Michael Anthony Conage v. United States

Supreme Court of Florida
____________

No. SC20-1441
____________

MICHAEL ANTHONY CONAGE,
Appellant,

vs.

UNITED STATES OF AMERICA,
Appellee.

August 25, 2022

MUÑIZ, C.J.

The U.S. Court of Appeals for the Eleventh Circuit has certified

to us a question about the meaning of the word “purchase” in

Florida’s drug trafficking law. The court asks whether a completed

purchase of illegal drugs necessarily entails the defendant

purchaser’s possession of those drugs, as federal law defines

possession. We conclude that it does, and in doing so we reject the

argument that a purchase is necessarily complete as soon as the

would-be purchaser pays for the drugs.
I.

In the underlying federal case, Michael Conage was convicted

of a gun possession crime and then sentenced to a mandatory

prison term under the Armed Career Criminal Act. United States v.

Conage, 976 F.3d 1244, 1253 (11th Cir. 2020); 18 U.S.C.

§ 924(e)(1). To impose that sentence, the trial court first had to

conclude that Conage had three previous convictions for a “serious

drug offense” as defined by the ACCA. One of the three convictions

that the trial court counted against Conage was a 2006 conviction

for trafficking in cocaine in violation of section 893.135(1)(b)1.,

Florida Statutes (2006). Conage appealed his sentence to the

Eleventh Circuit, arguing that it was error to deem that conviction

an ACCA predicate offense.

The ACCA defines a “serious drug offense” as one “involving

manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance.” 18 U.S.C.

§ 924(e)(2)(A)(ii). To determine whether a previous conviction meets

that definition, federal courts use what they call a “categorical

approach.” Conage, 976 F.3d at 1250. That approach considers

“only the fact of the defendant’s conviction and the statutory

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definition of the state offense at issue, rather than the facts

underlying the defendant’s conviction.” Id. So, for purposes of

applying the ACCA to Conage, the factual details supporting

Conage’s 2006 Florida drug trafficking conviction do not matter—

what matters is how section 893.135(1) defines the crime of drug

trafficking.

Under section 893.135(1), a person commits drug trafficking

when he knowingly (1) “sells,” (2) “purchases,” (3) “manufactures,”

(4) “delivers,” (5) “brings into this state,” or (6) is “in actual or

constructive possession of” a trafficking quantity of illegal drugs. 1

The “categorical approach” means that, for a Florida drug

trafficking conviction to qualify as an ACCA predicate offense, each

of these six ways of committing drug trafficking under section

893.135(1) must meet the ACCA’s definition of a “serious drug

offense.” Conage, 976 F.3d at 1251.

Conage’s appeal to the Eleventh Circuit focuses on only one of

the statute’s six forms of drug trafficking, trafficking by purchase.

1. Section 893.135(1) lists separately each kind of drug that is
subject to the prohibition on drug trafficking. See § 893.135(1)(a)-
(l), Fla. Stat. Within each drug category, the greater the trafficking
quantity, the harsher the punishment. Id.

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Recall that the ACCA defines a “serious drug offense” as one

“involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance.” 18 U.S.C.

§ 924(e)(2)(A)(ii). Relevant here is the definition’s reference to

possessing with intent to distribute a controlled substance.

Eleventh Circuit precedent says that possession of a trafficking

quantity of illegal drugs implies an intent to distribute those drugs.

Conage, 976 F.3d at 1253 (citing United States v. James, 430 F.3d

1150, 1154 (11th Cir. 2005)). So, trafficking by purchase under

section 893.135(1) can meet the ACCA definition of a “serious drug

offense” if a completed purchase necessarily entails the defendant’s

possession of the purchased drugs. In his federal appeal, Conage

has contended that a purchase is complete upon payment by the

defendant and that therefore a completed purchase does not require

proof that the defendant possessed the purchased drugs.

