U.S. v. Townsend

• Decision Date: 14 February 1991
• Docket Number: 88-3398,88-3339,88-3315,Nos. 88-3271,88-3418 and 89-1037,88-3371,s. 88-3271
• Citation: 924 F.2d 1385
• Parties: 32 Fed. R. Evid. Serv. 333 UNITED STATES of America, Plaintiff-Appellee, v. Mason TOWNSEND, Luis E. Diaz, Orlando Nunez, Dorothy Taylor, Carlos Mejia, Joseph Angel Claudio, and Isabel Marquez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1385

924 F.2d 1385

32 Fed. R. Evid. Serv. 333

UNITED STATES of America, Plaintiff-Appellee, v. Mason TOWNSEND, Luis E. Diaz, Orlando Nunez, Dorothy Taylor Carlos Mejia, Joseph Angel Claudio, and Isabel Marquez, Defendants-Appellants.

Nos. 88-3271, 88-3315, 88-3339, 88-3371, 88-3398, 88-3418

and 89-1037.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1990.

Decided Feb. 14, 1991.

Thomas M. Durkin, Asst. U.S. Atty. and Lisa K. Osofsky, Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

William H. Theis, Nathan Diamond-Falk, Michael E. Deutsch, Peoples Law Office, Daniel L. Franks, George C. Howard, Gary Senner, Sonnenschein, Nath & Rosenthal, Richard R. Mottweiler, Mark W. Solock, Elliott T. Price and Jerry B. Kurz, Hall & Kurz, all of Chicago, Ill., for defendants-appellants.

Before CUDAHY, POSNER and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

More than 40 years ago, Justice Jackson observed that the development of the law of conspiracy--"that elastic, sprawling and pervasive offense"--illustrates perfectly the truth of Justice Cardozo's maxim about "the tendency of a principle to expand itself to the limit of its logic." See Krulewitch v. United States, 336 U.S. 440, 445, 69 S.Ct. 716, 719, 93 L.Ed. 790 (1949) (Jackson, J., concurring). This case tests the limit of the logic underlying conspiracy law.

I. The Conspiracy Conviction

The government charged that the defendants conspired together and with others to possess and distribute heroin, cocaine, and marijuana between December 1986 and February 1988. The evidence against each of the defendants was gathered during the course of an undercover investigation that focused on the drug trafficking activities of Apolinar Marquez, a dealer who was indicted along with the defendants and subsequently pleaded guilty. The government set up drug buys from Marquez and tapped his home phone, along with the business phone of codefendant Luis Diaz; anyone who discussed drugs on these two phone lines was indicted as a member of the conspiracy. The indictment charged nineteen defendants as members of the conspiracy; seven are parties to this appeal. Defendants Luis Diaz, Carlos Mejia, Joseph Angel Claudio, and Orlando Nunez, the government asserted, supplied narcotics to Marquez; Dorothy Taylor and Mason Townsend purchased drugs from Marquez for distribution to their own customers. Isabel Marquez, Apolinar's wife, assisted him in his dealings with these and other codefendants who are not parties to this appeal. On appeal, the defendants argue jointly that the government's proof failed to establish the existence of a single, ongoing conspiracy, as charged in its indictment.

A. Single v. Multiple Conspiracies

As will be seen, the evidence clearly demonstrated that all but one of the defendants conspired with someone to distribute drugs. Why, then, do we care whether there was one conspiracy or many; what does it matter whether the defendants conspired as one large group or several smaller groups? There are at least three reasons. First, alleging a single conspiracy enables the government to join a group of defendants together for trial, and joint trials almost always prejudice the rights of individual defendants to some degree. Some trade-off between prejudice and efficiency is, of course, necessary for the judicial system to function; otherwise "the slow pace of our court system would go from a crawl to paralysis." United States v. Walters, 913 F.2d 388, 393 (7th Cir.1990). Nevertheless, defendants are tried together only in cases where the prejudice to the defendant does not deprive him of a fundamentally fair trial and where a joint trial contributes significantly to the efficiency of the judicial system. See Fed.R.Crim.P. 2 (Rules of criminal procedure "shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.").

Second, and particularly apposite to this case, by alleging a single conspiracy, the government may invoke the coconspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E), to admit evidence against defendants that would otherwise be inadmissible. Statements of any of the defendants can be used to establish not only the existence of a conspiracy but also to establish that a particular defendant was a member of the conspiracy. United States v. Martinez de Ortiz, 907 F.2d 629 (7th Cir.1990) (en banc). In briefs filed before our decision in Martinez de Ortiz, the appellants jointly contested the government's use of coconspirator statements to prove each defendant's membership in a conspiracy. That argument is moot now, but the appellants' challenge underscores the potency of the coconspirator exception and the need to ensure that it is invoked only against those who have actually conspired with the declarant.

