Opposition Brief — Christina Marie Eichler, Petitioner v. United States
Supreme Court briefFeb 12, 2020
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Nos. 19-6236 and 19-6942
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
CHRISTINA MARIE EICHLER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
SAVON GERMAIN CARTER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
SCOTT A.C. MEISLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether
the
district
court
erred
in
declining
to
give
petitioners’ requested instruction to the jury that a buyer-seller
relationship
is
insufficient
on
distribution conspiracy.
(I)
its
own
to
prove
a
drug-
ADDITIONAL RELATED PROCEEDINGS
United States District Court (D. Wyoming):
United States v. Carter, No. 17-cr-167-1 (Feb. 15, 2018)
United States v. Eichler, No. 17-cr-167-2 (Feb. 13, 2018)
United States Court of Appeals (10th Cir.):
United States v. Carter, No. 18-8014 (July 11, 2019)
United States v. Eichler, No. 18-8015 (July 11, 2019)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 19-6236
CHRISTINA MARIE EICHLER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
No. 19-6942
SAVON GERMAIN CARTER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Eichler Pet. App. 4-27;
Carter Pet. App. 1-24) is not published in the Federal Reporter
but is reprinted at 781 Fed. Appx. 707.
JURISDICTION
The judgment of the court of appeals was entered on July 11,
2019.
The petition for a writ of certiorari in No. 19-6236 was
filed on October 7, 2019.
On October 8, 2019, Justice Sotomayor
2
extended the time within which to file a petition for a writ of
certiorari in No. 19-6942 to and including December 9, 2019, and
the petition was filed on that date.
The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for
the
District
of
Wyoming,
petitioners
were
convicted
of
conspiring to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. 841(a)(1) and (b)(1)(A), and 846 (2012).
Eichler
Judgment
1;
Carter
Judgment
1.
The
district
court
sentenced petitioner Christina Marie Eichler to 121 months of
imprisonment, to be followed by five years of supervised release,
and petitioner Savon Germain Carter to 135 months of imprisonment,
to be followed by five years of supervised release.
Judgment 2-3; Carter Judgment 2-3.
Eichler
The court of appeals affirmed.
Eichler Pet. App. 4-27 (Pet. App.).
1.
Between
approximately
September
2016
and
May
2017,
petitioners distributed methamphetamine and marijuana in northern
Utah and Wyoming.
See Pet. App. 5, 9.
Eichler had lived in
Wyoming earlier in 2016 and, after moving in with her boyfriend
Carter in a suburb of Salt Lake City, regularly returned to Wyoming
to
visit
family
and
sell
methamphetamine
there.
Eichler’s customers in Wyoming included Darrell Gilson.
Id.
at
5.
Ibid.
On
one occasion in September 2016, Eichler was stopped for speeding
while traveling to Wyoming to sell methamphetamine and marijuana
3
to Gilson.
Ibid.
She was arrested after the trooper smelled
marijuana and a subsequent search of Eichler’s car and purse
revealed approximately an ounce of methamphetamine and an ounce of
marijuana.
Ibid.
While in jail, Eichler called Carter on the jail’s recorded
line.
Pet. App. 5.
Petitioners discussed asking their associates
in Wyoming -- including Gilson and George Maestas -- to help pay
for Eichler’s bond.
Id. at 5-6.
Eichler also asked Carter to
tell Gilson that he (Carter) could “handle” the drug supply that
Eichler was supposed to have “handled for [Gilson]” before her
arrest.
Id. at 5.
Maestas eventually helped to pay for Eichler’s
bond, id. at 6, but Gilson -- fearing that it might be a law
enforcement sting -- did not, see Trial Tr. 287.
After her release from jail, Eichler continued to travel to
Wyoming, where she sold methamphetamine to Maestas at his home.
Pet. App. 6-7.
Eichler also obtained a car from Gilson in exchange
for three ounces of methamphetamine, a quarter pound of marijuana,
and cash.
Id. at 7.
Gilson, in the meantime, began traveling
from Wyoming to the home that Eichler and Carter shared in Utah to
buy methamphetamine from them.
Gilson eventually started buying
the drugs directly from Carter, although Eichler was present at
the house for the transactions.
Ibid.
Petitioners also sold drugs to and through another man,
Michael Flores.
Pet. App. 7-8.