The Eleventh Circuit has determined that it cannot resolve

Conage’s appeal without additional guidance about how Florida law

defines a completed purchase in this context. The court’s

uncertainty is understandable. Section 893.135(1) does not define

the term “purchase,” and Florida court decisions touching on

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trafficking by purchase are sparse and unilluminating. 2 Moreover,

the stakes in this case extend far beyond Conage. According to the

Eleventh Circuit, the answer to the certified question has

“enormous” implications for federal law. Conage, 976 F.3d at 1248.

If Conage’s position on the meaning of “purchase” is correct, “then

no Florida drug trafficking conviction under § 893.135(1) can ever

qualify as an ACCA predicate offense, notwithstanding that

statute’s status as Florida’s most serious criminal drug statute.” Id.

To help us answer the certified question, we have received

briefing and oral argument from Conage and from the United

States. After we heard oral argument, the State of Florida

submitted a brief supporting Conage. Conage and the United

States then filed responses to the State’s brief.

2. We acknowledge Conage and the State’s reliance on several
district court of appeal cases holding that double jeopardy
principles are not violated if a defendant is convicted of purchasing
and possessing the same illegal drugs in a single transaction.
Milhouse v. State, 37 So. 3d 862 (Fla. 2d DCA 2010); Psihogios v.
State, 544 So. 2d 283 (Fla. 4th DCA 1989); State v. Houghtailing,
704 So. 2d 163 (Fla. 5th DCA 1997). These cases have no
persuasive force, because in none did the deciding court define or
analyze what constitutes either a purchase or possession.

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II.

The certified question is:

How does Florida law define the term “purchase” for
purposes of Florida Statutes § 893.135(1)? More
specifically, does a completed purchase for purposes of
conviction under § 893.135(1) require some form of
possession—either actual or constructive—of the drug
being purchased?

Id. at 1263. The Eleventh Circuit explains that its focus “is on the

conduct that the ‘purchasing’ element of [Florida’s drug trafficking

law] prohibits.” Id. at 1252. The court needs to know “what the

State must prove in order to convict a defendant of purchasing a

trafficking quantity of” illegal drugs. Id. at 1247.

Before explaining our answer to the certified question, we

address a threshold issue about Florida’s law of statutory

interpretation. The United States encourages us to use an

approach that is often linked to a passage from our Court’s decision

in Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R.

Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). There we

said that “[w]hen the language of the statute is clear and

unambiguous and conveys a clear and definite meaning, there is no

occasion for resorting to the rules of statutory interpretation and

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construction.” In practice, following this maxim often leads the

interpreter to focus on a disputed word or phrase in isolation; the

maxim also leaves the interpreter in the dark about how to

determine whether a particular word or phrase has a clear

meaning.

We believe that the Holly principle is misleading and outdated.

More recently our Court has said that judges must “exhaust ‘all the

textual and structural clues’ ” that bear on the meaning of a

disputed text. Alachua County v. Watson, 333 So. 3d 162, 169 (Fla.

2022) (quoting Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480

(2021)). That is because “[t]he plainness or ambiguity of statutory

language is determined by reference to the language itself, the

specific context in which that language is used, and the broader

context of the statute as a whole.” Robinson v. Shell Oil Co., 519

U.S. 337, 341 (1997).

Viewed properly as rules of thumb or guides to interpretation,

rather than as inflexible rules, the traditional canons of statutory

interpretation can aid the interpretive process from beginning to

end (recognizing that some canons, like the rule of lenity, by their

own terms come into play only after other interpretive tools have

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been exhausted). It would be a mistake to think that our law of

statutory interpretation requires interpreters to make a threshold

determination of whether a term has a “plain” or “clear” meaning in

isolation, without considering the statutory context and without the

aid of whatever canons might shed light on the interpretive issues

in dispute. 3

With that, we turn to our analysis of the certified question.

A.

We emphasize at the outset that there are two aspects to the

Eleventh Circuit’s question. The first is wholly a matter of state

law: what “purchase” means in the context of section 893.135(1).

