Case o' The Week: Failed Conspiracy Good Enough for Successful Prosecution, Mincoff

Is a defendant guilty of conspiring to distribute cocaine when he never actually possessed the cocaine - indeed, when the cocaine sought was never actually delivered?

Yep. United States v. Mincoff, No. 08-50058, 2009 WL 2342031 (9th Cir. July 31, 2009), decision available here.

Players: Decision by Judge Johnnie B. Rawlinson (above left), joined by Judges Canby and N. Randy Smith.

Facts: James Mincoff called Munoz in 2004 to ask if Munoz had access to cocaine, and then ordered eight kilos. Id. at *1. Munoz delivered, Mincoff took it and delivered it to his customer, then returned and paid Munoz’s accomplice for the drug. Id. In 2005, the government got a wiretap and caught Mincoff ordering six or seven kilos from Munoz. Id. at *1-*2. The delivery was delayed, the buyers got antsy, and this order gradually dropped down from 6, to 3, and then to 1 kilo. Id. at *2. Ultimately, Munoz never delivered so Mincoff never actually possessed cocaine for the 2005 (attempted) transactions. Id. at *2.

Both men were charged federally, Munoz flipped, and Mincoff was convicted at trial of conspiracy to distribute cocaine, attempt to distribute cocaine, and unlawful use of a communication facility. Id. at *1. The government had alleged in an information Mincoff’s prior conviction for possession of ephedrine with intent to manufacture meth; at sentencing the district court dubbed that prior a “felony drug offense” and doubled the mandatory minimum to twenty years. Id. at *8.

Issue(s): (Among many): 1. Fronting: Can the practice of “fronting” drugs without immediate payment be evidence of a conspiracy? Id. at *3-*4.

2. Conspiracy: Does “conspiracy to distribute cocaine require proof that one possessed that cocaine?” Id. at *8 (emphasis added).

Held: 1. Fronting: “We are persuaded by precedent from our sister circuits that evidence of fronting may support a conviction for conspiracy to distribute a controlled substance.” Id. at *4.

2. Conspiracy: “We adopt the rule articulated by our sister circuits that a narcotics distribution charge may be proven without proof of possession.” Id. at *9.

Of Note: The above are but two of the handful of new Ninth Circuit rules created in Mincoff. Judge Rawlinson holds that Mincoff’s ephedrine conviction qualifies as a § 841 prior that can double the mandatory-minimum sentence. Id. at *11. The Court also holds that § 841 isn’t void for vagueness as to the ephedrine prior. Id. at *12-*13.

Admittedly, none of these new rules are radical breaks from existing conspiracy or § 841 law in other circuits. Nonetheless, given the amount of new Ninth Circuit precedent forged in the case there is surprisingly little discussion of countervailing arguments. See, e.g., id. at *13 (rejecting in two sentences “rule of lenity” argument in support of constitutional vagueness challenge).

How to Use: For better or worse, Mincoff is a mandatory read for those defending federal drug and conspiracy cases. The decision discusses “fronting” in depth, and describes how fronting evidence can undermine “buy-sell” law for conspiracies. Id. at *4. It explains why there was enough evidence in the case to show that Mincoff and Munoz had agreed to the “essential terms of the planned transaction” with enough certainty to support a conspiracy conviction (although the pair never agreed on an amount of cocaine that was actually delivered). Id. at *5. The case explains that there was a “substantial step” taken towards an attempt to distribute a controlled substance: “[t]he only thing missing was the drugs . . .” Id. at *6. It discusses (and rejects) Mincoff’s arguments on a multiple conspiracies instruction. Id. at *7. Finally, it marches through the definition of “felony drug offense” for Section 841 priors, then rejects Mincoff’s challenge to the doubling of his mandatory minimum sentence. Id. at *11-*12.

In short, a drug defense must dodge many Mincoff minefields.

For Further Reading: For an excellent outline on how to discipline Conspiracy, that spoiled brat of the prosecutor’s nursery, see Jon Sands’ masterpiece here.




Image of the Hon. J. Rawlinson from http://levellers.wordpress.com/2009/05/07/supreme-court-possibilities-i-the-women/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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