United States v. Mier-Garces ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH July 28, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 18-1085
v.
EDGAR RENE MIER-GARCES,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:15-CR-00360-RM-2)
Robert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado, for
Defendant-Appellant.
Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United States
Attorney, with him on the briefs), Office of the United States Attorney, Denver,
Colorado, for Plaintiff-Appellee.
Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
HOLMES, Circuit Judge.
Edgar Rene Mier-Garces was separately charged with conspiracy to
distribute controlled substances, in violation of 21 U.S.C. § 846, in both the
Western District of Texas and the District of Colorado. After pleading guilty in
the Western District of Texas, Mr. Mier-Garces argued that the District of
Colorado indictment violated his rights under the Fifth Amendment’s Double
Jeopardy Clause. The district court denied his motion to dismiss. Mr. Mier-
Garces was subsequently convicted and sentenced to 178 months’ imprisonment.
On appeal, he challenges the district court’s Double Jeopardy Clause ruling and
argues that the district court erroneously calculated his advisory United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range by applying an
enhancement under § 2D1.1(b)(12). Exercising jurisdiction under 28 U.S.C.
§ 1291, we conclude the court did not err in either ruling and affirm its judgment.
I
A
Mr. Mier-Garces worked on the Mexican-American border as a
“gatekeeper” for a Mexican drug trafficker known as “El Muñeco.” R., Vol. II, at
71 (Report of Investigation, dated Nov. 30, 2015). Generally, in his gatekeeper
role, Mr. Mier-Garces assisted in smuggling narcotics into the United States from
Ciudad Juarez, Mexico and then smuggling bulk currency back into Mexico from
the United States. Mr. Mier-Garces’s role focused on receiving and loading
vehicles for couriers. Mr. Mier-Garces would retrieve these vehicles from public
locations in the El Paso, Texas metro area and take them back to his residence in
2
Chaparral, New Mexico where he would load narcotics into hidden, after-market
compartments that had been built into the vehicles. He would return the drug-
laden vehicles to the couriers, who in turn would distribute the narcotics to
destinations throughout the United States—including, as relevant here,
Albuquerque, New Mexico, and Denver, Colorado. The couriers would then
return the cash proceeds, secreted in the vehicles, to El Paso, where Mr. Mier-
Garces would retrieve the vehicles, unload the cash, and ensure that the cash was
transported back to El Muñeco in Mexico. Approximately once every two weeks,
Mr. Mier-Garces loaded vehicles with narcotics. Mr. Mier-Garces stored any
excess currency and drugs in a safe at his Chaparral residence.
As a result of Mr. Mier-Garces’s gatekeeper activities, he was indicted for
participating in drug-trafficking conspiracies in the District of Colorado and the
Western District of Texas. Below, we summarize the factual circumstances
relating to those indictments and the particulars of those indictments.
1
In addition to Mr. Mier-Garces, there were six other named conspirators in
the conspiracy charged in the District of Colorado (“Colorado conspiracy”),
including Lucio Lozano and Martha Mota. Although not charged by name along
with Mr. Mier-Garces, the following individuals were also participants in the
Colorado conspiracy: Franz Neufeld-Reimer, Helena Wieler de Neufeld, and Jack
3
Lucero.
On August 15, 2014, Mr. Lucero was stopped by police while driving an
SUV in New Mexico. The trooper found multiple bricks of cocaine in his car. A
subsequent search of his car revealed hotel receipts connecting Mr. Lucero to an
individual named Mr. Lozano, who was based in the Denver, Colorado area.
Investigators began surveillance of Mr. Lozano’s residence in the Denver area.
Surveillance of this house, in turn, led investigators to other individuals who were
either distributing cocaine in the Denver area or who were also trafficking
narcotics and currency between El Paso and Denver. One of these couriers, Ms.
Mota, was arrested on February 5, 2015, while she was returning from Denver to
El Paso with bulk currency. Two other couriers, Mr. Neufeld-Reimer and Ms.
Wieler de Neufeld, were seen twice in March 2015 transporting narcotics between
El Paso and Denver. Like other couriers, they would drop off their vehicle in
public locations in the El Paso area, where an individual would take their vehicle
for several hours and then return the vehicle to them for the drive. Mr. Mier-
Garces admitted loading narcotics on at least two occasions into the vehicles of
Ms. Mota, Mr. Neufeld-Reimer (with Ms. Wieler de Neufeld present for the
loading), and Mr. Lucero.
Mr. Mier-Garces was indicted on September 3, 2015 in the District of
Colorado. A superseding indictment was issued on May 2, 2016. This indictment
4
charged the offenses at issue here. Namely, the superseding indictment charged
Mr. Mier-Garces and “others both known and unknown,” including Mr. Lozano
and Ms. Mota, with “knowingly and intentionally conspir[ing] to distribute, and
possess[ing] with the intent to distribute, 5 kilograms or more of a mixture and
substance containing a detectable amount of cocaine” in violation of 21 U.S.C.
§ 846. Id., Vol. I, at 70–71 (Superseding Indictment, filed May 2, 2016). The
conspiracy was alleged to have run from December 8, 2013 until March 22, 2016.
2
Mr. Mier-Garces also was indicted for participating in a drug-trafficking
conspiracy in the Western District of Texas (“Texas conspiracy”). Specifically,
while the transportation of drugs to Denver was occurring, on March 8, 2015, Mr.
Mier-Garces asked a confidential informant to transport cocaine from El Paso to
Albuquerque. Mr. Mier-Garces took a vehicle from that confidential informant,
loaded it with 10.6 kilograms of cocaine at his Chaparral residence, and returned
it to the informant believing that the informant would drive the vehicle to
Albuquerque. The confidential informant, however, coordinated with federal
agents who later conducted a controlled delivery of the vehicle in Albuquerque to
individuals who believed the vehicle contained drugs; they were subsequently
arrested.
As a result of his participation in this El Paso-to-Albuquerque movement of
5
cocaine, Mr. Mier-Garces was indicted on September 2, 2015 in the Western
District of Texas. A superseding indictment was issued on November 10, 2015.
The superseding indictment charged Mr. Mier-Garces with conspiring “with
others to the Grand Jury known and unknown” to possess with intent to distribute
“5 kilograms or more of a mixture or substance containing a detectable amount of
cocaine” in violation of 21 U.S.C. § 846. Id., Vol. II, at 66–67 (Superseding
Indictment, filed Nov. 10, 2015). The period of the charged conspiracy was only
one day, March 8, 2015. In this superseding indictment, Mr. Mier-Garces also
was separately charged with participating in a conspiracy to launder monetary
instruments in violation of 18 U.S.C. § 1956(a)(2)(B)(ii), (h). Besides Mr.
Mier-Garces, no other co-conspirators were named in the Texas indictment.
B
As Mr. Mier-Garces was seeking to reenter the United States from Mexico
on November 18, 2015, he was arrested on a warrant that had been issued based
on the Texas indictment. At a post-arrest interview with agents from both the
Western District of Texas and the District of Colorado, Mr. Mier-Garces
explained his role in the drug-trafficking operation, as summarized above. He
also agreed to allow agents to search his home. The search of his home did not
result in the discovery of any drugs but did reveal various pieces of evidence
consistent with his description of his role, e.g., a safe used to store narcotics and
6
bulk currency. While an agent involved with the District of Colorado indictment
was present during this interview (alongside the agents from the Western District
of Texas), Mr. Mier-Garces was not informed about the Colorado indictment. On
December 8, 2015, Mr. Mier-Garces participated in another debriefing where he
again discussed his role in the drug-trafficking operation. The agent involved in
the Colorado case was not present for that debriefing, but did receive a report
about it later. Though the agents from Texas and Colorado coordinated, they
purportedly worked to “de-conflict” so as to “keep [their] cases separate”
throughout the investigation. Id., Vol. III, at 191 (Tr. of Mots. Hr’g, dated May
26, 2017).
Mr. Mier-Garces subsequently pleaded guilty to the charges in the Texas
indictment, including the drug-conspiracy charge, and was sentenced to fifty-
seven months’ imprisonment. Notably, the only drug quantity attributed to Mr.
Mier-Garces at sentencing was the 10.6 kilograms; that is, there was no finding
that additional drugs were involved in the conspiracy charged in the Texas
indictment.
After he pleaded guilty to the Texas charges, Mr. Mier-Garces filed a
motion to dismiss the Colorado indictment on the ground that it violated his rights
under the Double Jeopardy Clause. The district court held an evidentiary hearing
on the motion, largely establishing the information that we have summarized
7
above. The government additionally presented evidence that none of the
anonymous co-conspirators from the Texas indictment were members of the
conspiracy charged in the Colorado indictment, and that the Colorado grand jury
did not hear any evidence concerning loads of narcotics going anywhere other
than Colorado; more specifically, the grand jury received no evidence regarding
the 10.6-kilogram load that went to Albuquerque.
At the hearing, the court listened to testimony from a prosecutor and an
agent from the Western District of Texas, an agent from Colorado, and an
investigator from the Federal Public Defender’s Office in the Western District of
Texas. Both defense counsel and the government offered oral argument.
The court ruled that Mr. Mier-Garces had failed to carry his burden of
demonstrating that the Texas and Colorado conspiracies were in fact one
conspiracy. The court noted “that the evidence on that issue [i.e., whether there
was in fact one conspiracy] is little, and what little there is, is inadequate.” Id. at
512 (Tr. of Oral Ruling, dated June 6, 2017). While the court noted the
geographic overlap of the conspiracies, it did not find that overlap determinative.
The court agreed with defense counsel that it was “arguably unusual . . . to see
limited one-day conspiracies,” as charged in the Texas indictment, but said that
this “does not answer the question whether or not the two [conspiracies] are the
same.” Id. at 513. The court noted the potential difficulty raised by the Texas
8
indictment’s failure to name co-conspirators but did not think this absence
demonstrated “that we’re dealing with one rather than two conspiracies,” because,
other than the possible exception of El Muñeco, there was no evidence that the
conspiracies shared co-conspirators. Id. at 513S14. The court observed that the
drugs destined for Albuquerque were not mentioned to the Colorado grand jury.
Finally, the court noted that the interdependence of the conspiracies was a factor
that “the Tenth Circuit may think is particularly important,” but it was one “that
neither side ha[d] really addressed.” Id. at 516S17. “What I have is no evidence
on interdependence being present or absent. As I said, it’s not been raised.” Id.
at 517. Thus, the court denied the motion. Mr. Mier-Garces subsequently went to
trial and was convicted. He did not renew his double-jeopardy motion during or
after the trial.
C
After Mr. Mier-Garces was convicted, the United States Probation Office
prepared a Presentence Investigation Report (“PSR”) for his sentencing. 1 The
PSR included a two-level enhancement under Guidelines § 2D1.1(b)(12) for Mr.
Mier-Garces’s maintenance of his residence for the purpose of distributing a
controlled substance. Mr. Mier-Garces objected to this enhancement. The district
1
The Probation Office used the 2016 edition of the Guidelines in
preparing the PSR. This decision is not challenged here, and we accordingly use
that edition in evaluating the issues in this appeal.
9
court overruled Mr. Mier-Garces’s objection, finding that the primary purpose of
the property was the storage or distribution of drugs. That finding was based on
the court’s subsidiary findings that “there’s no question that the way this worked
is drugs came up from Mexico, [and] they were stored [at the house] until they
were transferred up to other parts of the United States.” Id., Vol. IV, at 934 (Tr.
of Sentencing Hr’g, dated Mar. 2, 2018). The court relied on pictures of Mr.
