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Whitfield v. United States,
No. 03-1293 (U.S., January 11, 2005): Federal crime of conspiracy to commit money laundering does not require proof of an overt act in furtherance of the conspiracy.
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United States v. Dunmire,
No. 04-3002 (10th Cir., April 5, 2005) (Published): Winner!!! Federal conspiracy to distribute five or more grams of crack reversed for insufficient evidence to support the jury's verdict. Enterprising District Court provided the jury with special verdict forms: the first one asked whether the government proved beyond a reasonable doubt that Dunmire conspired to distribute more than fifty grams of crack. Answer: No. The second form was the same but the query was more than five grams (but presumably less than fifty). Answer: Yes. The Circuit panel expressed no opinion on the propriety of the special verdict forms, but granted relief on the sufficiency claim, reciting the facts and noting that the only direct evidence presented by the government regarding quantity of drugs was a single transaction (controlled buy) that involved less than the amount for which the defendants were ultimately convicted. Dunmire went out to a car and made another sale but cops unable to verify any of the details. The government's efforts to bootstrap this second sale unavailing. NOTE: Judge Friot, W.D. Okla., sat by designation in this one.
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United States v. Stiger,
No. 03-5043 (10th Cir., June 30, 2005) (Published): Drug case where the panel granted re-hearing after Booker was decided. Stiger appears to be a very bad dude and was convicted after a 23-day trial with 50 witnesses. One issue focused on the verdict form used by the District Court which the Circuit found erroneous but harmless. Another interesting issue was whether Booker mandates that the jury determine, in a conspiracy case such as this one, the amount of drugs attributable to each individual member of the conspiracy. The panel agreed with five other circuits and held that the jury need only find the amount for the whole conspiracy which sets the statutory maximum and the judge can flesh out the amount attributable to the individual members of the conspiracy. Finally, the panel remanded to the District Court for an evidentiary hearing on the issue of whether his prior counsel had a conflict when the District Court appointed the prior lawyer to represent a co-defendant who plead guilty.
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McGee v. State,
2005 OK CR 30 (Okl.Cr., January 5, 2006): Not complete relief for McGee but a nice opinion on conspiracy law and winner on the conspiracy count when COCA noted that no witness ever saw the second party charged in the Information. The Court stated that it canvassed the cases back to statehood and found no cases that upheld a conspiracy conviction when no witness saw or spoke to the alleged co-conspirator. NOTE: McGee also also raised a claim that he was entitled to present mitigation evidence to the jury but the Court rejected that argument, holding that mitigating evidence is not admissible in non-capital guilt or sentencing proceedings (citing Malone v. State, 2002 OK CR 34).
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United States v. Arbane,
No. 04-15727 (11th Cir., April 21, 2006): Conspiracy winner! If there are only two members of a conspiracy, neither may be a government agent or informant who aims to frustrate the conspiracy. In this case, a split panel found that the government proffered insufficient evidence that Arbane conspired with anyone other than the government's confidential informant.
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United States v. Rios,
No. 05-50000 (9th Cir., June 2, 2006): Possession of Firearm. Rios was found guilty by a jury of conspiracy with several family members to purchase drugs from a pharmacy with fake prescriptions and sell them for a profit. He was also charged with possession of a firearm (a sawed-off shotgun) in furtherance of the conspiracy. The shotgun was found in Rios's hotel suite during the execution of a search warrant. Other than this fact, the only evidence introduced by the Government consisted of "expert" testimony describing the uses of sawed-off shotguns and the characteristics of drug traffickers and how they use such weapons. The panel held this was insufficient as a matter of law to prove that the possession was "in furtherance" of the conspiracy. Excellent discussion of the law relating to this topic, including a section on congressional intent and an analysis of the legislative history of the statute.
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United States v. Qayyum,
No. 04-1509 (10th Cir., July 6, 2006) (Published): Conspiracy: The District Court dismissed a conspiracy count (alleging conspiracy to defraud by intending to keep an illegal alien in the United States) based upon the statute of limitations (five years). The Government appealed and the panel reversed. Good discussion of how statutes of limitations apply to conspiracy cases.
