United States v. Leal , 921 F.3d 951 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 22, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2083
GASPAR LEAL,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:16-CR-03308-JB-2)
_________________________________
Jason Bowles of Bowles Law Firm, Albuquerque, New Mexico, for the Defendant –
Appellant.
Jason Wisecup, Assistant U.S. Attorney (Fred Federichi, First Assistant U.S. Attorney
with him on the brief), Albuquerque, New Mexico, for the Plaintiff – Appellee.
_________________________________
Before MATHESON, MURPHY, and CARSON, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Gaspar Leal appeals from the district court’s denial of his motion to dismiss the
indictment. In his motion, he argued that the drug conspiracy charged in this case is the
same conspiracy for which he was convicted in a previous case and that continued
prosecution would violate his double jeopardy rights. The district court found the
conspiracies were not interdependent, the indictment therefore charged a separate
offense, and double jeopardy did not apply. We affirm.
I. BACKGROUND
A. Factual Background
The facts in this section are drawn from the factual findings in the district court’s
order, which were based largely on the Government’s pleadings, and which recounted
Mr. Leal’s conduct in two drug transactions: (1) the Tapia Deal and (2) the Carmona
Deal. The parties do not dispute the facts underlying Mr. Leal’s first conviction or the
facts supporting the indictment he sought to dismiss.
Tapia Deal
In 2016, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)
employed a confidential informant (“CI”) to buy drugs in Albuquerque, New Mexico.
An ATF agent told the CI to contact Mr. Leal.
On May 7, 2016, the CI went to Mr. Leal’s home. While there, the CI told Mr.
Leal he wished to make money buying and selling drugs and was interested in buying
“an ounce or two” of methamphetamine or cocaine. ROA at 94.
On May 9, Mr. Leal referred the CI to a seller named “Pete.” Mr. Leal said Pete
could sell meth to the CI. The CI met Pete the following day, but Pete could sell him
only 3.5 grams.
2
On May 12, after the CI told Mr. Leal he was disappointed with the amount of
meth he had purchased from Pete, Mr. Leal sold the CI $40.00 worth of heroin and
$30.00 worth of meth. Mr. Leal tried unsuccessfully to call other drug dealers to arrange
a larger sale for the CI.
On June 8, Mr. Leal, then in jail on unrelated charges,1 called the CI and gave him
Bernadette Tapia’s phone number. He said Ms. Tapia could sell drugs to the CI. Ms.
Tapia’s husband, Christopher Apodaca, who was in jail with Mr. Leal, had given her
permission to sell drugs to the CI.
Later that day, the CI and an undercover ATF agent met with Ms. Tapia and her
daughter, Candace Tapia, and bought two ounces of meth from them. The ATF
deposited $60.00 into Mr. Leal’s jail commissary account for arranging the deal.
2. Carmona Deal
On July 21, 2016, Mr. Leal called the CI from prison2 and gave him Jose Casillas’s
phone number. When the CI contacted Mr. Casillas and asked to buy meth, Mr. Casillas
offered to put the CI in touch with an unidentified woman. The next day, Erika Barraza
texted the CI.
1
The record does not indicate why Mr. Leal was in jail and does not suggest
his incarceration was related to his contacts with the CI.
2
The Government maintains that Mr. Leal was moved to a different
correctional facility sometime between the first call he made to the CI on June 8
and his contact with the CI on July 21, 2016. In July 2016, Mr. Leal was
incarcerated at the Central New Mexico Correctional Facility. It is not clear
where he was incarcerated in June 2016.
3
On July 24, the CI called Ms. Barraza. She told him that her boyfriend, Luis
Arreola-Palma, was in prison with Mr. Leal and had instructed her to contact him. The
same day, Mr. Casillas conducted a conference telephone call with the CI, Mr. Leal, and
Mr. Arreola-Palma. Mr. Arreola-Palma told the CI to contact his cousin, Daniel
Carmona, who could sell an ounce of meth to the CI. Mr. Leal gave Mr. Carmona’s
telephone number to the CI and asked the CI to send him money. The CI called Mr.
Carmona to arrange the transaction.
