Monday, September 27, 2021

Panel rejects numerous arguments in affirming drug conspiracy convictions

United States v. Cushing & United States v. Hall, 2021 WL 3730687 (10th Cir. August 24, 2021) (OK): in affirming the defendants' conspiracy convictions, the panel explains that even peripheral conduct will satisfy conspiracy's interdependence element. It also takes an expansive view of what constitutes admissible res gestae evidence and expert testimony. The government charged Cushing and Hall with being members of a single methamphetamine conspiracy. On appeal both argued that the government failed to prove interdependence as well as the existence of single conspiracy. They also argued the district court erred in allowing Federal Rule of Evidence 404(b) evidence to masquerade as intrinsic evidence when the alleged conduct occurred outside of the conspiracy's active time frame. Additionally, both said the court should not have allowed an officer to testify as an expert on "drug conspiracy matters" because it gave the jury the false impression he was an expert in solving crimes and deciding who is guilty. To prove the interdependence element, the government must show that the co-conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged. As to Cushing, the panel said the government's evidence adequately demonstrated that he "shared" the "single criminal objective" of the conspiracy's central figure and main supplier, namely, the distribution of large quantities of methamphetamine. More specifically, Cushing was supplier's 2d largest client and frequently was given methamphetamine on credit. Witnesses said they bought methamphetamine from Cushing. From this evidence the jury could infer that Cushing was dealing the methamphetamine he bought from the supplier, "in furtherance of the goal of distributing the charged quantity of methamphetamine." Regarding Hall, the panel acknowledged the government did not prove he distributed for remuneration the methamphetamine he bought from the supplier. No matter, says the panel, "participation in a drug conspiracy . . . includes facilitating the drug operation, such as exchanging information related to concealment and law enforcement activity." The jury heard that Hall warned the supplier of police activity. This furthered the conspiracy's goals by "attempting to keep the operation concealed." And being that profit is not an element of conspiracy, when Hall shared his meth with others, he still was "furthering the distribution objective" of the conspiracy. The panel quickly dispensed with the defendants' objections to the res gestae evidence and expert witness testimony. As to the res gestae evidence, the panel held that the post-conspiracy text messages on Hall's phone showed he was continuing to "engage in the charged crimes -- that is, people continued to come to his house to pick up methamphetamine, in the same manner as during the stated indictment period." Hall's recorded call with the supplier describing his beating of a 'snitch' and his concern law enforcement was descending on him, gave the jury "important contextual information" about his relationship with the supplier. It showed that he sought direction and advice from the supplier, "implying trust and a strong bond." NOTE: it would appear that we too can rely on such evidence to discredit witnesses without running afoul of Fed.R.Evid. 404(b). See e.g., United States v. Montelongo, 420 F.3d 1169, 1174-76 (10th Cir. 2005) (evidence of witness' other wrongs, acts, or crimes is admissible “for defensive purposes if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him."). The panel held the district court did not err in allowing the agent to testify as an expert about user and distribution weights as well as his interpretation of "vague language." The panel said his testimony aided the jury's understanding of the case because "the average person is often innocent in the ways of the criminal underworld." [One wonders how the agent's testimony is, in accordance with Fed.R.Evid. 702, "the product of reliable scientific, technical, or specialized principles and methods" and how he has "reliably applied the principles and methods to the facts of the case."]