Object Permanence

United States v. Marte Robles, No. 07-1013-cr (2d Cir. April 9, 2009)(Straub, Hall, CJJ, Eaton, DJ)(per curiam)

In this case, the court was called upon to construe Application Note 4 to U.S.S.G. § 1B1.2. Section 1B1.2(d) provides that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” The application note advises that “[p]articular care must be taken” when applying this subsection because there are cases where “the verdict or plea does not establish” which offenses were “the object of the conspiracy. In such cases, [subsection(d)] should only be applied with respect to an object offense alleged in the conspiracy count” if the court, were it sitting as the trier of fact, “would convict the defendant of conspiring to commit that object offense.”

After a jury trial, defendant Marte was acquitted of several substantive Hobbs Act robbery charges. He was convicted only of a single Hobbs Act conspiracy count that alleged, generally, that he and others robbed drug dealers in the Bronx and Manhattan, but did not identify any specific robberies as the object of the conspiracy. At sentencing, however, the district court concluded that the government had proven beyond a reasonable doubt that he conspired to commit two particular robberies, considered them to be the offenses that were the object of the conspiracy, and took them into account when calculating Marte’s guideline range.

On appeal, Marte argued that this was a misapplication of § 1B1.2(d) and Note 4, because those provisions prohibit sentencing enhancements based on the objects of a conspiracy are not specifically identified in the conspiracy count of the indictment.

On its face, Marte’s position would seem reasonable, since it appears to be consistent with the plain language of the application note. But the circuit disagreed. It held that the emphasis of Note 4 was “not on the specificity of the conspiracy charge but on the standard of proof that must be satisfied to permit a court to find that a defendant conspired to commit particular object offenses and then to treat such findings as a sentencing factor in determining the defendant’s offense level.”

The court also rejected Marte’s Sixth Amendment challenges to the sentence. There is no Sixth Amendment violation in a conspiracy sentence that is based on objects not alleged in the conspiracy count of an indictment. Nor was it true that the district court based the sentence on “the same conduct” that Marte was acquitted of. The substantive commission of a robbery is not “the same conduct” as conspiring to commit that robbery.

Conspiracy Theories

United States v. Santos, No. 06-0833-cr (2d Cir. September 2, 2008) (McLaughlin, Sack, Livingston, CJJ)

In 2000, Santos was hired by a big Columbian drug dealer to kill two men who had stolen drug proceeds from him. Santos had meetings with an intermediary, Medina, in which Medina answered Santos' questions about the nature of the drug organization and the debt, and detailed the reasons for the hit. Soon after, Santos and an associate shot and killed two men they believed to be the intended targets, but who in fact were not. He was convicted of drug-related murder under 21 U.S.C. § 848(e)(1)(A), and was sentenced to life plus ten.

On appeal, Santos raised, without success, three issues of statutory interpretation relating to his involved in the conspiracy, two of which had a parallel sufficiency claims.

“Engaging In” Drug Trafficking

The statute makes it a crime for a person “engaging in” an offense punishable under 21 U.S.C. § 841(b)(1)(A) to commit murder. Santos argued that this language required the government to prove that he himself was “actively engaged in the distribution of drugs.” The circuit disagreed, based on the plain language of the statute.

The murder statute makes reference to any offense “punishable under” § 841(b)(1)(A). The penalties under this section apply to those who actually distribute drugs, but also those who attempt or conspire to do so. Thus, a defendant need not be actively engaged in drug distribution to be subject to § 848(e)(1)(A). Any person involved in a (b)(1)(A)-level drug conspiracy can be subject to the drug-related murder statute.

Here, there was legally sufficient evidence that Santos was guilty of knowingly participating in the narcotics conspiracy. The government proved that: the charged conspiracy existed and involved more than five kilograms of cocaine; that Santos had knowledge of the conspiracy; that he intentionally joined it, and; that he either knew or could reasonably foresee the drug type and quantity involved.

Medina told Santos about the scope of his boss’ drug dealing and the nature and amount of the debt. Santos agreed to commit the murders and in fact shot and killed two people, albeit the wrong ones. In addition, Santos knew that his acts would further the overall drug conspiracy’s goals, by sending a message that those who stole from the organization would be treated harshly. Finally, there was sufficient evidence Santos had the specific intent to further the conspiracy’s goals - his “affirmative requests to know more about the purpose behind the killings and details of the drug conspiracy,” along with his participation in the killings themselves, were enough.


Does the Statute Cover Cases Where the Only Evidence of the Defendant’s Participation in the Conspiracy is the Killing Itself?

Santos also argued that the statute does not merely cover those working “in furtherance of” the conspiracy, and thus that a drug offense must be committed independent of the killing itself. The problem with these arguments, according to the circuit, is that the drug conspiracy statute does not require an overt act. As long as “the defendant enters into the unlawful agreement before the killing, and the conspiracy is ongoing when the killing occurs,” the drug-offense and killing elements are satisfied by independent acts that overlap in time. Accordingly, although a murder committed in furtherance of the drug conspiracy “cannot itself satisfy the drug-offense element of section 848(e)(1)(A), it can, in appropriate circumstances, persuade the jury that the defendant was a member of the drug conspiracy in furtherance of which the killing was committed.”

The Nexus Requirement

Finally, Santos argued that the government must prove a “direct and substantial nexus” between the killing and the drug conspiracy. The circuit countered that all that is required is a “meaningful connection” between the two. It is enough if the evidence shows that one of the motives for the killing was related to the drug conspiracy. The government does not have to establish that a drug-related motive was the sole purpose, the primary purpose, or even that it was equally important as any other purpose.

Under this standard, there was ample evidence of a connection between the drug conspiracy and the killings. After all, Santos asked why he was being hired, and Medina gave him specific information about the debt owed to the drug conspiracy and the relationship between it and the murders.