Opposition Brief — Kevin Thomas Seigler, Petitioner v. United States

No. 20-8231

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

KEVIN THOMAS SEIGLER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

JOSHUA K. HANDELL

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether sufficient evidence supported petitioner’s conviction

for conspiracy to distribute methamphetamine.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (W.D. Va.):

United States v. Seigler, No. 16-cr-41 (June 20, 2019)

United States v. Seigler, No. 17-cr-34 (June 20, 2019)

United States Court of Appeals (4th Cir.):

United States v. Seigler, No. 19-4491 (Mar. 3, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-8231

KEVIN THOMAS SEIGLER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-33a) is

reported at 990 F.3d 331.

JURISDICTION

The judgment of the court of appeals was entered on March 3,

2021.

A petition for rehearing was denied on March 31, 2021 (Pet.

App. 43a).

The petition for a writ of certiorari was filed on

June 1, 2021.

U.S.C. 1254(1).

The jurisdiction of this Court is invoked under 28

2

STATEMENT

Following a jury trial in the United States District Court

for the Western District of Virginia, petitioner was convicted on

one count of conspiring to manufacture, distribute, or possess

with intent to distribute a controlled substance or to use a

communication facility in committing or facilitating a controlledsubstance offense, in violation of 21 U.S.C. 841, 843(d), and 846;

and one count of failing to appear, in violation of 18 U.S.C. 3146.

Judgment 1-2.

He was sentenced to 286 months of imprisonment, to

be followed by five years of supervised release.

The court of appeals affirmed.

1.

In

2014,

federal,

Judgment 3-4.

Pet. App. 1a-33a.

state,

and

local

law

enforcement

agencies initiated a joint investigation into the Stone Drug

Trafficking Organization, which was suspected of coordinating the

distribution of methamphetamine and prescription drugs in the

southwest

Virginia

area.

Pet.

Investigation Report (PSR) ¶¶ 8-9.

App.

2a;

see

Presentence

The investigators determined

that most, if not all, of the controlled substances distributed by

the Stone outfit originated in Las Vegas, Nevada -- specifically,

from Las Vegas resident Stephen Cino.

Pet. App. 2a; see PSR ¶ 9.

In mid-February 2016, Las Vegas police obtained a 30-day warrant

for a wiretap on Cino’s cell phone, and through that wiretap

recorded at least two conversations between Cino and petitioner.

Pet. App. 2a-3a; see PSR ¶ 14.

3

In the first recorded call, placed on March 8, 2016, Cino

told petitioner that “from what I understand, it looks like it’s

gonna be a deuce” -- which officers understood to refer to two

pounds of methamphetamine -- and that Cino would be able to confirm

the amount the next morning.

Pet. App. 3a; see id. at 3a n.2.

Cino

to

and

petitioner

agreed

meet

the

following

day,

and

petitioner said that he would call his contact immediately to

ensure that everything was ready.

Id. at 3a.

In the second recorded call, on March 9, Cino confirmed to

petitioner that he wanted “two.”

Pet. App. 3a; see PSR ¶ 14.

Petitioner indicated that he was prepared to meet any time, and

they

discussed

petitioner.

how

long

Pet. App. 3a.

it

would

take

for

Cino

to

get

to

The two men agreed that Cino would

pick up lunch for their meeting from a restaurant near petitioner’s

location.

Ibid.

Law enforcement stopped Cino shortly after his meeting with

petitioner and found two pounds of methamphetamine in a bag in his

car.

Pet. App. 3a-4a; see PSR ¶¶ 14-15.

that

he

had

begun

purchasing

Cino later told police

methamphetamine

from

petitioner

around the beginning of 2016 and had made bulk purchases from

petitioner on at least four to six occasions, all of which Cino

then

shipped

distribution.

2.

indicted

to

coconspirators

in

southwest

Virginia

for

PSR ¶ 17.

A federal grand jury in the Western District of Virginia

22

individuals,

including

petitioner

and

Cino,

for

4

conspiracy offenses relating to the distribution ring operated by

the

Stone

Drug

Trafficking

Organization.

Indictment

1-6.

Petitioner was charged with one count of conspiring to manufacture,

distribute,

or

methamphetamine,

possess

with

the

intent

oxycodone,

and

buprenorphine,

to

distribute

and

to

use

a

communication facility to commit a felony controlled-substances

offense.

Indictment 1-3.

Petitioner’s jury trial was scheduled to begin on May 1, 2017,

but petitioner failed to appear.

Pet. App. 5a; see PSR ¶ 20.

When

officers arrived at his residence the following day, they reported

seeing petitioner jump over a wall in the back to flee from them.

Pet. App. 5a. After an investigation by the U.S. Marshals Service,

petitioner was ultimately apprehended in March 2018.

PSR ¶ 21.

