U.S. v. Toler

• Decision Date: 30 June 1998
• Docket Number: No. 96-2827,96-2827
• Parties: 11 Fla. L. Weekly Fed. C 1527 UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Jerome TOLER, Duane Roshell, John Thomas Williams, Reuben Bernard Averhart, Victor Moorer, Keith Coleman, Christopher Gulley, Ursula Strong, Traci Mathis, Melody Dianne Fontenot, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1423

144 F.3d 1423

11 Fla. L. Weekly Fed. C 1527

UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Jerome TOLER, Duane Roshell, John Thomas Williams, Reuben Bernard Averhart, Victor Moorer, Keith Coleman, Christopher Gulley, Ursula Strong, Traci Mathis, Melody

Dianne Fontenot, Defendants-Appellants.

No. 96-2827.

United States Court of Appeals, Eleventh Circuit.

June 30, 1998.

Clyde M. Taylor, Jr., Tallahassee, FL, for Roshell and Toler.

Christopher L. Rabby, Pensacola, FL, for Williams.

Ted A. Stokes, Milton, FL, for Moorer and Averhart.

Danielle Jorden, Tallahassee, FL, for Coleman.

Gregory J. Cummings, Tallahassee, FL, for Gulley.

Nickolas G. Petersen, Shalimar, FL, for Strong.

Barry W. McCleary, Pensacola, FL, for Fontenot.

Barry W. Beroset, Beroset & Keene, Pensacola, FL, for Mathis.

Randall J. Hensel, Asst. U.S. Atty., Pensacola, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before BLACK and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.

BARKETT, Circuit Judge:

Ten appellants--Reuben Averhart, Keith Coleman, Melody Fontenot, Christopher Gulley, Traci Mathis, Victor Moorer, Duane Roshell, Ursula Strong, Jeffery Jerome Toler, and John Williams--appeal their convictions for conspiracy to possess with intent to distribute cocaine and cocaine base. ¹ We find no reversible error in the numerous claims raised by appellants Averhart, Coleman, Fontenot, Gulley, Moorer, Roshell, Toler, and Williams and, therefore, affirm their convictions without further discussion. See 11th Cir. Rule 36-1. ² As Traci Mathis and Ursula Strong's challenges to the sufficiency of the evidence supporting their convictions for conspiracy present more difficult cases, we address their claims in greater detail below. For the reasons that follow, we affirm Strong's conviction but reverse Mathis' conviction.

I. DISCUSSION

"Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act." Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). The agreement is the "essential evil at which the crime of conspiracy is directed," and "agreement remains the essential element of the crime." Id. at 777 n. 10, 95 S.Ct. at 1290 n. 10.

We note that in some instances, our caselaw has used a shorthand analytic template: a three-prong test which asks whether "(1) an agreement existed among two or more persons; (2) ... the defendant knew of the general purpose of the agreement; and (3) ... the defendant knowingly and voluntarily participated in the agreement." United States v. High, 117 F.3d 464, 468 (11th Cir.1997). ³ Approaching the offense of conspiracy in this fashion may be helpful in multi-defendant conspiracy cases--where there exists an initial core group of conspirators and the government seeks to link peripheral players' subsequent joinder in the scheme--but it is somewhat redundant and incomplete. It is axiomatic that the existence of an agreement necessarily implies knowledge of the object of the agreement and the voluntary expression of assent to participate in its objectives. Moreover, the second and third "prongs" of the test really speak to the type of evidence that might be used to infer the defendant's agreement, that is, evidence of the defendant's knowledge of the alleged scheme and evidence of the defendant's participation in the scheme. Additionally, the test does not mention the essential element of a conspiracy that the object of the agreement must be illegal.

Thus, the elements of the offense of conspiracy under 21 U.S.C. § 846 are: (1) an agreement between the defendant and one or more persons, (2) the object of which is to do either an unlawful act or a lawful act by unlawful means. See United States v. Parrado, 911 F.2d 1567, 1570 (11th Cir.1990) ("To support a conspiracy conviction under 21 U.S.C. § 846, the government must prove that there is an agreement by two or more persons to violate the narcotics laws."); 2 Wayne R. La Fave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4 at 60 (1986).