The second involves federal law: whether the conduct that is a

purchase under section 893.135(1) necessarily entails the

defendant’s possession of the purchased drugs as federal law

3. The opinion concurring in result notes that this Court cited
Holly in a recent decision involving statutory interpretation, Shim v.
Buechel, 339 So. 3d 315 (Fla. 2022). But our analysis in Shim did
not address the role of traditional rules of statutory interpretation
in determining whether a statute has a plain or clear meaning. We
cited Holly only in support of our refusal to “reach policy
considerations” in the face of a statute that we deemed
unambiguous. Id. at 317. Notably, the opinion concurring in result
makes no attempt to defend the Holly principle on the merits.

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defines possession. 4 We think the clearest way to present our

analysis is to start by explaining possession as a matter of federal

law.

The Eleventh Circuit informs us that, under federal law,

“ ‘possession’ includes both actual and constructive possession.”

Conage, 976 F.3d at 1255. The former occurs when a person has

“direct physical control” over the item in question. Id. By contrast,

“constructive possession exists when the defendant exercises

ownership, dominion, or control over the item or has the power and

intent to exercise dominion or control.” Id. (quoting United States v.

Beckles, 565 F.3d 832, 841 (11th Cir. 2009)). Another Eleventh

Circuit precedent says that “[a] defendant has constructive

possession of a substance when he has some form of control other

than direct physical control.” United States v. Edwards, 166 F.3d

1362, 1364 (11th Cir. 1999). For example, “a defendant has

constructive possession of a substance if it is being held by an

agent of the defendant.” Id.

4. The Eleventh Circuit said that its task was to decide
“whether ‘purchase’ under Florida Statutes § 893.135(1) involves
‘possession’ as federal law under the ACCA defines that term.”
Conage, 976 F.3d at 1255.

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Understanding how federal law defines possession helps to

frame the parties’ disagreement over the proper interpretation of

section 893.135(1). According to Conage, the government “can

prosecute an individual for ‘purchasing’ under section 893.135(1)

the moment he hands over money for drugs, even before he takes

possession.” The United States responds that a purchase under

section 893.135(1) is not complete until the defendant has obtained

the purchased drugs, and that possession is therefore an inherent

requirement for trafficking by purchase. We believe that the United

States is right, both as a matter of ordinary meaning and in light of

the statutory context.

First, consider the ordinary meaning of the word “purchase.”

When a contested term is undefined in statute or by our cases, we

presume that the term bears its ordinary meaning at the time of

enactment, taking into consideration the context in which the word

appears.5 And we typically look to dictionaries for the best evidence

of that ordinary meaning.

5. No one before us argues that “purchase” is a legal term of
art or that it bears a specialized meaning.

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Our research shows that dictionaries are essentially uniform

in how they define the word “purchase.” The American Heritage

Dictionary definition is typical: “purchase” means “[t]o obtain in

exchange for money or its equivalent; buy.” Purchase, The American

Heritage Dictionary of the English Language (3rd ed. 1992). In turn,

that same dictionary defines “obtain” to mean “[t]o succeed in

gaining possession of, as the result of planning or endeavor;

acquire.” Obtain, The American Heritage Dictionary, supra; see also

Purchase, Webster’s Third New International Dictionary Unabridged

(1966 ed.) (“to get into one’s possession; to obtain . . . by paying

money or its equivalent”); Obtain, Webster’s, supra (“to gain or

attain possession or disposal of . . .”).

As a matter of ordinary meaning, then, a purchase entails

both giving consideration for and obtaining the good being

purchased. We do not think it would be reasonable to apply this

definition so literally as to require proof that a defendant personally

obtained actual, physical possession of the purchased item. But we

do think that a defendant cannot be said to have obtained an item

until he has control over that item—in other words, until he has

gained constructive possession as federal law understands that

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concept. Here the United States’s position is consistent with the

ordinary meaning of the word “purchase”; Conage’s position,

because it focuses only on the payment aspect of a purchase, is not.

Second, consider the word “purchase” in light of how this

Court has defined a “sale” in the context of chapter 893. In Milazzo

v. State, 377 So. 2d 1161, 1163 (Fla. 1979), we said that, along with

consideration, “delivery is one of the essential elements of a sale.”

