U.S. v. Dixon, Eleventh Circuit Court of Appeals; Filed August 24, 2018: What is a Conspiracy, Anyway?
In U.S. v. Dixon, the Eleventh Circuit denied a truckload of appellate issues for four defendants who were convicted of multiple charges that included:
- Conspiracy to distribute crack cocaine;
- Drug trafficking;
- Firearm possession;
- Robbery; and
Below, we will go through each issue and look at why the Eleventh Circuit denied the appeals.
What’s Enough Evidence to Establish a Drug Conspiracy?
On appeal, the defendants argued that the evidence only established “several different conspiracies to buy and sell illegal drugs and to commit robberies” and that there was insufficient evidence of a single conspiracy in which all defendants were involved.
They argued that individuals drug dealers operated individual drug businesses at the traps, and there was no “boss” giving them orders.
The Eleventh Circuit disagreed, finding that:
- A drug conspiracy does not require a “control and command” structure with a “boss;”
- Individual drug dealers who collaborate can be conspirators, even if they are competing with one another; and
- “Once the existence of a conspiracy is established, only slight evidence is necessary to connect a particular defendant to the conspiracy.”
The Court found that there was clearly a conspiracy in this case, where:
- The defendants were members of the “Big Money Team,” which was a group of drug dealers who worked together to sell drugs and make money;
- They maintained a number of locations, called “traps,” where members of the Team sold drugs;
- Other drug dealers were excluded from the traps;
- Team members shared customers and cooperated to supply customers with drugs; and
- Some Team members were identified as shot callers.
Testimony by government witnesses established that each defendant was a Team member, sold drugs at the Team’s locations, and cooperated with one another to further the drug sales.
The Court held that when a group of drug dealers works together, provides a marketplace for drug sales, and the participants are overlapping, that is a drug conspiracy:
Indeed, we have explained that such a “‘marketplace’ is at the heart of [a] conspiracy because those seeking cocaine [will] be drawn to a location and not to a particular dealer.”
Mere Presence at the Scene of the Crime
If a person is “merely present” at the scene of a crime, that is not enough evidence to convict them.
In this case, the Court rejected the defendants’ arguments that they were merely present because testimony established that:
- They were present at the trap locations;
- They were selling drugs at the locations;
- The same individual served as a lookout for each of them; and
- The defendant who sold the least amount of drugs still sold drugs at the locations more than a dozen times.
The Court points out that “evidence that a defendant participated in just two drug transactions can establish that he joined the conspiracy.” United States v. Lyons, 53 F.3d 1198, 1202–03 (11th Cir. 1995) (emphasis added).
Motions to Suppress for Illegal Search and Denial of Right to Counsel
The Eleventh Circuit upheld the lower court’s decision to deny one defendant’s (Portella) motions to dismiss for Fourth Amendment and Sixth Amendment violations.
Standing to Challenge a Vehicle Search
The Eleventh Circuit held that Portella did not have standing to challenge a search of his girlfriend’s car, because the car belonged to his girlfriend and she was driving it at the time.
Although the US Supreme Court has held in Brendlin v. California that a passenger does have standing to challenge an illegal traffic stop – the passenger is “seized” by the traffic stop just as the driver is seized – the analysis is different when you are challenging the search of the vehicle.
It wouldn’t have mattered, anyway – the officer said that he smelled the odor of marijuana and “saw small buds of marijuana on the floorboard.” An officer’s testimony that he or she smelled marijuana (whether true or not) will almost always be considered enough probable cause to justify an automobile search.
Denial of Counsel
Portella also claimed on appeal that his Sixth Amendment right to counsel was violated when he gave statements to federal agents, while in jail, without the presence of his counsel.
Because Portella initiated those conversations with the federal agents, however, the Court held that he cannot claim that they were in violation of his Sixth Amendment right to counsel.
Possession of a Firearm in Furtherance of Drug Trafficking
The Court also denied Portella’s appeal from his conviction of possession of a firearm in furtherance of drug trafficking, finding that the evidence established a “nexus” between the firearm and the drug sales.