On July 25, the CI and an undercover ATF agent purchased more than 50 grams of
methamphetamine from Mr. Carmona. On August 3, the CI and an undercover ATF
agent again purchased more than 50 grams of methamphetamine from Mr. Carmona.
B. Procedural Background
Tapia Indictment and Trial
On July 12, 2016, a grand jury indicted Mr. Leal, Bernadette and Candace Tapia,
and Brandon Candelaria (Candace Tapia’s boyfriend) with (1) conspiracy to distribute 50
grams or more of methamphetamine, in violation of 21 U.S.C. § 846; and (2) distribution
of more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). The indictment alleged Mr. Leal and the sellers conspired on or about June
8, 2016.
On December 20, 2017, a jury convicted Mr. Leal on the conspiracy count and
acquitted him on the distribution count.
4
Carmona Indictments
On August 9, 2016, a grand jury indicted Mr. Leal, Mr. Carmona, and Mr. Arreola-
Palma with (1) conspiracy to distribute 50 grams or more of methamphetamine, in violation
of 21 U.S.C. § 846; and (2) distributing 50 grams or more of methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
After the December 20, 2017 verdict in the Tapia case, the grand jury returned
a superseding indictment in the Carmona case. It added another distribution count
and charged Mr. Leal with a conspiracy beginning “on a date unknown, but not later
than July 21, 2016, and continuing to on or about August 3, 2016.” ROA at 100.
Motion to Dismiss
On March 6, 2018, Mr. Leal moved to dismiss the conspiracy count of the
superseding indictment under Federal Rule of Criminal Procedure 12(b). He said the
activity underlying the Tapia conviction and the Carmona superseding indictment was
part of one larger conspiracy. He argued that trying him again for conspiracy would
therefore violate double jeopardy.
“In essence,” he said, “the first jury had to have found the necessary criminal
agreement, formed on June 8, 2016, between Mr. Leal, the government informant, and
others, to convict Mr. Leal in trial one.” Id. at 62-63. Because the superseding
indictment charged a conspiracy “beginning at a date unknown,” Mr. Leal claimed both
conspiracy charges stemmed from the same agreement, making them the same offense
5
for double jeopardy purposes. Id. at 58; see also id. at 63 (“No doubt, the criminal
agreements in the indictment for trial one and for trial two, are the same.”).3
District Court Ruling
The district court denied the motion. First, it said the transactions were not part of
the same chain conspiracy because there was “no evidence that the members of the Tapia
Deal and the Carmona Deal entered into a single conspiracy with each other. Leal is the
only common member of those deals.” United States v. Leal, 330 F. Supp. 3d 1257, 1278
(D.N.M. 2018). The transactions were “discrete and parallel.” Id. at 1279. Second, the
two deals were not part of a single wagon-wheel conspiracy because they were not
interdependent—that is, “the success of one deal does not depend on the success of the
other.” Id.4
Mr. Leal timely appealed.
3
Mr. Leal also asked for dismissal of the distribution count without prejudice so a
new grand jury could consider it anew without hearing evidence of the conspiracy.
Because we affirm the denial of dismissal of the conspiracy count, we do not need to
address the distribution count.
4
The district court also rejected the Government’s argument that Mr. Leal’s
motion was unripe because the Government had not yet presented any evidence of
his 2017 conviction. The Government does not contest that conclusion on appeal.
6
II. DISCUSSION
Mr. Leal argues the district court erred in finding the Tapia and Carmona deals
lacked the requisite interdependence to make each of them part of one conspiracy.
Proceeding to trial on the conspiracy count in the Carmona case would, he contends,
violate double jeopardy because he would be prosecuted for the same conspiracy he was
convicted of in the Tapia trial. The following discussion shows that his argument fails
under conspiracy law and the record.
A. Jurisdiction and Standard of Review
Jurisdiction
We have appellate jurisdiction over this interlocutory appeal. In Abney v. United
States, 431 U.S. 651 (1977), the Supreme Court held that a pretrial order denying a
motion to dismiss an indictment on double jeopardy grounds falls within the collateral
order exception to the final-judgment rule and is therefore immediately appealable under
28 U.S.C. § 1291. Id. at 662. The Court explained that holding otherwise would require
the defendant to “endure the personal strain, public embarrassment, and expense of a
criminal trial” that he asserts violates the Double Jeopardy Clause of the Fifth
Amendment. Id. at 661.
