Even if Defendant Admits Guilt on Stand, the Jury—Not the Judge—Decides Guilt

United States v. Salazar, No. 13-20162 (5th Cir. May 2, 2014) (Smith, Clement, Higginson)

Against his attorney’s advice, Salazar took the stand during his trial on multiple drug and gun violations and confessed to all of the crimes charged.  Due to the confession, the trial judge believed no factual issue remained for the jury and instructed the jury “to go back and find the Defendant guilty.”  The panel finds that Salazar’s confession did not change his plea of not guilty and that the court’s instruction deprived Salazar of his Sixth Amendment right for a jury to decide his guilt or innocence. 

“[T]he Sixth Amendment prohibits the court from directing a guilty verdict,” even for “obviously guilty” defendants.  “A defendant’s confession merely amounts to more, albeit compelling, evidence against him.  But no amount of compelling evidence can override the right to have a jury determine his guilt.”

The attorney’s theory of defense was that Salazar withdrew from the conspiracy before certain overt acts were committed.  Salazar’s testimony, however, contradicted that theory. On appeal, Salazar also challenges the judge’s denial of his request to instruct the jury on withdrawal.  The panel finds that the district court did not err in this regard since, per his own testimony, Salazar did not attempt to withdraw until after several overt acts in furtherance of the conspiracies had occurred. 

The judgment of conviction is vacated and remanded for further proceedings.

§ 2L1.2 COV Enhancement Applies to Conspiracy to Commit Murder Without Overt Act Element

United States v. Pascacio-Rodriguez, No. 12-40264 (5th Cir. Apr. 11, 2014) (Wiener, Dennis, Owen)

The panel concludes “that conspiracy to commit murder, within the meaning of Application Note 5 of § 2L1.2, does not require an overt act as an element of the offense.”

Pascacio-Rodriguez pleaded guilty to illegal reentry after being convicted in Nevada for conspiracy to commit murder in 2003.  He appealed the application of the 16-level enhancement for a crime of violence conviction under U.S.S.G. § 2L1.2, arguing that the Guidelines refer to the generic definition of “conspiracy” which requires an overt act and that the Nevada murder conspiracy is broader than the generic definition because it does not require proof of an overt act.

As a preliminary matter, the panel recognizes that, under Descamps, it does not matter that Pascacio was actually charged with and pleaded guilty to overt acts since the Nevada statute does not require proof of an overt act.  Accordingly, the panel cannot resort to the modified categorical approach and must determine whether or not conspiracy to commit murder for purposes of § 2L1.2 requires an overt act.

“Neither ‘conspiracy’ nor ‘murder’ is defined by the Guidelines.”  Nonetheless, the panel concludes that “[t]he language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.” 

Alternatively, the panel concludes “that the generic, contemporary meaning of ‘conspiracy to commit murder’ does not require an overt act.”  Since conspiracy to commit murder was defined at common law, the panel employs a common sense approach based on the generic, contemporary meaning of the terms in the Guidelines.  “At common law, it was not necessary to allege or prove an act in furtherance of a conspiracy.”  The panel surveys federal conspiracy laws and determines that a majority do not require an overt act.  The Model Panel Code does not require an overt act for first- or second-degree felonies such as murder, but a majority of states require an overt act as an element of all criminal conspiracies.  “After surveying the various sources typically consulted in applying the categorical approach, it appears to us that, albeit slight, the weight of authority indicates that conspiracy to commit murder does not require an overt act as an element.”

Note: This decision does not mean that an overt act is unnecessary for every conspiracy analyzed under § 2L1.2.  The analysis throughout the decision was contingent on conspiracy to commit murder.  Conspiracy to commit other offenses would need to be analyzed separately. 

5th Circuit Abandons “Equipoise Rule” for Reviewing Sufficiency of Evidence

United States v. Vargas-Ocampo, No. 11-41363 (5th Cir. Mar. 26, 2013) (en banc)

When examining the sufficiency of evidence supporting a criminal conviction, the Fifth Circuit no longer refers to the “equipoise rule.”  Vargas-Ocampo defines the “equipoise rule” as requiring reversal of a conviction if the evidence construed in favor of the verdict “gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.”  The majority holds that the “equipoise rule” is not helpful in applying the Supreme Court’s standard prescribed in Jackson v. Virginia, 443 U.S. 307, 319 (1979).  Jackson requires a reviewing court to affirm a conviction if, “after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Applying that standard, the Fifth Circuit affirms Vargas-Ocampo’s conviction.  See previous post for a description of the panel’s decision.

