FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30279
Plaintiff-Appellee,
D.C. No.
v. 4:13-cr-00027-
DLC-1
LELAND NEIL LAPIER, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted
June 4, 2015—Seattle, Washington
Filed August 7, 2015
Before: Diarmuid F. O’Scannlain, David M. Ebel,*
and M. Margaret McKeown, Circuit Judges
Opinion by Judge Ebel
*
The Honorable David M. Ebel, Senior Circuit Judge for the United
States Court of Appeals for the Tenth Circuit, sitting by designation.
2 UNITED STATES V. LAPIER
SUMMARY**
Criminal Law
The panel reversed a conviction for conspiracy to possess
with intent to distribute methamphetamine and remanded for
further proceedings.
Rejecting the defendant’s argument that the evidence at
trial established only “buyer-seller” relationships, the panel
held that the evidence was sufficient to support a jury verdict
finding that the defendant entered into a conspiracy with a
supplier and a later, separate conspiracy with a second
supplier.
The panel held that because the evidence tended to show
multiple conspiracies instead of the single charged
conspiracy, the district court’s failure to give a specific
unanimity instruction was plain error violating Lapier’s
substantial right to a unanimous jury verdict.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LAPIER 3
COUNSEL
Wendy Holton (argued), Helena, Montana, for Defendant-
Appellant.
Michael W. Cotter, United States Attorney, Helena, Montana;
Leif Johnson (argued), Assistant United States Attorney,
Bilings, Montana; Jessica A. Betley, Assistant United States
Attorney, Great Falls, Montana, for Plaintiff-Appellee.
OPINION
EBEL, Circuit Judge:
A federal jury convicted Defendant-Appellant Leland
Lapier of conspiracy to possess with intent to distribute
methamphetamine under 21 U.S.C. § 846 (“Count One”) in
addition to a separate offense of possession with intent to
distribute methamphetamine. Lapier challenges only his
conspiracy conviction, arguing that (1) his conviction was not
supported by sufficient evidence, as the evidence at trial
established only “buyer-seller” relationships and not a
conspiracy, and (2) the district court plainly erred in failing
to give a “specific unanimity” instruction sua sponte. We
reject the first argument but agree with the second. The
record in this case reflects a genuine possibility that different
jurors voted to convict on the basis of different conspiracies.
Count One alleged a single conspiracy “beginning in or
before September 2011, and continuing through at least
December 2012,” but the evidence at trial showed at least two
separate conspiracies—not the single conspiracy charged.
This created a “genuine possibility of jury confusion” and the
4 UNITED STATES V. LAPIER
risk of a nonunanimous verdict, United States v. Echeverry,
719 F.2d 974, 975 (9th Cir. 1983), as some jurors might have
convicted on the basis of a conspiracy with Lapier’s first
supplier (Louis Kanyid), and other jurors might have
convicted on the basis of a separate conspiracy with Lapier’s
second, subsequent supplier (Burt Boucher). Because this
possibility was not cured with a specific unanimity
instruction, it violated Lapier’s constitutional right to a
unanimous jury verdict. See, e.g., United States v. Gordon,
844 F.2d 1397, 1400–02 (9th Cir. 1988) (“When there is such
a genuine possibility of jury confusion or that a conviction
may occur as the result of different jurors concluding that the
defendant committed different acts, the trial judge is
obligated to give curative instructions or submit special
interrogatories to ensure a unanimous verdict.”). Therefore,
exercising jurisdiction under 28 U.S.C. § 1291, we
REVERSE Lapier’s conviction on Count One.1
I. Facts and procedural history
Count One of the indictment alleged a single, overarching
conspiracy:
[B]eginning in or before September 2011, and
continuing through at least December 2012, at
Great Falls, in the State and District of
Montana, and elsewhere, [Lapier], together
and with others both known and unknown to
the Grand Jury, knowingly and unlawfully
conspired and agreed to possess, with the
1
The judgment of the district court also included a conviction under
“Count II,” for possession of methamphetamine. Lapier does not
challenge that conviction, and we do not disturb it.
UNITED STATES V. LAPIER 5
intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), 50 or more grams of actual (pure)
methamphetamine, a Schedule II controlled
substance, in violation of 21 U.S.C. § 846.
The evidence, viewed in the light most favorable to the
government, see Jackson v. Virginia, 443 U.S. 307, 319
(1979), showed the following. In late 2011, Louis Kanyid
(based in Kennewick, Washington) began supplying meth to
Lapier (based in Great Falls, Montana) for redistribution.
Their relationship became more like a partnership over time.