Here, as in Abney, “[t]here are simply no further steps that can be taken in the
District Court to avoid the trial the defendant maintains is barred by the Fifth
Amendment’s guarantee.” Id. at 659; see also United States v. Tucker, 745 F.3d 1054,
1064 (10th Cir. 2014) (stating “a Double Jeopardy Clause claim would be rendered
7
meaningless if motions to dismiss on double jeopardy grounds were not immediately
reviewable”); United States v. Perez-Herrera, 86 F.3d 161, 163 (10th Cir. 1996)
(exercising jurisdiction over an interlocutory appeal from a pretrial order in a double
jeopardy case).
Standard of Review
“We generally review a district court’s denial of a motion to dismiss a criminal
indictment for abuse of discretion.” United States v. Berres, 777 F.3d 1083, 1089 (10th
Cir. 2015). “We review the factual findings underlying the defendant’s double jeopardy
claim for clear error.” United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024-25
(10th Cir. 1996). “The district court’s ultimate determination regarding double jeopardy
is, however, a question of law we review de novo.” Id. at 1025.
On whether there were one or two conspiracies, which Mr. Leal raised in his
motion to dismiss, we review the district court’s finding about interdependence for clear
error. See United States v. Mintz, 16 F.3d 1101, 1106 (10th Cir. 1994) (concluding that
district court’s finding that “the ultimate goal [of the two conspiracies] was to mix the
two types of marijuana for sale in New York and that [the two conspiracies] were
interdependent” was not “clearly erroneous”).
B. Legal Background
1. Conspiracy
To prove a conspiracy, the government must show that “(1) two or more
persons agreed to violate the law, (2) the defendant knew the essential objectives of
8
the conspiracy, (3) the defendant knowingly and voluntarily participated in the
conspiracy, and (4) the alleged co-conspirators were interdependent.” United States
v. Pickel, 863 F.3d 1240, 1251 (10th Cir. 2017) (brackets and quotations omitted).
Because “the gist of the crime of conspiracy” is the agreement rather than the overt
acts done in furtherance of the conspiracy, “the precise nature and extent of the
conspiracy must be determined by reference to the agreement which embraces and
defines its objects.” Braverman v. United States, 317 U.S. 49, 53 (1942).
Although two or more people must agree to form a conspiracy, an informant
cannot count toward that requirement: “[T]here can be no indictable conspiracy
involving only the defendant and government agents or informers.” United States v.
Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985). In short, “informers cannot be
conspirators” and “cannot be considered parties to the illegal agreement.” United States
v. Rodriguez, 765 F.2d 1546, 1552 (11th Cir. 1985); see also United States v. Villasenor,
664 F.3d 673, 682 (7th Cir. 2011); United States v. Hackley, 662 F.3d 671, 679 (4th Cir.
2011).
We have described two conspiracy models: “chain” and “wagon-wheel.” See
United States v. Evans, 970 F.2d 663, 668 n.8 (10th Cir. 1992). In a chain conspiracy,
“there is successive communication and cooperation in much the same way as with
legitimate business operations between manufacturer and wholesaler, then wholesaler and
retailer, and then retailer and consumer.” Id. (quotations omitted). Most drug trafficking
networks fall into this category and “involve loosely knit vertically-integrated
9
combinations.” Id. (quoting United States v. Brewer, 630 F.2d 795, 799 (10th Cir.
1980)).
In a wagon-wheel conspiracy, “a single person or group (the ‘hub’) deal[s]
individually with two or more other persons or groups (the ‘spokes’).” Id. (quotations
and citation omitted). Individuals operating as independent spokes, connected through a
center hub, are part of the same conspiracy only if they are enclosed by a “rim”—that is,
“a unified and shared objective.” United States v. Carnagie, 533 F.3d 1231, 1238 (10th
Cir. 2008); see also Kotteakos v. United States, 328 U.S. 750, 755 (1946).5
2. Double Jeopardy and Conspiracy
The Double Jeopardy Clause states that no person shall “be subject for the
same offence to be twice put in jeopardy.” U.S. Const. amend. V. It provides three
protections. “It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the same offense.”
