United States v. Bowline , 674 F. App'x 781 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 30, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-7053
(D.C. No. 6:14-CR-00049-JHP-1)
IAN ALEXANDER BOWLINE, (E.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HARTZ, BACHARACH, and MORITZ, Circuit Judges.
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To establish a conspiracy to distribute Oxycodone, the government must prove
that two or more people agreed to distribute—i.e., transfer—that drug. And in this
case, the government undoubtedly proved that various individuals agreed with Ian
Bowline to transfer to him some of the Oxycodone they obtained via the counterfeit
prescriptions he created. But an agreement between two people that one will transfer
drugs to the other can’t form the basis of a conspiracy to distribute; otherwise, every
drug sale would constitute a conspiracy. And while some of Bowline’s confederates
knew Bowline also sold Oxycodone for profit, the government presented no evidence
that Bowline’s confederates shared with him this distribution objective. Instead, their
*
This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
only objective was to acquire Oxycodone and divvy it up amongst themselves, with
everyone taking either a share of the pills acquired or cash in lieu of their share.
Because the only distribution objective that Bowline shared with his
confederates was the objective to transfer Oxycodone to Bowline, we vacate his
conviction for conspiracy to distribute, or to possess with intent to distribute,
Oxycodone. And because that alleged conspiracy forms the basis of Bowline’s
conviction for interstate travel in aid of a racketeering enterprise, we vacate that
conviction as well.
BACKGROUND
A grand jury indicted Ian Bowline for one count each of (1) conspiracy to
distribute, and to possess with intent to distribute, Oxycodone, see 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), 846; and (2) interstate travel in aid of a racketeering
enterprise, see 18 U.S.C. § 1952(a)(3).
In part, the indictment alleged that Bowline and his confederates “acquired
large quantities of Oxycodone . . . for the purpose of . . . distributing Oxycodone to
others for profit.” R. vol. 1, 20. Likewise, in its opening statement, the government
told the jury that Bowline “devise[d] a scheme to buy and sell Oxycodone.” R. vol. 2,
36. But despite these allegations of distribution for profit, the government’s evidence
at trial focused almost exclusively on how Bowline and his confederates conspired to
acquire Oxycodone and divide the fruits of their endeavors amongst themselves.
Their plan was straightforward: Bowline created counterfeit prescriptions for
Oxycodone, and his confederates—acting individually or in small groups—passed
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those prescriptions at various pharmacies. In exchange for their time and trouble, his
confederates kept either a share of the pills they acquired, cash in lieu of their share,
or some combination of the two. The rest of the pills went to Bowline.
For instance, Christopher Robb testified that on one occasion, Bowline created
and provided Robb with a counterfeit prescription for 120 Oxycodone pills. In
exchange for passing that fake prescription, Bowline agreed Robb could keep 30 of
the pills.
Bowline made similar arrangements with Elizabeth Portugal and Ryan
Snodgrass. On one occasion, Snodgrass used Richard Dandridge’s ID to pass a
prescription that Bowline manufactured. Snodgrass and Dandridge then “split . . . 10
or 20” of the pills and Bowline “received the rest.” R. vol. 2, 287. Others, including
Amanda Burleson and her boyfriend David Merrill, crossed state lines to fill the
prescriptions that Bowline manufactured. After acquiring the Oxycodone and
delivering a portion of the pills to Bowline, they either kept the remaining pills or
accepted cash from Bowline in lieu of their share. Blake Gower, on the other hand,
didn’t keep any of the pills from the false prescriptions he passed; instead, he
received only cash for his participation.
During its closing argument, the government focused on this evidence
establishing that Bowline (1) created fake prescriptions; (2) gave those prescriptions
to others to pass; and (3) received a portion of the pills those individuals acquired.
The government asserted that the “essential objective of the conspiracy” was to “[t]o
obtain Oxycodone,” not to sell it for a profit. R. vol. 2, 539 (emphasis added). And
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the government argued that Bowline became involved in the conspiracy in order “to
feed his habit,” id. at 540, not—as it alleged in the indictment—“for the purpose of
. . . distributing Oxycodone to others for profit,” R. vol. 1, 20. Further, the
government summed up its theory of the conspiracy thusly: “[Bowline] needed pills,
[his confederates] needed pills, he had the skills to prepare the paperwork, they
provided the labor to deliver the paperwork, to get the pills and to bring the pills back
to him so that he could have his cut.” R. vol. 2, 556. Finally, the government
suggested this evidence was sufficient to establish a conspiracy to distribute; it told
the jury, “You can distribute without selling the pills to someone. Giving them to
someone is enough.” R. vol. 2, 537.
The jury agreed this evidence was sufficient, and convicted Bowline of
conspiracy to distribute, and to possess with intent to distribute, Oxycodone. It also
convicted him of interstate travel in aid of a racketeering enterprise. The district court
imposed a 108-month prison sentence. Bowline appeals.