In October 2018, a federal grand jury indicted petitioner on an

additional charge of failure to appear.

PSR ¶ 20.

Petitioner

pleaded guilty to the failure-to-appear count but went to trial on

the conspiracy count.

Pet. App. 5a.

The jury found petitioner guilty of the charged conspiracy,

noting

on

the

special

verdict

form

that

it

found

that

the

government had proved both the distribution objective and the

communications-facility objective.

found

that

petitioner

participated

Pet. App. 5a.

in

a

The jury also

conspiracy

involving

methamphetamine and that the conspiracy involved 500 grams or more

of methamphetamine. Ibid. The district court sentenced petitioner

to 262 months of imprisonment on the conspiracy count and a

5

mandatory consecutive term of 24 months of imprisonment on the

failure-to-appear count.

Judgment 3.

3.

The court of appeals affirmed.

a.

As

relevant

here,

petitioner’s

argument

that

the

the

Pet. App. 1a-33a.

court

of

appeals

evidence

was

rejected

insufficient

to

support the jury’s finding that he joined in the objectives of the

drug-distribution conspiracy.

See Pet. App. 7a-14a.

The court

described “the March 9, 2016 sale of two pounds of methamphetamine

to Cino” as “the principal evidence against [petitioner].”

9a.

Id. at

And it noted that it had “repeatedly recognized that evidence

of a single buy-sell transaction involving a ‘substantial quantity

of

drugs’

can

support

a

‘reasonable

inference’

participation in a distribution conspiracy.”

omitted).

of

knowing

Ibid. (citation

The court acknowledged Seventh Circuit decisions in

which evidence of a single large-quantity buy-sell transaction,

standing alone, was deemed insufficient to establish a conspiracy.

Id. at 10a (citing United States v. Townsend, 924 F.2d 1385 (7th

Cir. 1991)).

The court observed, however, that “the March 9

transaction

is

conclusion

that

not

the

[petitioner]

distribution conspiracy.”

Specifically,

only

the

record

evidence

knowingly

supporting

entered

into

the

the

Id. at 11a.

court

of

appeals

identified

further

evidence of the conspiracy in “the two recorded conversations

between Cino and [petitioner],” including the fact that “both men

use[d] coded and circumlocutory language” and that petitioner

6

“sa[id] he would call another individual to set things up on his

end, from which the jury could reasonably infer that each man was

part of a vertically oriented distribution chain.”

Pet. App. 11a.

And the court determined that “the evidence of [petitioner]’s sale

of two pounds of methamphetamine to Cino, the substance of the two

recorded

conversations

between

[petitioner]

and

Cino,

and

[petitioner]’s flight and failure to appear at his initial trial

date constitutes substantial evidence sufficient for the jury to

have found that [petitioner] and Cino ‘acted in concert to achieve

an illegal goal,’ i.e., the charged distribution conspiracy.”

Id.

at 13a (citation omitted).

b.

Chief Judge Gregory concurred in the judgment.

App. 28a-33a.

Pet.

He agreed that “[t]he majority correctly holds that

the Government presented sufficient evidence at trial to convict

[petitioner] of the conspiracy offense.”

Id. at 28a.

Chief Judge

Gregory would have declined to rely on the evidence of petitioner’s

flight, id. at 29a, and took the view that “the [Seventh Circuit’s]

reasoning in [United States v.] Townsend,” supra, “is instructive

in assessing the adequacy of the evidence here,” id. at 32a.

He

explained, however, that even under that approach, “the record

evidence supports [petitioner]’s conviction.”

Ibid.

He observed

that “[t]he recorded conversations between [petitioner] and Cino”

were “pivotal to the Government’s case,” and that “[t]his evidence,

together

with

the

evidence

of

a

large-quantity

drug

sale,

constitutes ‘substantial evidence’ to support the jury’s verdict

7

that

[petitioner]

knew

of

and

knowingly

conspiracy to distribute methamphetamine.”

participated

in

a

Ibid.

ARGUMENT

Petitioner

renews

his

contention

(Pet.

5-17)

that

insufficient evidence supported his conspiracy conviction.

The

court

its

of

appeals

correctly

rejected

that

argument,

and

factbound determination does not conflict with any decision of

this Court or another court of appeals.

unsuitable

vehicle

for

addressing

And this case would be an

the

circumstances

in

which

evidence of a single sale of bulk narcotics alone permits an

inference that a defendant knowingly joined a drug-distribution

conspiracy

opinion

and

supported

because,

the

as

explained

concurrence,

petitioner’s

in

both

substantial

knowing

the

panel-majority

additional

participation

evidence

in

the

methamphetamine-distribution scheme established at trial.

This

Court has recently and repeatedly denied certiorari on the question

presented and the related question of whether and under what

circumstances a district court must instruct the jury that a buyerseller relationship is insufficient on its own to prove a drugdistribution conspiracy.*

It should follow the same course here.