Mier-Garces’s home that purportedly demonstrated his home was “a place that . . .
a person does not really live in.” Id. at 935. The pictures revealed that there was
“no furniture,” no refrigerator, “no stove,” “stuff thrown all over the floors,” and,
generally, “a mess” that made the home “not usable.” Id. The court additionally
relied on Mr. Mier-Garces’s statements that “he was moving drugs . . . at least
twice a month, which is a repetitive, continuing use of that property to store, load,
unload cars, store drugs and money, unload and load cars,” and that “he doesn’t
take mail at that address.” Id. at 936. Because “it looks like no one stays there
with any regularity” and “there is repetitive drug activity coming off of that
property,” the court found the evidence “tips, by a preponderance, in favor of the
[§ 2D1.1(b)(12)] adjustment.” Id. Mr. Mier-Garces was sentenced to 178
months’ imprisonment, to run consecutively to the Western District of Texas
sentence. Mr. Mier-Garces timely appealed.
10
II
Mr. Mier-Garces first argues that the district court erred in its Double
Jeopardy Clause ruling. We set out our standard of review and the appropriate
substantive standards before applying those standards to the relevant facts. We
properly consider only the factual record that was before the district court at the
time that it ruled on the motion to dismiss because Mr. Mier-Garces did not renew
his motion during or after trial. 2 See Regan-Touhy v. Walgreen Co., 526 F.3d
641, 648 (10th Cir. 2008) (“We generally limit our review on appeal to the record
that was before the district court when it made its decision . . . .”); Hertz v.
Luzenac Am., Inc., 370 F.3d 1014, 1019 (10th Cir. 2004) (“[W]e may only
‘evaluate the trial court’s decision from its perspective when it had to rule and not
indulge in review by hindsight.’” (quoting Old Chief v. United States, 519 U.S.
172, 182 n.6 (1997)); see also Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26
(5th Cir. 1999) (explaining that appellate courts “may not consider facts which
were not before the district court at the time of the challenged ruling”).
We conclude that the district court did not clearly err in finding that the
Colorado conspiracy and the Texas conspiracy were in fact separate conspiracies
2
Mr. Mier-Garces (through counsel) indicated at the hearing that he
had planned to renew the double-jeopardy motion but he ultimately did not do so.
See R., Vol. III, at 485 (“Well, I submit until jeopardy attaches, by selecting the
jury in this case, I will be renewing that motion, and we will see what the
government’s evidence is at trial.”).
11
(i.e., not a single conspiracy). Accordingly, the court did not err in denying Mr.
Mier-Garces’s double-jeopardy motion.
A
“We review the factual findings underlying the defendant’s double jeopardy
claim for clear error.” United States v. Leal, 921 F.3d 951, 958 (10th Cir. 2019)
(quoting United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024S25 (10th Cir.
1996)); accord United States v. Mintz, 16 F.3d 1101, 1104 (10th Cir. 1994).
More specifically, a district court’s findings concerning whether a defendant was
involved in a “single, continuing conspiracy,” United States v. Beachner Constr.
Co., 729 F.2d 1278, 1281 (10th Cir. 1984), or, alternatively, involved in “separate
and distinct conspiracies,” United States v. Jones, 816 F.2d 1483, 1486 (10th Cir.
1987), are factual in nature, and thus are reviewed for clear error, see id. (holding
that whether offenses involved “separate and distinct conspiracies” was
“essentially a finding of fact, and we therefore review it under the clearly
erroneous standard”); Beachner, 729 F.2d at 1281 (“The standard we must apply
in reviewing the district court’s finding of a ‘single, continuing conspiracy’ is
whether it was ‘clearly erroneous.’” (quoting United States v. Jabara, 644 F.2d
574, 577 (6th Cir. 1981))). 3 Notably, as amplified below, the issue of
3
In his discussion of the appropriate standard of review, Mr. Mier-
Garces cites out-of-circuit authority that treats the question of whether the
(continued...)
12
interdependence—which is the key to resolving the question of whether there is
one or more conspiracies—is a factual finding that we review “for clear error.”
Leal, 921 F.3d at 958. “The district court’s ultimate determination regarding
double jeopardy is, however, a question of law we review de novo.” Id. (quoting
Rodriguez-Aguirre, 73 F.3d at 1025).
B
We turn now to the substantive legal standards that apply to Mr. Mier-
Garces’s double-jeopardy arguments. After providing a brief overview of the
Double Jeopardy Clause, we explain that under our precedent—in order to discern
whether separately charged conspiracies are in fact one—the central and
determinative question is whether those conspiracies are interdependent. And, by
way of preview of our subsequent analysis, we ultimately conclude, like the
district court, that Mr. Mier-Garces’s showing of interdependence was inadequate
to sustain his double-jeopardy challenge.
1
3
(...continued)
defendant has been prosecuted in violation of the Double Jeopardy Clause for one
conspiracy—where there were actually two charged conspiracies—as a matter
warranting de novo review. See United States v. Sertich, 95 F.3d 520, 524 (7th
Cir. 1996) (noting that the court reviews “the [district] court’s ruling based on all
the evidence available to it to determine, de novo, whether the preponderance of
the evidence points to two conspiracies or only one”). Suffice it to say, we must
adhere to our own precedent on this point.
13
The Double Jeopardy Clause states that no person shall “be subject for the
same offence to be twice put in jeopardy.” U.S. C ONST . amend. V. “[A]t its core,
the Clause means that those acquitted or convicted of a particular ‘offence’
cannot be tried a second time for the same ‘offence.’” Gamble v. United States,
--- U.S. ----, 139 S. Ct. 1960, 1964 (2019). “This guarantee recognizes the vast
power of the sovereign, the ordeal of a criminal trial, and the injustice our
criminal justice system would invite if prosecutors could treat trials as dress
rehearsals until they secure the convictions they seek.” Currier v. Virginia, ---
U.S. ----, 138 S. Ct. 2144, 2149 (2018).
The Double Jeopardy Clause’s guarantee includes different types of
protections. See United States v. Dixon, 509 U.S. 688, 696 (1993) (“This
protection applies both to successive punishments and to successive prosecutions
for the same criminal offense.”); Leal, 921 F.3d at 959 (“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.’”
(quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
“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
14
purposes” and thus whether the Double Jeopardy Clause was violated. Leal, 921
F.3d at 960 (emphasis added); see Blockburger, 284 U.S. at 304 (“[W]here the
same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other does not.”);
accord United States v. 9844 S. Titan Court, 75 F.3d 1470, 1488 (10th Cir. 1996).
In other words, Blockburger’s so-called “same-elements test . . . inquires
whether each offense contains an element not contained in the other; if not, they
are the ‘same offence’ and double jeopardy bars additional punishment and
successive prosecution.” Dixon, 509 U.S. at 696; see Akhil Reed Amar, Double
Jeopardy Law Made Simple, 106 Y ALE L.J. 1807, 1813 (1997) (“Blockburger
treats two offenses as different if and only if each requires an element the other
does not.”). The Blockburger test involves a legal analysis focused on the
elements of the separate statutes. See, e.g., United States v. Cardall, 885 F.2d
656, 665 (10th Cir. 1989) (rejecting the defendant’s “claim that the focus of the
double jeopardy analysis [under Blockburger] is conduct, not the legal elements
of the offense”); United States v. Davis, 793 F.2d 246, 248 (10th Cir. 1986) (“The
double jeopardy test does not focus on the acts charged in the indictment or the
evidence at trial, but rather on the elements of the crimes.”); see also United
States v. Angilau, 717 F.3d 781, 787 (10th Cir. 2013) (“In assessing whether the
15
crimes require proof of different facts, we do ‘not focus on the acts charged in the
indictment . . . but rather on the elements of the crimes.’” (omission in original)
(quoting Davis, 793 F.2d at 248)).
But, as most relevant here, the Double Jeopardy Clause also provides a
distinct protection for defendants who have been charged with violating the same
statute more than one time when they have in fact only violated it once. See
Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978) (“Because only a single
violation of a single statute is at issue here, we do not analyze this case under the
so-called ‘same evidence’ test [i.e., the same-elements test of Blockburger],
which is frequently used to determine whether a single transaction may give rise
to separate prosecutions, convictions, and/or punishments under separate
statutes.”); United States v. Rigas, 605 F.3d 194, 204 (3d Cir. 2010) (en banc)
(“The Blockburger test is a tool for determining whether Congress intended to
separately punish violations of distinct statutory provisions, and is therefore
inapplicable where a single statutory provision was violated.”); United States v.
Asher, 96 F.3d 270, 273 (7th Cir. 1996) (“[B]y its very terms the Blockburger test
applies only where ‘the same act or transaction constitutes a violation of two
distinct statutory provisions’[.]” (quoting Blockburger, 284 U.S. at 304)).
More specifically in the conspiracy context, “[w]hen the government
charges a defendant with committing two (or more) conspiracies [involving the
16
same conspiracy statute], 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.’ If so, double jeopardy ‘bars the second prosecution.’” Leal, 921
F.3d at 960 (emphasis added) (quoting United States v. Daniels, 857 F.2d 1392,
1393 (10th Cir. 1988)); accord Daniels, 857 F.2d at 1394 (noting, in the context
of two indictments charging conspiracy to manufacture methamphetamine, that
the defendant must prove “the two offenses contained in the two indictments are
the same offense both in law and fact” (emphasis added)); see United States v.
Sasser, 974 F.2d 1544, 1550 (10th Cir. 1992) (“We have held that ‘if two charges
of conspiracy are in fact based on a defendant’s participation in a single
conspiracy, the former jeopardy clause bars the second prosecution.’” (quoting
Daniels, 857 F.2d at 1393)); Wilkett v. United States, 655 F.2d 1007, 1014 (10th
Cir. 1981) (“If two charges of conspiracy are in fact based on a defendant’s
participation in a single conspiracy, the former jeopardy clause bars the second
prosecution.”).
Accordingly, in this context, where the defendant is separately charged with
two (or more) conspiracy offenses under the same conspiracy statute, the double-
jeopardy analysis is centered on the factual question of whether the charged
conspiracies are actually in fact one. See, e.g., Beachner, 729 F.2d at 1281; cf.
Amar, supra, at 1817 (“[U]nder the Double Jeopardy Clause, an offense must not
17
only be the same in law—it must also be the same in fact. Even if [the defendant]
is convicted of robbery in an earlier trial, he may later be charged with and tried
for robbery so long as the second indictment concerns a factually different
robbery—committed, say, on a different day against a different victim.”).
2
We recently addressed a double-jeopardy challenge in a very similar setting
involving two drug-trafficking conspiracy prosecutions brought under 21 U.S.C.
§ 846. See Leal, 921 F.3d at 957. Leal has helpfully synthesized and clarified
our precedent as it applies to circumstances such as these. See id. at 959–61. For
reasons we elaborate on in Part II.B.3 below, we are generally guided by its
framework here.
In the double-jeopardy context,
[w]hen, as here, a defendant claims that a second
conspiracy charge is for the same conspiracy as the first
conspiracy charge[,] . . . “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.’”
Id. at 960 (third and fourth alterations in original) (quoting Mintz, 16 F.3d at
1104); accord Sasser, 974 F.2d at 1550. More specifically, “[o]f principal
concern is whether the conduct of the alleged co-conspirators, however diverse
and far-ranging, exhibits an interdependence.” United States v. Daily, 921 F.2d
994, 1007 (10th Cir. 1990), overruled on other grounds by United States v.
