United States v. Jimenez Recio (01-1184)

January 21, 2003 Supreme Court Update

Greetings Court fans!
After a long weekend, the Court issued one opinion today, an opinion that falls within the Court's "9th Circuit error correction" jurisprudence. Before I begin, I note that given the brevity and simplicity of the opinion, Justice Breyer should be ashamed of taking over 2 months to issue this opinion.
In United States v. Jimenez Recio (01-1184), Justice Breyer (for everyone but Stevens), held that a conspiracy does not terminate when the object of the conspiracy becomes impossible to achieve because, for example, the government frustrates a drug conspiracy's purpose by seizing the drugs. Police in Nevada stopped a truck and seized a large stash of illegal drugs. Using the 2 drivers in a sting operation, the government moved the truck to its intended location (an Idaho shopping mall), and had the drivers page their "contact." When the defendants arrived to pick up the truck, they were arrested and indicted for conspiracy to distribute unlawful drugs. At trial, a jury convicted the defendants, but the judge granted a new trial because he found that the jury had not been properly instructed. Under Ninth Circuit precedent (a case called Cruz), the government cannot prosecute drug conspiracy defendants unless they joined the conspiracy before the government seized the drugs. In a second trial, they were convicted again. The defendants appealed, arguing that the evidence was insufficient to show they joined the conspiracy before the police seized the truck. The Ninth Circuit agreed, although it reaffirmed its holding in Cruz.
The Supreme Court reversed, holding (contrary to the Ninth Circuit's rule) that a conspiracy does not terminate merely because the government defeats the object of the conspiracy. The Court identified two basic arguments in support of this conclusion. First, the essence of a conspiracy is an agreement to commit an unlawful act. It poses a threat to the public over and above the commission of the act because a "combination in crime" makes more likely the commission of other crimes and decreases the possibility that individuals will abandon the plan. When the police frustrate the purpose of the conspiracy, these "conspiracy-related dangers" still remain. Second, the holding adopted by the Court is the universal view of everyone (courts, commentators, etc.) except the Ninth Circuit. Perhaps to rub in the "error correction" message, Breyer concluded by tracing the origins of the Ninth Circuit's anomalous rule. It seems that the erroneous statement of law originated in 1982 with a poorly crafted quotation from an earlier opinion. The quotation changed the grammatical structure of the language, and omitted some key words, thereby leaving a misleading impression of the state of the law. (Let this be a lesson on the need to quote accurately and carefully in all legal writing!)
Stevens wrote a 2-page opinion concurring in part and dissenting in part. He agrees with the resolution of the legal question but believes that it was not properly preserved for review. The government did not object to the Cruz rule until it filed a petition for rehearing en banc in the Ninth Circuit, and according to Stevens, that's just too late.
That's all for today. Thanks for reading. As always, I welcome your comments, questions, or corrections.
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.