*

E.g., St. Fleur v. United States, 141 S. Ct. 1695 (2021)

(No. 20-6367); Carter v. United States, 140 S. Ct. 2521 (2020)

(No. 19-6942); Eichler v. United States, 140 S. Ct. 2517 (2020)

(No. 19-6236); Martinez v. United States, 140 S. Ct. 1128 (2020)

(No. 19-5346); Davis v. United States, 138 S. Ct. 1441 (2018) (No.

17-7207); Kelly v. United States, 137 S. Ct. 1577 (2017) (No. 166388); Randolph v. United States, 135 S. Ct. 1491 (2015) (No. 14-

8

1.

The

court

of

appeals

correctly

upheld

the

jury’s

determination that petitioner knowingly joined in the charged

methamphetamine-distribution conspiracy.

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 “prolonged

coöperation with a [buyer’s] unlawful purpose” can be enough to

establish that the seller and buyer have conspired together.

Direct Sales Co., 319 U.S. at 712-713 & n.8.

Additional relevant

6151); Brown v. United States, 572 U.S. 1060 (2014) (No. 13-807);

Baker v. United States, 558 U.S. 965 (2009) (No. 08-10604).

9

considerations recognized by this Court include whether the buyer

or seller exhibits “informed and interested coöperation” or has a

“stake in the venture.”

b.

Id. at 713.

Under the principles articulated in those precedents,

the court of appeals correctly determined that the evidence at

petitioner’s trial, viewed in the light most favorable to the

government, supported the jury’s finding that petitioner knowingly

participated in the conspiracy charged in this case.

As the court

observed, petitioner “d[id] not contest that the Government

* * *

proved the existence of a conspiracy between Cino and individuals

in southwest Virginia.”

Pet. App. 8a.

And the evidence that

petitioner knowingly joined that conspiracy was not limited to the

March 9 sale of two pounds of methamphetamine to Cino.

In

particular, “the recordings were additional evidence that allowed

the jury to infer [petitioner]’s knowledge and participation in

the distribution conspiracy.”

Id. at 12a.

For example, “the jury heard the informality of initial

conversation [on the recorded telephone calls,] from which it could

infer the existence of an established relationship between Cino

and [petitioner].”

Pet. App. 11a; see ibid. (“There were no

introductions to each other or the subject matter of the call.”).

Taken in the light most favorable to the verdict, that evidence

reflected

petitioner’s

unlawful

purpose,”

“prolonged

supporting

the

coöperation

with

[Cino’s]

inference

of

ongoing

conspiracy between the transacting parties.

an

Direct Sales Co., 319

10

U.S. at 713; see id. at 712-713 & n.8.

In addition, the court

observed that jurors “heard both men use coded and circumlocutory

language,” which supported an inference “that Cino was acting as

a middleman and had to confirm the quantity a third-party wanted

to buy from him before finalizing the purchase from [petitioner].”

Pet. App. 11a.

The jury also heard petitioner “say he would call

another individual to set things up on his end, from which the

jury could reasonably infer that each man was part of a vertically

oriented distribution chain.”

supports

a

finding

that

Ibid.

petitioner

That evidence likewise

exhibited

“informed

and

interested coöperation” and likely had a “stake in the venture.”

Direct Sales Co., 319 U.S. at 713.

2.

Petitioner argues (Pet. 5) that “[t]he federal courts of

appeals are divided on whether evidence of a drug deal between one

buyer and one seller is sufficient to support a conviction for

conspiring to distribute illegal drugs.”

But in light of the

substantial evidence, beyond a single bulk sale, of petitioner’s

participation in the particular conspiracy here, this case does

not implicate any disagreement in the courts of appeals.

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.

See United

States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008) (describing

11

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, 577 U.S. 932 (2015); United States v.

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” between

the transacting parties; “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

12

such factors “suggests that a defendant has full knowledge of, if

not a stake in, a conspiracy.”

b.

Petitioner

asserts

Ibid.

(Pet.

12)

that

the

court

below

maintains an outlying position that “a single buy-sell transaction

is

sufficient

distribute.”

to

support

a

conviction

for

conspiracy

to

Petitioner also asserts that the Seventh Circuit

“has reached the polar opposite view,” ibid., and held that “a

drug sale alone does not prove a conspiracy to distribute illegal

drugs,” Pet. 6.

And petitioner contends that the Second and Ninth

Circuits are aligned with the Seventh Circuit’s approach, Pet. 7

(collecting cases), and that the Eleventh Circuit “leans in th[at]

direction,” Pet. 10.

But those courts have not taken the absolute and categorical

positions

that

petitioner

ascribes

to

them,

and

as

a

result

petitioner overstates the extent of any disagreement among the

courts of appeals.