18
Gaudin, 515 U.S. 506 (1995); accord Leal, 921 F.3d at 960; Sasser, 974 F.2d at
1550. And “the focal point of the analysis” for determining whether two charged
conspiracies are interdependent is the inquiry into whether they are “united in a
common unlawful goal or purpose.” Daily, 921 F.2d at 1007; accord Sasser, 974
F.2d at 1550.
A “common goal, however, is not by itself enough to establish
interdependence: ‘What is required is a shared, single criminal objective, not just
similar or parallel objectives between similarly situated people.’” United States
v. Carnagie, 533 F.3d 1231, 1239 (10th Cir. 2008) (quoting United States v.
Evans, 970 F.2d 663, 670 (10th Cir. 1992)); see id. (noting that although the two
separate groups alleged to be joined in one conspiracy “had the same general
objective—to profit from submitting fraudulent FHA loans—it does not
necessarily mean that the separate groups were interdependent”). “Conspiracies
aimed at different ends are not interdependent.” Leal, 921 F.3d at 961.
“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.’” Id. at 960
(alteration in original) (quoting Daily, 921 F.2d at 1007); see Sasser, 974 F.2d at
1550 (explaining “interdependence” as requiring such a shared objective). “[T]he
19
evidence must ‘show that the [first] conspiracy was designed to further and to
promote the success of the [second] conspiracy.’” Leal, 921 F.3d at 960 (second
and third alterations in original) (quoting Sasser, 974 F.2d at 1550); cf. United
States v. Hamilton, 587 F.3d 1199, 1208S09 (10th Cir. 2009) (“The requirement is
satisfied ‘if the alleged coconspirators were united in a common unlawful goal or
purpose and if a defendant’s activities facilitated the endeavors of another alleged
coconspirator or facilitated the venture as a whole.’” (emphasis omitted) (quoting
United States v. Ailsworth, 138 F.3d 843, 851 (10th Cir. 1998))); United States v.
Horn, 946 F.2d 738, 740S41 (10th Cir. 1991) (explaining that “interdependence is
present” when “the activities of a defendant charged with conspiracy facilitated
the endeavors of other alleged coconspirators or facilitated the venture as a
whole”).
If, as here, there is not “direct evidence” that the separately charged
conspiracies shared a single unlawful objective—evidence that would cogently
support a finding of interdependence—at least primarily, “courts look for
commonalities in time, place, and personnel. If two conspiracies involved the
same people, occurred in the same place, and happened at roughly the same time,
courts are more likely to find the conspiracies were interdependent.” Leal, 921
F.3d at 961. But these factors are not intended to be exhaustive; more
specifically, we may at least consider other factors that our case law has
20
previously shown have a bearing on the interdependence question.
In that regard, in seeking to determine whether separate conspiracy charges
actually pertain to one conspiracy, we also have looked at whether there is a
commonality among the conspiracies’ overt acts. See, e.g., Daniels, 857 F.2d at
1393 (noting that the indictments “each set forth different overt acts”); Wilkett,
655 F.2d at 1015 (concluding that the defendant could not be retried because the
government sought to introduce the same evidence of overt acts in both the
Eastern and Western Districts of Oklahoma). Of course, in drug-trafficking
conspiracies prosecuted under 21 U.S.C. § 846, like those here, “an overt act is
not a necessary element of conspiracy.” United States v. Savaiano, 843 F.2d
1280, 1294 (10th Cir. 1988); see, e.g., United States v. Shabani, 513 U.S. 10, 11
(1994) (“This case asks us to consider whether 21 U.S.C. § 846, the drug
conspiracy statute, requires the Government to prove that a conspirator committed
an overt act in furtherance of the conspiracy. We conclude that it does not.”).
Consequently, the government is not obliged to plead overt acts when charging
§ 846 conspiracies. See, e.g., United States v. Staggs, 881 F.2d 1527, 1530 (10th
Cir. 1989) (en banc) (“Generally, an indictment is sufficient if it contains the
elements of the offense charged . . . .”). And the government here did not do so
in either the Texas indictment or the Colorado indictment. However, the record
may still contain evidence bearing on the conspirators’ activities that may assist
21
the court in determining whether two charged conspiracies are in fact one.
Furthermore, we also have taken into account whether there are any
commonalities between the statutory violations that are the objects of the charged
conspiracies. For example, in United States v. Puckett, 692 F.2d 663 (10th Cir.
1982), we noted that the defendant had been convicted of conspiring “to violate . .
. 18 U.S.C. § 2314, which proscribes the interstate transportation of stolen or
fraudulently obtained securities,” in the first indictment, but that the second
indictment “charged no violation of 18 U.S.C. § 2314.” Id. at 668. After
recounting this difference, we concluded that we were “satisfied the trial court’s
ruling that [the defendant] failed to establish the existence of a single conspiracy
encompassing both the Oklahoma and Colorado charges, [was] not clearly
erroneous.” Id.All of these factors may not be relevant to the double-jeopardy
determination in a given conspiracy case. Importantly, the defendant “carr[ies]
the burden of proving double jeopardy.” Mintz, 16 F.3d at 1104; accord
Rodriguez-Aguirre, 73 F.3d at 1025; see also Leal, 921 F.3d at 959 n.6 (noting
“the defendant bears the burden of showing a double jeopardy violation” and
rejecting invitation to adopt a burden-shifting framework that other circuits use).
Consequently, courts are guided by the “arguments in [defendants’] briefing” in
determining which factors are relevant to the resolution of the double-jeopardy
22
question. Leal, 921 F.3d at 962.
3
Notwithstanding our articulation above of the controlling substantive
standards, we acknowledge that the double-jeopardy law in our circuit is not
pellucid on this matter in the context of separate conspiracy prosecutions that, as
here, involve the same conspiracy statute. And that lack of clarity is evident in
the parties’ briefing. Thus, we pause to explain our process for discerning the
controlling standards for resolving Mr. Mier-Garces’s double-jeopardy challenge.
More specifically, we elaborate on our decision to generally follow the framework
articulated in Leal.
a
In his opening brief, Mr. Mier-Garces invoked the so-called “totality of the
circumstances test” and insisted that it was applicable in the context of separate
conspiracy charges under the same conspiracy statute to resolve “the
multiple/single conspiracy issue.” Aplt.’s Opening Br. at 15 (quoting In re Grand
Jury Proceedings, 797 F.2d 1377, 1380 (6th Cir. 1986)). As to the nature of that
test, he observed the following:
[w]hen applying the totality of the circumstances test, five
general factors are to be considered: “(1) the time periods
covered by the alleged conspiracies; (2) the places where the
conspiracies are alleged to have occurred; (3) the persons
charged as coconspirators; (4) the overt acts alleged to have been
committed in furtherance of the conspiracies, or any other
23
descriptions of the offenses charged which indicate the nature
and scope of the activities being prosecuted; and (5) the
substantive statutes alleged to have been violated.”
Id. at 15–16 (quoting United States v. Alvarado, 440 F.3d 191, 198 (4th Cir.
2006)).
Mr. Mier-Garces argued that this test should be applied in lieu of the well-
established and seminal double-jeopardy test announced by the Supreme Court in
Blockburger, because in cases such as this one, “the Blockburger analysis proves
difficult of application since it assumes a violation of ‘two distinct statutory
provisions.’” Id. at 14 (italics added) (quoting United States v. Allen, 539 F.
Supp. 296, 304 (C.D. Cal. 1982), which in turn quotes Blockburger, 284 U.S. at
304). In his opening brief, Mr. Mier-Garces did not mention
interdependence—much less argue that interdependence is relevant to the double-
jeopardy determination in circumstances such as these—and, more specifically,
did not expressly argue that the Texas and Colorado conspiracies were
interdependent. Rather, he simply argued the two conspiracies shared the general
“common goal” of importing cocaine. Id. at 23. Only in his reply brief did Mr.
Mier-Garces expressly make interdependence arguments. See Aplt.’s Reply Br. at
7S9.
In asking us to apply a totality-of-the-circumstances test, Mr. Mier-Garces
relied exclusively on out-of-circuit authority—not our own. See, e.g., United
24
States v. Sertich, 95 F.3d 520, 523–24 (7th Cir. 1996) (“To determine whether the
two charges arise out of one conspiracy, the court must look to such factors as
whether they involve the same overt acts, people, places, or time period; whether
they share similar objectives or modus operandi; or whether the two conspiracies
depend upon each other for success.”); United States v. Smith, 82 F.3d 1261, 1271
(3d Cir. 1996) (“The ultimate purpose of the totality of the circumstances inquiry
is to determine whether two groups of conspirators alleged by the government to
have entered separate agreements are actually all committed to the same set of
objectives in a single conspiracy.”).
This reliance on out-of-circuit authority is not surprising because, as the
government pointed out in its response brief, see Aplee.’s Resp. Br. at 12, in the
context of conspiracy prosecutions involving the same conspiracy statute, we have
expressly rejected on more than one occasion the totality-of-the-circumstances
test and applied instead what we have labeled a “same-evidence” test, see Puckett,
692 F.2d at 668 (electing to “adhere to the same evidence test” though the
defendant “urge[d]” the panel “to employ the ‘totality of the circumstances’
test”); see also Sasser, 974 F.2d at 1549 n.4 (noting Puckett’s adherence to the
same-evidence test, in responding to the defendant’s “suggest[ion] that we adopt a
‘totality of the circumstances’ test”); Jones, 816 F.2d at 1486 (“This circuit
applies the ‘same evidence’ test to determine the validity of a double jeopardy
25
claim.”); cf. United States v. Genser, 710 F.2d 1426, 1429 & n.3 (10th Cir. 1983)
(declining to “abandon” the “‘same evidence’ test in favor of a ‘totality of the
circumstances’ [test],” where the question was whether “the offenses of
‘distributing’ and ‘dispensing’ controlled substances in violation of the
Controlled Substances Act are the ‘same offense’ for double jeopardy purposes”).
As we have formulated it, the same-evidence test “provides that offenses
charged are identical in law and fact only if the facts alleged in one would sustain
a conviction if offered in support of the other.” Puckett, 692 F.2d at 667; accord
Mintz, 16 F.3d at 1104; Wilkett, 655 F.2d at 1013. Notably, we have associated
this test with Blockburger. See, e.g., Mintz, 16 F.3d at 1104; Puckett, 692 F.2d at
667; see also Sasser, 974 F.2d at 1549 (referring to “the Blockburger ‘same
evidence’ test”). In its response brief, the government asserted that the same-
evidence test was the correct one to apply in addressing Mr. Mier-Garces’s
double-jeopardy challenge. The government further asserted, however, that “[t]he
defendant must also show that the two conspiracies were interdependent and that
the conspirators in each shared a single criminal objective.” Aplee.’s Resp. Br. at
12. 4
4
In his reply brief, Mr. Mier-Garces rightly pointed out that this is a
“new position” for the government. Aplt.’s Reply Br. at 2. In opposing Mr.
Mier-Garces’s double-jeopardy motion, the government had urged the district
court to apply the totality-of-the-circumstances test. See R., Vol. II, at 272 (Resp.
(continued...)
26
We decided Leal after the parties completed their briefing in this case.
Accordingly, we requested supplemental briefing from them concerning Leal’s
impact on their arguments about the appropriate substantive standards to apply to
Mr. Mier-Garces’s double-jeopardy challenge. Mr. Mier-Garces responds that
“Leal establishes that Blockburger’s ‘same evidence’ test does not apply to this
case.” Aplt.’s Suppl. Br. at 5; accord id. at 1. He reasons further that Leal
confirms that his initial approach was the correct one:
Although the Court in Leal did not refer to the factors
outlined above as a “totality of the circumstances” test, they are
the same factors that other Circuits consider when examining the
“totality of the circumstances” in order to determine whether
successive conspiracy prosecutions violate the protections against
double jeopardy. Similarly, the factors examined in Leal are the
same factors that Mier-Garces examined in his opening and reply
briefs . . . .
