102 F.3d 641 (1st Cir. 1996), 95-2313, United States v. Rogers

Docket Nº:95-2313.
Citation:102 F.3d 641
Party Name:UNITED STATES of America, Appellee, v. Chadwick ROGERS, Defendant, Appellant.
Case Date:December 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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102 F.3d 641 (1st Cir. 1996)

UNITED STATES of America, Appellee,


Chadwick ROGERS, Defendant, Appellant.

No. 95-2313.

United States Court of Appeals, First Circuit

December 23, 1996

Heard July 31, 1996.

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[Copyrighted Material Omitted]

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David Michael with whom J. Tony Serra, James Bustamante and Serra, Lichter, Daar, Bustamante & Michael, San Francisco, CA, were on briefs for appellant.

Patrick M. Hamilton, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and William F. Sinnott, Assistant United States Attorney, were on brief for the United States.

Before SELYA and BOUDIN, Circuit Judges, and McAULIFFE, [*] District Judge.

BOUDIN, Circuit Judge.

Chadwick Rogers was convicted of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1), and certain of his property was ordered forfeited pursuant to 21 U.S.C. § 853. Rogers appeals, contesting both the conviction and forfeitures. We set forth a summary of salient events, deferring certain details pertinent to specific issues.

In May 1992, Michael Cunniff, an undercover agent of the Drug Enforcement Administration, was introduced to Howard Oberlander in Danvers, Massachusetts. Oberlander told Cunniff that he was interested in purchasing 500 pounds of Thai marijuana with the assistance of another individual (who later turned out to be Rogers). During this meeting, Oberlander telephoned Rogers twice, and Rogers agreed to a meeting near Rogers' ranch in California, north of San Francisco, to arrange the purchase.

Several days later, Oberlander gave Cunniff $20,000 as a good faith down payment. Then, on June 18, 1992, both men met Rogers in California at a neutral location. Rogers told Cunniff that he had not traded "this kind of product" recently because of the risk of sting operations. Rogers said that he had an underground storage site at his ranch for concealing the marijuana and invited Cunniff to see the ranch.

At Rogers' ranch, Rogers gave Cunniff a tour of the premises. Rogers asked Cunniff to provide some of the marijuana on credit, offering as collateral gold, a diamond, and the title to a motor home parked on the property. Oberlander gave Rogers a small sample of the marijuana that Cunniff had earlier provided to Oberlander. The meeting ended without a final agreement between Rogers and Cunniff on the terms of the sale.

On the following day, Oberlander and Cunniff returned to Rogers' ranch. Rogers agreed to the terms of the sale to complete the transaction. Those terms, discussed in intervening telephone calls, were that Cunniff would "front" the entire 500-pound shipment of marijuana in return for the collateral that Rogers had offered. But during this second visit, Rogers noticed an airplane circling over the ranch and told Oberlander and Cunniff to leave for dinner and return later that evening.

The airplane was a DEA surveillance plane, which followed Cunniff's car as he and Oberlander drove away from the ranch. From a gas station, Oberlander telephoned Rogers, who said that the plane had followed Cunniff's car and that law enforcement agents had probably planted a tracking device in the car. Rogers told Oberlander that he did not want to complete the transaction, that Oberlander and Cunniff should leave town and (according to Rogers' testimony) that Rogers never wanted to see them again.

Cunniff then met with surveillance agents and had Oberlander arrested. Cunniff and more than two dozen DEA and local agents returned to Rogers' ranch and arrested Rogers pursuant to a federal arrest warrant. Earlier that day, agents had also obtained a search warrant authorizing the seizure of property intended to be used to commit federal drug offenses. Pursuant to this search warrant, the agents searched Rogers' ranch and discovered the hidden underground bunker.

During the search, agents pressed Rogers to cooperate, although he had said that he wished to remain silent. After being held at his ranch in handcuffs for over two hours, Rogers revealed the location of a hidden floor safe, built underneath a desk in his library. The agents opened the safe, which contained

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currency, a large diamond ring, and gold Krugerrands worth about $5,000.

After a jury trial, Rogers was convicted of conspiracy to possess marijuana with intent to distribute. The jury then considered the forfeiture count in a bifurcated hearing, and in accord with the jury's special verdict the following property was forfeited: Rogers' ranch and adjoining real property, the motor home, a dozen gold Kruggerands, and the diamond. The judge imposed a sentence of 90 months imprisonment and a $12,500 fine. Rogers now appeals both the conviction and sentence.

1. Rogers' first claim, addressed to his convictions, rests on the premise that he withdrew from the conspiracy by telling Cunniff and Oberlander to leave town and not contact him again. His own unrebutted testimony, Rogers says, required the district court to grant his motion to dismiss under Fed.R.Crim.P. 29, and, alternatively, supported Rogers' request for an instruction to the jury that withdrawal from the conspiracy constituted an affirmative defense to the charge. The district court had refused both applications.

In addition to procedural objections, the government protests that the evidence does not come close to establishing a bona fide withdrawal from the conspiracy. Rogers, it says, was merely deferring efforts to transfer the drugs or was feigning withdrawal. Still, if Rogers' testimony were believed by the jury, the jury might find a withdrawal by Rogers grounded in "a communication by the accused to his coconspirators that he has abandoned the enterprise and its goals." United States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir.1987).

But withdrawal is not a defense to a conspiracy charge if the conspiracy violation has already occurred. "The traditional rule here 'is strict and inflexible: since the crime is complete with the agreement, no subsequent action can exonerate the conspirator of that crime.' " 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.5 (1986) (quoting ALI, Model Penal Code § 5.03, comment at 457 (1985)). See, e.g., United States v. Nava-Salazar, 30 F.3d 788, 799 (7th Cir.), cert. denied...

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