Because the crime of conspiracy is "predominantly mental in composition," United States v. Shabani, 513 U.S. 10, 16, 115 S.Ct. 382, 386, 130 L.Ed.2d 225 (1994), it is frequently necessary to resort to circumstantial evidence to prove its elements. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) ("Participation in a criminal conspiracy need not be proved by direct evidence; a common purpose and plan may be inferred from a 'development and collocation of circumstances.' "); United States v. Gold, 743 F.2d 800, 824 (11th Cir.1984) (" 'The very nature of conspiracy frequently requires that the existence of an agreement be proved by inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme.' ") (quoting United States v. Ayala, 643 F.2d 244, 248 (5th Cir. Unit A 1981)) (brackets omitted). Consequently, the government need not demonstrate the existence of a "formal agreement," Gold, 743 F.2d at 824, but may instead demonstrate by circumstantial evidence " 'a meeting of the minds to commit an unlawful act.' " United States v. Awan, 966 F.2d 1415, 1434 (11th Cir.1992) (quoting United States v. Parker, 839 F.2d 1473, 1478 (11th Cir.1988)). ⁴

In addition, the government must prove the conspiracy it charged in the indictment rather than some other conspiracy. The government must show an "interdependence" among the alleged co-conspirators in order to prove that the indicted conspiracy was a single unified conspiracy as opposed to a series of smaller, uncoordinated conspiracies. United States v. Coy, 19 F.3d 629, 634 (11th Cir.1994) (citing United States v. Harrison, 942 F.2d 751, 756-57 (10th Cir.1991)).

Moreover, the government's proof must be beyond reasonable doubt. This means that "when the sufficiency of the evidence to support any criminal conviction, including conspiracies, is challenged on appeal, the correct standard of review is substantial evidence ... viewed in the light most favorable to the government." United States v. Malatesta, 590 F.2d 1379, 1382 (5th Cir.1979) (en banc) (emphasis in original). ⁵ In Malatesta, our en banc Court addressed the misperception from prior caselaw that the government only needed "slight evidence" to support a conspiracy conviction:

The "slight evidence" rule as used and applied on appeal in conspiracy cases since 1969 should not have been allowed to worm its way into the jurisprudence of the Fifth Circuit. It is accordingly banished as to all appeals hereafter to be decided by this Court.

Id. (emphasis in original).

After Malatesta, several panels have again used the term "slight evidence" in conspiracy cases. See United States v. Calderon, 127 F.3d 1314, 1324, 1326 (11th Cir.1997) (stating that " 'once the government establishes the existence of the underlying conspiracy, it only needs to come forward with slight evidence to connect a particular defendant to the conspiracy' " but also that a reasonable guilty verdict must stand "if there is substantial evidence to support it") (quoting United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994)) (brackets omitted); United States v. Gates, 967 F.2d 497, 499 (11th Cir.1992) (stating that "[o]nce the existence of a conspiracy is established, only slight evidence is necessary to connect a particular defendant to the conspiracy" while recognizing that "[t]he evidence is sufficient when there is substantial evidence to support the conviction"); United States v. Clavis, 956 F.2d 1079, 1085 (11th Cir.1992) (stating that "[o]nce the existence of a conspiracy is established, only slight evidence is necessary to connect a particular defendant to the conspiracy"), modified, 977 F.2d 538, 539 (11th Cir.1992); United States v. Orr, 825 F.2d 1537, 1542 (11th Cir.1987) (same). However, in Clavis, the panel later withdrew the reference to the "slight evidence" standard, recognizing that it is inconsistent with the dictate in Malatesta that there must be " 'substantial evidence' connecting an appellant to a conspiracy." United States v. Clavis, 977 F.2d 538, 539 (11th Cir.1992) (quoting United States v. Bulman, 667 F.2d 1374, 1377 (11th Cir.1982) (in turn interpreting Malatesta)). ⁶

To the extent that the phrase "slight evidence" suggests that a conviction can be obtained by less than evidence of guilt beyond a reasonable doubt, as recognized in Malatesta, that would be contrary to the long-established principle of due process that all criminal convictions must be proved by "evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense," Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970) (holding that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged"). ⁷ Thus, to be constitutional, the phrase "slight evidence" must be interpreted to refer not to the quantum of evidence necessary to support a conspiracy conviction but, instead, to the extent of a defendant's connection to the conspiracy or to the other conspirators. That is to say, for example, that notwithstanding that there may be a large number of co-conspirators, a defendant's guilt can be established if his or her contact extends to only a few or even one of the co-conspirators so long as the agreement, with its concomitant knowledge of the general scope and purpose of the conspiracy and the defendant's intent to participate in achieving its illegal ends, is proven beyond a reasonable doubt. Likewise, a defendant can be convicted even if his or her participation in the scheme is "slight" by comparison to the actions of other co-conspirators. In...