4
(...continued)
to Def.’s Mot. to Dismiss, filed Mar. 14, 2017) (“When a defendant claims he was
previously convicted of the same conspiracy, courts typically use a ‘totality of the
circumstances’ test and consider several factors to determine whether the two
charged conspiracies constitute the same offense for double jeopardy purposes.”).
Moreover, as the district court observed, neither the government nor Mr. Mier-
Garces ever uttered the word “interdependence” in the hearing on Mr. Mier-
Garces’s double-jeopardy motion. Id., Vol. III, at 516–17 (Tr. of Dist. Ct.’s
Mots. Rulings, dated June 14, 2017) (noting that “neither side has really
addressed” interdependence and that it has “not been raised”). But the burden to
establish that the Texas and Colorado conspiracies were a single conspiracy is
squarely on the shoulders of Mr. Mier-Garces, see, e.g., Leal, 921 F.3d at 959 n.6;
therefore, insofar as the record could have been, but was not, optimally developed
on the critical issue of interdependence, Mr. Mier-Garces must bear any adverse
consequences (whether great or small) of that failing.
27
Id. at 2. And he tries to show us, through citations to his earlier briefing, that he
has made at least some arguments concerning interdependence. See id. at 2 n.1.
On the other hand, the government asserts that “Leal did not overrule this
Court’s ‘same evidence’ test, which remains the applicable test in this circuit. It
confirmed, however, that two conspiracies cannot be the same offense without
interdependence.” Aplee.’s Suppl. Br. at 1. Further, says the government, Leal
underscores that where separate conspiracy charges are at issue in the double-
jeopardy challenge, the “inquiry necessarily involves consideration of whether the
second charge is based on a ‘different set of facts’ than the first.” Id. at 2
(quoting Daniels, 857 F.2d at 1393). Under the government’s reasoning,
however, even the same-evidence test recognizes the determinative nature of the
interdependence factor: “[i]n the parlance of the ‘same evidence’ test, where two
conspiracies are not interdependent, evidence of one could not possibly prove the
other.” Id. at 3. Nevertheless, the government insists that “Leal’s focus on
interdependence did not supplant the ‘same evidence’ test or mean that only
interdependence matters. . . . Most significantly, because the essence of a
conspiracy is the agreement, there must be a single agreement with a single set of
objectives.” Id. (citation omitted).
b
After considering the parties’ arguments, we have determined that Leal’s
28
framework helpfully synthesizes and clarifies our precedent and, consequently,
embodies the proper substantive standards for resolving Mr. Mier-Garces’s
double-jeopardy challenge—which arises in the context of separate conspiracy
prosecutions involving the same conspiracy statute. As we outline below, Leal’s
framework underscores the central and determinative importance in our case law
of interdependence in the assessment of whether two separately charged
conspiracies are actually a single conspiracy. And, where there is not direct
evidence of a single, shared unlawful objective, which would cogently support a
finding of interdependence, the Leal framework allows for the consideration of
other factors to establish interdependence, including primarily those that we have
historically deemed relevant to the double-jeopardy analysis in the context of
separate conspiracies. As for our well-worn same-evidence test, we recognize
that “we must endeavor to interpret our cases in a manner that permits them to
coexist harmoniously.” United States v. Hansen, 929 F.3d 1238, 1254 (10th Cir.
2019). And, contrary to Mr. Mier-Garces’s suggestion, we do not believe that
Leal is irreconcilable with our same-evidence test; properly construed, that test
can coexist harmoniously with the Leal framework. We address these matters
below.
To begin, recall that Leal’s framework puts the factor of interdependence
front and center in the inquiry concerning whether two (or more) separate
29
conspiracies based on the same statute are in fact one and makes the presence of a
single, shared unlawful objective the key indicator of such interdependence.
There, we held that
[w]hen, 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.’”
Leal, 921 F.3d at 960 (second and third alterations in original) (quoting Mintz, 16
F.3d at 1104). In this regard, Leal does not plow new ground: our prior case law
has repeatedly centered its double-jeopardy analysis, in circumstances such as
these, on an interdependence inquiry, focusing primarily on the presence of a
single, shared unlawful objective to discern such interdependence. See Daily, 921
F.2d at 1007 (“Of principal concern is whether the conduct of the alleged
co-conspirators, however diverse and far-ranging, exhibits an interdependence.”);
id. (“As to the existence of a single conspiracy, the focal point of the analysis is
whether the alleged co-conspirators were united in a common unlawful goal or
purpose.”); accord Carnagie, 533 F.3d at 1239; Mintz, 16 F.3d at 1104; Sasser,
974 F.2d at 1550.
Leal, however, does highlight the relevance of “commonalities in time,
place, and personnel” to the determination of whether two (or more) separate
30
conspiracies are actually interdependent and, thus a single conspiracy. 921 F.3d
at 961. Although Leal helpfully provides us with a list of key commonalities, the
pertinence of these factors to this interdependence determination—whether singly
or, more often, in various combinations—is clearly evident across our case law,
figuring prominently in numerous other cases. See, e.g., Mintz, 16 F.3d at 1106(concluding that the district court’s finding that marijuana operations in Kansas
and Florida were part of the same conspiracy was not clearly erroneous in part
because “the ultimate goal was to mix the two types of marijuana [i.e., from
Kansas and Florida] for sale in New York” (emphasis added)); Sasser, 974 F.2d at
1550 (“[The defendant] also has failed to demonstrate that any of the participants
in the two conspiracies—besides [the defendant] himself and possibly [one co-
conspirator]—had any knowledge that the other conspiracy existed. The two
conspiracies operated independently of one another, with the success of each
dependent exclusively on the individual labors of its own, separate participants.”);
Daniels, 857 F.2d at 1393 (concluding two distinct conspiracies existed because
“the district court found that [the defendant’s] conspiracy with his brother and
others, which was the basis for the first indictment, terminated sometime during
the summer of 1984 when [the defendant] ‘split’ with his brother, and that [the
defendant] thereafter formed a new conspiracy with [a co-conspirator] to
manufacture amphetamines”); Puckett, 692 F.2d at 668 (noting “a time period
31
overlap between the two indictments” before nevertheless concluding that the
defendant had “failed to establish the existence of a single conspiracy
encompassing both the Oklahoma and Colorado charges”); United States v.
McMurray, 680 F.2d 695, 699 (10th Cir. 1981) (en banc) (holding that “one
conspiracy has been shown to exist, and the defense of double jeopardy was
valid,” where “[w]e have here a limited time span with the same cast of characters
throughout”); Wilkett, 655 F.2d at 1014 (in noting the commonalities between the
two conspiracies, highlighting language in the indictments evincing the
conspiracies’ temporal overlap and stating that “[a]bout the only difference
between the two indictments is that the Eastern District conspiracy is alleged to
have commenced a few months earlier than the conspiracy in the Western
District”). And, because Leal’s list of commonalities does not purport to be
exhaustive, it does not preclude consideration of other factors that we have
deemed relevant to double-jeopardy challenges in conspiracy cases involving the
same conspiracy statute, such as whether there are commonalities among the
conspiracies’ overt acts, see, e.g., Wilkett, 655 F.2d at 1015, or whether the
objects of the charged conspiracies involved different statutes, see, e.g., Puckett,
692 F.2d at 668. Accordingly, Leal provides a helpful, coherent framework for
examining factors that we historically have found to be relevant.
Furthermore, acknowledging that “we must endeavor to interpret our cases
32
in a manner that permits them to coexist harmoniously,” Hansen, 929 F.3d at
1254, we do not believe—contrary to Mr. Mier-Garces’s suggestion—that Leal is
irreconcilable with our same-evidence test. Specifically, even in our cases that
have nodded to the same-evidence test as binding precedent—where double-
jeopardy challenges were based on separate conspiracy charges—the substance of
the analysis has been materially congruent with the Leal framework. We read
these cases as essentially standing for two important, broad propositions. First, in
addressing double-jeopardy challenges based on the prosecution of separate
conspiracy charges, courts must conduct extensive factual analyses of the charged
conspiracies, focusing on commonalities—including time, place, and
personnel—in order to assess whether the conspiracies at issue are in fact one.
And, second, of primary importance in this factual inquiry is the question of
interdependence—i.e., whether the charged conspiracies are interdependent. So
construed, these cases coexist harmoniously with Leal’s framework.
Almost two decades ago, in Wilkett, we insightfully observed the following:
[T]he same evidence test is not always adequate for testing
applicability of the former jeopardy principle where the two
crimes charged are both conspiracies. Conspiracies frequently
involve several or even dozens of overt acts and may extend over
several months or years. Thus, it may frequently be possible to
show the existence of a single conspiracy through proof of more
than one set of facts. If two charges of conspiracy are in fact
based on a defendant’s participation in a single conspiracy, the
former jeopardy clause bars the second prosecution. As a
consequence, it may be necessary to look beyond the question of
33
what evidence will be offered in proof of the two conspiracies,
and to determine whether under all the circumstances a single
conspiracy is present.
655 F.2d at 1013–14 (emphasis added) (citations omitted). 5 And, in practice,
panels of our court have heeded Wilkett’s advice. That is, notwithstanding their
invocations of the same-evidence test, they have conducted extensive factual
analyses of the charged conspiracies, focusing on commonalities—including time,
place, and personnel—in order to assess whether the separate conspiracies at issue
were in fact one. See Mintz, 16 F.3d at 1104–06; Sasser, 974 F.2d at 1549–50;
Puckett, 692 F.2d at 667–68; see also United States v. Cardenas, 105 F. App’x
985, 987–88 (10th Cir. 2004) (unpublished); cf. United States v. Martinez, 562
F.2d 633, 637–38 (10th Cir. 1977) (cited by Puckett in support of the same-
5
About one year later, in Puckett, we acknowledged such a critique of
the same-evidence test by our sister circuits but did not expressly cite Wilkett.
See 692 F.2d at 668 (“[W]e recognize that it has been criticized in recent years as
an inadequate measurement of double jeopardy when applied to multiple
prosecutions for conspiracy charges.”). One of the cases that Puckett cited was
the Eighth Circuit’s decision in United States v. Tercero, 580 F.2d 312 (8th Cir.
1978), where the court observed the following:
By choosing one set of overt acts in one indictment and a
different set of overt acts in another indictment, the government
is able to carve one large conspiracy into several smaller
agreements. The “same evidence” test, which focuses on the
evidence required to support a conviction for each indictment,
provides no protection to the defendant from this type of
prosecutorial action.
Id. at 315.
34
evidence test; performing extensive factual analysis focusing on such
commonalities).