This precedent was on the books when the Legislature criminalized

trafficking by purchase in 1987. Given that precedent, we think

that an informed reader of the Legislature’s work product, and the

Legislature itself, would have understood a purchase to require

both the giving of consideration and the buyer’s obtaining some

form of control over the illegal drugs. Otherwise, there would be

disharmony between the words “purchase” and “sell” in the same

statute.

Third, consider the word “purchase” together with the

company it keeps in section 893.135(1). The statute identifies five

other ways of committing the crime of drug trafficking: to sell, to

manufacture, to deliver, to bring into the state, or to possess a

trafficking quantity of illegal drugs. Set aside for a moment the

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technical elements of each form of drug trafficking. As a practical

matter, each involves a defendant who has a degree of control over

the illegal drugs being trafficked. The United States’s

understanding of “purchase” would preserve the statute’s internal

consistency. Conage’s proposed definition would make the word

“purchase” an outlier among neighboring and related terms in the

statutory text.

We thus conclude that, for purposes of section 893.135(1), a

completed purchase requires proof that the defendant both (1) gave

consideration for and (2) obtained control of a trafficking quantity of

illegal drugs. And we understand the requisite control to consist of

the same range of conduct that qualifies as constructive possession

under federal law, including control through an agent of the

defendant.

B.

We have carefully considered the counterarguments offered by

Conage and the State, but we find them unconvincing.

Conage acknowledges that “the plain and ordinary meaning of

‘purchase’ is to obtain or acquire something through an exchange.”

But he says that it is common in everyday speech to use the word

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“purchase” to refer to paying for and obtaining an item for someone

else. That is true but irrelevant. Even if the purchaser in that

scenario never assumes actual possession of the purchased item,

he still will have exercised control (federal law constructive

possession) over the item for purposes of directing its transfer or

delivery to the recipient.

Relatedly, Conage invokes the example of a “middleman”

whose role is merely to give cash for drugs on behalf of another.

Depending on the facts of a particular case, the middleman would

either be a copurchaser (if he gets joint control over the drugs) or an

aider and abettor of the actual purchaser. Either way he would be

liable as a principal under our definition of the word “purchase” in

section 893.135(1).

Conage also invokes everyday references to a consumer who

“purchases” an item online and then awaits its delivery. This

appeal to our linguistic intuition raises a fair point, but it is not

strong enough to carry the day. For one thing, typical speakers

would likely give varying answers to the question whether a

commercial purchase is complete before the consumer obtains

control over the purchased item. More importantly, our Court

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implicitly rejected analogous reasoning when it concluded that a

sale in the context of chapter 893 requires both consideration and

delivery. See Milazzo, 377 So. 2d at 1163. It would not be unusual

in everyday speech to say that a vendor has “sold” an item before

delivering it, but that did not dictate our definition of a sale for

purposes of Florida’s criminal drug law.

Like Conage, the State acknowledges that, as a matter of

ordinary meaning, “to purchase, one must acquire or obtain

something through an exchange.” But the State argues that “one

can ‘acquire’ or ‘obtain’ the right to control a good before assuming

such control, like when one orders a good from an online retailer

and awaits its arrival.” This argument, too, suffers from an

inconsistency with this Court’s definition of a sale in this context—

we did not say in Milazzo that a sale of illegal drugs is complete

when the seller takes on an obligation to deliver an item. More

fundamentally, legitimate commercial transactions take place

against a backdrop of laws that give rise to enforceable rights and

duties, making it possible to speak of a predelivery “right” to obtain

an item. The same cannot be said of the world of illegal drug

trafficking. Cf. United States v. Manzella, 791 F.2d 1263, 1266 (7th

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Cir. 1986) (Control for purposes of constructive possession exists

where a defendant has “the right (not the legal right, but the

recognized authority in his criminal milieu) to possess” the drugs.)

(Posner, J.).

Finally, Conage and the State point to the statutory history of

section 893.135(1). As we have explained, the drug trafficking

statute lists six ways of committing the crime of drug trafficking.

