Case o' The Week: The benefits of paying cash - Loveland and proof of conspiracies
The “darling of the modern prosecutor’s nursery” gets a well-deserved spanking. United States v. Loveland, No. 13-30162 (9th Cir. June 3, 2016), decision available here.
Facts: Defendants in the “Sanchez group” were charged with conspiracy to distribute meth; most plead guilty and cooperated. Id. at 4. Two of the three remaining were charged with possession with intent to distribute; Loveland, critically, was not. Id. Loveland was charged only with conspiracy to distribute meth. Id. at 5. The “Sanchez group” imported pounds of meth each month into Idaho, then distributed smaller amounts to a number of buyers. Id. Loveland was a repeat customer for two ounces of meth: he paid “cash on the barrelhead” each time. Id. Though there was evidence that two ounces was too much for a sole user, there was no evidence that the big conspiracy was involved in Loveland’s (potential) reselling. Id. at 5-6. Loveland’s motions for acquittal were denied and he was sentenced to life (triggered by two drug priors). Id.
Issue(s): “[Could] any reasonable juror . . . conclude beyond a reasonable doubt that the Sanchez group had an agreement, even tacit, with Loveland, for Loveland to resell the methamphetamine[?]” Id. at 15.
Held: “There was no evidence of an agreement, so the evidence was insufficient to support Loveland’s conspiracy conviction. Therefore, we REVERSE the judgment and VACATE Loveland’s conviction and sentence.” Id. at 16.
Of Note: Did Loveland intend to resell the ounces that he purchased from the big Sanchez group conspiracy? “The evidence was persuasive he committed that crime.” Id. at 3.
Judge Kleinfeld carefully explains, however, that "possession with intent to distribute" was not the crime charged: Loveland was charged with conspiracy.
Loveland is a terrific decision that thoroughly explains the “buyer-seller” exception for conspiracies – or, more accurately, the “buyer-seller” failure of proof of conspiracy. Id. at 12. The government can prove that resellers are part of conspiracy, if there is evidence of an agreement to redistribute. Evidence like extension of credit by the source of the drugs, or the reseller taking drugs on consignment, can show a “shared stake” in the conspiracy. Id. at 13. There’s no proof of that here, however. Instead, the evidence only showed that Loveland was a sole proprietor, a lone entrepreneur who paid for his meth with cash. Id. at 14.
Loveland is an important and welcome addition to the canon of conspiracy law; worth a close read.
How to Use: What does “conspiracy” mean? “Conspiracy means an agreement to commit a crime, not commission of the crime. Though that might sound less serious to a layman, lawyers know that the conspiracy charge affects much about trial and sentencing, all to the advantage of the prosecution. A conspiracy charge imposes one substantial disadvantage to the prosecution: the prosecution must prove the existence of the agreement beyond a reasonable doubt. The agreement can be explicit or tacit, and can be proved by direct or circumstantial evidence, including inferences from circumstantial evidence, but it still has to be proved.” Id. at 3 (footnotes omitted).
Hornbook stuff, but stated particularly clearly and cleanly -- a welcome § 2255 quote for those of us explaining why conspiracy to commit a Hobbs Act robbery is not a “crime of violence” after Johnson. The quote is of particular interest for those branded Career Offenders by virtue of a Hobbs Act conspiracy conviction, and clients hammered with § 924(c) mand-mins on top of Hobbs Act conspiracies. A spin of the karmic wheel for our unjustly sentenced (and racially targeted) “stash house” clients? See generally United States v. Davis, 793 F.3d 712 (7th Cir. 2015) (en banc); see also blog entry on Ninth Circuit's decision in Black here.
For Further Reading: The "National Institute of Justice" ("NIJ") is the research, development and evaluation agency of the U.S. Department of Justice. The NIJ recently published a document called “Five Things About Deterrence” – a remarkable fact sheet that correctly observes that “prison isn’t a very effective way to deter crime,” and reported that “there is no proof that the death penalty deters criminals.” (A very useful and accessible addition for our Booker sentencing memoranda).
But -- after DOJ's think tank offers a scientific and rational approach to deterrence and sentencing – poof – this fact sheet suddenly and mysteriously was yanked for "revision." See NIJ site here.
(Happily for us, the internet remembers all. . . see original NIJ "Five Things About Deterrence" fact sheet posted here, and available below).
Image, “this is Not a Conspiracy Theory” from https://i.ytimg.com/vi/Pob0vmb4pBQ/maxresdefault.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org