Kanyid “fronted” meth to Lapier, allowing Lapier to resell the
drugs in Great Falls and repay Kanyid with the sale proceeds.
Around March 2012, Kanyid increased his sales to Lapier and
began working in Lapier’s garage, helping Lapier prepare the
meth for redistribution by dividing it into smaller quantities.
Kanyid’s wife testified that Lapier and Kanyid “were
basically partners” by this point. Around this time, Lapier
also met and began fronting meth to Mark Abresch, a user
and subdealer.
In July 2012, Abresch was arrested after buying meth
from Burt Boucher in Spokane, Washington. Abresch had
turned to Boucher as an alternative supplier because
sometimes Lapier did not have meth. After his arrest, the
police allowed Abresch to stay out of jail in order to act as a
confidential informant. The police had Abresch wear a wire
during his interactions with Boucher and buy undercover
from Boucher, but did not ask him to wear a wire around
Lapier or to buy undercover from him. However, Abresch
continued buying meth from Lapier and occasionally selling
to Lapier.
6 UNITED STATES V. LAPIER
In September 2012, Kanyid—Lapier’s supplier—was
arrested. By this point, Kanyid had sold an estimated 3–3.5
pounds of meth to Lapier over the course of their relationship,
which lasted for nearly a year.
Kanyid’s arrest meant that Lapier needed to find a new
meth supplier. In October 2012, Paul Kessler, a customer,
introduced Lapier to Boucher. Boucher began selling drugs to
Lapier directly, fronting the drugs to Lapier and usually
getting repaid within a day.
In December 2012, Boucher was arrested. Lapier
continued to supply Abresch with meth until Abresch was
arrested again in February 2013. Finally, Lapier was indicted
and arrested in March 2013.
A federal jury convicted Lapier of one count of
conspiracy to possess with intent to distribute
methamphetamine and one count of possession with intent to
distribute methamphetamine. At trial, Lapier moved twice for
a judgment of acquittal on both counts, arguing that there was
insufficient evidence to support his convictions. The district
court denied both motions. Lapier timely appealed,
challenging only his conspiracy conviction.2 He argues that
(1) his conspiracy conviction was not supported by sufficient
evidence, as the evidence established only “buyer-seller”
relationships and not a conspiracy, and (2) the district court
2
Because Lapier is serving a concurrent term of 168 months on each
count, reversing and vacating the conspiracy conviction would not affect
his jail term. Nevertheless, each conviction has collateral consequences,
so we must reverse the conspiracy conviction if we find error on that
count. See Rutledge v. United States, 517 U.S. 292, 302 (1996).
UNITED STATES V. LAPIER 7
plainly erred in failing to give a “specific unanimity”
instruction sua sponte.
II. The evidence was sufficient to convict Lapier on the
conspiracy count.
We review de novo the district court’s denial of Lapier’s
motion for judgment of acquittal based on insufficient
evidence. See United States v. Mincoff, 574 F.3d 1186,
1191–92 (9th Cir. 2009).
“Conspiracy is a partnership in criminal purposes. The
gist of the crime is the confederation or combination of
minds. The government has the obligation to establish not
only the opportunity but also the actual meeting of minds.
Mere association and activity with a conspirator does not
meet the test.” United States v. Basurto, 497 F.2d 781, 793
(9th Cir. 1974) (citations and quotation marks omitted). The
government can prove the existence of the conspiracy through
“circumstantial evidence that defendants acted together in
pursuit of a common illegal goal.” Mincoff, 574 F.3d at 1192
(quoting United States v. Bishop, 1 F.3d 910, 911 (9th Cir.
1993)). “A formal agreement is not necessary; rather the
agreement may be inferred from the defendants’ acts pursuant
to the scheme, or other circumstantial evidence.” United
States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984). “It is
sufficient to show that each defendant knew or had a reason
to know of the scope of the conspiracy and that each
defendant had reason to believe that their own benefits were
dependent upon the success of the entire venture.” United
States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978) (per
curiam).
8 UNITED STATES V. LAPIER
Lapier argues that the evidence the government presented
at trial established only buyer-seller relationships between
Lapier and Kanyid and Lapier and Boucher because neither
supplier “had any input into, or interest in, what Lapier did
with the methamphetamine they sold him—other than getting
paid.” According to the “buyer-seller rule,”
a conviction for conspiracy cannot be based
solely on the purchase of an unlawful
substance, even though such a transaction
necessarily involves an agreement between at
least two parties, the buyer and the seller.
Rather, conspiracy requires proof of an
agreement to commit a crime other than the
crime that consists of the sale itself. Were the
rule otherwise, every narcotics sale would
constitute a conspiracy.