Like Gilson, Flores had initially
purchased methamphetamine from Eichler but later began buying it
4
from Carter, with Eichler sometimes present at the house for the
transactions.
Id. at 8.
On one occasion, Carter fronted 21 grams
of methamphetamine to Flores with the expectation that he would
pay Carter later.
See Trial Tr. 474-475.
After Flores was arrested in May 2017, he agreed to arrange
a controlled purchase of drugs from petitioners.
Pet. App. 8.
In
a recorded call, Flores told Carter to meet him at a Wyoming motel.
Id. at 8-9.
Carter agreed and later told Flores that Eichler was
on her way to meet him there.
Ibid.
when she arrived at Flores’s room.
Officers arrested Eichler
Id. at 9.
Meanwhile, Carter
was exchanging text messages with Flores’s phone (which was being
operated by law enforcement personnel) to negotiate a purchase
price for methamphetamine and marijuana.
2.
A
grand
jury
in
the
Id. at 9, 12.
District
of
Wyoming
charged
petitioners and Flores with conspiring to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C. 841(a)(1) and
(b)(1)(A), and 846 (2012).
Indictment 1-2.
Flores pleaded guilty
to the conspiracy charge and testified at the joint trial of
petitioners.
See Pet. App. 10-12.
At an in-chambers conference
held at the close of the government’s case, Carter proposed that
the district court instruct the jury on a “buyer-seller” defense.
See id. at 13; Trial Tr. 659.
petitioners
asserted
were
The two proposed instructions, which
based
on
decisions
of
the
Seventh
Circuit, provided in pertinent part that “[m]ere proof of the
existence of a buyer-seller relationship is not sufficient to prove
5
that the defendant is a co-conspirator in [a] drug conspiracy”;
that “[a] buyer or seller of a product does not automatically
become
a
member
of
the
charged
conspiracy”;
and
that
“[t]he
prosecution must establish by proof beyond a reasonable doubt that
the defendant knew the existence and scope of the conspiracy and
sought to promote its success.”
The
district
instructions.
court
Pet. App. 28-29.
declined
to
give
the
Pet. App. 14; Trial Tr. 659, 661.
requested
Adhering to the
Tenth Circuit’s pattern instructions, the court instructed the
jury that it had to find beyond a reasonable doubt that each
petitioner “agreed with at least one other person to distribute”
methamphetamine; that each “knew the essential objective of the
conspiracy”;
that
[themselves]
in
each
the
“knowingly
and
voluntarily
conspiracy”;
and
that
involved
“interdependence
[existed] among the members of the conspiracy.”
Pet. App. 30.
The court further instructed the jury that to find petitioners
guilty, it also would have to find that the objective of the
charged conspiracy was “to distribute methamphetamine”; that “the
members of the alleged conspiracy came to a mutual understanding
to try to accomplish a common and unlawful purpose”; and that “the
defendant knowingly joined the conspiracy with the intent to
advance
its
purposes.”
Trial
Tr.
687-688.
As
to
the
“interdependence” element, the court instructed the jury that the
members of the conspiracy must have “intended to act for their
6
shared mutual benefit” and “relied on each other in achieving a
common illicit goal.”
Id. at 688.
The jury found petitioners guilty of the charged conspiracy.
Pet. App. 14.
In answers to a special interrogatory, the jury
further determined that each conspirator was responsible for more
than 500 grams of methamphetamine.
Ibid.
The district court
sentenced Eichler to 121 months of imprisonment and Carter to 135
months of imprisonment, both to be followed by five years of
supervised release.
Eichler Judgment 2-3; Carter Judgment 2-3;
see Pet. App. 15.
3.
The court of appeals affirmed in an unpublished opinion.
Pet. App. 4-27.
As relevant here, petitioners argued that “the
district
erred
court
by
refusing
to
give”
a
buyer-seller
instruction, id. at 16, which petitioners understood to require,
at least in the Seventh Circuit, that the government prove not
only that they worked together to distribute drugs, but that those
who bought drugs from them “in turn sold those drugs to others and
then returned some of the profits to Carter and Eichler,” id. at
18.
The court of appeals rejected that argument.
18.
Pet. App. 17-
The court explained that it had previously “rejected the
Seventh Circuit’s interpretation of the buyer-seller rule,” and
had
construed
the
rule
to
serve
the
limited
“purpose”
of
“separat[ing] customers, who do not plan to redistribute drugs for
profit, from street-level, mid-level, and other distributors, who
7
do intend to redistribute drugs for profit, thereby furthering the
objective of the conspiracy.”