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United States v. Korey,
No. 05-3840 (3rd Cir., January 4, 2007): Conspiracy: Instructive case reversing a conspiracy conviction based on defective jury instructions. The Government's theory was that Korey accepted cocaine if he would kill a person and the jury was instructed that it must find a conspiracy if this was proved. This was error because the instruction did not require the government to prove unanimity of purpose for the conspiracy (to distribute cocaine) because Korey could have simply accepted the cocaine for himself.
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United States v. Wright,
No. 06-3063 (10th Cir., November 6, 2007) (Published): 1) Conspiracy; 2) Discovery; and 3) Jurors: Wright went to jury trial on a charge of Conspiracy to Distribute and to Possess with Intent to Distribute more than 50 Grams of Cocaine and was sentenced to 210 months. Wright and others were basically running a crack house and the cops conducted some controlled buys and obtained a search warrant for the house. Wright challenged the sufficiency of the evidence to prove the conspiracy. The panel AFFIRMED, penning an opinion with a clarification of the "buyer-seller relationship" principle that applies to large conspiracies (although it did not help Wright in this case). There is also a decent discussion about the production of the notes of the case agent after she referred to them on the stand during trial. The panel found no Jencks Act violation and no Brady violation. Finally, after the trial was over, the jury foreman appeared to be very upset and approached defense counsel in the hallway. The trial judge saw this and squelched any contact pursuant to a local rule prohibiting counsel from contacting jurors without court approval. The trial judge met with the juror in chambers and subsequent denied the defense motion to contact the juror on the basis that it would not lead to any evidence admissible under Rule 606(b). The spineless panel held this was not an abuse of discretion, noting somewhat cattily that defense counsel did not request a record to be made of the judge's interview.
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United States v. Rakes,
No. 06-4208 (10th Cir., December 26, 2007) (Published): 1. Conspiracy; 2. Sufficiency of the Evidence: This case began with a threatening letter sent to an Assistant United States Attorney in Utah. The letter stated, "You stupid bitch! It is because of you that my brothers are in jail for the Rico. I know you live on the [street name redacted]. We will get you. til the casket drops." The letter was traced back to April Dowding, a friend of two RICO defendants in a case involving a white supremacy group prosecuted by the Assistant. Dowding identified Rakes as being involved in the writing/mailing of the letter (along with others). Rakes was thereafter indicted for Mailing a Threatening Communication and Conspiring to Impede or Injure an Officer. Rakes entered a plea to Misprision of Felony in exchange for an agreement that the appropriate sentence was 09 months imprisonment (below the 18-24 months suggested by the Guidelines). At sentencing, the District Court received a victim impact letter from the Assistant, but did not disclose the letter either to the defense or counsel to the Government. As a result of the letter, the District Court rejected the plea agreement and Rakes elected to proceed to trial. At the conclusion of the (flimsy) evidence, the District Court acquitted Rakes of the Mailing count, and the jury found him guilty of the Conspiracy count. This time, the District Court disclosed the letter prior to sentencing. Oddly, since the offense had no assigned Guidelines section, the probation office analogized it to another offense and ultimately sentenced Rakes to 63 months. Although the panel recognized that Rakes' claims of error had "force" it nonetheless affirmed over his claims of 1) insufficient evidence of a conspiracy; 2) failure of the District Court to disclose the letter at the first sentencing hearing; 3) and use of the wrong Guidelines section as the most analogous.
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United States v. Swafford,
No. 06-5878 (6th Cir., January 17, 2008): 1. Conspiracy; 2. Variance; 3. Multiplicity: Complex conspiracy case where the Government alleged two counts of a single conspiracy, but the evidence at trial showed multiple conspiracies with different participants. This was a fatal variance. Also, the panel held that the trial court erred in denying Swafford's motion to strike or elect the substantive counts on the basis that they were multiplicitous.
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United States v. Carnagie,
No. 07-1148 (10th Cir., July 22, 2008) (Published): 1. Conspiracy; 2. Variance: "The district court granted the defendant's motion for judgment of acquittal, holding that the evidence adduced at trial failed to prove the conspiracies as charged and, instead, proved a number of smaller, separate conspiracies. The government appeals. We exercise jurisdiction under 28 U.S.C. 1291 and REVERSE and REMAND." The case involves allegations of defrauding the United States and money laundering, and the facts are complex. NOTE: The panel held that a variance occurred, but that the error was not so prejudicial as to require reversal; and, Henry, C.J., concurred, noting that it was a very close case.
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