For a conviction of possession of a firearm in furtherance of drug trafficking, the government must “establish that ‘the firearm helped, furthered, promoted, or advanced the drug trafficking.’” United States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008) (quoting United States v. Timmons.
The government must “show . . . some nexus between the firearm and the drug selling operation.” A “nexus” can be established by “the kind of drug activity . . . being conducted, accessibility of the firearm, the type of firearm, whether the firearm is stolen, the status of the possession (legitimate or illegal), whether the firearm is loaded, proximity of the firearm to the drugs or drug profits, and the time and circumstances under which the firearm is found.”
The Eleventh Circuit found that a “nexus” was established where:
- The firearm was in proximity to drugs in the car;
- The firearm was accessible to Portella;
- It was loaded;
- It was possessed illegally by Portella; and
- Portella admitted to police that he was carrying both the gun and marijuana before his traffic stop.
Other Appellate Issues in U.S. v. Dixon
The Eleventh Circuit goes on to deny the rest of the appellate issues raised by Portella and his codefendants, including:
The Court’s failure to “sua sponte” order a competency evaluation where the defendant:
- Informed the court of a report that stated he had an IQ of 78;
- Had a history of traumatic brain injuries; and
- Had impaired functioning and impulse control; but
- There was also evidence that he was both competent and pretending to be mentally ill.
The defendant’s waiver of appellate rights, where:
- He waived his rights on the record during the plea colloquy; and
- There was evidence that he was competent but trying to exaggerate his impairments.
Defendant Altimano’s conviction for a violent crime in aid of racketeering, where testimony established that:
- Altimano was a member of a gang (the Team);
- Team members gained respect and authority by committing violent acts; and
- After Altimano and other Team members committed robberies, they would return to the trap and brag about them.
Defendant Chacon’s conviction for possession with intent to distribute crack cocaine and possession of a firearm in furtherance of drug trafficking, where:
- Police found drugs and a gun at a trap location after an armed robbery;
- Chacon was present when the drugs and gun were found; even though
- Chacon’s charges related to the robbery itself were dismissed.
The Court found that, once the government has proven “that a conspiracy existed, that the defendant had knowledge of the essential aims of the conspiracy, and that with such knowledge, the defendant joined the conspiracy…” a “defendant may be liable for substantive offenses committed by fellow conspirators even if he “lack[ed] . . . knowledge thereof.”
Evidence of Uncharged Conduct by Chacon, which included:
- Chacon robbing an elderly man in 2014;
- A police officer seizing marijuana from Chacon on two occasions;
- That Chacon committed robberies;
- That Chacon fired a gun in front of the trap locations; and
- That Chacon was in a fight that started after he robbed a witness’s girlfriend.
The Court found that the uncharged conduct was “linked in time and circumstances with the charged [conspiracy],” and therefore was more prejudicial than probative under Rule 403 and was admissible under Rule 404(b).
Prosecutorial misconduct based on the prosecutor’s references to an uncharged robbery in closing arguments. The Court found that the references by the prosecutor did not “prejudicially affect Chacon’s substantial rights,” because:
- The prosecutor did not act deliberately;
- The comments were brief;
- The prosecutor admitted he was in error; and
- The trial court gave a curative instruction.
Entrapment by a police officer who persuaded Chacon to sell him a gun, because:
- Chacon was not charged with selling a gun, he was charged with possessing the gun; and
- There was evidence from Chacon’s own statements that he had possessed the gun before he sold it to the undercover officer.
Chacon’s challenges to his sentence were also denied by the Eleventh Circuit, including:
- An enhancement for his role as leader in a drug conspiracy, when other members referred to him as a “shot caller” and he referred to himself as “the boss;”
- That he was responsible for 2.8 kilos of crack cocaine, when a conservative estimate of the drug weights that were testified to during trial was more than 2.8 kilos;
- Challenges to his criminal history category based on prior convictions, including a juvenile conviction that was determined to be within 5 years of his entering the conspiracy; and
- That his sentence was unreasonable, although it was within the guidelines range, because his codefendants received significantly lower sentences.