United States v. Moe, 781 F.3d 1120, 1123 (9th Cir. 2015)
(quotation marks omitted); see also United States v. Ramirez,
714 F.3d 1134, 1140 (9th Cir. 2013) (“In the end, what we are
looking for is evidence of a prolonged and actively pursued
course of sales coupled with the seller’s knowledge of and a
shared stake in the buyer’s illegal venture.” (quoting United
States v. Thomas, 284 F.3d 746, 752 (7th Cir. 2002)).
Lapier’s buyer-seller argument fails because the evidence
established that his relationships with both Boucher and
Kanyid not only involved the purchase of drugs, but an
agreement to further distribute them. See Moe, 781 F.3d at
1124–25. Both Kanyid and Boucher “fronted” drugs to
Lapier, indicating that each supplier expected that Lapier
would resell the drugs and use the proceeds of his sales to
repay them. “[E]vidence of fronting may support a conviction
UNITED STATES V. LAPIER 9
for conspiracy to distribute a controlled substance.” Mincoff,
574 F.3d at 1193. This evidence, combined with the large
quantities of drugs Lapier bought, was sufficient for the jury
to find that Kanyid and Boucher each knew Lapier would
resell the meth and that each had a stake in Lapier’s sales.
There was also evidence that Kanyid helped Lapier prepare
drugs for redistribution. This evidence is sufficient to support
a jury verdict finding that Lapier entered into a conspiracy
with Kanyid and a later, separate conspiracy with Boucher.
III. The district court plainly erred by not giving a
specific unanimity instruction, as this created the
risk of a nonunanimous verdict.
Because there was evidence of two different conspiracies,
Lapier argues on appeal that the district court should have sua
sponte given a specific unanimity instruction requiring the
jury to agree on which conspiracy formed the basis of the
conviction. Because Lapier did not request such an
instruction at trial and failed to object to the court’s
instructions as given, we review this claim for plain error. See
United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986).
Plain error is “highly prejudicial error affecting substantial
rights.” Id. There are four requirements for a finding of plain
error:
[A]n appellate court may, in its discretion,
correct an error not raised at trial only where
the appellant demonstrates that (1) there is an
error; (2) the error is clear or obvious, rather
than subject to reasonable dispute; (3) the
error affected the appellant’s substantial
rights, which in the ordinary case means it
affected the outcome of the district court
10 UNITED STATES V. LAPIER
proceedings; and (4) the error seriously
affects the fairness, integrity or public
reputation of judicial proceedings.
United States v. Marcus, 560 U.S. 258, 262 (2010) (quotation
marks and alterations omitted).
“Normally, a general instruction on the requirement of
unanimity suffices to instruct the jury that they must be
unanimous on whatever specifications form the basis of the
guilty verdict.” Payseno, 782 F.2d at 835. However, a
specific unanimity instruction is required if there is a
“genuine possibility of jury confusion” or a possibility “that
a conviction may occur as the result of different jurors
concluding that the defendant committed different acts.” Id.
at 836 (quoting Echeverry, 719 F.2d at 975) (emphasis
omitted). While jurors need not unanimously agree on the
particular facts satisfying the overt act element of a
conspiracy charge, see United States v. Gonzalez, 786 F.3d
714, 718–19 (9th Cir. 2015), jurors must still unanimously
agree that the defendant is guilty of participating in a
particular conspiracy—i.e., of forming an agreement with at
least one other particular individual to pursue a particular
criminal goal, see, e.g., United States v. Monroe, 552 F.2d
860, 862 (9th Cir. 1977) (“The crime of conspiracy is
established once there is an agreement to engage in criminal
activity and one or more overt acts are taken to implement the
agreement.”); United States v. Escobar de Bright, 742 F.2d
1196, 1199 (9th Cir. 1984) (“A conspiracy is defined as an
agreement between two or more people to commit an
unlawful act, which arguably requires some form of a
meeting of minds.” (citations and quotation marks omitted)).
UNITED STATES V. LAPIER 11
Lapier argues for the first time on appeal that the district
court plainly erred in failing to give a specific unanimity
instruction on the conspiracy count. Such an instruction was
necessary in this case, he argues, because the indictment
charged a single conspiracy while the evidence tended to
establish several separate conspiracies, creating a genuine
possibility of juror confusion and risking a nonunanimous
verdict. The indictment alleged that Lapier participated with
unnamed “others” in a single conspiracy “beginning in or
before September 2011, and continuing through at least
December 2012.” However, the evidence at trial tended to
show at least two separate conspiracies—one between Lapier
and his first supplier, Kanyid, and a later one between Lapier
and his second supplier, Boucher—but not a single
overarching conspiracy. Some jurors might have convicted on
the basis of the Lapier-Kanyid conspiracy and others might
have convicted on the basis of the Lapier-Boucher
conspiracy.
