Case o' The Week: Ninth Gets Specific with Conspiracy Theories - Lapier and Echeverry Specific Unanimity Instructions

  The Ninth doesn’t mind conspiracy theories.

  It insists the government choose one, however.

United States v. Lapier, 2015 WL 4664689 (9th Cir. Aug. 7, 2015), decision available here.

Players: Decision by visiting 10th Circuit Sr. Judge Ebel, joined by Judges O’Scannlain and McKeown.  

Facts: Lapier was charged with a single count of conspiring to distribute meth. Id. at *1. The evidence at trial showed that starting in late 2011, Lapier got meth from Supplier #1. Id. In 2012, Supplier #1 was arrested and Lapier turned to Supplier #2. Id. at *2. Lapier didn’t ask for a specific unanimity instruction at trial. Id. at *3. He was convicted of the conspiracy count and a count of possession with intent to distribute. Id.   

Issue(s): “Because there was evidence of two different conspiracies, Lapier argues on appeal that the district court should have sua sponte given a specific unanimity instruction requiring the jury to agree on which conspiracy formed the basis of the conviction. . . . [W]e review this claim for plain error.” Id. at *3. “Such an instruction was necessary in this case, he argues, because the indictment charged a single conspiracy while the evidence tended to establish several separate conspiracies, creating a genuine possibility of juror confusion and risking a nonunanimous verdict. The indictment alleged that Lapier participated with unnamed ‘others’ in a single conspiracy ‘beginning in or before September 2011, and continuing through at least December 2012.’ However, the evidence at trial tended to show at least two separate conspiracies—one between Lapier and his first supplier . . . and a later one between Lapier and his second supplier . . . .” Id. at *4.

Held: “Count One alleged a single conspiracy . . ., but the evidence at trial showed at least two separate conspiracies—not the single conspiracy charged. This created a ‘genuine possibility of jury confusion’ and the risk of a nonunanimous verdict, . . . Echeverry, 719 F.2d 974, 975 (9thCir.1983), as some jurors might have convicted on the basis of a conspiracy with Lapier's first supplier . . ., and other jurors might have convicted on the basis of a separate conspiracy with Lapier's second, subsequent supplier . . . . 

Because this possibility was not cured with a specific unanimity instruction, it violated Lapier's constitutional right to a unanimous jury verdict. . . . [W]e REVERSE Lapier's conviction on Count One.” Id. at *1 (quotations and citation omitted).

Of Note: “What’s the problem?,” the government complains, “there was enough evidence convict him of something.” Id. at *6 (with editorial paraphrasing). 

The Ninth ain’t buying it: “that is not the proper way to analyze whether Lapier’s ‘substantial rights’ were violated in this context.” Id. The Ninth is not “free to speculate” whether the jury could have convicted on one conspiracy count, or the other (or perhaps both): “Lapier had a constitutional right to a unanimous jury verdict.” Id. This is a valuable cite for plain error appeals (on whether there was a “high probability that the error materially affected the verdict.”) Id.

How to Use: The Echeverry specific unanimity instruction is a valuable defense tool. In Lapier, Judge Ebel gives us a particularly thorough analysis of specific unanimity in the conspiracy context. Id. at *6-*9 (discussing Gonzalez, 786 F.3d 714 (9th Cir. 2015)). The fact that Lapier is a plain error reversal adds some bite to your district court argument for a Echeverry instruction: include Lapier in your quiver of trial instruction cases.  

                                               

For Further Reading: Does your client have a prior “crime of violence?” Put down the plea agreement, and hit the Sentencing Commission’s new post-Johnson preliminary proposed guidelines. See Prof. Berman's Blog entry here. 

 

These potential changes create the uncertainty from which good deals are forged: use them now, even though it will be a minute before the Commission and Congress hammer out the final post-Johnson “fix.” 

(Particularly true for Cali priors: California burgs and many wobblers could be excluded from the U.S.S.G. definition. See new preliminary proposed guideline here.) 

Image of “Conspiracy Theories” from http://www.skeptic.com/reading_room/conspiracy-theories-how-to-determine-true-conspiracies-from-false/  

Image of United States Sentencing Commission Logo from https://www.signup4.net/Upload/UNIT11A/20142004E/JS%20USSC_Logo.gif

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.

Three opinions today, each of which vacates a criminal conviction but does not entirely exonerate the appellant.