DISCUSSION
Bowline argues the government failed to present sufficient evidence to support
either of his convictions. In evaluating his argument, “[w]e view the evidence in the
light most favorable to the government to determine whether a rational trier of fact
could have found the elements of [each] offense beyond a reasonable doubt.” United
States v. Sparks, 791 F.3d 1188, 1190-91 (10th Cir. 2015).
Bowline concedes the government presented sufficient evidence to prove he
conspired to possess Oxycodone. But he argues the evidence was insufficient to
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prove he and his confederates conspired to distribute, or to possess with intent to
distribute, that drug. Specifically, he asserts the government failed to present any
evidence that he and his confederates possessed a shared distribution objective. See
United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992) (explaining that consumer
who doesn’t “share the distribution objective . . . would not be part of a conspiracy to
distribute crack cocaine,” although he or she might be guilty of “conspir[ing] to
possess crack cocaine”); see also United States v. McIntyre, 836 F.2d 467, 471 (10th
Cir. 1987) (“In order for the [g]overnment to establish a case of conspiracy against
the defendant, it must sufficiently prove that the defendant had a common purpose
with his coconspirators to possess and distribute cocaine.”).
The government maintains it presented sufficient evidence to support
Bowline’s conviction for conspiring to distribute, and to possess with intent to
distribute, Oxycodone. But it doesn’t appear to challenge Bowline’s assertion that, in
order to do so, it had to prove he and his confederates possessed a shared distribution
objective. In fact, the government appears to concede as much. Instead, the
government points to three types of evidence that it says are sufficient to prove a
shared distribution objective.
First, the government doubles down on the theory it advanced during its
closing argument: it argues that Bowline and his confederates agreed to share drugs
amongst themselves, and that agreeing to share drugs—as opposed to agreeing to sell
them for profit—is sufficient to establish a conspiracy to distribute.
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We agree that “[t]he sharing of drugs constitutes distribution.” United States v.
Asch, 207 F.3d 1238, 1245 n.8 (10th Cir. 2000). Likewise, we agree that the
government proved beyond a reasonable doubt that Bowline and his confederates
agreed to share drugs. For instance, the government presented evidence that Bowline
had an agreement with Portugal: Portugal agreed to use a false prescription to acquire
Oxycodone pills and to then physically transfer a certain number of those pills to
Bowline. Thus, Portugal and Bowline agreed that Portugal would distribute
Oxycodone to Bowline. See 21 U.S.C. § 802(11) (defining distribution to mean
“deliver[ing] . . . a controlled substance”); id. § 802(8) (defining “delivery” to “mean the
actual, constructive, or attempted transfer of a controlled substance . . . whether or not
there exists an agency relationship”); Asch, 207 F.3d at 1245 n.8 (explaining that sharing
drugs constitutes distribution). And Bowline had similar agreements with several other
individuals.
But the fact that Bowline agreed with his confederates that they would distribute
Oxycodone to Bowline doesn’t mean the government proved Bowline and his
confederates conspired to distribute, or to possess with intent to distribute, Oxycodone.
That’s because an agreement between a drug transferor and a drug transferee, standing
alone, can’t form the basis of such a conspiracy. See United States v. Parker, 554 F.3d
230, 234 (2d Cir. 2009) (“[N]otwithstanding that a seller and a buyer agree together that
they will cooperate to accomplish an illegal transfer of drugs, the objective to transfer the
drugs from the seller to the buyer cannot serve as the basis for a charge of conspiracy to
transfer drugs.”). To hold otherwise would convert every drug sale into a conspiracy. See
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United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) (explaining that “conspiracy
requires proof of ‘an agreement to commit a crime other than the crime that consists of
the sale itself,’” and that if “the rule [were] otherwise, every narcotics sale would
constitute a conspiracy” (quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir.
1993))).
Accordingly, to the extent that Bowline entered into agreements with his various
confederates under which they agreed to distribute Oxycodone to Bowline by delivering
to him a share of the pills they acquired by passing the counterfeit prescriptions, those
agreements are insufficient to support Bowline’s conviction for conspiracy to distribute.
Next, the government argues that “many of the co-conspirators here did share a
clear goal to sell a certain number of the pills.” Aplee. Br. 25. The government doesn’t
provide a citation to the record to support this assertion. See Fed. R. App. P. 28(a)(8)(A),
(b) (requiring appellee’s brief to provide “citations to the . . . parts of the record on which
the appell[ee] relies”). But our independent review of the record reveals at least some
testimony to that effect: Jeremy Corona testified that after passing a counterfeit
prescription, he allowed Robert Kohne to keep Corona’s share—i.e., 15 to 20 pills—so
that Kohne could “flip them” for money and then “bring the money back” to Corona. R.
vol. 2, 391
Yet this evidence establishes only that Corona and Kohne “share[d] a clear goal to
sell a certain number of the pills.” Aplee. Br. 25. It doesn’t establish that Bowline shared
this objective, or even that he knew about it. And we see no other evidence in the record
that would allow a jury to reach that conclusion. We can’t say we find the dearth of such
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evidence surprising; if it existed, we assume the government would have drawn the jury’s
attention to it during its closing argument. Instead, the government opted to focus on
evidence establishing that Bowline and his confederates had a shared goal of acquiring
Oxycodone and distributing some or all of it to Bowline. And for the reasons discussed
above, that evidence is insufficient to prove a conspiracy to distribute. See Parker, 554
F.3d at 234; Lennick, 18 F.3d at 819.