Notably, none of these same-evidence cases expressly rested their holdings
on a determination as to whether the requirements of the same-evidence test were
satisfied—that is, on an explicit conclusion regarding whether “the facts alleged
in one [conspiracy] would sustain a conviction if offered in support of the other
[conspiracy].” Puckett, 692 F.2d at 667. 6 In other words, these cases have not
adhered rigidly to the language of that test. On the other hand, some of the key
cases that have expressly invoked the same-evidence test have recognized the
centrality of the interdependence factor to the determination of whether separately
charged conspiracies are actually one. See, e.g., Mintz, 16 F.3d at 1104; Sasser,
974 F.2d at 1550; see also Cardenas, 105 F. App’x at 987.
Therefore, we read our cases that have expressly invoked the same-
evidence test as essentially standing for two important, broad propositions: stated
6
Indeed, it is telling that, in declining to endorse the totality-of-the-
circumstances test, we concluded in Sasser and Puckett that the result would have
been the same under either test. See Sasser, 974 F.2d at 1550 (“[W]e conclude
that under either the ‘totality of the circumstances’ test or the ‘same evidence’
test, the record demonstrates that two separate conspiracies existed and that
Sasser’s prosecution was not barred by the Double Jeopardy Clause.”); Puckett,
692 F.2d at 667S68 (“[W]hether the ‘totality of the circumstances’ test or the
‘same evidence’ test is applied, the record before us indicates that the Colorado
and Oklahoma trials concerned separate conspiracies.”).
35
in summary form, they are, first, that in addressing double-jeopardy challenges
based on the prosecution of separate conspiracy charges, courts must conduct
extensive factual analyses of the charged conspiracies in order to assess whether
the conspiracies at issue are in fact one; and second, that, of central importance in
that factual inquiry is the question of interdependence. So construed, contrary to
Mr. Mier-Garces’s suggestion, these cases can coexist harmoniously with Leal’s
framework.
To be sure, our cases invoking the same-evidence test have associated it
with Blockburger. See, e.g., Mintz, 16 F.3d at 1104; Puckett, 692 F.2d at 667; see
also Sasser, 974 F.2d at 1549 (referring to “the Blockburger ‘same evidence’
test”). And yet, in Leal, we made clear that, in circumstances such as these where
at issue are separate conspiracy charges involving the same statute, Blockburger
is not applicable. See 921 F.3d 951. 7 However, even though there appears to be
at first blush some conflict between our invocation of Blockburger in our same-
evidence-test cases and our pronouncement about Blockburger in Leal, that
7
Recall that we said the following: “When the government charges a
defendant under separate statutes for the same conduct, the test derived from
Blockburger [], determines whether the crimes are the ‘same offense’ for double
jeopardy purposes.” Leal, 921 F.3d at 960 (emphasis added). On the other hand,
“[w]hen the government charges a defendant with committing two (or more)
conspiracies [under the same conspiracy statute], 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.’” Id. (quoting Daniels, 857 F.2d at 1393).
36
conflict is not “real.” Bryan A. Garner et al., T HE L AW OF J UDICIAL P RECEDENT
§ 36, at 300 (2016) (noting that “[a] court considering discordant decisions must
first determine whether the perceived conflict between them is real” (emphasis
added)); accord Hansen, 929 F.3d at 1256; cf. Michael Duvall, Resolving
Intra-Circuit Splits in the Federal Courts of Appeal, 3 F ED . C TS . L. R EV . 17, 19
(2009) (“[I]nconsistency between two panel decisions is not necessarily an
intra-circuit split, however. A third panel will first attempt to reconcile the
conflicting cases before concluding that a true intra-circuit split exists.”).
To begin, as we read them, our same-evidence-test cases have never held
that Blockburger’s test is controlling double-jeopardy precedent in the context of
separate conspiracy prosecutions involving the same statute; therefore, Leal’s
pronouncement, insofar as it declares Blockburger is not controlling in this
context, does not engender a real conflict with those cases. Specifically, it is
most reasonable to read our same-evidence-test cases as historically relying on
Blockburger to tacitly provide support—by way of analogy—for our court’s
formulation of a comparison-based, heavily fact-intensive double-jeopardy test:
that is, the same-evidence test that inquires whether “the facts alleged in one
[conspiracy] would sustain a conviction if offered in support of the other
[conspiracy].” Puckett, 692 F.2d at 667; cf. McMurray, 680 F.2d at 699 (“It is
apparent that the issue as to whether one or more conspiracies existed in the cases
37
before us is to be resolved by an examination of the facts. The problem is a
factual one and each case is unique.”).
The Blockburger test provides a sound basis for such an analogy because it
contemplates a comparison-based, double-jeopardy analysis—albeit one involving
two separate statutes: “where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Blockburger, 284 U.S. at 304 (emphasis added).
Blockburger would not reasonably have been cited in these same-evidence-
test cases for more than such an analogy because the concern of the comparison-
based Blockburger test is legal, whereas the focus of the comparison-based, same-
evidence test is factual. In this regard, as we suggested in our overview of
double-jeopardy principles, see supra Part II.B.2, the Blockburger test focuses on
statutory elements—not facts or evidence, 8 see Grady v. Corbin, 495 U.S. 508,
521 n.12 (1990) (“The Blockburger test has nothing to do with the evidence
8
Indeed, a leading same-evidence-test case, Puckett, supports this
reading of our cases as using Blockburger as no more than a sound analogy,
because—after describing evidentiary (i.e., factual) materials that courts may
permissibly consider in applying the same-evidence test—Puckett cites a case that
undertook Blockburger’s comparison-based, statutory-elements (i.e., legal)
analysis, using a citation signal reserved for analogous authority, that is, “cf.”
See 692 F.2d at 668 (citing United States v. Cowart, 595 F.2d 1023, 1029–30 (5th
Cir. 1979)).
38
presented at trial. It is concerned solely with the statutory elements of the
offenses charged.”), overruled on other grounds by Dixon, 509 U.S. at 704; see
also Currier, 138 S. Ct. at 2153 (plurality op.) (“To prevent a second trial on a
new charge [under Blockburger], the defendant must show an identity of statutory
elements between the two charges against him; it’s not enough that ‘a substantial
overlap [exists] in the proof offered to establish the crimes.’” (second alteration
in original) (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)));
id. at 2158 (Ginsburg, J., dissenting) (“To determine whether two offenses are the
‘same,’ [the Supreme] Court has held, a court must look to the offenses’
elements.”); see also Iannelli, 420 U.S. at 785 n.17 (“[T]he Court’s application of
the test focuses on the statutory elements of the offense.”). 9
Therefore, Blockburger itself is not a same-evidence test but, rather, a
9
We, too, have recognized as much. See Angilau, 717 F.3d at 787
(“In assessing whether the crimes require proof of different facts, we do ‘not
focus on the acts charged in the indictment . . . but rather on the elements of the
crimes.’” (omission in original) (quoting Davis, 793 F.2d at 248)); accord Wood
v. Milyard, 721 F.3d 1190, 1195 (10th Cir. 2013) (“[Blockburger] requires us to
inquire whether each offense at issue contains an element not contained in the
other.” (quoting United States v. Christie, 717 F.3d 1156, 1173 (10th Cir. 2013)));
United States v. Pursley, 474 F.3d 757, 769 (10th Cir. 2007) (“[W]e look to the
elements of the two crimes for which [the defendant] was convicted to determine
whether a double jeopardy violation exists.”); see also United States v. Isabella,
918 F.3d 816, 847 (10th Cir. 2019) (“To determine what may be a lesser-included
offense, courts focus on the textual elements of the offenses. In general, statutes
punish the ‘same offense’ when one offense contains all the elements of another
even if it contains additional elements.” (citation omitted)).
39
“same-elements” test, which “inquires whether each offense [i.e., of two offenses]
contains an element not contained in the other; if not, they are the ‘same
offence.’” Dixon, 509 U.S. at 696; see, e.g., Lewis v. United States, 523 U.S.
155, 182 (1998) (referring to the Blockburger test as “the ‘same elements’ test”);
Kansas v. Hendricks, 521 U.S. 346, 370 (1997) (same). 10 Thus, in our same-
evidence-test cases, Blockburger has simply functioned historically as a sound
analogy for our formulation of the same-evidence test—not as on-point,
controlling precedent. Therefore, insofar as Leal’s pronouncement amounts to a
conclusion that Blockburger is not controlling in this context, it does not
engender a real conflict with our same-evidence-test cases.
It is true that Leal went further than merely indicating that Blockburger was
not controlling precedent: it indicated that, in circumstances such as these where
10
We acknowledge that, on occasion, members of the Supreme Court
have referred to the Blockburger test as the “same evidence” test. Sanabria, 437
U.S. at 70 n.24; see also Whalen v. United States, 445 U.S. 684, 705 & n.1 (1980)
(Rehnquist, J., dissenting) (same); Ashe v. Swenson, 397 U.S. 436, 463 (1970)
(Burger, J., dissenting) (same). However, “[t]his is a misnomer.” Grady, 495
U.S. at 521 n.12 (“Terminology in the double jeopardy area has been confused at
best. Commentators and judges alike have referred to the Blockburger test as a
‘same evidence’ test. This is a misnomer.” (citations omitted)); see also William
H. Theis, The Double Jeopardy Defense and Multiple Prosecutions for
Conspiracy, 49 SMU L. R EV . 269, 272 & n.16 (1996) (noting that “[a]lthough this
test [i.e., Blockburger] examines and compares the elements of the statutes in
question, it has often been referred to as a ‘same evidence’ test,” but the Supreme
“Court has recently beg[u]n to use the more descriptive phrase – ‘same
elements’”).
40
at issue are separate conspiracy charges involving the same statute, Blockburger’s
rubric is not applicable at all. See Leal, 921 F.3d at 960 (noting that, in contrast
to the circumstances where Blockburger applies, “[w]hen, 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”’” (second and third alterations in original) (quoting
Mintz, 16 F.3d at 1104)). But this Leal contention, too, is not really in conflict
with our same-evidence-test cases. As we have discussed, in practice, panels of
our court that have invoked the same-evidence test have not rigidly engaged in the
comparison-based analysis that this test contemplates (i.e., the analysis for which
Blockburger would function as a sound analogy). Instead, they have conducted
extensive factual analyses of the charged conspiracies, focusing on
commonalities—including time, place, and personnel—in order to assess whether
the conspiracies at issue were in fact one—and have placed primary importance in
this factual inquiry on the question of interdependence. Therefore, in practice,
Blockburger’s work has always been negligible in these same-evidence-test
cases—even as an analogy. Consequently, from this practical perspective, Leal’s
pronouncement that Blockburger is inapplicable in circumstances such as these is
41
not materially inconsistent with our same-evidence-test cases, notwithstanding
their linguistic invocation of Blockburger.
The upshot is that, contrary to Mr. Mier-Garces’s suggestion, our same-
evidence-test cases can coexist harmoniously with Leal’s framework. Stated
otherwise, the apparent conflict between these cases and Leal is not real.
In sum, we have determined that Leal’s framework helpfully synthesizes
and clarifies our precedent and, thus, embodies the proper substantive standards
for resolving Mr. Mier-Garces’s double-jeopardy challenge. Leal’s framework
underscores the central and determinative importance in our case law of
interdependence in the assessment of whether two separately charged conspiracies
under the same conspiracy statute are actually a single conspiracy. And it
provides a helpful, coherent framework for examining other factors that we
historically have found to be relevant in our interdependence inquiry. Lastly,
contrary to Mr. Mier-Garces’s suggestion, we do not believe that Leal is really
irreconcilable with our same-evidence-test cases nor does it really conflict with
those cases’ invocation of Blockburger. Accordingly, we proceed to apply Leal’s
framework in resolving Mr. Mier-Garces’s double-jeopardy challenge.
***
At first blush, our adoption of the Leal framework puts Mr. Mier-Garces in
a precarious position because he advanced interdependence arguments for the first
42
time ever in his appellate reply brief. See, e.g., United States v. Walker, 918 F.3d
1134, 1153 (10th Cir. 2019) (“[A]rguments advanced for the first time in a
litigant’s reply brief will ordinarily not forestall a conclusion of waiver.”); Ave.
Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 886 (10th Cir. 2016) (noting that
“[s]imply raising a related appeal point” to arguments that were made before the
district court “was not enough to avoid forfeiture”); United States v. Wayne, 591
F.3d 1326, 1332 n.4 (10th Cir. 2010) (“Because [the appellant] raised [an]
argument for the first time in her reply brief, she has waived it on appeal.”).
However, in an exercise of our discretion, we may—and do—put aside any
questions of preservation. See, e.g., Abernathy v. Wandes, 713 F.3d 538, 552
(10th Cir. 2013) (“[T]he decision regarding what issues are appropriate to
entertain on appeal in instances of lack of preservation is discretionary.”). And,
though our settled precedent (as noted above) forecloses our formal adoption of a
totality-of-the-circumstances test, as Mr. Mier-Garces recognizes, Leal’s
framework resembles the totality-of-the-circumstances test in that it permits
consideration of similar factors—ones that unquestionably, in certain
circumstances, have a bearing on the resolution of the interdependence question.
Therefore, we proceed to consider Mr. Mier-Garces’s arguments, insofar as they
are relevant under the Leal framework.
C
43
Guided by Mr. Mier-Garces’s arguments, we apply Leal’s framework in
assessing whether the Colorado and Texas conspiracies were actually a single
conspiracy, examining the following: (1) any shared unlawful purpose; (2)
commonalities of (a) time, (b) place, and (c) personnel; (3) activities in
furtherance of the conspiracies (i.e., uncharged overt acts); and (4) the statutory
objects of the conspiracies. After doing so, we conclude that the district court did
not clearly err in determining that Mr. Mier-Garces did not carry his burden of
showing that the Colorado and Texas conspiracies were one conspiracy.
Consequently, we uphold the court’s denial of Mr. Mier-Garces’s double-jeopardy
motion.
1
As noted, the “the focal point of the analysis” for determining whether two
charged conspiracies are interdependent is whether they are “united in a common
unlawful goal or purpose,” Daily, 921 F.2d at 1007; accord Sasser, 974 F. at
1550—understood in the narrow sense of “a shared, single criminal objective, not
just similar or parallel objectives between similarly situated people,” Carnagie,
533 F.3d at 1239 (quoting Evans, 970 F.2d at 670). Mr. Mier-Garces argues that
both conspiracies—i.e., the Texas and Colorado conspiracies—had the same
general goal of “distributing controlled substances for profit,” Aplt.’s Reply Br. at
9, and, more particularly, that both conspiracies were aimed at “the importation of
44
cocaine from Mexico to El Paso, and the distribution of that cocaine from El Paso
to other destinations,” Aplt.’s Opening Br. at 23. However, it is at least
questionable whether this was in fact a common criminal objective of the charged
conspiracies. As the government points out, “neither the Colorado conspiracy nor
the Texas conspiracy charged an agreement to import.” Aplee.’s Resp. Br. at 25.
Even putting that matter aside, “[t]his common goal, however, is not by itself
enough to establish interdependence.” Carnagie, 533 F.3d at 1239; see id.(“Although the [two conspiracies] had the same general objective—to profit from
submitting fraudulent . . . loans—it does not necessarily mean that the separate
groups were interdependent.”). Even if a defendant is involved in two
conspiracies that have the same general goal of distributing drugs, he must
demonstrate that the conspiracies have “a shared, single criminal objective, not
just similar or parallel objectives between similarly situated people.” Id. (quoting
Evans, 970 F.2d at 670). More specifically, the defendant must demonstrate that
“the [first] conspiracy was designed to further and to promote the success of the
[second] conspiracy.” Leal, 921 F.3d at 960 (alterations in original) (emphasis
added) (quoting Sasser, 974 F.2d at 1550); see Hamilton, 587 F.3d at 1208S09.
Mr. Mier-Garces argues that the money earned in the Albuquerque
transaction undertaken pursuant to the Texas conspiracy facilitated the venture as
a whole because a “one-time agreement to assist in a one-time collection of
45
money” can be “calculated to, and in fact [can] (albeit not to the fullest extent),
meaningfully contribute to the success of [the larger] drug operation.” Aplt.’s
Reply Br. at 8 (quoting Hamilton, 587 F.3d at 1209). In this connection, he cites
United States v. Dickey, 736 F.2d 571 (10th Cir. 1984), where ten defendants
were involved in transactions to import and then distribute drugs. We concluded
there that “[t]he record in this case clearly establishe[d] that the success of the
overall scheme of distributing drugs for profit depended upon the successful
completion of each of the transactions.” Id. at 582. This was because “[e]ven the
remote members of the conspiracy were undeniably dependent on the success of
each transaction to ensure the continuing prosperity of the overall scheme,” and
“[t]he success of each transaction was essential to attain [the] ultimate goal of
profitability.” Id. In coming to this conclusion, we relied on the principle that
“[w]here large quantities of [drugs] are being distributed, each major buyer may
be 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. (alterations in original) (quoting United States v. Watson, 594 F.2d 1330, 1340
(10th Cir. 1979)); accord United States v. Nunez, 877 F.2d 1470, 1473 (10th Cir.
1989) (citing Watson, 594 F.2d at 1340).
However, Mr. Mier-Garces’s citations to Dickey and similar cases are
unconvincing. To start, in each of the cases Mr. Mier-Garces cites on this
46
point—Hamilton, 587 F.3d at 1206; Horn, 946 F.2d at 741; Daily, 921 F.2d at
1007; Nunez, 877 F.2d at 1473; Dickey, 736 F.2d at 581—the defendant was
challenging a jury’s conclusion that there was only one conspiracy, either by
arguing that there was a variance or some form of insufficiency of the evidence.
In those cases, we were required to “view all of the evidence, both direct and
circumstantial, in the light most favorable to the government.” Dickey, 736 F.2d
at 581; see also United States v. Fishman, 645 F.3d 1175, 1189 (10th Cir. 2011)
(explaining that once a jury has determined that the defendant was part of a single
charged conspiracy, “[i]n reviewing a claimed variance, ‘“we view the evidence
and draw all reasonable inferences therefrom in the light most favorable to the
government, asking whether a reasonable jury could have found [the defendant]
guilty of the charged conspirac[y] beyond a reasonable doubt”’” (second and third
alterations in original) (quoting United States v. Caldwell, 589 F.3d 1323, 1328
(10th Cir. 2009))). In other words, when reviewing an argument that a variance
existed between the conspiracy charged and that proven at trial, we were
construing the facts in the light most favorable to the government’s view that a
single conspiracy existed. Here, alternatively, we are asking whether the district
court’s opposite finding, i.e., that two conspiracies existed, was clearly erroneous.
A conclusion here that the district court did not clearly err in finding separate
conspiracies would not necessarily be at odds with the distinct determination that
47
a reasonable factfinder could have found one conspiracy on the same facts,
construing those facts in the light most favorable to the government.
Furthermore, even setting aside this distinction, we still think Mr.
Mier-Garces’s argument is unconvincing. While “it is not necessary that each
conspirator agree with all others or even know of the others, or have contact with
each of them,” McMurray, 680 F.2d at 698, there must be “a shared, single
criminal objective, not just similar or parallel objectives between similarly
situated people,” Evans, 970 F.2d at 670. While the Colorado and Texas
conspiracies had “parallel” objectives, Mr. Mier-Garces fails to convincingly
explain how they were mutually reinforcing.
His failure on this point is underscored by Leal. There, we also
acknowledged the principle—cited above—that “[w]here large quantities of
narcotics are being distributed, each major buyer may be 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.” 921 F.3d at 962
(alteration in original) (quoting Watson, 594 F.2d at 1340). But we held that this
general principle did not establish interdependence. Id. at 962. Even though
members of the two distinct conspiracies in Leal “each aspired to ‘distribute large
amounts of narcotics . . . for profit,’ that would not establish they were pursuing
that goal as part of a shared endeavor.” Id. (citation omitted). As in Leal, though
48
it is clear that “the purpose of each [conspiracy] was to sell drugs . . ., the record
lacks evidence that the [Texas] and [Colorado] [conspirators] shared that purpose
with each other, and a shared objective is a necessary predicate for
interdependence.” Id. Without more, we cannot presume that the agreement
between Mr. Mier-Garces and the confidential informant underlying the Texas
conspiracy was an agreement to join “a wide-ranging venture,” like the Colorado
conspiracy. Id. (quoting Watson, 594 F.2d at 1340).
Thus, we conclude that the district court did not clearly err in concluding
that there was no direct evidence of a shared, single criminal objective that would
permit a finding of interdependence. However, even without such direct
evidence, courts may still conclude that two purportedly distinct conspiracies are
in fact one conspiracy based on, inter alia, “commonalities in time, place, and
personnel.” Id. at 961. Therefore, guided by Mr. Meir-Garces’s arguments, we
consider other factors that nevertheless may demonstrate the existence of a single
conspiracy.
2
“[C]ommonalities in time” can be relevant to whether two purportedly
distinct conspiracies are in fact one. Id.; accord McMurray, 680 F.2d at 699. The
superseding indictment in this case, i.e., the Colorado conspiracy, charged that a
conspiracy existed from December 8, 2013, until March 22, 2016. The
49
superseding indictment in the Texas conspiracy charged that a conspiracy existed
for one day—i.e., March 8, 2015—a day during the period of the longer, Colorado
conspiracy. Thus, there was at least a one-day overlap in the two conspiracies,
i.e., March 8, 2015. We conclude that this one-day overlap, situated as it was in
the midst of a two-and-a-half-year conspiracy, is not a strong indicator that the
two conspiracies were in fact one.
We reached such a conclusion over forty years ago in a similar case
involving two drug-trafficking conspiracies in Martinez, where the defendants
“emphasize[d] the fact that December 11, 1973, the approximate date of the
alleged conspiracy charged in the Texas indictment, f[ell] within the time period
covered by the indictment in this Oklahoma case, which cover[ed] the period from
about November, 1973, until January, 1977.” 562 F.2d at 635. We observed that
“[t]he mere fact that the same parties are charged with being members of two
conspiracies, and that both conspiracies concerned transactions in the same items
and overlapped in time, does not establish that the two conspiracies are the same.”
Id. at 638. And we concluded that the district court did not clearly err in
determining that the defendant presented insufficient proof that the two
conspiracies involved the same unlawful agreement. See id. Martinez supports
our determination here.
Furthermore, more recently, a panel of our court arrived at a like
50
conclusion in an unpublished decision. See Cardenas, 105 F. App’x at 985.
There, the defendant pleaded guilty to a one-day conspiracy that had occurred in
November 2000. Id. at 986. He argued that this plea barred a subsequent
indictment for a six-year conspiracy spanning from 1996 to 2002. Id. Our panel
rejected this argument: “[t]he fact that the two alleged conspiracies overlapped
for a single day does not establish that they were interdependent.” Id. at 988.
Cardenas’s reasoning, too, is persuasive and supports our conclusion here.
Notably, Mr. Mier-Garces points us to Fifth Circuit cases where
commonalities in time were found to militate in favor of a finding that one
conspiracy existed. See United States v. Rabhan, 628 F.3d 200, 205 (5th Cir.
2010); United States v. Winship, 724 F.2d 1116, 1126 (5th Cir. 1984). But the
commonalities in time in those cases were more substantial than the one day here,
and we do not find them persuasive. In short, we conclude that the one-day
overlap here does not appreciably undermine the district court’s finding of
separate conspiracies, much less render it clearly erroneous.