Id. at 18 (quoting United States v.
Ivy, 83 F.3d 1266, 1285-1286, cert. denied, 519 U.S. 901 (1996)).
The court observed that here, petitioners’ conspiracy conviction
rested on the theory “that Carter, Eichler, and Flores were each
distributors -- not consumers -- who agreed among each other to
sell to consumers.”
Id. at 18 n.12.
And the court determined
that “the district court did not err by refusing to” give the
buyer-seller instruction.
Id. at 18.
ARGUMENT
Petitioners renew their contention (Eichler Pet. 4-13; Carter
Pet. 3-5) that the district court erred in declining to give their
requested
buyer-seller
correctly
rejected
instruction.
that
The
contention,
court
and
of
its
appeals
factbound
determination does not conflict with any decision of this Court or
another
court
of
appeals.
Moreover,
this
case
would
be
an
unsuitable vehicle for addressing the circumstances in which a
buyer-seller
instruction
is
appropriate
because
any
declining to give that instruction here was harmless.
error
in
This Court
has recently and repeatedly denied certiorari on the instructional
issue
and
the
related
question
of
what
evidence
suffices
to
distinguish a drug-distribution conspiracy from a buyer-seller
relationship.
See, e.g., Davis v. United States, 138 S. Ct. 1441
(2018) (No. 17-7207); Kelly v. United States, 137 S. Ct. 1577
(2017) (No. 16-6388); Randolph v. United States, 135 S. Ct. 1491
8
(2015) (No. 14-6151); Brown v. United States, 572 U.S. 1060 (2014)
(No. 13-807); Baker v. United States, 558 U.S. 965 (2009) (No. 0810604). *
1.
18)
It should follow the same course here.
The court of appeals correctly determined (Pet. App. 16-
that
the
district
court
permissibly
declined
to
give
petitioners’ proposed buyer-seller instruction.
a.
“[T]he essence of a conspiracy is ‘an agreement to commit
an unlawful act.’”
United States v. Jimenez Recio, 537 U.S. 270,
274 (2003) (quoting Iannelli v. United States, 420 U.S. 770, 777
(1975)). In criminal prosecutions involving drug sales, the courts
“have
cautioned
against
conflating
[an]
underlying
agreement” with the agreement needed to find conspiracy.
States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010).
buy-sell
United
A conspiracy
does not arise simply because one person sells goods to another
“know[ing] the buyer will use the goods illegally.”
Co. v. United States, 319 U.S. 703, 709 (1943).
Direct Sales
Rather, the “gist
of conspiracy” in such a circumstance would be that the seller not
only “knows the buyer’s intended illegal use” but also “show[s]
that by the sale he intends to further, promote and coöperate in
it.”
Id. at 711.
This Court has made clear, however, that although “single or
casual transactions, not amounting to a course of business,” may
be insufficient to prove a conspiracy, a seller’s attempts to
The pending petition for a writ of certiorari in Martinez
v. United States, No. 19-5346 (filed July 20, 2019), raises a
similar issue.
*
9
“stimulate such sales” or “prolonged coöperation with a [buyer’s]
unlawful purpose” can be enough to establish that the seller and
buyer have conspired together.
713 & n.8.
Direct Sales Co., 319 U.S. at 712-
Additional relevant considerations include whether the
buyer or seller exhibits “informed and interested coöperation” or
has a “stake in the venture.”
b.
Id. at 713.
Under those principles, the court of appeals correctly
affirmed
the
instruction.
denial
of
petitioners’
proffered
buyer-seller
So long as a court instructs the jury that a
defendant is guilty of conspiracy only if he or she voluntarily
joined in an agreement to distribute drugs while knowing the
purpose of the agreement -- as the district court did here, see
Trial Tr. 685-688; Pet. App. 30 -- the court may properly determine
that a buyer-seller instruction is unnecessary and potentially
confusing.
“A
trial
judge,”
this
Court
has
explained,
“has
considerable discretion in choosing the language of an instruction
so long as the substance of the relevant point is adequately
expressed.”
Boyle v. United States, 556 U.S. 938, 946 (2009).