Finally, the government points out that at least two of Bowline’s confederates
knew Bowline sometimes sold Oxycodone: both Merrill and Robb testified that they
purchased Oxycodone from Bowline. And as Bowline acknowledges, Burleson
testified—albeit without any elaboration—that she “kn[e]w [Bowline] was selling the
pills.” R. vol. 2, 137.
But mere knowledge that Bowline sold or intended to sell at least some of his
share of the Oxycodone to others is insufficient, standing alone, to establish a shared
distribution objective. Cf. Evans, 970 F.2d at 673 (finding insufficient evidence of shared
distribution objective despite fact that defendant loaned scale to two individuals with
knowledge they intended to use it to weigh crack cocaine); see also United States v.
Brown, 726 F.3d 993, 998 (7th Cir. 2013) (“Mere knowledge of further illegal use, for
example, may make the seller an aider and abettor to further drug crimes committed by
the buyer but not a co-conspirator.”); United States v. Boidi, 568 F.3d 24, 30 (1st Cir.
2009) (“[A] conspiracy is an agreement between two (or more) parties having a shared
‘objective’ or ‘design’ to commit the crime, so mere knowledge by [defendant’s
suppliers] as to what [defendant] would do with the drugs [they sold him] is not enough
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unless [defendant’s suppliers] shared [defendant’s] purpose to re-distribute” them.);
United States v. Hawkins, 547 F.3d 66, 74 (2d Cir. 2008) (“Evidence that a buyer intends
to resell the product instead of personally consuming it does not necessarily establish that
the buyer has joined the seller’s distribution conspiracy. This is so even if the seller is
aware of the buyer’s intent to resell. It is axiomatic that more is required than mere
knowledge of the purpose of a conspiracy.”); Lennick, 18 F.3d at 819 (“To show a
conspiracy, the government must show not only that [defendant] gave drugs to other
people knowing that they would further distribute them, but also that he had an
agreement with these individuals to so further distribute the drugs.”).
Of course, the government is correct that a “common purpose or plan may be
inferred from the development or the combination of circumstances.” Jordan v. United
States, 370 F.2d 126, 128 (10th Cir. 1966). Yet the circumstances in this case don’t lend
themselves to an inference that Bowline and his confederates shared a common purpose
to distribute Oxycodone. Instead, as the government itself asserted during its closing
argument, they shared only a common goal “[t]o obtain” that drug. R. vol. 2, 539
(emphasis added). What each party did with the drugs after that was his or her own
affair, not the shared objective of a conspiracy. Accordingly, we vacate Bowline’s
conviction for conspiracy to distribute, or to possess with intent to distribute,
Oxycodone.
That leaves Bowline’s conviction for interstate travel in furtherance of the
conspiracy. See 18 U.S.C. § 1952(a)(3) (prohibiting traveling in interstate commerce
“with intent to . . . promote, manage, establish, carry on, or facilitate the promotion,
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management, establishment, or carrying on, of . . . any business enterprise involving
. . . narcotics or controlled substances” and thereafter performing or attempting to
perform such an act).
To convict Bowline of interstate travel, the district court instructed the jury it
had to find, in relevant part, that Bowline traveled from one state to another “with the
intention to promote, manage, establish or carry on the activity described in Count
One of the Indictment,” R. vol. 1, 191, or that he aided or abetted another in doing so.
In turn, the first count of the indictment alleged that Bowline conspired with others
“to knowingly and intentionally possess with intent to distribute and distribute”
Oxycodone. Id. at 19.
But because there was no shared distribution objective, there was no
conspiracy to distribute. And because there was no conspiracy to distribute, Bowline
necessarily couldn’t intend to “promote, manage, establish, carry on, or facilitate”
such a conspiracy. § 1952(a)(3). Accordingly, we vacate Bowline’s interstate travel
conviction as well.
In short, the government presented sufficient evidence to prove that Bowline
and his confederates conspired to possess Oxycodone. Bowline acknowledges as
much in his opening brief. And as Bowline acknowledged during oral argument, the
government likewise presented sufficient evidence to establish that he and his
confederates conspired “to acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge.” 21 U.S.C. § 843(a)(3).
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But the government didn’t pursue either of these charges. Instead, it sought to
convict Bowline of (1) conspiracy to distribute and (2) interstate travel with the
intent to promote such a conspiracy. That decision was, of course, within the bounds
of the government’s discretion. But its failure to present sufficient evidence of a
shared distribution objective wholly constrains ours. Because no rational factfinder
could have found beyond a reasonable doubt that Bowline and his confederates
possessed a shared distribution objective, we reverse Bowline’s convictions and
remand to the district court with directions to vacate its judgment and sentence. The
mandate shall issue forthwith.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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