Court Affirms Drug Convictions; Addresses When Conduct Is One Or Two Conspiracies

United State v. Mier-Garces, 967 F.3d 1003 (10th Cir. 2020) (Double jeopardy – conspiracy; USSG § 2D1.1(b)(12) (maintaining premises to manufacture or distribute)) Short Version: 1) Double jeopardy – conspiracy A) To determine if two or more conspiracies are actually one conspiracy (for Double Jeopardy) the test is if the conspiracies are interdependent. If no direct evidence of a shared, single criminal objective between conspiracies, the court can also look at “same evidence” test i.e. “commonalities – including time, place and personnel” to see if the conspiracies are interdependent and if pled, activities in furtherance of the conspiracies; and the statutory object of the conspiracy. B) Court of Appeals limited review of evidence to that presented at the pre-trial hearing on this issue because the attorney didn’t renew the motion during or after trial – so evidence at trial about the conspiracies was not considered. 2) USSG § 2D1.1(b)(12) (maintaining premises to manufacture or distribute) The evidence was sufficient to support two-level enhancement for maintaining premises for manufacture/distribute because Mr. Mier-Graces admitted to using the home to store drugs and conceal them in vehicles for transport on bi-weekly basis. District court found that defendant did not really live in home, because there was no furniture, refrigerator, or stove; it was very messy (so messy as to preclude use as a home according to the judge); and because he did not receive mail at that address. Long Version: The Government charged Mr. Mier-Garces with conspiracy to distribute controlled substances in the Western District of Texas and in the District of Colorado. His role was to take a vehicle from an El Paso parking lot to his home in Chaparral, New Mexico, and fill it with either drugs or money, then return it to the parking lot where someone else would drive the vehicle elsewhere (usually Denver) and once to Albuquerque. The Texas charge came from the one trip to Albuquerque and was limited to one day (March 8, 2015). The Colorado charges were from the Denver trips and spanned years (December 2013 to March 2016). The Court limited review of evidence to that presented at the pre-trial hearing because the attorney didn’t renew the motion during or after trial – so evidence at trial about how the conspiracies worked/overlapped was not considered. To prove one conspiracy and not more, a defendant must prove that the conspiracies share a single criminal objective; in other words, one conspiracy “was designed to further and to promote the success” of the other conspiracy (at 1025). It is not sufficient that they share a common goal. Example: conspiracy to get pot from Florida and Kentucky, then combine the pot to sell in New York is one conspiracy, but a conspiracy to get pot from Florida and Kentucky just to sell pot would be two conspiracies. Here, the court determined that the purposes of the Albuquerque trip and the Denver trips were similar or parallel but not the same. Court admits there were time overlaps, and the Chaparral home is the same, but different people (noting that the evidence that came out at trial about the source of the drugs is not considered because counsel did not renew the motion) were involved in the Denver and Albuquerque trips. Evidence was sufficient to support two-level enhancement for maintaining premises for manufacture/distribute because Mr. Mier-Graces admitted to using the home to store drugs and conceal them in vehicles for transport on bi-weekly basis. District court found that defendant did not really live in home, because there was no furniture, refrigerator, or stove; it was very messy (so messy as to preclude use as a home according to the judge); and because he did not receive mail at that address.