Majority: Jones, Stewart, Jolly, Davis, Smith, Clement, Owen, Southwick, Higginson

Concurring in judgment only: Dennis, Prado, Elrod, Haynes, Graves

Judge King elected not to participate.

A Few Kilos Short of 10-Year Mandatory Minimum Sentence, but Conspiracy Conviction Stands

United States v. Daniels, No. 12-30413 (5th Cir. July 17, 2013) (King, Davis, Elrod)

A group accused of drug distribution appealed their convictions and sentences for conspiracy to distribute and to possess with intent to distribute five kilos or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). The defendants argued that evidence provided at trial was insufficient to support the jury’s verdict regarding drug quantity. Since only 1.535 kilograms were offered as physical evidence to the jury, the panel agreed that evidence did not support a finding that the conspiracy involved five kilograms or more. The Government’s failure to prove the five kilo quantity did not invalidate the conspiracy convictions but did call for resentencing (resentencing under 21 U.S.C. § 841 (b)(1)(B)(ii) was deemed appropriate in this case). The panel also vacated Daniels’ sentence on unlawful use of a communication facility and remanded to the district court for resentencing.

On 9/5/2013, the panel decided pursuant to a petition for rehearing by several defendants that those defendants’ sentences on the substantive counts would also be vacated and the case remanded for resentencing since the “Guidelines range calculations were driven by the conspiracy’s non-vacated 5 kilogram finding.”

Thanks to FPD Intern Matthew Gonzalez for this blog post.

Batson Challenge Denied & Uncorroborated Testimony of Co-Conspirators Sufficient Evidence

United States v. Thompson, No. 12-31203 (Nov. 12, 2013) (Smith, Dennis, Higginson)

Thompson challenged the government’s decision to use five of its seven peremptory strikes against black prospective jurors.  The government justified its decision based on the prospective jurors’ demeanors and, for three of them, also on perceived sources of bias toward the government.  Thompson argued these reasons were pretextual because the prosecutor struck 71% of the black potential jurors.  He also argued that Snyder v. Louisiana, 552 U.S. 472 (2008) requires the district court to state its assessment of demeanor on the record.  The panel disagreed, though, and held that “Snyder does not require a district court to make record findings of a juror’s demeanor where the prosecutor justifies the strike based on demeanor alone.”  Further, the record made it clear that the district court found the prosecutor’s demeanor-based justification credible.  After considering the strikes of all five jurors, the panel affirmed the denial of Thompson’s Batson challenge.

The panel also affirmed Thompson’s conviction, finding the evidence was sufficient to show he was part of the conspiracy and used weapons in furtherance of it.  Thompson complained that the only evidence connecting him to the conspiracy was the testimony of co-conspirators.  The panel found, however, that Thompson failed to show such testimony was factually insubstantial or incredible.  See United States v. Medina, 161 F.3d 867, 872-73 (5th Cir. 1998) (“As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator . . . may be constitutionally sufficient evidence to convict.” (internal quotation and citation omitted)).

Defendant bears the burden of proving a defense of withdrawal from a conspiracy

Smith v. United States, No. 11-8976 (U.S. Jan. 9, 2013) (Scalia, unanimous)

Since Congress did not assign the Government the burden of proving the nonexistence of withdrawal, the Court presumes that Congress wanted to preserve the common-law rule that the defendant must prove affirmative defenses.  Withdrawal does not negate an element of the charged conspiracy, and the Government does not have to prove that all affirmative defenses do not exist.  Affirms conspiracy convictions under jury charge that once the Government proved defendant was a member of a conspiracy, defendant has to prove withdrawal from a conspiracy by a preponderance of the evidence.

Fives to Rehear Sufficiency Win En Banc

A nice sufficiency win from earlier this year, United States v. Delgado, will be reheard en banc.  Presumably this was prompted by the criticism in Judge Clement's dissent from the panel ruling. She faulted the majority for addressing the sufficiency issue sua sponte, and criticized what she described as the majority's expansion of the buyer-seller exception to conspiracy liability and its misapplication of the cumulative error doctrine.