Five of those ways (including trafficking by possession) appeared in

the initial version of Florida’s drug trafficking law in 1979. Ch. 79-

1, § 1, Laws of Fla. The Legislature added trafficking by purchase

in 1987. Ch. 87-243, § 5, Laws of Fla. Conage and the State argue

that the 1987 amendment would be without practical effect if, to

prove a completed purchase under section 893.135(1), the

government would also have to prove possession. 6

The problem with this argument is that Conage and the State

assume an overly narrow definition of possession, one based on

6. To be clear, even Conage and the State do not argue that
the United States’s interpretation of the word “purchase” renders it
superfluous in the sense of meaning the same thing as possession.
By anyone’s definition, a purchase involves consideration and
possession does not.

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their understanding of Florida rather than federal law. Conage says

that, as a matter of Florida law, constructive possession of

contraband occurs when a defendant “knows of its presence on or

about his premises and can exercise dominion and control over it.”

Similarly, the State cites the 2016 version of Florida’s standard jury

instructions for the proposition that constructive possession

requires proof that the defendant is aware of the presence of the

substance and has the ability to control it, and that the substance

is in a place over which the defendant has control. 7

7. To explain Florida law on possession, the State relies on In
re Standard Jury Instructions in Criminal Cases–Report No. 2015-03,
191 So. 3d 291, 310 (Fla. 2016). However, those jury instructions
were materially amended in 2018 and 2019. See In re Standard
Jury Instructions in Crim. Cases–Rep. 2017-03, 238 So. 3d 182 (Fla.
2018); In re Standard Jury Instructions in Crim. Cases–Rep. 2018-
12, 272 So. 3d 243 (Fla. 2019). Our current jury instructions state
that:

To prove (defendant) knowingly possessed a
substance, the State must prove beyond a reasonable
doubt that [he] [she] a) knew of the existence of the
substance and b) intentionally exercised control over that
substance.
Control can be exercised over a substance whether
the substance is carried on a person, near a person, or in
a completely separate location. Mere proximity to a
substance does not establish that the person
intentionally exercised control over the substance in the
absence of additional evidence. Control can be

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This is not the place to determine whether Conage and the

State have accurately described Florida law on constructive

possession (either as it existed in 1987 or as it is today), and our

decision here should not be read as weighing in on that issue. The

key point is that our holding here is not that a completed purchase

requires proof of the narrow form of constructive possession that

Conage and the State have identified. Instead, we are defining the

word “purchase” in section 893.135(1) as inherently requiring the

broader form of control-based constructive possession recognized in

federal law. If Conage and the State are correct in their

understanding of what is required to prove constructive possession

under section 893.135(1) as a matter of Florida law—in other

words, if Florida law constructive possession has to do with the

defendant’s knowledge of the drugs’ presence and with where the

drugs are found—then the Legislature’s 1987 addition of trafficking

by purchase did materially alter the legal status quo. Specifically,

established by proof that (defendant) had direct personal
power to control the substance or the present ability to
direct its control by another.
Fla. Std. Jury Instr. (Crim.) 25.7(a).

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the Legislature would have criminalized conduct (consideration plus

obtaining control, without regard to the defendant’s relationship to

the place where the drugs are found) that would not have been

captured by the statute’s reference to possession (as Conage and

the State understand Florida law possession). 8

In any event, the Legislature appears to have been willing to

tolerate some redundancy in its design of section 893.135(1). As we

have explained, the statute lists sale and delivery as separate forms

of drug trafficking, even though proof of a completed sale requires

proof of delivery. Formal elements aside, there also is potential

overlap between possession and delivery, and between possession

and bringing drugs into the state—even though section 893.135(1)

lists each of these as a distinct way to traffic drugs. Rather than

strain to adopt Conage and the State’s definition of trafficking by

purchase, we would leave it to the Legislature explicitly to adopt a

8. In the interest of completeness, we note that, four years
before the Legislature added trafficking by purchase in 1987, our
Court held that “[t]o establish constructive possession, the state
must show that the accused had dominion and control over the
contraband, knew the contraband was within his presence, and
knew of the illicit nature of the contraband.” Brown v. State, 428
So. 2d 250, 252 (Fla. 1983), superseded in part by statute,
ch. 2002-258, § 1, Laws of Fla.