Here, the evidence at trial established that petitioners -who
lived
together
as
boyfriend
and
girlfriend
--
were
co-
conspirators who repeatedly engaged in distribution-quantity sales
of methamphetamine to customers in or from Wyoming. Three of those
purchasers
resold
the
(Maestas,
drugs,
Gilson,
and
on
and
Flores)
one
testified
occasion
that
Carter
they
fronted
methamphetamine to Flores with the expectation that Flores would
10
repay him after selling the drugs in Wyoming.
See Pet. App. 5-8;
Trial Tr. 282, 405-406, 474-475. The district court thus correctly
agreed
with
instructions
the
government’s
accurately
set
argument
forth
“that
the
law
the
existing
related
to
conspiracies,” id. at 659, and that no further instruction on
conspiracy was necessary, see id. at 659-660.
Indeed, a buyer-seller instruction would have been especially
inappropriate here because the government did not predicate the
conspiracy charge solely on the relationship between petitioners
and their purchasers.
Rather, as the court of appeals observed,
the government alleged and proved that petitioners and Flores
“agreed among each other to sell to consumers.”
Pet. App. 18 n.12.
For example, in recorded jailhouse calls, Eichler and Carter agreed
that Carter would “handle” the sale of drugs to Gilson that Eichler
had been on the way to conduct when she was arrested.
Pet. App.
5
correctly
(citation
omitted).
As
the
court
of
appeals
recognized, “a rational jury could conclude that Eichler and Carter
were working in tandem to sell methamphetamine.”
Id. at 19.
As
the Seventh Circuit has recognized, that is sufficient on its own
to establish a conspiracy to distribute drugs irrespective of
whether petitioners also conspired with their purchasers.
See
United States v. Love, 706 F.3d 832, 839 (2013).
2.
Contrary to petitioners’ contention (Eichler Pet. 2-4,
13), this Court’s review is not warranted to resolve disagreement
among the courts of appeals on when a buyer-seller instruction is
11
appropriate. The courts of appeals broadly agree on the principles
governing
drug-conspiracy
relationships.
cases
that
involve
buyer-seller
To the extent that tension can be found in the
language of courts of appeals’ opinions, it is not implicated here.
a.
The courts of appeals are in general agreement that the
mere existence of a buyer-seller relationship by itself does not
establish a conspiracy to distribute narcotics.
Instead, they
apply a fact-specific inquiry considering all of the circumstances
to determine whether a conspiracy is established and, relatedly,
whether a buyer-seller instruction is appropriate.
See United
States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008) (describing
courts’
approaches
to
the
“highly
fact-specific
inquiry
into
whether the circumstances surrounding a buyer-seller relationship
establish
an
agreement
to
participate
in
a
distribution
conspiracy”); see also, e.g., United States v. Mitchell, 596 F.3d
18, 24-25 (1st Cir. 2010); United States v. Gibbs, 190 F.3d 188,
197-200 (3d Cir. 1999), cert. denied, 528 U.S. 1131, and 529 U.S.
1030 (2000); United States v. Reid, 523 F.3d 310, 317 (4th Cir.),
cert. denied, 555 U.S. 1061 (2008); United States v. Delgado, 672
F.3d 320, 333-334, 341 (5th Cir.) (en banc), cert. denied, 568
U.S. 978 (2012); United States v. Deitz, 577 F.3d 672, 680-682
(6th Cir. 2009), cert. denied, 559 U.S. 984 (2010); Johnson, 592
F.3d at 754-756; United States v. Ramirez, 350 F.3d 780, 784-785
(8th Cir. 2003); United States v. Moe, 781 F.3d 1120, 1125-1126
(9th Cir.), cert. denied, 136 S. Ct. 342 (2015); United States v.
12
Small, 423 F.3d 1164, 1182-1183 (10th Cir. 2005), cert. denied,
546 U.S. 1155, 546 U.S. 1190, and 547 U.S. 1141 (2006); United
States v. Brown, 587 F.3d 1082, 1089-1090 (11th Cir. 2009); United
States v. Baugham, 449 F.3d 167, 171-172 (D.C. Cir.), cert. denied,
549 U.S. 966 (2006).
“[I]n
making
that
evaluation,”
courts
have
considered
a
variety of factors, such as “the length of affiliation”; “whether
there is an established method of payment”; “the extent to which
transactions are standardized”; “whether there is a demonstrated
level of mutual trust”; and “whether the buyer’s transactions
involved large amounts of drugs.”