And third, coconspirators are liable for the substantive crimes committed by members of the conspiracy that are in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). A finding that a defendant joined a conspiracy therefore exposes that defendant to much more than criminal liability for joining the conspiracy he or she also faces liability for the substantive crimes of the conspiracy. A related consideration arises in drug cases. The type of drug with which one is involved does not change the nature of crime; 21 U.S.C. Sec. 841(a) applies to all illicit drugs. Nevertheless, the penalties incurred vary dramatically with the type of drug involved in the offense. See 21 U.S.C. Sec. 841(b). One convicted, as were the appellants in this case, of a conspiracy to distribute a variety of drugs can be sentenced to the highest range applicable to the drugs in which the conspiracy dealt even if the evidence suggests that a defendant had nothing to do with that drug. See 21 U.S.C. Sec. 846.

The creation of the Sentencing Guidelines did nothing to limit a conspirator's derivative exposure, because under the Guidelines conspirators must be sentenced on the basis of the total quantity of drugs the conspiracy can reasonably be estimated to have dealt in. See U.S.S.G. Sec. 1B1.3 and comment. (n.1e); United States v. Franklin, 902 F.2d 501, 504 (7th Cir.1990); United States v. White, 888 F.2d 490, 496-97 (7th Cir.1989). Moreover, the Guidelines provide equivalency tables that effectively increase the sentence awarded for trafficking in more dangerous drugs. See Sec. 2D1.1.

The defendants style their claim as one of a fatal "variance" between the government's indictment and its proof. ¹ We have in the past noted that a conspiracy variance claim amounts to a challenge to the sufficiency of the evidence supporting the jury's finding that each defendant was a member of the same conspiracy. Whether a single conspiracy exists is a question of fact; consequently "[t]he jury gets first crack at deciding 'whether there is one conspiracy or several when the possibility of a variance appears.' " United States v. Paiz, 905 F.2d 1014, 1019 (7th Cir.1990) (quoting United States v. Percival, 756 F.2d 600, 609 (7th Cir.1985)). This is because the jury's verdict must be interpreted as a finding that the government presented sufficient evidence to prove its indictment beyond reasonable doubt, and that is all that we require of the prosecution. The fact that the government's evidence might also be consistent with an alternate theory is irrelevant; the law does not require the government to disprove every conceivable hypothesis of innocence in order to sustain a conviction on an indictment proved beyond reasonable doubt. United States v. Beverly, 913 F.2d 337, 361 (7th Cir.1990); United States v. Douglas, 874 F.2d 1145, 1152 (7th Cir.1989). Consequently, "even if the evidence arguably establishe[d] multiple conspiracies, there [is] no material variance from an indictment charging a single conspiracy if a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment." United States v. Prince, 883 F.2d 953, 959 (11th Cir.1989).

A "sufficiency of the evidence" approach to solving the multiple conspiracy puzzle can be misleading, however, because it suggests that if the evidence is insufficient to support the jury's finding that a defendant conspired with every defendant charged in the indictment his conviction must fall. That conclusion is incorrect. The crime of conspiracy focuses on agreements, not groups. True, it takes at least two to conspire, but the government doesn't have to prove with whom a defendant conspired; it need only prove that the defendant joined the agreement alleged, not the group. "[I]t is the grand jury's statement of the 'existence of the conspiracy agreement rather than the identity of those who agree' which places the defendant on notice of the charge he must be prepared to meet." United States v. Piccolo, 723 F.2d 1234, 1239 (6th Cir.1983) (quoting United States v. Davis, 679 F.2d 845, 851 (11th Cir.1982)). Thus the government is permitted to allege in an indictment, as it did in this case, that, in addition to the defendants named in a conspiracy count, the defendants conspired "with others known and unknown to the grand jury." See Rogers v. United States, 340 U.S. 367, 375, 71 S.Ct. 438, 443, 95 L.Ed. 344 (1951); see also United States v. Lippner, 676 F.2d 456, 465 (11th Cir.1982) (no fatal variance when indictment charged conspiracy among named defendants and "one other person known to grand jury" and no evidence presented at trial of any additional person's involvement). So to overturn a conspiracy conviction on the ground of variance, an appellant must show both that he did not conspire with each defendant and that he was prejudiced by being tried with defendants who were not his coconspirators. See Fed.R.Crim.P. 52(a) ("Any ... variance which does not affect substantial rights shall be...