North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Mr. Leal seeks the second of
these protections.
5
Mr. Leal states that “the circumstances of the conspiracy charges in the Tapia
and Carmona cases do not even fit within a ‘wagon-wheel’ or ‘chain’ conspiracy
theory.” Aplt. Br. at 13. We do not need to rely on these models to resolve this case.
10
“The defendant bears the burden of proving a claim of double jeopardy.”
Rodriguez-Aguirre, 73 F.3d at 1025.6 Moreover, “the burden of proof is on the defendant
to demonstrate that two conspiracies are the same for double jeopardy purposes.” United
States v. Sasser, 974 F.2d 1544, 1549 n.3 (10th Cir. 1992) (citing United States v. Jones,
816 F.2d 1483, 1486 (10th Cir. 1987)).
When the government charges a defendant under separate statutes for the same
conduct, the test derived from Blockburger v. United States, 284 U.S. 299 (1932),
determines whether the crimes are the “same offense” for double jeopardy purposes.7
When the government charges a defendant with committing two (or more)
conspiracies, whether the charges are for the “same offense” depends on whether
they “are in fact based on a defendant’s participation in a single conspiracy.” United
6
Mr. Leal argues that once the defendant advances a non-frivolous claim of
double jeopardy, the burden shifts to the government to show “by a preponderance of
the evidence, that the conspiracies alleged in the two indictments are in fact
separate.” Aplt. Br. at 15 (citing United States v. Beachner Const. Co., Inc., 555 F.
Supp. 1273, 1275 (D. Kan. 1983); United States v. Jabara, 644 F.2d 574 (6th Cir.
1981)). At least one other circuit has adopted this burden-shifting framework. See
United States v. Jones, 858 F.3d 221, 225 (4th Cir. 2017). But we have adhered to
the rule that the defendant bears the burden of showing a double jeopardy violation.
See United States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998) (“A defendant
bears the burden of proving double jeopardy.”); United States v. Quinonez-Quintero,
573 F. App’x 674, 676 (10th Cir. 2014) (unpublished) (“[U]ncertainty is insufficient
given that Quinonez-Quintero bears the burden of proof.”)
7
The Blockburger test asks whether crimes charged under different statutes for
the same conduct “require[] proof of an additional fact which the other does not.”
284 U.S. at 304. If not, double jeopardy bars prosecution under both statutes. See id.
11
States v. Daniels, 857 F.2d 1392, 1393 (10th Cir. 1988). If so, double jeopardy “bars
the second prosecution.” Id.
When, as here, a defendant claims that a second conspiracy charge is for the
same conspiracy as the first conspiracy charge and therefore is a double jeopardy
violation, “the court must determine whether the two transactions [alleged in the
charges] were interdependent and whether the [co-conspirators] were ‘united in a
common unlawful goal or purpose.’” Mintz, 16 F.3d at 1104 (quoting Sasser, 974 F.2d
at 1550). As we said in United States v. Daily, 921 F.2d 994 (10th Cir. 1990), “[T]he
focal point of the analysis is whether the alleged co-conspirators were united in a
common unlawful goal or purpose. . . . Of principal concern is whether the conduct
of the alleged co-conspirators, however diverse and far-ranging, exhibits an
interdependence.” Id. at 1007 (citations omitted).
Interdependence requires a “shared, single criminal objective, not just similar or
parallel objectives between similarly situated people.” Evans, 970 F.2d at 671. A shared
objective is present when “the activities of [the] alleged co-conspirators in one aspect of
the charged scheme were necessary or advantageous to the success of the activities of
co-conspirators in another aspect of the charged scheme, or the success of the venture as
a whole.” Daily, 921 F.2d at 1007; see also United States v. Hopkins, 608 F. App’x 637,
644 (10th Cir. 2015) (unpublished) (holding six robberies did not form one global
conspiracy absent evidence each individual robbery “benefitted from or depended upon
12
the success of” the other robberies).8 In Sasser, we said the evidence must “show that the
[first] conspiracy was designed to further and to promote the success of the [second]
conspiracy.” 974 F.2d at 1550. It is not enough that “participation in one conspiracy
provided [the defendant] with funds to participate in another.” Id.
