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The First Circuit Vacates A Conspiracy Conviction

Federal conspiracy charges are challenging. What counts as a conspiracy is broad enough to make conspiracy charges a favorite of federal prosecutors. Yet, the precise bounds of any given conspiracy are very difficult to trace.

Courts swing back and forth between whether to restrict conspiracy charges or let federal prosecutors have a freer reign with them. Opinions, or, worse, jury instructions, setting out the evidence required to prove a conspiracy swing back and forth.

On one hand, the government has to show that there’s an agreement between the people who are supposedly in the conspiracy. On the other hand, an agreement doesn’t have to be in writing, or even acknowledged as an agreement, and it can be inferred from the actions of the people who are accused of a crime. Yet mere temporal or physical proximity between the alleged co-conspirators is not enough to prove a conspiracy. Though a person can become a co-conspirator without knowing all the parts of the conspiracy, mere knowledge of the conspiracy is not enough to make a person a conspirator.

Reading these opinions reminds me of the Simpson’s Halloween Special where Homer buys a toy for Bart at a creepy ancient medicine store:

Shopkeeper: [Homer has agreed to purchase a Krusty doll for Bart’s birthday] Take this object, but beware it carries a terrible curse!

Homer: Ooh, that’s bad.

Shopkeeper: But it comes with a free frogurt!

Homer: That’s good.

Shopkeeper: The frogurt is also cursed.

Homer: That’s bad.

Shopkeeper: But you get your choice of toppings.

Homer: That’s good!

Shopkeeper: The toppings contain potassium benzoate.

[Homer looks puzzled]

Shopkeeper: …That’s bad.

Homer: Can I go now?

(the clip is available on Hulu here – sorry for the lack of embeddable video)

The First Circuit’s recent decision in United States v. Szpyt illustrates a serious problem with conspiracy prosecutions – the conspiracy the prosecutor thinks he or she has, and sets out in the indictment, may not actually be the conspiracy that gets proven at trial.

In Mr. Szpyt’s case, he was charged with being in a single conspiracy to distribute cocaine and marijuana with a man named Sanborn (who was also charged). They were alleged to sell both kinds of drugs to and with the members of a biker gang in Maine named the Iron Horsemen.

The government put on a wealth of evidence that Sanborn ran what the First Circuit called a “marijuana distribution emporium.” Sanborn sold marijuana and cocaine – the evidence at trial only showed that Szpyt sold cocaine. There was no credible evidence that Szpyt was a marijuana dealer.

Because the government said that both Sanborn and Szpyt both sold both drugs, they argued that the government’s evidence showed a different conspiracy than the one the government described in the indictment.

As the First Circuit explained the problem,

Perhaps this case is best understood if we think of Sanborn as a drug supermarket owner, who sold different products, cocaine and marijuana, rather than bananas and tomatoes, from different distributors: cocaine from the . . . Szpyt chain and marijuana from the Demarco and Boivin-Chase suppliers. Were we actually considering such fruit distribution chains in the context of an actual supermarket, we would be hard put to argue that the intersection of those two separate fruit product distribution chains would be of any legal significance as far as somehow making the members of the two separate chains overall business partners. Neither would it be reasonable to argue that merely distributing tomatoes to the supermarket, by itself, would make the tomato distributor a partner in the supermarket’s overall business of selling bananas and other foods. When we transfer this bucolic scenario to the present case, we can perceive no legally significant difference in the outcome. The Vizcaino-Dellosantos- Szpyt criminal conspiracy to distribute cocaine was a different criminal enterprise than the Boivin-Chase-Sanborn-Jordan marijuana enterprise, with different products, a different source of supply, different goals, and a different history. Similarly, distributing cocaine (rather than tomatoes) to Sanborn’s drug supermarket does not, by itself, make Vizcaino, Dellosantos and Szpyt partners in Sanborn’s drug supermarket business of distributing cocaine and marijuana.

Thus, the First Circuit ruled, the government’s evidence varied from the allegations in the indictment. The evidence showed that two conspiracies existed, not one.

Not all variances require a reversal though. The court of appeals will only find that the government’s failure to prove what it said happened triggers a reversal if it prejudices the person convicted.

Here, the First Circuit found that there was substantial prejudice. The defendant, and his lawyer, went to trial thinking they were responding to one kind of conspiracy. When they got there, they faced evidence of another. The First Circuit held that this unfairly compromised their ability to prepare for trial.

Accordingly, the court of appeals vacated the convictions.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.