Yesterday the Sixth Circuit joined a circuit split over whether a single conspiracy can have multiple objectives.The case, United States v. LaPointe, involved a criminal defendant who was convicted of having participated in a conspiracy to possess the painkiller "oxycodone" with intent to distribute.
The defendant was part of a drug-trafficking ring that smuggled oxycodone across state lines for distribution in Tennessee. At trial, the prosecutors introduced evidence of recorded phone conversations during which the defendant discussed potential customers with another distributor and offered to sale the pills.
The defendant, however, denied the charge that his participation in the conspiracy was intended to help his co-conspirators distribute the drugs that he had acquired, arguing instead that his conversations with the distributor were merely an elaborate ruse to obtain large quantities of the painkiller to feed his own addiction. As such, the defendant asked the district court to instruct the jury on the lesser-included offense of conspiracy to possess without intent to distribute--a misdemeanor. The court denied the request and the jury convicted the defendant without considering the lesser-included offense instruction.
On appeal to the Sixth Circuit, Senior Judge Gilbert Stroud Merritt, Jr., writing for the panel, considered whether the same evidence used to prove that the defendant had conspired to distribute the oxycodone he once possessed could also support a conviction for conspiracy to possess the pills without intent to distribute. Judge Merritt summarized the conflicting positions taken by sister circuits on this issue:
The government’s argument implies that a conspiracy may have only one objective rather than multiple. It takes sides in a circuit split–which, until today, this court has not weighed in on–and follows the holding of an unpublished opinion from the Tenth Circuit. See United States v. Gilmore, 438 F. App’x 654 (10th Cir. 2011). Gilmore, who was convicted of conspiracy to distribute or to possess with intent to distribute, was denied a lesser-included offense instruction on conspiracy to possess because he did not try to show that all of the conspirators merely intended for him to possess drugs. See id. at 657-58. As in this case, defendant’s co-conspirators were part of a conspiracy to distribute. See id. at 658. The dispute at trial was over Gilmore’s role in that conspiracy. See id. The court concluded that he was essentially asking for an instruction on a “different, uncharged conspiracy, not a lesser included offense of the charged conspiracy.” Id.
The Tenth Circuit’s approach contradicts the First Circuit’s. See supra Boidi, 568 F.3d at 27-29. A jury convicted Boidi of conspiracy to possess drugs with intent to distribute. On appeal, his conviction was reversed because he was not granted an instruction on conspiracy to possess. See id. at 27. The court of appeals rejected the argument that a defendant must demonstrate, with separate evidence, a separate group conspiring only to possess contraband. See id. It is well-established that a single conspiracy may have multiple objectives, including the violation of several criminal laws. See Ingram v. United States, 360 U.S. 672, 679 (1959) (citing United States v. Rabinowich, 238 U.S. 78, 86 (1915)). The correct question is whether there is “some core of facts that is common to the scenario that the government sought to prove and the one that the defendant claims to show only a lesser included offense.” Id. at 28. Circumstances will sometimes require a defendant to produce new evidence demonstrating a separate conspiracy. See United States v. Garcia, 27 F.3d 1009, 1015 (5th Cir. 1994) (“A defendant is not entitled to a lesser included offense instruction simply because he admits to committing a lesser offense at a different time with other persons.”). But in Boidi the same evidence could be used to support both the greater and the lesser conspiracies. See 568 F.3d at 28.
In this case, if it had been presented with an instruction on conspiracy to possess, the jury would have looked at the same core facts as it did when convicting LaPointe of conspiracy to possess with intent to distribute. The lesser conspiracy would have had the same members–Wallace, Kaman, and [the defendant]–and the same contraband–oxycodone–as the greater. See id. (“Whether one looks at the greater or lesser crime in this case, the conspirators and drugs sold to [defendant] are identical . . . .”). The only factual question differentiating the greater conspiracy from the lesser is whether [the defendant] shared with his co-conspirators the intent to distribute the oxycodone. The evidence the government relied on to prove this final element, primarily recorded phone calls and co-conspirators’ testimony, already “support[ed] a conviction on the lesser offense.” Colon, 268 F.3d at 373. See also Boidi, 568 F.3d at 29 (“The witnesses that the government chose to prove the greater offense are the proof of the lesser included one.”) (emphasis in the original).
After considering the competing positions taken by sister circuits, the Sixth Circuit panel joined the First Circuit in holding that, “Under the theory of criminal liability for conspiracy, a group of individuals involved in a single conspiracy may have multiple objectives–say, robbery, embezzlement, drug trafficking, and murder.” As such, the court reversed the district court because “[a] properly-instructed jury could rationally acquit [the defendant] of conspiracy to possess with intent to distribute while convicting him of conspiracy to possess.”
You can read the full opinion at United States v. LaPointe, No. 11-5194 (6th Cir. Aug. 13, 2012), local coverage of the case here, and a press release issued by the Department of Justice shortly after the defendant's conviction here.
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