This is a genuine possibility on the record of this case.
Whether there is a “genuine possibility of jury confusion”
depends on the circumstances of a particular case. In
evaluating whether such a “genuine possibility” exists, we
have considered a non-exhaustive list of factors including the
text of the indictment, see, e.g., United States v. Frazin,
780 F.2d 1461, 1468 (9th Cir. 1986), the clarity and
presentation of the government’s argument, see, e.g., United
States v. Gilley, 836 F.2d 1206, 1212 & n.8 (9th Cir. 1988),
the complexity of the evidence, see, e.g., Jeffries v. Blodgett,
5 F.3d 1180, 1195 (9th Cir. 1993), and the clarity or
ambiguity of the jury instructions, see, e.g., United States v.
Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983).
12 UNITED STATES V. LAPIER
Lapier’s argument that such a genuine possibility of jury
confusion existed here is especially strong in light of a
colloquy between the district court and the prosecutor during
argument pertaining to Lapier’s motion for acquittal at the
end of the government’s case but before the case was
submitted to the jury. During that discussion, the district court
indicated its belief that the government had introduced
evidence of two separate conspiracies: one with Kanyid and
a later one with Boucher. The government acknowledged that
there might be two separate conspiracies: “Your Honor, that
is possible. They were two separate conspiracies. However,
the Defendant was involved in both, yes.”
An independent review of the evidence leads to the same
conclusion. There was evidence that Lapier conspired with
Kanyid from December 2011 until September 2012, and that
Lapier conspired with Boucher from October 2012 until
December 2012. But there was no evidence that Kanyid and
Boucher had any agreement with each other or acted pursuant
to a single conspiracy involving them both and spanning the
single time period charged in the indictment (“beginning in
or before September 2011, and continuing through at least
December 2012”).3 Although the government’s evidence
3
“Generally the time alleged in an indictment is not descriptive of the
offense, and need not be precisely proven.” Arnold v. United States,
336 F.2d 347, 353 (9th Cir. 1964) (quoting Hale v. United States, 149 F.2d
401 (5th Cir. 1945)). However, dates may have particular importance
when the charge alleges a single conspiracy but the evidence tends to
show several conspiracies during the timeframe covered by the indictment.
See, e.g., United States v. Anguiano, 873 F.2d 1314, 1320 (9th Cir. 1989)
(“[T]he language of the indictment cannot reasonably be interpreted as
inviting or allowing jurors to convict Anguiano for the alleged June 13
transaction. . . . June 16, not June 13, is given as the date on which the
conspiracy ended.”).
UNITED STATES V. LAPIER 13
focused primarily on Lapier’s relationship with Kanyid, the
government never excluded Lapier’s relationship with
Boucher as a separate basis for the conspiracy conviction.
The jury in this case was given a general unanimity
instruction: “Your verdict, whether guilty or not guilty, must
be unanimous.” Ordinarily, such an instruction is sufficient to
protect the right to a unanimous verdict. See Payseno,
782 F.2d at 835. Here, however, the indictment was
sufficiently broad and the evidence sufficiently complex as to
create a risk that different jurors voted to convict on the basis
of different facts establishing different offenses. In these
circumstances, the district court was required to give a
specific unanimity instruction sua sponte. See, e.g., id. at 836
(“When . . . a conviction may occur as the result of different
jurors concluding that the defendant committed different acts,
the general unanimity instruction does not suffice. To correct
any potential confusion in such a case, the trial judge must
augment the general instruction to ensure the jury
understands its duty to unanimously agree to a particular set
of facts.” (quoting Echeverry, 719 F.2d at 975)).
Because the evidence in this case tended to show multiple
conspiracies instead of the single charged conspiracy, the
failure to give a specific unanimity instruction was plain error
violating Lapier’s “substantial right to a unanimous jury
verdict as granted by Article III, § 2, and the Sixth
Amendment of the United States Constitution.” Gilley,
836 F.2d at 1212–13. Finally, a conviction notwithstanding a
genuine possibility of jury confusion and risk of a
nonunanimous verdict seriously affects the fairness and
integrity of judicial proceedings because it jeopardizes
Lapier’s constitutional rights.
14 UNITED STATES V. LAPIER
The government argues that any violation of Lapier’s
right to a unanimous verdict was not plain error because there
was not a “high probability that the error materially affected
the verdict.” Anguiano, 873 F.2d at 1319. That seeks to frame
the plain error analysis as requiring Lapier to show that but
for the error, a jury would likely have acquitted him.
