Last Tuesday, June 22, 2021 the Court of Appeals for the Fourth Circuit decided United States v. Moody. This decision is unlikely to make any significant changes to legal doctrine. What is interesting about the Court’s opinion is the Court’s expression of doubt about the breadth of modern conspiracy law.
The case arose when police stopped a car at roughly 3:45 AM. One of the passengers reached behind the driver’s seat twice when the police approached. When the police searched the car they found two loaded guns and a bag containing cocaine. The police also searched Mr. Moody, finding $3,900 on his person.
Both defendants were charged with possessing cocaine with intent to distribute, conspiring to do the same, and possessing two firearms in furtherance of a drug trafficking offense. Faced with the choice of which defendant to blame for what, the jury decided: both for everything. Both defendants were convicted on all counts. Mr. Moody was also charged with, and convicted of, possession of a firearm as a convicted felon.
The Court’s Affirmation of the Sentences
Judge Floyd wrote the Court’s opinion, which was joined by Chief Judge Gregory and Judge Thacker.
There was no evidence explicitly linking the cocaine to either defendant. A previous passenger could have left the bag in the car. Nevertheless, the Court held that the circumstantial evidence was enough to uphold the jury’s verdict. Aside from the large quantity of cocaine and the drug paraphernalia in the bag, the car had been driving away from an area known for drug sales. Mr. Moody had reached into an area of the car containing cocaine and had a large amount of cash in his pockets. The other defendant, Ms. Carter, had shown no knowledge of the cocaine and hadn’t even been able to see it from where she was sitting. The Court nevertheless found sufficient evidence because she was the driver of the vehicle, she clearly knew Mr. Moody, and she owned – and had recently recovered from a pawn-shop – one of the guns.
That Ms. Carter owned one gun was obviously sufficient to prove that she possessed it. The Court held that her possession of one loaded gun while driving the car, which contained a large volume of cocaine, established possession of the other loaded gun. Mr. Moody’s connection to the guns was more tenuous: he owned neither of the guns, did not own the car in which they were found, and would not even have been able to see the guns from where he was sitting. The Court found that his proximity to one gun and his possible reaching for it was sufficient to establish possession of that gun. The other gun was “[m]ore challenging,” page 15, but the Court affirmed the conviction because the gun was close to Mr. Moody and was hidden similarly to the other one. The Court found that the circumstances established the connection to drug trafficking.
The evidence seems very slim. Perhaps another panel might have decided differently. Ultimately, however, Courts of Appeals are always reluctant to overturn a jury verdict for insufficient evidence. The best appeal is no substitute for a good trial.
The Court of Appeals also rejected two challenges to the jury instructions given below. Little should be read into this, however, because the Court of Appeals reviewed for plain error. The Court of Appeals found that Mr. Moody hadn’t properly challenged the jury instructions during trial and therefore applied very strict standards for what it would reverse. The lesson, again, is the importance of good representation at trial. Aside from possibly resulting in acquittal, or at least a lower sentence, it is often necessary for an appeal.
The Court’s Observations on the Conspiracy Charge
The Court also affirmed the conviction for conspiracy to distribute drugs. There wasn’t much in the way of evidence, beyond the evidence of the drug possession itself. The two defendants evidently knew one another – they were traveling in the same car and Moody referred to Carter as “my girl” – and they had brought guns with them, one of them recently repurchased from a pawn shop. “Constrained as we are by the government’s charging decisions and our past conspiracy precedent,” page 3, the Court found that this was enough for a jury to find that the defendants had voluntarily entered a conspiracy.
The Court made clear, however, that “[w]e reach this conclusion reluctantly.” Page 20. The Court emphasized that there was not much difference between this case and ordinary drug distribution. It said that this demonstrated the government’s worrying habit, remarked on by Justice Jackson almost 75 years ago, of charging conspiracy instead of (or in addition to) a discrete crime that it could prove. The Court was “given paused by how easily substantive law and conspiracy layer onto each other in the context of joint possession,” but thought it was the prosecutors’ decision as to how defendants should be charged. Pages 20-21.
In theory, there’s no harm being convicted twice instead of once, so long as it doesn’t increase one’s prison sentence. In practice, it may increase the sentence, depending on “grouping” of counts under the U.S. Sentencing Guidelines. Yet the potential harm to defendants is far more severe.
A defendant convicted of distributing controlled substances is held responsible for the controlled substances he distributed. A defendant convicted of conspiracy, however, is also punished for contraband distributed by coconspirators that is “reasonably foreseeable” to him. This means that the crime with which a defendant is charged can have an enormous impact on his sentence. As federal judge Jed Rakoff wrote in the New York Review of Books:
[T]he prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more.
In a case like this, then, convicting both defendants of conspiracy means that both could be punished for drugs sold by either, so long as they might have known about those drugs. If one of the defendants had worked with third parties, the other defendant could be punished for those drugs as well.