3
Likewise, the geographic overlap here does not meaningfully point in the
direction of one conspiracy. The Texas indictment was based on Mr.
Mier-Garces’s agreement to distribute cocaine from El Paso to Albuquerque. All
of the conduct underlying the conspiracy occurred either in the greater El Paso
51
area or in Albuquerque. Mr. Mier-Garces asked the confidential informant to
drive cocaine to Albuquerque, he took a vehicle from the confidential informant
in El Paso, loaded it with cocaine at his home in neighboring Chaparral, New
Mexico, and returned it to the informant in El Paso believing that the informant
would then drive the vehicle to Albuquerque. On the other hand, though the
Colorado conspiracy also involved Mr. Mier-Garces’s loading-and-unloading
activities in El Paso, there was an entirely different geographic market targeted
for the cocaine distribution—that is, Denver, Colorado. Indeed, the evidence
presented to the Colorado grand jury centered on the co-conspirators’ activities in
the greater Denver area. More specifically, that grand jury heard no evidence
concerning the 10.6-kilogram load of cocaine that went to Albuquerque—that is,
the sole load at issue in the Texas conspiracy.
Thus, while there was geographic overlap as to Mr. Mier-Garces’s conduct
in the two conspiracies, this does not necessarily tell us much about the overlap of
the conspiracies more generally. As the district court noted,
[a] defendant in one jurisdiction . . . could be involved in
multiple conspiracies[.] [E]ven though his conduct in [one
jurisdiction] all took place in [that jurisdiction], that would not
preclude him from being involved in multiple conspiracies one or
more of which may extend [beyond] the borders of [that
jurisdiction].
R., Vol. III, at 512. The court’s reasoning is sound. Whenever one individual is
involved in multiple conspiracies, there is likely to be at least some geographic
52
overlap between those conspiracies. And here the evidence about the geographic
overlap of the remainder of the conspiracies’ activities is lacking. Most
significantly, there is no indication that the extensive agreement to distribute
cocaine in the greater Denver area had a relationship to the individual agreement
to sell cocaine in Albuquerque.
Compare the situation here to that in Mintz. There, we concluded that the
district court’s finding that marijuana operations in Kansas and Florida were part
of the same conspiracy was not clearly erroneous in part because “the ultimate
goal was to mix the two types of marijuana [i.e., from Kansas and Florida] for
sale in New York.” 16 F.3d at 1106. The planned convergence in a single
location (i.e., New York) was strong evidence that a single conspiracy existed.
But here the district court was presented with minimal evidence that these
conspiracies in different states interacted with each other or that they were
pursuing a unified “ultimate goal.” Id.Our assessment that the evidence of geographic overlap does not
meaningfully point in the direction of one conspiracy is further underscored by a
comparison with the Tenth Circuit panel’s decision in United States v.
Rodriguez-Moreno, 215 F.3d 1338, 2000 WL 504858 (10th Cir. 2000)
(unpublished table decision). There, marijuana was imported from Mexico and
stored in McAllen, Texas. Id. at *1. The defendant was charged with one
53
conspiracy in Texas based on an agreement to distribute some of the marijuana
stored in McAllen throughout Texas. Id. He then later was charged in Oklahoma
with a conspiracy to distribute marijuana from McAllen to Atlanta, Georgia;
Chicago, Illinois; and Tulsa, Oklahoma. Id. at *2. The panel concluded that the
conspiracies were not interdependent, and the defendant’s prosecution under the
second indictment did not violate the Double Jeopardy Clause despite this
overlap: “[t]he fact that [the storage location in McAllen] was used in both
conspiracies does not establish an interdependence between the conspiracies.” Id.
at *4; see Leal, 921 F.3d at 961 (citing Rodriguez-Moreno as persuasive authority
and as an instance where “two drug distribution conspiracies tied to the same city
were distinct”). Likewise, we think the evidence before the district court
connecting both conspiracies to El Paso did not shed much light on whether the
two conspiracies were actually one.
Finally, Mr. Mier-Garces also notes that when the government offered a
factual basis in support of his guilty plea in the Western District of Texas, it
stated that “drug couriers would then transport the drugs to destination cities in
the U.S. and the money couriers would smuggle the drug proceeds back into
Mexico.” Suppl. App., Vol. I, Ex. S, at 44 (Tr. of Guilty Plea Hr’g, dated Mar.
30, 2016). However, this general reference to the drug couriers’ transportation
activities in the United States is insufficient to establish that the Colorado and
54
Texas conspiracies were one, much less does it significantly undercut the district
court’s factual finding to the contrary. There is scant evidence that the agreement
between Mr. Mier-Garces and the confidential informant underlying the Texas
conspiracy extended beyond the single transaction to Albuquerque.
In sum, we conclude that, though both conspiracies had in common Mr.
Mier-Garces’s activities in the greater El Paso area, this geographic overlap does
little to advance Mr. Mier-Garces’s argument that the conspiracies were one.
4
Next we consider any commonalities in personnel between the conspiracies.
This factor supports the district court’s finding that the Texas and Colorado
conspiracies were separate conspiracies. In particular, other than Mr. Mier-
Garces, none of the individuals named in the Colorado indictment were named in
the Texas indictment and vice versa. The only named conspirator in the Texas
indictment was Mr. Mier Garces; otherwise the indictment just referred generally
to “known and unknown” co-conspirators. R., Vol. II, at 66. Whatever door for
speculation this common, but opaque, indictment reference may have
generated—see, e.g., United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976)
(noting that “the indictment alleged that the two conspired with each other and
other unknown persons.”)—was firmly closed shut by the government at the
hearing, when it presented evidence that known conspirators in the Colorado
55
conspiracy, including those charged and identified in the Colorado indictment,
were not conspirators in the Texas conspiracy, R., Vol. III, at 207S08. And “the
mere presence of one common conspirator—here, Mr. [Mier-Garces]—will not
establish interdependence.” Leal, 921 F.3d at 963; see Carnagie, 533 F.3d at
1240 (“[T]he mere fact” that multiple defendants interact with one central
defendant “does not establish interdependence.”); Evans, 970 F.2d at 670 (noting
that “a single conspiracy does not exist solely because many individuals deal with
a common central player; they must be interconnected in some way”); Martinez,
562 F.2d at 638 (“Where various parties conspire with one common conspirator,
the evidence may nevertheless show that separate conspiracies were involved and
that no one combination embraced the objectives of the others.”).
Mr. Mier-Garces’s primary argument to the contrary centers on the role of
an individual that Mr. Mier-Garces refers to as “El Señor.” He claims that El
Señor was “the Mexico-based source of the cocaine” and that he and Mr. Mier-
Garces were “the constants, and the central characters” in both the Texas and
Colorado conspiracies. Aplt.’s Opening Br. at 22; see id. (asserting that the
Texas and Colorado conspiracies “revolve[d] around the same two, central
characters,” namely, Mr. Mier-Garces and El Señor). But the central problem
with this argument is that Mr. Mier-Garces did not present information about El
Señor to the district court at the time it ruled on the motion to dismiss; indeed,
56
Mr. Mier-Garces did not even mention El Señor in his motion to dismiss or at the
double-jeopardy hearing. Accordingly, he cannot rely on any argument
concerning El Señor now. See Regan-Touhy, 526 F.3d at 648; Hertz, 370 F.3d at
1019; Theriot, 185 F.3d at 491 n.26. To be sure, Mr. Mier-Garces’s motion to
dismiss did discuss a Mexico-based drug trafficker, El Muñeco, with whom Mr.
Mier-Garces admittedly worked in smuggling narcotics into the United States.
But Mr. Mier-Garces does not even mention El Muñeco in either his opening or
reply briefs. Of course, it is not inconceivable that El Señor and El Muñeco are
two names for the same person, but Mr. Mier-Garces does not direct us to
evidence to this effect and certainly did not present any to the district court at the
hearing. Accordingly, based on the evidence before it, the court was in no
position to make the finding that Mr. Mier-Garces urges now—specifically, that
El Señor and Mr. Mier-Garces were “the constants, and the central characters” in
both the Texas and Colorado conspiracies. Aplt.’s Opening Br. at 22.
Moreover, even if we could assume that El Señor and El Muñeco are the
same person, the evidence about that person that was before the district court at
the time of its ruling does not establish an overlap in personnel such that this
factor would significantly favor a finding of one conspiracy. Mr. Mier-Garces’s
post-arrest interviews mentioned El Muñeco’s role in coordinating the smuggling
of narcotics into the United States. But even if this individual also had
57
knowledge about the conspiracies to distribute cocaine to Albuquerque and
Denver, this would not necessarily establish that the two conspiracies were one.
Sasser underscores this point. There, the defendant “failed to demonstrate that
any of the participants in the two conspiracies—besides [the defendant] himself
and possibly [one co-conspirator]—had any knowledge that the other conspiracy
existed.” 974 F.2d at 1550. Even with two potential individuals aware of both
conspiracies, the court concluded that “[t]he two conspiracies operated
independently of one another, with the success of each dependent exclusively on
the individual labors of its own, separate participants.” Id. Likewise here, even
if Mr. Mier-Garces and El Muñeco provided some minimal overlap of personnel,
there is no evidence that any of the courier members of the Colorado conspiracy
had any knowledge of the Texas conspiracy. Cf. Cardenas, 105 F. App’x at 988
(“[E]ven assuming the same co-conspirators were the source of the
methamphetamine that [the defendant] was charged with distributing in both
cases, that fact does not by itself establish the two alleged conspiracies were
interdependent.”).
In sum, we conclude that this factor does not undercut the district court’s
finding of separate conspiracies, much less does it serve to make that finding
implausible.
5
58
As noted, the government was under no obligation to plead overt acts in the
Texas and Colorado indictments because they charged drug-trafficking
conspiracies under 21 U.S.C. § 846, and it did not do so. See, e.g., Savaiano, 843
F.2d at 1294. But the government introduced evidence at the hearing concerning
the conspirators’ activities in furtherance of the charged conspiracies—that is,
their uncharged overt acts—and that evidence was consistent with the district
court’s finding of separate conspiracies. Recall that the Texas conspiracy was
based on Mr. Mier-Garces’s agreement to load cocaine into a vehicle bound for
Albuquerque on one distinct day. R., Vol. III, at 156S57, 209. The Colorado
conspiracy, on the other hand, concerned Mr. Mier-Garces’s agreement to load
cocaine into multiple vehicles that Mr. Lucero, Ms. Mota, Mr. Neufeld-Reimer,
and Ms. Wieler de Neufeld drove to Denver and then the subsequent distribution
of that cocaine in Denver. No information about the cocaine load that was the
subject of the Texas indictment was presented to the Colorado grand jury. Thus,
the conspiracies involved different conspiratorial activities (i.e., uncharged overt
acts). See id. at 513S14 (district court noting “that the Texas case is specific to
one 10.6 kilogram load of drugs that was intended to go from Texas to New
Mexico. . . . [T]he Texas case is limited to that Texas to New Mexico transaction,
and does not touch upon, in any way, shape or form loads coming up into
Colorado.”). As such, this factor lends supports to the district court’s finding of
59
separate conspiracies.