If two conspiracies have a shared objective, they need not involve all the same
co-conspirators or occur at the same time to be interdependent. In Mintz, 16 F.3d 1101,
we held that two marijuana distribution conspiracies were interdependent for double
jeopardy purposes. Id. at 1106. The conspiracies, which operated over different periods
of time and in different states, shared the “ultimate goal . . . to mix the two types of
marijuana for sale in New York.” Id. Although the two schemes involved different
people, we noted that two “core conspirators . . . coordinated the entire plan.” Id.
Conspiracies aimed at different ends are not interdependent. For example, two
drug distribution conspiracies tied to the same city were distinct because one involved
“the transportation of marijuana out of state” while the other “involved . . . no evidence
of planned nationwide transport.” United States v. Rodriguez-Moreno, No. 99-5120,
2000 WL 504858, at *4 (10th Cir. 2000) (unpublished).
Without direct evidence of a conspiracy’s goal, courts look for commonalities in
time, place, and personnel. If two conspiracies involved the same people, occurred in the
8
Although not precedential, we find the reasoning of the unpublished cases
cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”); see also Fed. R. App.
P. 32.1.
13
same place, and happened at roughly the same time, courts are more likely to find the
conspiracies were interdependent. In the foundational case of Short v. United States,
91 F.2d 614 (4th Cir. 1937), the Fourth Circuit held double jeopardy barred a successive
conspiracy prosecution when each indictment named the defendant and the same two
other individuals as co-conspirators and the conspiracy alleged in the second indictment
“cover[ed] a portion of each of the periods covered by” the prior indictment. Id. at 620.
By contrast, in United States v. Ruiz, No. 93-6124, 1993 WL 520285 (10th Cir.
1993) (unpublished), this court upheld a finding of non-interdependence when the two
charged drug conspiracies “were carried out over distinct time periods, involved
primarily different personnel and geographic operation, and placed defendant in quite
different roles.” Id. at *2; see also Sasser, 974 F.2d at 1550 (finding no interdependence
between housing fraud conspiracies in which the defendant had different roles in each
scheme). The mere presence of one common co-conspirator will not establish
interdependence. Sasser, 974 F.2d at 1550.
C. Analysis
To aid in following the analysis, we summarize the transactions underlying each
indictment:
14
Date of Date of Sale Alleged Seller Other Alleged Facilitators
Indictment
07/12/16 06/08/16 Bernadette Tapia Christopher Apodaca, Brandon
Candace Tapia Candelaria, Gaspar Leal/CI
08/09/16 07/25/16 Daniel Carmona Jose Casillas, Erika Barraza, Luis
12/20/17 Arreola-Palma, Gaspar Leal/CI
08/09/16 08/03/16 Daniel Carmona Jose Casillas, Erika Barraza, Luis
12/20/17 Arreola-Palma, Gaspar Leal/CI
The district court’s finding that the Tapia and Carmona conspiracies were not
interdependent was not clearly erroneous. It therefore properly denied Mr. Leal’s motion
to dismiss the conspiracy count of the superseding indictment because there was no
double jeopardy violation. The record lacks direct evidence that the two conspiracies
shared a common goal. It also lacks evidence of common time, place, or personnel. As
the following discussion shows, Mr. Leal failed to meet his burden to establish a double
jeopardy violation. We discern four arguments in his briefing.
1. Common Goal
Mr. Leal argues that the conspiracies shared a common goal. He relies on United
States v. Watson, 594 F.2d 1330 (10th Cir. 1979), to support this inference. In that case,
several co-conspirators had purchased large amounts of drugs for distribution from a
single wholesaler. They argued there was no evidence they had joined the same
conspiracy. Id. at 1339. We affirmed their conspiracy convictions, explaining that
“[w]here large quantities of narcotics are being distributed, each major buyer may be
15
presumed to know that he is part of a wide-ranging venture, the success of which depends
on performance by others whose identity he may not even know.” Id. at 1340.
