Different jurisdictions, but same conspiracy

An argument by prosecutors that a drug dealer engaged in two separate conspiracies and could be prosecuted in separate Virginia districts has failed to persuade judges of the 4th U.S. Circuit Court of Appeals.

The 4th Circuit unanimously held June 1 that an attempt to buy several kilograms of cocaine from a confidential informant in the summer of 2012 was part and parcel of a larger conspiracy and investigation spanning 14 years.

“In this case, there is substantial if not complete overlap on each element of our double jeopardy analysis,” Judge Stephanie Thacker wrote for the court.

In October 2012, appellant Edward Jones pleaded guilty in federal court in the Eastern District of Virginia to one count of conspiring to possess with intent to distribute cocaine. Less than three months earlier, along with two other individuals, Jones attempted to cop 17 kilograms of cocaine from a seller who was actually a Drug Enforcement Agency informant. Jones and one of his co-conspirators were arrested in a hotel room at the Kirkley Hotel in Lynchburg when they went to consummate the deal. Authorities confiscated more than $570,000 from Jones in what the court refers to as the Kirkley Hotel Transaction.

Jones was sentenced to 135 months in prison.

Twice fry the big fish

On July 24, 2014, Jones was indicted in the Western District of Virginia for, among other offenses, one count of conspiracy to possess cocaine with intent to distribute, a violation of the same statute in the Eastern District.

The government alleged that Jones was the leader of a drug trafficking organization responsible for distributing more than 1,000 kilograms of cocaine in the Lynchburg area from 1998 until his arrest in 2012.

In November 2015, Jones moved to dismiss the indictment, claiming he had already pleaded guilty to the same conspiracy. The government contended, and the district court agreed, that the conspiracies differed in co-conspirators, time span, and the nature and the scope of the activities involved. Despite recognizing that the alleged conspiracies involved some of the same co-conspirators, in the same area, at the same time, violating the same law, it found that there were two distinct conspiracies because the Kirkley transaction concerned a single drug transaction completed over the course of a month while what the court called the Lynchburg Conspiracy concerned more than a thousand kilos of cocaine during a 14-year period.

0-for-5

Pursuant to 1988’s United States v. Ragins, the court applied the following five factors:

The time periods in which the alleged activities of the conspiracy occurred; the statutory offenses charged; the places where the alleged activities occurred; the persons acting as co-conspirators; and the overt acts or any other descriptions of the offenses charged which indicate the nature and scope of the activities to be prosecuted.

Because the dispute lay in the legal conclusion applied to the facts and not the facts themselves, the 4th Circuit reviewed the district court’s opinion de novo, ultimately finding that in the five-factor test for double jeopardy, “the Government has failed at every turn to prove separate and distinct conspiracies.”

“To the contrary, the Government has identified one large conspiracy to traffic cocaine in the Lynchburg area,” Thacker wrote.

Brian McGinn, a spokesman for the Office of the United States Attorney in Charlottesville, Virginia, which prosecuted the case, wrote in an email that the agency “would not offer any comment at this time.”

According to the 4th Circuit, Jones showed that both conspiracies involved him and at least two other people in common, cocaine distribution in the Lynchburg area, and a violation of the same statute during the same time period.

In this together

The $557,000 seized in the Kirkley transaction was likely a product of the Lynchburg Conspiracy, the court found, noting that though Jones was gainfully employed during the drug dealing, it’s doubtful that the half-million dollars was generated by that gainful employment.

“We do not leave our common sense at the courthouse door,” Thacker wrote.

The court added that the government’s argument regarding differences in the nature and scope of the alleged conspiracies is “superficial.” In fact, Thacker wrote, those ostensible differences were actually similarities.

For example, prosecutors argued that the Kirkley transaction involved a drug deal between Jones and some of his suppliers on a single occasion, contrasted by the Lynchburg Conspiracy, which lasted well over a decade and was “organized by Jones through a network of drug dealers focused on selling cocaine to hundreds of customers” in and around Lynchburg.

But the only way Lynchburg was able to distribute cocaine to hundreds of customers, the court found, is through countless individual transactions like the Kirkley transaction.

Further, the reason Jones attempted to buy a large amount of cocaine in the Kirkley transaction was so his network of drug dealers in Lynchburg could continue selling cocaine to hundreds of customers.

The court also noted that the government ignored the “anomaly” of a longstanding drug operation suddening risking a large purchase from a new and unknown supplier, as it did in the Kirkley transaction. But the reasoning is simple, the court offered: “With his drug supply in jeopardy and police close on his tail, Appellant needed a new source of cocaine … to keep the Lynchburg Conspiracy afloat.”

“Not only has the Government failed to distinguish the two conspiracies, but, the record amply demonstrates that based upon timing, the Eastern District Kirkley Hotel Transaction was part and parcel of the Lynchburg Conspiracy charged in the Western District,” Thacker wrote.

Attempts to speak with Jones’s attorney, Abram Pafford of Lynchburg, before press time were unsuccessful.

The 17-page decision is U.S. v. Jones (Lawyers Weekly No. 001-122017). An opinion digest is available online at sclawyersweekly.com.

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