State v. Maldonado

Decision Date20 April 2005
Docket NumberNo. 23,637.,23,637.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Carlos J. MALDONADO, Defendant-Appellant.
CourtNew Mexico Supreme Court

Patricia A. Madrid, Attorney General, Santa Fe, Steven S. Suttle, Assistant Attorney General, Albuquerque, for Appellee.

John B. Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant.




{1} Defendant was charged by grand jury indictment with conspiracy to commit trafficking in methamphetamine by manufacturing, contrary to NMSA 1978, §§ 30-28-2 (1979) and 30-31-20(A)(1) (1990); or alternatively, with attempted trafficking in methamphetamine by manufacturing, contrary to NMSA 1978, § 30-28-1 (1963) and Section 30-31-20(A)(1). Defendant filed a motion to quash the indictment, arguing, inter alia, that the Legislature intended the conduct charged in the indictment to be punished as either possession of drug paraphernalia pursuant to NMSA 1978, § 30-31-25.1 (2001) or as possession of drug precursors pursuant to NMSA 1978, § 30-31B-12(A) (2004). Defendant ultimately abandoned the argument based on the drug precursor statute. The district court denied Defendant's motion to quash the conspiracy count, concluding that tablets containing pseudoephedrine are not drug paraphernalia. The district court granted Defendant's motion to quash the attempted trafficking count, reasoning that Defendant's actions were "mere preparatory acts and not an overt act in furtherance of the crime alleged."

{2} The case proceeded to trial on the conspiracy count. Testimony by the State's witnesses established that on July 27, 2001, a private security officer at a Wal-Mart store in Las Cruces, New Mexico, observed Defendant concealing in his trousers the contents of four boxes of medicine, each containing 96 non-prescription pseudoephedrine tablets in blister packaging. Defendant purchased an additional box of tablets. When Defendant left the store without paying for the four concealed boxes of tablets, the security officer detained Defendant and called the police. Mark Sanchez, a Dona Ana County deputy sheriff assigned to the Las Cruces/Dona Ana County Metro Narcotics division, responded. Agent Sanchez advised Defendant of his Miranda rights. Defendant agreed to talk with Agent Sanchez.

{3} According to Agent Sanchez, Defendant told him that he had heard that the tablets could be used to manufacture methamphetamine. Agent Sanchez recalled Defendant telling him that Defendant had planned to sell them to a person named "Guero" for five dollars a box. Defendant denied manufacturing methamphetamine or using the drug. According to Agent Sanchez, Defendant admitted that he had sold tablets to Guero in the past and that he was aware that Guero used the tablets to manufacture methamphetamine. According to Agent Sanchez, Defendant told him that Guero would call "out of the blue," asking if Defendant had any tablets to sell. In the course of his investigation, Agent Sanchez was unable to locate Guero.

{4} After the close of the State's case-in-chief, Defendant moved for a directed verdict. Defense counsel argued that:

I think getting the pills to give to Guero, knowing what he's going to do with them is different from saying the defendant and Guero had an agreement to manufacture methamphetamine together, which is what the State has to prove. And they don't have evidence of that. Right now, it's an arm's length transaction. That's all they have. They've got an arm's length transaction.

The district court denied Defendant's motion for a directed verdict, reasoning as follows:

Well, you're implying some kind of financial interest in the operation above and beyond the profit on the pills. I don't see that as an element in trafficking, not under the UJI. I think the fact that he stated that he had done this in the past, the jury could infer that he's part of this operation.

.... Or they could decide that there is not — that the State hasn't proved its elements beyond a reasonable doubt, which are arguments going to the weight of evidence, not the sufficiency of the evidence.

{5} Defendant testified in his defense that:

I happened to see the pills, and I just remembered that I knew somebody that would give me some money for them. So I just — I was — I bought the box because that's all I could afford. Then I took the rest.

When asked how he came up with the plan for selling the tablets, Defendant testified that:

I was just visiting the guy that I know Danny, and I happened to meet his little brother [Guero], and he told me if I ever ran into these pills, he'd give me like two or three dollars more for them.