Mr. Leal argues that his alleged co-conspirators were “major buyers” and should
be presumed to have acted in conscious support of a wide-ranging drug trafficking
venture. Aplt. Br. at 25. But his reliance on Watson is misplaced, and the record does
not support his argument. The Watson defendants were retailers who repeatedly
purchased large amounts of drugs from a single wholesaler. 594 F.2d at 1339-40. The
“evidence of the volume and nature of their operations” supported an inference that they
were aware of the “scope of the narcotics conspiracy.” Id. at 1340. Here, there is no
evidence that (1) Ms. Tapia or Mr. Carmona were “major buyers,” (2) they obtained their
drugs from the same supplier, or (3) Mr. Leal was a supplier to either of them. The
record shows only that each made one sale at Mr. Leal’s suggestion. This hardly
supports an inference that they pursued a shared common objective or that the Tapia deal
“[was] necessary or advantageous to the success” of the conspirators in the Carmona
deal. Daily, 921 F.2d at 1007, see Pickel, 863 F.3d at 1255 (finding sufficient evidence
of interdependence where the defendant “expressed that other co-conspirators’ successes
were advantageous to him”).
Even if the Tapia and Carmona sellers each aspired to “distribute large amounts of
narcotics, particularly methamphetamine, for profit,” Aplt. Br. at 25, that would not
establish they were pursuing that goal as part of a shared endeavor. Although Mr. Leal is
correct that the purpose of each deal was to sell drugs to the CI, the record lacks evidence
16
that the Tapia and Carmona sellers shared that purpose with each other, and a shared
objective is a necessary predicate for interdependence. See Evans, 970 F.2d at 669;
Carnagie, 533 F.3d at 1238.9
2. Common Personnel
Mr. Leal argues that the district court erred in concluding the conspiracies
involved different co-conspirators. Because both indictments alleged Mr. Leal conspired
with “persons whose names are known and unknown to the Grand Jury,” ROA at 11,10 he
asserts the Tapia and Carmona deals could possibly have involved cooperation between
participants in both transactions apart from Mr. Leal and the CI. This shows at most that
not all of Mr. Leal’s co-conspirators in each transaction are identifiable, but he has not
9
Mr. Leal criticizes the district court’s invocation of the “buyer-seller” rule.
Aplt. Br. at 23-24. Under that rule, to establish that a drug buyer is part of a
conspiracy to distribute the drugs, “the government must do more than show there
were casual transactions between the defendant and the conspirators . . . or that there
was a buyer-seller relationship between the defendant and a member of the
conspiracy.” United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996) (citations and
quotations omitted). In general, “a consumer . . . does not share the distribution
objective and thus would not be part of a conspiracy to distribute” drugs. Evans, 970
F.2d at 669. Even if Mr. Leal’s criticism is correct and the “buyer-seller” rule does
not apply here because the CI was not a mere consumer, our interdependence analysis
still applies.
10
The superseding indictment for the Carmona deal is part of the record
transferred to this court, but the indictment regarding the Tapia deal is not. We take
judicial notice of the Tapia indictment as it appears on the district court’s docket for
United States v. Leal, No. 1:16-CR-03069-JB (D. N.M. July 12, 2016), ECF No. 2.
See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a
court may take judicial notice of docket information from another court); Fed. R.
Evid. 201(b)(2).
17
provided evidence, nor even argued, that particular individuals worked with him to make
both sales happen.
The record shows there was no overlap. It shows Mr. Leal conspired with Ms.
Bernadette Tapia, Ms. Candace Tapia, Mr. Apodaca, and Mr. Candelaria to arrange the
Tapia deal. It shows Mr. Leal conspired with Mr. Casillas, Mr. Barrazza, Mr. Arreola-
Palma, and Mr. Carmona to arrange the Carmona deal. And as noted above, the mere
presence of one common conspirator—here, Mr. Leal—will not establish
interdependence. Sasser, 974 F.2d at 1550.