Gibbs, 190 F.3d at 199. The
presence of such factors “suggests that a defendant has full
knowledge of, if not a stake in, a conspiracy.”
Courts
factors
in
appropriate.
have
likewise
determining
considered
whether
a
those
Ibid.
and
buyer-seller
other
similar
instruction
is
See, e.g., United States v. Medina, 944 F.2d 60, 65
(2d Cir. 1991) (finding that “the district court did not err in
refusing to give the
* * *
‘buyer-seller’ instruction” because
there was “advanced planning among the alleged co-conspirators to
deal in wholesale quantities of drugs obviously not intended for
personal use”), cert. denied, 503 U.S. 949 (1992), abrogated on
other grounds by Bailey v. United States, 516 U.S. 137, 142-150
(1995); Mitchell, 596 F.3d at 25 (finding that district court did
not err in “failing to give a buyer-seller instruction” because
the evidence showed (among other things) that the defendant “was
13
involved in multiple transactions, for large, kilogram-quantities
of cocaine, for large sums of money,” and “made pre-arranged
purchases from other conspiracy members”); see also United States
v. Mata, 491 F.3d 237, 241-242 (5th Cir. 2007) (holding that
failure to give a buyer-seller instruction is not error where the
court gives an “adequate instruction on the law of conspiracy”),
cert. denied, 552 U.S. 1189 (2008); Moe, 781 F.3d at 1128-1129
(similar); United States v. Thomas, 114 F.3d 228, 245-246 (D.C.
Cir.) (similar), cert. denied, 522 U.S. 1033 (1997).
b.
Petitioners contend (Eichler Pet. 2-3; Carter Pet. 3-4)
that this Court’s review is warranted because the Seventh Circuit’s
interpretation of the role of the buyer-seller rule differs from
that of the court below.
But they err in reading Seventh Circuit
precedent to require a buyer-seller instruction in a case like
this.
Petitioners assert, for example, that in conspiracy cases in
the Seventh Circuit involving drug sales, “the jury is instructed
that the Government must prove that the buyers sold the drugs they
purchased to others and returned profits to the conspirators on
trial.”
Eichler Pet. 2.
But petitioners identify no support for
an absolute requirement of that nature in Seventh Circuit case
law.
The Seventh Circuit pattern instructions (cited by the court
of appeals here, see Pet. App. 13-14) do not contain a return-ofprofits requirement.
Instead, they provide only that when a
conspiracy is predicated on a purchaser’s resale of drugs, “[t]he
14
government must prove that the buyer and seller had the joint
criminal objective of further distributing the drug to others.”
Id. at 14 (brackets and citation omitted); cf. United States v.
Brown, 726 F.3d 993, 1002 (7th Cir. 2013) (explaining that the
Seventh Circuit “consider[s] the totality of the circumstances,”
not a finite list of factors, in distinguishing a buyer-seller
relationship from a conspiracy), cert. denied, 572 U.S. 1060
(2014).
In upholding the jury instructions in this case, the court of
appeals here cited its decision in United States v. Gallegos, 784
F.3d 1356 (10th Cir. 2015), for the proposition that it had
“rejected the Seventh Circuit’s interpretation of the buyer-seller
rule.”
Pet. App. 18.
As Gallegos explained, the Tenth Circuit
has held that the “buyer-seller rule applies only to end users,”
not to those who sell drugs as part of a conspiracy.
1360.
784 F.3d at
But as Gallegos recognized, even the Seventh Circuit would
find a buyer-seller instruction unwarranted if presented with
“evidence
of
purchases.”
fronting
coupled
with
evidence
Ibid. (citing Johnson, supra).
of
repeat
drug
And as explained
above, the evidence here showed that Carter fronted drugs to Flores
on at least one occasion and that petitioners repeatedly sold drugs
to Flores, Gilson, and Maestas.
Moreover,
as
explained
above,
the
Seventh
Circuit
has
repeatedly recognized that courts should not give a buyer-seller
instruction when conspiracy liability rests on the defendant’s
15
cooperation with individuals “on the same side of the” transaction.
United States v. Payton, 328 F.3d 910, 912, cert. denied, 540 U.S.
881 (2003); see Love, 706 F.3d at 839; United States v. BaskinBey, 45 F.3d 200, 205 & n.2, cert. denied, 514 U.S. 1089, and 514
U.S. 1121 (1995).
This is such a case.