{6} Defendant denied having previously sold tablets to Guero. Defendant denied telling Agent Sanchez that he was aware that the tablets were used to make methamphetamine. Defendant denied having a plan with Guero to manufacture methamphetamine. On cross-examination, Defendant conceded that it was "strange" that Guero was willing to pay Defendant more than the tablets cost. Defendant again denied having told Agent Sanchez that he knew that pseudoephedrine was used to make methamphetamine.

{7} At the conclusion of the presentation of evidence, defense counsel requested an instruction on possession of drug paraphernalia. The State objected. The district court refused the instruction, explaining that the State had not charged Defendant with possession of drug paraphernalia and that "[the court] can't give an instruction on something that has not been charged." The jury was instructed on the offense of conspiracy to traffic in methamphetamine by manufacture. The jury returned a verdict of guilty on the charge of conspiracy to traffic in methamphetamine by manufacture. Defendant appeals. We reverse.


{8} After this case was assigned to a panel, we sua sponte requested briefing on the question of whether the conduct proved by the State falls within the statutory definition of conspiracy. We did so to explore a matter implicating fundamental rights of an accused: whether Defendant's conviction rests on evidence of conduct that does not constitute a crime. See State v. Maes, 2003-NMCA-054, ¶ 5, 133 N.M. 536, 65 P.3d 584; State v. Gabriel M., 2002-NMCA-047, ¶ 9, 132 N.M. 124, 45 P.3d 64.

{9} Defendant's conviction presents a recurring question in the law of conspiracy: does a defendant whose only involvement is supplying generally available goods or services become a co-conspirator merely because he knows that the goods or services he provides may or will be used by another for a criminal purpose? See generally 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(c)(3) (2003). This is a question of statutory construction, subject to de novo review. See State v. Barragan, 2001-NMCA-086, ¶ 22, 131 N.M. 281, 34 P.3d 1157 (recognizing that review of the sufficiency of the evidence supporting a conviction may require a court to engage in statutory construction in determining whether evidence viewed in the light most favorable to the State constituted the charged offense); State v. Rael, 1999-NMCA-068, ¶ 5, 127 N.M. 347, 981 P.2d 280 (recognizing that review of a district court's denial of a motion for directed verdict may turn upon resolution of matters of statutory interpretation, subject to de novo review).

{10} New Mexico law defines the crime of conspiracy as "knowingly combining with another for the purpose of committing a felony within or without this state." Section 30-28-2(A) (emphasis added).1 Our Supreme Court has interpreted this statute to require proof of two mental states: (1) the intent to agree and (2) the intent to commit the offense that is the object of the conspiracy. State v. Trujillo, 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814. No New Mexico case has considered whether the twin intent requirements of a conspiracy can be established by evidence that the defendant agreed to sell goods to another, knowing that the other might use the goods for an illegal purpose.

{11} We are reluctant to extend Section 30-28-2(A) to an otherwise lawful sale of goods. It is not at all clear to us that in ordinary usage a seller "agrees" with a purchaser's intended use of goods or services simply by engaging in an arm's length sale. Similarly, we are not persuaded that a defendant-seller shares a purchaser's intent to commit a crime merely because the defendant had knowledge of the purchaser's intended use of those goods or services at the time of the sale. In this context, knowledge of the other's criminal objective is not necessarily equivalent to an intention to bring about the objective. 1 LaFave, supra, § 5.2(b), at 342-43 n. 9 (citing conspiracy as an area of criminal law where there may be "good reason" for distinguishing between knowledge and intent); 2 LaFave, supra, § 12.2(c)(3) at 280 (observing that intent rather than mere knowledge of the unlawful object is usually required to establish a conspiracy). As Judge Hand aptly observed in reversing convictions for conspiring to operate an illegal still:

It is not enough that [the defendant] does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use[.] ... We may agree that morally the defendants at bar should have refused to sell to illicit distillers; but, both morally and legally, to do so was toto coelo different from joining with them in running the stills.

United States v. Falcone, 109 F.2d 579, 581 (2d Cir.1940) (rejecting the argument that sellers of sugar, yeast, and five-gallon cans became conspirators with the buyers merely because the sellers knew that the buyers intended to use the goods to illegally distill liquor), aff'd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); see also Jacobs v. Danciger, 328 Mo. 458, 41 S.W.2d 389 (1931) (holding that a contract for the sale of brewing hops is not rendered...

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