To the extent Mr. Leal relies on the CI to argue the conspiracies involved common
personnel, a CI’s involvement in the two conspiracies does not render them one
conspiracy. Indeed, Mr. Leal’s agreement to help the CI buy drugs was not a conspiracy
as a matter of law. See Barboa, 777 F.2d at 1422 (explaining that there can be no
indictable conspiracy between only the defendant and a government informant). Even
assuming the CI’s involvement in the Tapia and Carmona deals is relevant to whether the
conspiracies were interdependent, his role as a purchaser in both transactions did not on
its own link the conspiracies in a shared common goal. As explained above, this case is
different from Watson, 594 F.2d at 1338-40, where we inferred a common goal between
disconnected “major buyer[s]” because they purchased (1) large quantities of narcotics
from (2) a single wholesaler (3) on multiple occasions.
We agree with Mr. Leal that “excluding the involvement of the CI in the
transactions does not in and of itself render the two conspiracy charges as separate.”
18
Aplt. Br. at 14. But as we said in Sasser, “The two conspiracies operated independently
of one another, with the success of each dependent exclusively on the individual labors of
its own, separate participants.” 974 F.2d at 1550.
3. Time Overlap
Mr. Leal argues the conspiracies overlapped in time, relying on the statement in
the superseding indictment that the Carmona conspiracy began at an unknown time
before July 21, 2016. But the indictments for the two conspiracies do not allege, and the
record does not show, that the conspiracies overlapped in time. The district court
found—and Mr. Leal does not contest—that he began arranging the Carmona deal on
July 21, 2016, more than a month after the Tapia deal. It may be that Mr. Leal had talked
with someone—perhaps Mr. Arreola-Palma—to begin arranging the transaction before he
contacted the CI on July 21. But nothing in the record shows that an agreement had
occurred before July 21, more than seven weeks after June 8, 2016, when the CI
purchased meth from Ms. Tapia.11
11
The Fourth Circuit’s recent decision in United States v. Jones, 858 F.3d 221 (4th
Cir. 2017), shows why there are two conspiracies and no double jeopardy violation in Mr.
Leal’s case. Mr. Jones pled guilty to a drug conspiracy charge alleging that he and two
others conspired from June to August 2012 to purchase cocaine from a DEA CI. Then,
on July 24, 2014, he was indicted for conspiring with the same two people and others to
operate a “vast drug trafficking organization” from 1998 to 2012. Id. at 223. The
“substantial if not complete” overlap in the alleged conspiracies, id. at 224, as to
“substantive violation, personnel, location, time span, and nature and scope,” id. at 223,
meant that the first conspiracy was part of the second and double jeopardy barred the
second prosecution. Id. at 230.
By contrast, the overlap between the Tapia and Carmona deals was minimal.
Both involved drug sales to the CI that Mr. Leal arranged, but there was no evidence
19
4. Rule 404(b) Evidence
Mr. Leal argues the conspiracies were interdependent because the Government
intends to introduce evidence of the Tapia deal during the Carmona trial “as proof of the
conspiracy alleged” in the Carmona superseding indictment. Aplt. Br. at 21. He notes
that the Government has stated it will call the same witnesses it called in the Tapia trial.
The evidence the Government intends to introduce, he argues, shows that Mr. Leal
“repeatedly assisted in procuring methamphetamine from chains of co-conspirators for
the CI . . . whom Mr. Leal believed would then further distribute it.” Id. at 24.
By way of background, the Government filed a pretrial notice in the Carmona case
that it planned to offer (1) evidence of Mr. Leal’s prior efforts to arrange drug
transactions with the CI, (2) video and audio recordings of the meth purchases the CI
made in May and June of 2016 and physical evidence of the drugs that were purchased,
and (3) a PowerPoint presentation during its opening statement that included slides about
the Tapia deal. The notice cited Rule 404(b) of the Federal Rules of Evidence12 and
the sellers knew each other or shared a common purpose. There was no time
overlap—the Tapia deal ended on June 8, 2016, and the Carmona deal began on July
21, 2016. Although the relationship between Mr. Leal and the CI straddled the two
transactions, their working relationship cannot form a conspiracy as a matter of law.
