New drug conspiracy opinion from Fourth Circuit
On June 17, 2009, the Fourth Circuit issued an opinion in a drug conspiracy case, addressing the following particularly important issues, in U.S. v. Marc Jeffers. ___ F.3d ___ (4th Cir., June 17, 2009):
– The Fourth Circuit rejected Jeffers’s request for plain error review on the absence of a jury instruction about the possibility of multiple unrelated conspiracies. Jeffers said:
"We have heretofore explained that ‘[a] single conspiracy exists, when the conspiracy had the same objective, it had the same goal, the same nature, the same geographic spread, the same results, and the same product.’ United States v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995) (internal quotation marks omitted). Error will be found in a conspiracy instruction ‘if the proof of multiple conspiracies was likely to have confused the jury into imputing guilt to [the defendant] as a member of one conspiracy because of the illegal activity of members of the other conspiracy.’ United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001)." Jeffers, slip op. at 10-11.
Jeffers further said:
"As we observed in Banks, a drug conspiracy may ‘result[ ] in only a loosely-knit association of members linked only by their mutual interest in sustaining the overall enterprise of catering to the ultimate demands of a particular drug consumption market.’ Id. As such, there was no instructional error – much less plain error – made by the trial court in this respect." Jeffers, slip op. at 12.
– The Fourth Circuit rejected Jeffers’s contention that the "trial court failed to instruct the jury that it had to determine the quantity of cocaine base attributable to him." Jeffers said:
"In United States v. Collins, in 2005, we held that, in order to properly apply the sentencing provisions of § 841(b)(1) in a § 846 drug conspiracy prosecution, the jury must determine that the threshold drug quantity was reasonably foreseeable to the defendant. See 415 F.3d 304, 314 (4th Cir. 2005). In this prosecution, the district court instructed the jury that it had to find that ‘the object of the unlawful plan was to distribute or possess with intent to distribute at least 50 grams of a substance containing a detectable amount of cocaine base.’" Jeffers, slip op. at 14.
Concurring Judge Niemeyer added his "continuing objection to our application of United States v. Collins, 415 F.3d 304 (4th Cir. 2005), which remains inconsistent with well-established conspiracy law, as defined by 21 U.S.C. § 846 and governing Supreme Court decisions, such as United States v. Shabani, 513 U.S. 10, 13-14 (1994). See United States v. Brooks, 524 F.3d 549, 565-79 (4th Cir. 2008) (Niemeyer, J., dissenting). Our court should have seized this opportunity to correct the problem, although, I suspect, it will have to be the Supreme Court and not our court that does so." Jeffers, slip op. at 23.
– Jeffers confirmed that:
"A sentencing court is obliged to make factual determinations by a preponderance of the evidence. See United States v. Brika, 487 F.3d 450, 459 (4th Cir. 2007). We review such a court’s findings of fact for clear error, reversing such findings only if we are ‘left with the definite and firm conviction that a mistake has been committed.’ United States v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008) (internal quotation marks omitted)." Jeffers, slip op. at 17.
– Jeffers found a Rule 16 discovery violation through the government’s refusal to permit Jeffers to copy discovery, and instead only to examine some of it. However, Jeffers found no showing of sufficient prejudice to merit appellate relief. Jeffers, slip op. at 19-20.
– The Court denied Jeffers’s Brady challenge, and confirmed the following approach for evaluating such challenges:
"In order to establish a Brady violation, Jeffers is obliged to show that the non-disclosed evidence was (1) favorable to him, (2) that it was material to his defense, and (3) that the prosecution possessed it and failed to timely disclose it to Jeffers. See United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001). Evidence will be deemed ‘favorable’ if it is either exculpatory or if it can be used as impeachment evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985). Such evidence is properly considered as ‘material’ if there is a ‘reasonable probability’ that its timely disclosure would have produced a different result. See id. at 682. A ‘reasonable probability’ exists if the failure to make such a disclosure "undermines confidence in the outcome of the trial." Id. at 678." Jeffers, slip op. at 22.