Petitioners agreed with
and worked “in tandem” with each other and at least one other
person (Flores) on the distribution side of the transaction “to
sell [methamphetamine] to consumers.”
Pet. App. 18 n.12, 19.
Accordingly, petitioners cannot show that they would have been
entitled to a buyer-seller instruction in the Seventh Circuit.
c.
The
remaining
decisions
cited
by
petitioners
(see
Eichler Pet. 7, 12) likewise do not establish a circuit conflict
that warrants this Court’s review in this case.
Instead, each
represents a factbound application of the general principles set
forth above.
For example, the Ninth Circuit’s decision in Moe,
supra, found that the government had presented sufficient evidence
to
prove
a
drug
conspiracy
--
not
merely
a
buyer-seller
relationship -- and that the district court was not required to
give a specific buyer-seller instruction on the facts of that case.
781 F.3d at 1125-1129.
And the Eleventh Circuit’s decision in
United States v. Dekle, 165 F.3d 826 (1999), involved only a
challenge to the sufficiency of the evidence, not the circumstances
under which a buyer-seller instruction is appropriate.
that
case
physician’s
involved
a
agreement
conspiracy
to
conviction
prescribe
Indeed,
predicated
controlled
on
a
substances
in
16
exchange
for
sexual
favors
--
a
scenario
that
bears
little
resemblance to the methamphetamine distribution conspiracy here.
See id. at 830.
3.
Even
if
the
question
petitioners
raise
otherwise
warranted this Court’s review, this case would be an unsuitable
vehicle in which to address it, because the absence of a buyerseller instruction did not have a “substantial and injurious effect
or influence in determining the jury’s verdict.”
United States, 328 U.S. 750, 776 (1946).
Kotteakos v.
The jury was adequately
informed by the district court’s instructions that a buyer-seller
relationship would not suffice to establish a conspiracy.
The district court instructed the jury that it had to find
beyond a reasonable doubt that each petitioner “agreed with at
least one other person to distribute” methamphetamine, that each
“knew
the
essential
objective
of
the
conspiracy,”
that
each
“knowingly and voluntarily involved himself or herself in the
conspiracy,” and that “interdependence [existed] among the members
of the conspiracy.”
Pet. App. 30.
The court further instructed
the jury that proof that a defendant “knew about the existence” of
a methamphetamine-distribution “conspiracy or was associated with
members
of
the
conspiracy”
was
not
sufficient,
and
that
the
evidence instead “must show that the defendant knowingly joined
the conspiracy with the intent to advance its purposes.”
Tr.
687-688.
And
the
“interdependence”
element
--
Trial
which
is
“unique” to the Tenth Circuit, see 10th Cir. Crim. Pattern Jury
17
Instr. No. 2.19 cmt. -- additionally required the jury to find
that the members of the conspiracy “intended to act for their
shared mutual benefit” and “relied on each other in achieving a
common illicit goal.”
Trial Tr. 688.
Taken together, those instructions made clear to the jury
that it had to find that petitioners each shared an “unlawful
purpose” and intent to mutually benefit with at least one other
person before it could find that petitioners voluntarily agreed to
distribute methamphetamine.
Direct Sales Co., 319 U.S. at 713.
The absence of a further specification that a buyer and a seller
do not necessarily share such a purpose in every instance could
not have played a substantial role in determining the jury’s
verdict.
See, e.g., Moe, 781 F.3d at 1128-1129; Mata, 491 F.3d at
241-242.
To the contrary, and as explained above, the evidence at
trial
established
that
petitioners
distributing methamphetamine.
“work[ed]
in
tandem”
in
Pet. App. 19; see id. at 18 n.12.
In addition to proof that Eichler sold drugs to customers herself,
the evidence included recorded calls and text messages showing
that
she
told
Carter
to
“continue
selling
to
Gilson”
the
methamphetamine that she previously “had been selling” to Gilson.
Id. at 19; see id. at 5-8.
Likewise, recorded calls and text
messages showed that Carter agreed to sell drugs to Flores and
sent Eichler to carry out the transaction.
See id. at 8-9.
In
light of that evidence showing that petitioners agreed with each
18
other to distribute drugs, petitioners suffered no prejudice from
the absence of a buyer-seller instruction.
CONCLUSION
The petitions for writs of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
SCOTT A.C. MEISLER
Attorney
FEBRUARY 2020
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