Sunday, August 02, 2009

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?

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

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


Labels: , , ,


Post a Comment

<< Home