United States v. Martin, No. 14-30034 (Gould with Christen and Block (EDNY)) --- The Ninth Circuit vacated convictions for subscribing to false tax returns based on error under Rule 404(b), and vacated the sentence imposed for those convictions as well as for tax fraud.  The panel also explained how to apply the sentencing Guidelines at the eventual resentencing that will occur.

The defendant owned a construction company that built guard rails on public highways.  She hid income from the sale of used equipment and material, and between 2002 and 2008 ended up not paying $100,000 in income taxes.  She also fraudulently obtained government contracts under tow programs designed to help small businesses owned by "socially and economically disadvantaged persons;" these contracts were worth about $3 million.  At trial, the government introduced the defendant's 1996 and 1997 state tax returns, and the resulting audits, to show that she knew she had a duty to truthfully report her income.  She was convicted on the tax charges and some fraud charges.  Computing loss under the Guidelines, the district court applied an 18-level upward adjustment and, after a variance, imposed an 84-month sentence.

The court ruled that the trial judge abused his discretion by admitting information about the audits under Rule 404(b).  There was no relevant connection between the state tax rules that led to the audit and the federal tax rules she was accused of violating.  Instead, the information about the audit was intended merely to show that the defendant was a "liar who does not want to pay taxes and will cheat to avoid them -- a theme the government emphasized in closing, and a line of thinking the evidence rules are meant to discourage."  Thus the evidence was inadmissible under either Rule 404(b) or 403.  This error was not harmless with respect to the tax charges, because it allowed the jury to convict based on a propensity to lie on tax forms, but not with respect to the other charges.

 

This case thus will require resentencing, even if the jury should acquit on the tax charges at a new trial, because when the court vacates some but not all of a defendant's convictions, it nevertheless vacates the entire sentence.  The panel then had to provide guidance about applying the amount-of-loss guidelines with respect to the fraud convictions.  The amount of loss caused by the fraudulent awarding of contracts should be offset by the value of the services the government received under them; indeed, the defendant's company fully performed under them.  Neither special rule relating to "exclusive opportunities" for particular beneficiaries, or "regulatory approval" of the contracts, applies here.  The government will have another opportunity to prove the amount of loss.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/07/14-30034.pdf

 

United States v. Lapier, No. 13-30279 (Ebel (10th Cir.) with O'Scannlain and McKeown) --- Because the trial judge did not instruct the jury that it had to specifically agree on which drug conspiracy the defendant had engaged in, the panel reversed the defendant's conviction for conspiracy to possess a controlled substance with intent to distribute.

The defendant was selling methamphetamine that he got from a supplier with the understanding that he would repay the supplier with proceeds from selling the drug.  As this relationship went on, the supplier moved into the defendant's home and began helping to package the drug for sale.  After his supplier got arrested, the defendant had to turn to a new supplier.  The indictment alleged a single conspiracy covering the period of time when the defendant was buying the drug from both suppliers.  Although the evidence was sufficient to sustain the conspiracy conviction, the trial judge plainly erred by failing to instruct the jury that it had to unanimously agree on which conspiracy the defendant committed -- that is, whether its conviction was based on the conspiracy with the first supplier or the second.  There was genuine confusion here regarding which conspiracy the defendant was involved in, so the instruction was required to preserve the defendant's right to a unanimous verdict.  (The defendant's related conviction for possession with intent to distribute remained intact.)

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/07/13-30279.pdf

Shelton v. Marshall, No. 13-15707 (Reinhardt with Thomas and Christen) --- In Silva v. Brown, 416 F.3d 980 (9th Cir. 2005), the Ninth Circuit had held that the secret deal between one of Silva's codefendants was material exculpatory evidence that should have been provided to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and thus vacated the first-degree murder conviction.  The petitioner here was another of Silva's codefendants, and learned for the first time about the secret deal by reading the Ninth Circuit's opinion in Silva.  The petitioner here was also convicted of first-degree murder with respect to the same victim as Silva had been, although he did not receive a death sentence like Silva had.  Because the secret deal was similarly prejudicial to the petitioner here, the Ninth Circuit reversed the denial of an authorized second or successive habeas petition with respect to that particular conviction.  Silva had been acquitted of murder with respect to the second victim here, but the petitioner here was convicted of second-degree murder with respect to her.  That conviction stands, as do convictions for other crimes.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/07/13-15707.pdf