensuring the equality of arms, including giving both sides âequal opportunities to put their side of the story and to challenge the evidence put by the other side,â was made even harder by the absence of the Russian Federation. In light of this, the Tribunal might have refrained from giving exposure to a position unwelcome by one of the parties.
Finally, the Greenpeace petition in the Arctic Sunrise case serves as an opportunity to examine the implications of NGO participation in international law-making. Some commentators support enhanced NGO participation. For example, Professor Robin Eckersley argues that NGO participation as amicus curiae in WTO dispute settlement procedures has the potential of creating a transnational space for dialogue on environmental matters. Others remain sceptical of international NGO claims. Professor Dan Bodansky, for instance, cautions against confusing NGO involvement with public participation. âIndeed, even if international meetings were opened up and NGOs given unrestricted access, few members of the public would as a practical matter be able to participate,â writes Bodansky. The Arctic Sunrise case gives food for thought to revisit this question.
Dr. Anna Dolidze, ASIL member and Co-Vice Chair of the Teaching International Law Interest Group is Assistant Professor at the University Of Western Ontario Faculty of Law.
 The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation), Case No. 22, Order of Nov. 22, 2013, Â¶ 90, http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_Ord_22_11_2013_orig_Eng.pdf [hereinafter Arctic Sunrise Order].
 Greenpeace Canada, Latest Updates from the Arctic Sunrise Activists and Crew Members, http://www.greenpeace.org/canada/en/recent/From-peaceful-action-to-dramatic-seizure-a-timeline-of-events-since-the-Arcti... (last visited Dec. 24, 2013) (see weeks 11 and 12).
 Brief for Stichting Greenpeace Council (Greenpeace International) as Amicus Curiae, The Arctic Sunrise Case (Netherlands v. Russia), Case No. 22, (Intâl Trib. for the L. of the Sea [ITLOS] Oct. 30, 2013), http://www.greenpeace.org/international/Global/international/briefings/climate/2013/ITLOS-amicus-curiae-brief-30102013.pdf [hereinafter Greenpeace Amicus Submission].
 Arctic Sunrise Order, supra note 1, Â¶Â¶ 15â20; Letter from the Registrar of the Tribunal to Mr. Jasper Teulings, General Counsel, Greenpeace International (Nov. 8, 2013) (on file with author).
 Lance Bartholomeusz, The Amicus Curiae Before International Courts and Tribunals, 5 Non-State Actors & Intâl L. 209 (2005).
 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Case No. 17 (ITLOS Feb. 1, 2011), 14, http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/adv_op_010211.pdf.
 Greenpeace Amicus Submission, supra note 4, Â¶ 12-18.
 UNIDROIT & The American Law Institute, Principles of Transnational Civil Procedure, 32 (2006).
 Samuel Krislov, Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L. J. 694, 695- 697 (1963).
 Roger S. Clark, The International League for Human Rights and South West Africa 1947â1957: Human Rights NGO as Catalyst in the International Legal Process, 3 Hum. Rts. Q. 115, 119 (1981).
 European Convention on Human Rights and Fundamental Freedoms, art. 36 (2).
 See Lloyd Hitoshi Mayer, NGO Standing and Influence in Regional Human Rights Courts and Commissions, 36 Brook. J. IntâL. L. 911 (2011).
 McGinley and Egan v. The United Kingdom, App. No. 10/1997/794/995-996, Â¶ 5, 27 Eur. H.R. Rep. 1 (1998).
 See e.g. Anna-Karin Lindblom, Non-Governmental Organizations in International Law 355â56 (2005) (noting how NGOs successfully submitted their briefs even before the relevant procedure).
 Inter-American Court of Human Rights, Rules of Procedure, art. 41 (2009), http://www.cidh.org/basicos/english/basic20.RulesCourt.pdf.
 Panel Report, United StatesâImport Prohibition of Certain Shrimp and Shrimp Products (âU.S.âShrimpâ),WT/DS58/R (May 15, 1998); Appellate Body Report, United StatesâImport Prohibition of Certain Shrimp and Shrimp Products (âU.S.âShrimpâ), WT/DS58/AB/R (Oct. 12, 1998); for more information about the case, see generally World Trade Organization [WTO], United StatesâImport Prohibition of Certain Shrimp and Shrimp Products, http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds58_e.htm (last visited Dec. 24, 2013).
 Appellate Body Report, United StatesâImport Prohibition of Certain Shrimp and Shrimp Products (âU.S.âShrimpâ), Â¶Â¶ 79, 108, WT/DS58/AB/R (Oct. 12, 1998) (emphasis in original).
 Panel Report, United States â Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, Â¶ 7.9, WT/DS381/R (Sept. 15, 2011).
 Appellate Body Report, United States â Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, Â¶ 8, WT/DS381/AB/R (May 16, 2012).
 International Criminal Court, Rules of Procedure and Evidence, Rules 103, 149.
 Prosecutor v. Gaddafi & Al-Senussi, Case No. ICC-01/11-01/11-153, Decision on the "Application by Lawyers for Justice in Libya and the Redress Trust for Leave to Submit Observations pursuant to Rule 103 of the Rules of Procedure and Evidence" (May 18, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1414787.pdf.
 Statute of the International Court of Justice, art. 34; International Court of Justice, Practice Directions, http://www.icj-cij.org/documents/index.php?p1=4&p2=4&p3=0 (last visited Dec. 24, 2013).
 Neumeister v. Austria, App. No.1936/63, Â¶ 22 (June 27, 1968), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57544.
 Greenpeace, supra note 3 (see week 12).
 Case of Young, James and Webster, Letter from the Registrar of the Court to Messrs. Russell, Jones & Walker, 39 Eur. Ct. H.R. (ser. B) at 151 (1981).
 The Arctic Sunrise Case (Kingdom of the Netherlands v. Russian Federation), Case No. 22, Verbatim Record, Public Sitting Held on Nov. 6, 2013, 15- 17, http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/ITLOS_PV13_C22_1_Eng.pdf.
 Robyn Eckersley, A Green Public Sphere in the WTO? The Amicus Curiae Interventions in the Transatlantic Biotech Dispute, 13 Eur. J. Int. Rel. 329 (2007).
 Daniel M. Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 Am. J. Intâl L. 596, 619 (1999); see also David Kennedy, The International Human Rights Movement: Part of the Problem?, 15 Harv. Hum. Rts. J. 101 (2002) (summarizing main criticisms advanced against the global human rights movement, primarily driven by human rights NGOs); see also Makau W. Mutua, Human Rights International NGOs: A Critical Evaluation, in NGOs and Human Rights: Promise and Performance (Claude W. Welch Jr. ed., 2001).

matches:
v.
v.
v.
v.
art. 36
v.
art. 41
v.
art. 34
v.
v.