Mr. Mier-Garces makes one principal argument to the contrary. 11 He
argues that, though the two charged conspiracies “differ[ed] in the particulars of
how th[eir] goal was to be accomplished,” the fact that the government moved to
introduce at the Colorado trial Mr. Mier-Garces’s guilty plea in the Western
District of Texas—on the ground that it was relevant to show his knowledge and
lack of mistake under Federal Rule of Evidence 404(b)—provides support for the
conclusion that the two conspiracies were in fact “a single conspiracy.” Aplt.’s
Opening Br. at 23. But the notice that the government filed regarding its
intention to introduce this information came only after the district court had
denied the double-jeopardy motion. Compare R., Vol. I, at 245S46 (United
States’ Notice of Intent to Introduce Evidence Which May Qualify as Fed. R.
Evid. 404(b) Evidence, filed June 20, 2017), with id., Vol. III, at 517S18
(evincing the court’s ruling on motion to dismiss, rendered on June 14, 2017).
Accordingly, this government action cannot provide a basis for determining that
11
Confronted by the disparate activities of the Texas and Colorado
conspiracies, Mr. Mier-Garces also falls back on his contention that the
conspiracies had a “common goal” involving “the distribution of th[e] cocaine
from El Paso to other destinations.” Aplt.’s Opening Br. at 23. But, as noted
supra, this argument concerning a general unlawful goal sheds little light on the
question of whether the two conspiracies were in fact one.
60
the court erred in ruling on that motion. 12 We thus reject this argument and
conclude that this factor favors the district court’s finding of separate
conspiracies. And, put another way, this factor does nothing to indicate that the
court’s finding was clearly erroneous.
6
Finally, both indictments alleged conspiracies to violate the same drug-
trafficking statute, namely 21 U.S.C. §§ 841(a)(1). Though as Mr. Meir-Garces
argues, the fact that charged conspiracies involve violations of the same statute
may provide some measure of support for a finding of a single conspiracy, we do
not find this fact to be particularly meaningful here. See United States v. Dortch,
5 F.3d 1056, 1063 (7th Cir. 1993) (noting that “the fact that both indictments
charged violations of the same statute, 21 U.S.C. § 841, is the weakest evidence
on which [the defendant] relies” because “[o]ne individual can certainly join more
than one conspiracy to distribute drugs”).
* * *
12
Moreover, on the merits, a nearly identical argument was rejected in
Leal. 921 F.3d at 965 (“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.”). Consistent with Leal’s reasoning, it is not clear why
Rule-404(b) evidence from the Texas conspiracy that tended to show that Mr.
Mier-Garces was familiar with the kind of drug-trafficking techniques employed
in the Colorado conspiracy would tell us anything about whether the Texas
conspiracy and the Colorado conspiracy were a single conspiracy.
61
In sum, on this record, we cannot conclude that the district court clearly
erred in finding that the Texas and Colorado conspiracies were separate and not
one single conspiracy. Thus, we find no error in the district court’s denial of Mr.
Mier-Garces’s motion to dismiss on double-jeopardy grounds.
III
Mr. Mier-Garces separately argues—albeit briefly—that the district court
erred in applying U.S.S.G. § 2D1.1(b)(12)’s enhancement for maintaining a
premises for the purpose of manufacturing or distributing a controlled substance.
We conclude that the district court did not err in applying this enhancement.
A
“When reviewing a district court’s application of the Sentencing
Guidelines, we review legal questions de novo and we review any factual findings
for clear error, giving due deference to the district court’s application of the
guidelines to the facts.” United States v. Craig, 808 F.3d 1249, 1255 (10th Cir.
2015) (quoting United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005)). “A
factual finding is clearly erroneous ‘only if [it] is without factual support in the
record or if, after reviewing all the evidence, we are left with a definite and firm
conviction that a mistake has been made.’” Id. (alteration in original) (quoting
United States v. Mullins, 613 F.3d 1273, 1292 (10th Cir. 2010)).
B
62
Section 2D1.1(b)(12) of the Guidelines provides that “[i]f the defendant
maintained a premises for the purposes of manufacturing or distributing a
controlled substance, increase [the offense level] by 2 levels.” “Among the
factors the court should consider in determining whether the defendant
‘maintained’ the premises are (A) whether the defendant held a possessory
interest in (e.g., owned or rented) the premises and (B) the extent to which the
defendant controlled access to, or activities at, the premises.” U.S.S.G. § 2D1.1
cmt. n.17. Additionally, “[m]anufacturing or distributing a controlled substance
need not be the sole purpose for which the premises was maintained, but must be
one of the defendant’s primary or principal uses for the premises.” Id.
In determining whether manufacturing or distributing a controlled
substance was the primary or principal use of the premises, “the court should
consider how frequently the premises was used by the defendant for
manufacturing or distributing a controlled substance and how frequently the
premises was used by the defendant for lawful purposes.” Id. Our cases have
additionally looked to the following factors when evaluating the application of
this enhancement:
(1) the frequency and number of drugs sales occurring at the
home; (2) the quantities of drugs bought, sold, manufactured, or
stored in the home; (3) whether drug proceeds, employees,
customers, and tools of the drug trade (firearms, digital scales,
laboratory equipment, and packaging materials) are present in the
home, and (4) the significance of the premises to the drug
63
venture.
United States v. Murphy, 901 F.3d 1185, 1191S92 (10th Cir. 2018); accord United
States v. Lozano, 921 F.3d 942, 946 (10th Cir. 2019).
C
Mr. Mier-Garces argues that the district court “erred in concluding that the
government had proved by a preponderance of the evidence that Mier-Garces’
home in Chaparral was used primarily or principally for distributing a controlled
substance.” Aplt.’s Opening Br. at 27. We disagree.
The district court made the factual finding that the primary purpose of the
property was the storage or distribution of controlled substances. That finding
was based on the court’s subsidiary findings that “there’s no question that the way
this worked is drugs came up from Mexico, [and] they were stored [at the house]
until they were transferred up to other parts of the United States.” R., Vol. IV, at
934. And the court further found that “[t]he reverse process ensued, when money
was coming back. At a bear [sic] minimum, [the home] [wa]s for storage.” Id.The court relied on pictures of the home that demonstrated that it was a place
“that a person does not really live in.” Id. at 935. This was because the pictures
revealed that there was “no furniture,” no refrigerator, “no stove,” “stuff thrown
all over the floors,” and “a mess” that rendered the home “not usable.” Id.; see
Suppl. App., Vol. I, Ex. 57 (photographs of Mr. Mier-Garces’s home).
64
In addition to these facts supporting the conclusion that Mr. Mier-Garces
only stayed at the home temporarily, while using it primarily or principally to
store or distribute drugs, the court relied on “Mr. Mier-Garces’ own statement
that he was moving drugs every—at least twice a month, which is a repetitive,
continuing use of that property to store, load, unload cars, store drugs and money,
unload and load cars.” R., Vol. IV, at 936. The court also relied on Mr.
Mier-Garces’s statement to the probation officer that “he doesn’t take mail at that
address.” Id. Because “it looks like no one stays there with any regularity” and
“there is repetitive drug activity coming off of that property,” the court found the
evidence “tips, by a preponderance, in favor of the adjustment.” Id. Finally, as
the government notes, see Aplee.’s Resp. Br. at 31–32, the Probation Office noted
in the PSR that Mr. Mier-Garces “spent the majority of his time at his mother’s
address,” not the residence at issue, R., Vol. II, at 598 (PSR, dated Jan. 26,
2018)—a fact that he did not dispute.
In our view, for two salient reasons, there can be little (if any) doubt that
the district court’s determination to impose the enhancement was not clearly
erroneous or otherwise improper. First, the commentary to the Guidelines makes
clear that “storage of a controlled substance for the purpose of distribution” can
qualify as maintaining the premises for the purposes of distributing controlled
substances. U.S.S.G. § 2D1.1 cmt. n.17; see Murphy, 901 F.3d at 1194
65
(concluding that the enhancement applied because the evidence led to the
“reasonable inference that [the defendant] used his home to store drugs for
distribution outside his home”). Thus, Mr. Mier-Garces’s admitted use of the
home to store drugs and conceal them in vehicles for transport on a bi-weekly
basis amply supports the district court’s conclusion that a primary or principal use
of the home was the distribution of controlled substances. See R., Vol. IV, at
534S35, 544S45 (describing use of the home for loading vehicle with drugs for
couriers).
Second, the district court’s finding that Mr. Mier-Garces did “not really
live” in the house is not clearly erroneous. Mr. Mier-Garces argues that his
“period of incarceration should not be extended because he is untidy.” Aplt.’s
Opening Br. at 27S28. But Mr. Mier-Garces was not punished for failing to clean
his room; the extreme untidiness was only relevant because it indicated that he
did not actually live at the home. And the significance of that fact has not been
lost on prior panels of this court: they have noted that similar features of a home
may indicate that it is primarily or principally being used for the distribution of
controlled substances. See United States v. Mays, 606 F. App’x 911, 916 (10th
Cir. 2015) (unpublished) (noting “[t]he house had no bedroom furniture” before
affirming application of the enhancement); United States v. Cortez-Diaz, 565 F.
App’x 741, 748 (10th Cir. 2014) (unpublished) (noting that “[t]he court also
66
found it significant that the house had no furniture” before concluding that the
defendant “maintained the house to store or distribute a controlled substance”).
Mr. Mier-Garces also attempts to explain away the fact that he did not
receive mail at his home as being caused by his frequent travel; he thus argues
that it made sense for him to have his mail sent to his mother’s home. Aplt.’s
Opening Br. at 27S28. But this at most shows that multiple inferences were
available to be made—some innocent, and some suggestive of the primary or
principal use of the home for drug trafficking. It does not show that the district
court clearly erred. See, e.g., United States v. Cortes-Gomez, 926 F.3d 699, 708
(10th Cir. 2019) (“If the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals may not reverse it . .
. . Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” (quoting Anderson v. Bessemer City,
470 U.S. 564, 573–74 (1985))). And while Mr. Mier-Garces points to other
features of the home that purportedly demonstrate that he lived there, 13 none of
13
Aplt.’s Opening Br. at 27S28 (“[T]he photographs show that there is
food in the kitchen and what appear to be clean dishes drying in one half of the
sink. There are draperies and blinds on the windows. The bedroom closet is full
of clothes and shoes. There is a bed, with pillows, sheets and blankets. There is
a nightstand with a jar of change on it and what appears to be packages of
medicine. There is a flat screen TV on a dresser in the bedroom and a satellite
dish on the roof. There are decorations hanging on the walls, and trinkets like
model cars and animal sculptures lining the shelves. The bathroom shower has a
(continued...)
67
these features demonstrate that the district court’s conclusion that “no one stays
there with any regularity” is clearly erroneous. R., Vol. IV, at 936.
Furthermore, even if Mr. Mier-Garces had stayed there regularly, the
regular and repeated use of the home for drug trafficking would still have
provided the district court with ample basis to find that a primary or principal use
of the home was for drug distribution. See Murphy, 901 F.3d at 1191 (“[O]ne
may use his home (in the broad sense of the word) for lawful purposes 100% of
the time and also use it (in the same broad sense of the word) for unlawful drug
activity 100% of the time. In other words, both simultaneous uses may well be
primary.” (underlining omitted)); see also id. (“A substantial drug distribution
that regularly and quickly passes through the home (two or three days) on a
bi-monthly or tri-monthly basis may qualify as a primary use of the premises for
drug-related purposes . . . .”).
In sum, we conclude that the district court did not err in applying this
enhancement.
IV
For the foregoing reasons, we conclude that the district court correctly
determined that the Double Jeopardy Clause was not violated and that a
13
(...continued)
curtain on it and what appears to be soap and shampoo on the shelves inside.”).
68
sentencing enhancement under U.S.S.G. § 2D1.1(b)(12) was appropriate. We thus
AFFIRM the court’s judgment.
69