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specialized definition saying that a purchase is complete upon

payment, if the Legislature wishes to do so.

C.

Finally, there is the rule of lenity. Through section 775.021(1),

Florida Statutes, the Legislature has elevated lenity from a canon of

construction to a statutory command. That statute tells us to

construe provisions in the criminal code “strictly.” § 775.021(1),

Fla. Stat. (2021). And the Legislature further instructs that, “when

the language [of a statute] is susceptible to differing constructions,

it shall be construed most favorably to the accused.” Id. In Florida,

the rule of lenity is a default rule that comes into play at the end of

the interpretive process. See Paul v. State, 129 So. 3d 1058, 1064

(Fla. 2013) (rule of lenity applies “if the statute remains ambiguous

after consulting traditional canons of statutory construction.”).

Conage says that the rule of lenity requires us to resolve ties

in his favor, because he is the defendant in the underlying federal

case. We disagree. The reference in section 775.021(1) to “the

accused” has to mean a person being prosecuted for allegedly

violating a criminal law of Florida. Here that would be a generic

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defendant accused of trafficking by purchase, not Conage in his

contest with the United States.

We believe that the United States has the better reading of

section 893.135(1) without resorting to the rule of lenity. But at

most, Conage has proposed a plausible interpretation of section

893.135(1) and fought the United States to a draw. In that case,

the rule of lenity would tell us to adopt the United States’s

interpretation of the statute. That interpretation (by requiring

consideration plus control) makes proof of a completed purchase

under section 893.135(1) more difficult than Conage’s

consideration-only interpretation, and so favors the accused in a

prosecution to enforce the statute.

III.

To sum up: for purposes of section 893.135(1), a completed

purchase requires proof that the defendant both (1) gave

consideration for and (2) obtained control of a trafficking quantity of

illegal drugs. We understand the requisite control to consist of the

same range of conduct that qualifies as constructive possession

under federal law, including control through an agent of the

defendant. In answering the Eleventh Circuit’s certified question,

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we do not purport to predict the myriad ways that the State could

prove control in a prosecution for trafficking by purchase under

section 893.135(1).

It is so ordered.

CANADY, POLSTON, LAWSON, COURIEL, and GROSSHANS, JJ.,
concur.
LABARGA, J., concurs in result with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., concurring in result.

Although I agree with the majority’s conclusion that the word

“purchase,” as set forth in section 893.135(1), Florida Statutes,

requires the defendant purchaser to possess the purchased drugs—

and thus, I concur in the result—I find it curious that the majority

now deems, as “misleading and outdated,” the longstanding

principle in Holly v. Auld, 450 So. 2d 217 (Fla. 1984).

As recently as May 26, 2022, in a unanimous opinion, this

Court quoted the same principle it now finds untenable, and it did

so without questioning its viability. See Shim v. Buechel, 339 So. 3d

315, 317 (Fla. 2022) (“See State v. Peraza, 259 So. 3d 728, 730 (Fla.

2018) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)

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(‘[W]hen the language of a statute is clear and unambiguous and

conveys a clear and definite meaning, there is no occasion for

resorting to the rules of statutory interpretation and construction;

the statute must be given its plain and obvious meaning.’ ”))).

Certified Question of Law from the United States Court of Appeals
for the Eleventh Circuit – Case No. 17-13975

A. Fitzgerald Hall, Federal Defender, James T. Skuthan, First
Assistant Federal Defender, Conrad Benjamin Kahn, Interim Chief
of Appeals, Katherine Howard, Research and Writing Specialist,
Federal Defender’s Office, Orlando, Florida,

for Appellant

Roger B. Handberg, United States Attorney, David P. Rhodes, Chief,
Appellate Division, Holly L. Gershow, Assistant United States
Attorney, Appellate Division, Middle District, Tampa, Florida,

for Appellee

Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief
Deputy Solicitor General, and David M. Costello, Assistant Solicitor
General, Tallahassee, Florida,

for Amicus Curiae State of Florida

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