The Seventh Circuit, for example, has stated

that although “a buyer-seller arrangement can’t by itself be the

basis

of

a

conspiracy

conviction,”

the

“government

may

use

circumstantial evidence to prove a resale agreement” -- that is,

a “common objective of reselling the drugs” -- to establish a

conspiracy.

United States v. Long, 748 F.3d 322, 325-326, cert.

denied, 573 U.S. 922 (2014).

And although that court has also

stated that “large quantities of controlled substances, without

more, cannot sustain a conspiracy conviction,” United States v.

Lechuga, 994 F.2d 346, 347 (en banc) (emphasis added; citation

13

omitted), cert. denied, 510 U.S. 982 (1993), it has emphasized

that “there is no rigid list or formula to prove a conspiracy,”

United

States

v.

Pulgar,

789

F.3d

807,

813

(2015),

and

has

acknowledged that “sales of large quantities of drugs, repeated

and/or standardized transactions, and a prolonged relationship

between

the

parties

constitute

circumstantial

conspiracy,”

Johnson,

592

at

F.3d

754

(2010).

evidence

The

of

a

Seventh

Circuit’s decision in United States v. Townsend, 924 F.2d 1385

(1991), on which petitioner principally relied in the court of

appeals, see Pet. App. 10a, 31a, additionally cites factors such

as “evidence of ‘informed and interested cooperation,’” “‘a close

working relationship,’” “‘an ongoing business,’” and “use of a

common code by all of the defendants.”

924 F.2d at 1395 & n.5

(citations omitted).

The Second and Ninth Circuits agree that those or similar

factors can constitute circumstantial evidence of a conspiracy.

See, e.g., United States v. Brock, 789 F.3d 60, 64 (2d Cir. 2015)

(explaining

that

“certain

factors

relevant

to

the

analysis”

include “‘whether there was a prolonged cooperation between the

parties, a level of mutual trust, standardized dealings, sales on

credit,

and

the

quantity

of

drugs

involved’”)

(brackets

and

citation omitted); Moe, 781 F.3d at 1125-1126 (explaining that

relevant factors include “whether the drugs were sold on credit or

on consignment; the frequency of sales; the quantity of drugs

involved; the level of trust demonstrated between buyer and seller,

14

including the use of codes; the length of time during which sales

were ongoing; whether the transactions were standardized; whether

the parties advised each other on the conduct of the other’s

business; whether the buyer assisted the seller by looking for

other customers; and whether the parties agreed to warn each other

of

potential

threats

(footnotes omitted).

from

competitors

or

law

enforcement”)

And as petitioner recognizes (Pet. 10-12),

other courts of appeals likewise have taken a nuanced and factdependent approach.

Whatever the extent of disagreement in the courts of appeals

might be, this case is not an appropriate vehicle in which to

review

it

because

it

is

not

implicated

here.

Contrary

to

petitioner’s contention (Pet. 12), neither the majority nor the

concurring

opinion

below

rests

on

a

determination

that

petitioner’s “one sale to Mr. Cino on March 9, 2016” was alone

“enough to prove conspiracy to distribute drugs.”

Instead, both

opinions expressly cited, discussed, and relied on evidence beyond

that single episode. While the panel majority described that large

transaction as “the principal evidence against [petitioner],” Pet.

App. 9a, it made clear that “the March 9 transaction is not the

only record evidence supporting the conclusion that [petitioner]

knowingly entered into the distribution conspiracy,” id. at 11a,

and it upheld his conviction in light of the full sweep of the

trial evidence, including “the evidence of [petitioner]’s sale of

two pounds of methamphetamine to Cino, the substance of the two

15

recorded

conversations

between

[petitioner]

and

Cino,

and

[petitioner]’s flight and failure to appear at his initial trial

date,” id. at 13a.

Chief Judge Gregory likewise recognized that the government

had introduced into evidence and relied on “‘something more than

the simple exchange of drugs for money’” -- namely, “[t]he recorded

conversations between [petitioner] and Cino” -- to establish the

conspiracy.

Pet. App. 32a (citation omitted).

He found that

additional evidence to be “pivotal to the Government’s case,”

ibid.,

because

those

“conversations

provide[d]

the

‘something

more’ beyond a single, large-quantity drug transaction that was

sufficient for a jury to find beyond a reasonable doubt that

[petitioner]

knew

of

the

drug

conspiracy

and

knowingly

participated in it when he received the methamphetamine he sold to

Cino,” id. at 33a.

Chief Judge Gregory thus recognized that the

evidence here was sufficient to support the conviction even on the

Townsend-based approach that petitioner favors.

See id. at 32a.

Petitioner would therefore not be entitled to relief even if the

first question presented were resolved in his favor. Nor is review

warranted on the wholly factbound second question.

16

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

JOSHUA K. HANDELL

Attorney

SEPTEMBER 2021