Federal conspiracy law is a crazy thing.
It seems simple enough – a person is guilty of a federal criminal conspiracy if they agree with someone else to commit a federal crime and take some steps to carry out committing that crime.
But the agreement doesn’t have to be explicit – it can be inferred from the way people act. Sort of in the same way that when my daughter puts cookies in our shopping cart at the grocery store while I’m watching we have an agreement that we’re going to buy cookies.
And if my daughter puts cookies and soda in the cart, is that two conspiracies – a conspiracy to buy soda and a conspiracy to buy cookies – or is it one big conspiracy to buy sweets?
The Supreme Court talked about – and was confused by – how federal conspiracy law works earlier this week, particularly how it intersects with the federal statute of limitations.
The Tenth Circuit, in United States v. Frierson, dealt with another part of federal conspiracy law – one much closer to the example about my daughter at the grocery store.
Mr. Frierson was convicted of both conspiracy to distribute crack cocaine and conspiracy to distribute more than 50 grams of crack cocaine. They were separate counts. He was convicted at trial of both.
Is that one conspiracy or two?
As it happens, when a person is accused of one crime, in two places in the same indictment, that indictment is called “multiplicitous.”
As the Tenth Circuit explained:
“Multiplicity refers to multiple counts of an indictment which cover the same criminal behavior.” United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007) (internal quotation marks omitted). “[M]ultiplicity is not fatal to an indictment.” Id. (internal quotation marks omitted). Indeed, “[t]he government may submit multiplicitous charges to the jury.” United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005). But “multiplicitous sentences violate the Double Jeopardy Clause,” McCullough, 457 F.3d at 1162 (internal quotation marks omitted), so “if a defendant is convicted of both charges, the district court must vacate one of the convictions,” Nickl, 427 F.3d at 1301.
Mr. Frierson’s two conspiracy convictions were for the same general time period. The only difference between then is that one explicitly involved more than 50 grams of crack, and the other didn’t set out a quantity of the drug.
To establish that the two conspiracies . . . were distinct – that is, that the conspiracy convictions were not multiplicitous – the jury had to find the “existe[nce] [of] more than one agreement to perform some illegal act or acts.” United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir. 1994) (internal quotation marks omitted). To do so, the “jurors [had to be] adequately instructed that they could not find [Defendant] guilty of more than one count of conspiracy unless they were convinced beyond a reasonable doubt that he entered into two separate agreements to violate the law.” United States v. Swingler, 758 F.2d 477, 492 (10th Cir. 1985).
Yet, here, the jury was not so instructed.
As the Tenth Circuit said,
The instruction to the jurors that they “separately consider each defendant and each Count,” R. Vol. 1 at 243, did not alert them that they needed to find that the two conspiracies involved distinct agreements. And there was nothing in the government’s closing argument to suggest that the conspiracy alleged in Count 11 was anything other than part of the larger conspiracy alleged in Count 28, or that Defendant had two separate agreements to distribute illegal drugs. Thus, the two convictions on Counts 11 and 28 are plainly multiplicitous.
Mr. Frierson’s case was remanded to the district court judge for him to be sentenced on one or other of the conspiracies – but not both. And the other has to be vacated.
And, yes, gentle reader, in the end that may be a $100 difference.