Sunday, August 09, 2015

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 United States Sentencing Commission Logo from

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


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