Convictions Reversed for Insufficiency and Cumulative Error; Good Discussion of Deliberate Ignorance

United States v. Delgado, No. 07-41041 (5th Cir. Jan. 19, 2011) (Wiener, Dennis; Clement, J. dissenting)

A common fact pattern, an uncommon result:

Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371.0. She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed. For the reasons assigned herein, we vacate her convictions and sentences, dismiss the conspiracy charge of the indictment because the government failed to introduce sufficient evidence to convict her of conspiracy, and remand the case to the district court for further proceedings on the possession with intent to distribute charge.

The evidence presented by the prosecution was not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado was guilty of conspiracy. Delgado’s unconsummated “agreement” with a produce broker’s agent to commingle marijuana with produce in a motor freight shipment was not an actual agreement as required for the crime of conspiracy: the broker’s agent was an undercover government informer, who only pretended to agree to the scheme with Delgado pursuant to ICE officers’ plan to incriminate Delgado and seize contraband marijuana. The evidence was also not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado agreed with the unknown person who supplied the marijuana, the unknown prospective recipient, or any other person, to commit a crime that amounted to more than a buyer-seller relationship. The district court did not inform the jury that neither an agreement with a government informer who intends to frustrate the conspiracy, nor a simple buyer-seller relationship, is legally sufficient to amount to a conspiracy. Because there was no evidence that Delgado entered into an agreement with anyone other than the informer to engage in anything beyond a simple buyer-seller transaction, the conspiracy charge must be dismissed due to insufficient evidence.

In addition, Delgado’s trial was rendered fundamentally unfair by the cumulative effects of several errors. Two members of the prosecution team engaged in trial misconduct that was unfairly prejudicial to Delgado. The prosecutor, in his closing argument, told the jury that Delgado (who did not take the witness stand) had lied when she told the investigating government agents that she was unaware that marijuana had been hidden in the sleeping compartment of the truck. In addition, a law enforcement officer witness made an uncalled-for comment during his testimony to the effect that Delgado’s trucking company had been involved in a prior, uncharged, drug-related crime. Furthermore, the district court improperly instructed the jury that it could find Delgado guilty of possession if it found that she had been deliberately ignorant as to whether the marijuana was located inside a truck on her premises; that instruction was erroneous because the government failed to lay the required predicate for it by introducing evidence of circumstances indicating that Delgado was subjectively aware of a high probability that the marijuana was in the truck and consciously avoided discovering it. And the record on appeal does not contain a complete transcript of the proceedings at trial, thereby limiting the ability of Delgado’s new appellate counsel to present an effective appeal. These errors, in the context of this case, were cumulatively sufficient to render the proceedings fundamentally unfair. Delgado is therefore entitled to a new trial as to the remaining charge against her.

Judge Clement dissented:

The panel majority disregards the substantial evidence supporting Delgado’s conviction and substitutes its own judgment for that of the jury. Although Delgado never raised the buyer-seller exception or challenged the sufficiency of the evidence at trial or on appeal, the panel majority raises the issue sua sponte. In order to justify the result, the majority panel opinion significantly rewrites and expands this circuit’s buyer-seller exception.

Discussing the cumulative error doctrine in the habeas context, this court recognized that it “is an infinitely expandable concept that, allowed to run amok, could easily swallow the jurisprudence construing the specific guarantees of the Bill of Rights and determining minimum standards of procedural due process.” Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). The majority’s decision is a manifestation of precisely that danger. Its holding that prejudicial errors occurred distorts this court’s prosecutorial misconduct and conspiracy doctrines. The majority also misapplies this court’s cumulative error jurisprudence by expanding the doctrine to cover unrelated weak or non-existent errors. It is the rare trial that proceeds without a single miscue; “[a] defendant is entitled to a fair trial, not a perfect one.” United States v. Ragsdale, 438 F.2d 21, 28 (5th Cir. 1971). Delgado’s trial was far from unconstitutionally unfair. The majority’s holding to the contrary will be read to cast doubt on the outcomes of similarly routine trials. I would affirm the jury’s verdict and must respectfully dissent.

It's a long opinion (66 pages), but well worth a read, especially the majority's deliberate ignorance discussion.