See Barboa, 777 F.2d at 1422.
12
Under Federal Rule of Evidence 404(b)(1), “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” But under
Rule 404(b)(2), “[t]his evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.”
20
explained that this evidence “makes it more probable that the defendant conspired to
distribute methamphetamine and aided and abetted the distribution of methamphetamine
in the instant matter.” ROA at 18-19. The Government added that Mr. Leal’s prior
conduct “shows a common plan by the defendant to arrange drug deals from jail.” Id. at
20. And it paraphrased Rule 404(b) that the evidence would show Mr. Leal’s
“knowledge and the absence of mistake or accident.” Id. at 18.
Even if this evidence were admissible under Rule 404(b), neither the evidence nor
the Government’s plan to present it establishes interdependence. As noted above,
interdependence must be based on a showing of a common goal, Evans, 970 F.2d at 671,
and that the activities in one aspect of the scheme—here, the Tapia deal—were necessary
or advantageous to the other aspect of the scheme—the Carmona deal, Daily, 921 F.2d
at 1007. The Government’s attempt to show common plan, knowledge, and lack of
mistake or accident under Rule 404(b) may show that Mr. Leal handled the deals in a
similar manner, but it does not show the conspiracies were interdependent.13 Indeed,
13
In United States v. Booth, 673 F.2d 27 (1st Cir. 1982), the First Circuit
rejected a similar argument that two conspiracies were actually one for double
jeopardy purposes:
[A]lthough evidence of the Maine conspiracy was
introduced at the trial of the Florida conspiracy, this
evidence was introduced for the limited purpose of
demonstrating intent and knowledge through evidence of
subsequent similar acts. The evidence was not introduced
to show a continuing conspiracy in Maine. Admission of
evidence to show intent is permitted by Rule 404(b) of the
Federal Rules of Evidence.
21
apart from the Government’s pretrial notice under Rule 404(b)(2), Mr. Leal has attempted
to rely on the Tapia deal evidence to establish interdependence, but as the foregoing
discussion shows, he has failed to do so.14
Id. at 30. The court affirmed the district court’s denial of a motion to dismiss the
conspiracy count in the Maine indictment.
14
At oral argument, counsel for Mr. Leal identified a fifth argument for
interdependence: We should not allow the participation of the CI, as opposed to a
private citizen, in both transactions to prevent a finding of interdependence.
Otherwise, the government could use CIs to manufacture separate conspiracies and
take advantage of sentencing enhancements for repeat offenders under 21 U.S.C.
§ 851. See Oral Arg. at 12:30-13:38. This argument is unavailing for two reasons.
First, Mr. Leal did not advance it in his opening brief. In the brief, he argued
that the Government had “filed the separate indictments in a transparent attempt to
side-step the constitutional provision against double jeopardy,” Aplt. Br. at 26, and
“attempt[ed] to nullify the constitutional prohibition against double jeopardy by
artful forms of criminal pleading,” id. at 27. But he did not further develop this
argument in his opening brief and did not mention sentencing enhancements. At oral
argument, Mr. Leal’s counsel raised for the first time the risk of the Government
using CIs to manufacture separate conspiracies to take advantage of sentencing
enhancements. That argument is therefore waived. See United States v. Dahda, 852
F.3d 1282, 1292 n.7 (10th Cir. 2017), aff’d, 138 S. Ct. 1491 (2018) (“[I]ssues raised
for the first time at oral argument are considered waived.” (quotations omitted)).
Second, whether the government charges two conspiracies in one indictment or in
separate indictments does not affect the double jeopardy analysis. If the conspiracies are
the same, there is a double jeopardy problem in either instance. If they are different
conspiracies, there is not. A legal basis other than double jeopardy would therefore be
needed to limit the government’s charging discretion based on Mr. Leal’s concern about
the sentencing enhancement implications of two indictments for conspiracies involving
the same CI.
22
III. CONCLUSION
We affirm the district court’s denial of Defendant Leal’s motion to dismiss the
conspiracy count of the superseding indictment.
23