However, that is not the proper way to analyze whether
Lapier’s “substantial rights” were violated in this context.
Lapier had a constitutional right to a unanimous jury verdict.
Having determined that the possibility of jury confusion
about what acts formed the basis of his conviction was
“genuine,” we are “not free to speculate” about what his jury
might have concluded had it been properly instructed. See
Payseno, 782 F.2d at 837.
The cases on which the government relies are
distinguishable because they involved circumstances in which
there was little or no potential for jury confusion. The case
most helpful to the government is Anguiano, 873 F.2d at
1318–21. In that case, the court held that the district court’s
failure to give a specific unanimity instruction sua sponte was
not plain error because the indictment in that case “was
drafted with sufficient clarity so as to preclude the possibility
of juror confusion as to what facts must be found before
Anguiano could be convicted,” and that the case’s factual
context “was not so complex as to suggest that juror
confusion was likely.” Id. at 1320. The indictment in
Anguiano named specific co-conspirators in a way that
excluded the alternative conspiracy, and the dates charged in
the indictment matched the charged conspiracy but not the
alternative conspiracy. See id. Further, the evidence and
argument presented at trial made it clear to the jury that the
charged conspiracy to acquire marijuana related to a
UNITED STATES V. LAPIER 15
particular transaction. On that record, there was “little
potential for juror confusion.” Id.
Similarly, in United States v. Kennedy, 726 F.2d 546 (9th
Cir. 1984), a case involving an allegedly duplicitous
indictment, the court found no plain error because “[t]here
was no danger that the jury could convict . . . without
reaching unanimous agreement on a given set of facts.” Id. at
548.
The government also cites United States v. Bosch,
951 F.2d 1546 (9th Cir. 1991), United States v. LeMaux,
994 F.2d 684 (9th Cir. 1993), and United States v.
Hernandez-Escarsega, 886 F.2d 1560 (9th Cir. 1989), in
support of its argument. All are distinguishable. In Bosch, the
defendant argued that the district judge was biased toward the
prosecutor and so should have recused himself; the court
found no plain error because “a close analysis” of the record
“shows that the judge did not favor the prosecutor in any
way.” 951 F.2d at 1548.
Hernandez-Escarsega and LeMaux were continuing
criminal enterprise (CCE) cases. In neither case was a
specific unanimity instruction given. However, in
Hernandez-Escarsega, the jury returned separate convictions
on two of the three required predicate acts needed to prove a
CCE, and the evidence was overwhelming as to nine
additional acts that the jury could have used as the basis for
the third predicate act. The court concluded on that record
that it was “inconceivable” that the jurors would not have
found that the predicate acts alleged had been committed.
Hernandez-Escarsega, 886 F.2d at 1572. In LeMaux, the
court again held that the evidence of each alternative
predicate act was overwhelming because the evidence
16 UNITED STATES V. LAPIER
established a criminal enterprise to distribute cocaine
spanning most of the 1980s; on that record, any error in the
court’s failure to give a specific unanimity instruction
regarding the predicate acts was harmless. See LeMaux,
994 F.2d at 689.
In some cases finding no error or no plain error when no
specific unanimity instruction was given, the district court
effectively gave a specific unanimity instruction without
labeling the instruction as such; the jury returned specific
verdicts or interrogatories that showed unanimity; or the
instructions specified that the jury must unanimously find the
defendant guilty of the single, specific conspiracy charged.4
In others, the court found that the indictment and evidence
were straightforward and presented no genuine possibility of
jury confusion,5 or that the evidence showed only one scheme
or conspiracy.6
As noted previously, there is ordinarily no need to give a
specific unanimity instruction in addition to the general
4
See, e.g., United States v. Frega, 179 F.3d 793, 804 (9th Cir. 1999);
United States v. Melvin, 91 F.3d 1218, 1223 (9th Cir. 1996); United States
v. Smith, 891 F.2d 703, 709 (9th Cir. 1989), amended, 906 F.2d 385 (9th
Cir. 1990); United States v. Morse, 785 F.2d 771, 776–77 (9th Cir. 1986);
United States v. Wellington, 754 F.2d 1457, 1463–64 (9th Cir. 1985);
United States v. Friedman, 445 F.2d 1076, 1084–85 (9th Cir. 1971).
5
See, e.g., United States v. Jimenez Recio, 258 F.3d 1069, 1085–86 (9th
Cir. 2001), rev’d on other grounds, 537 U.S. 270 (2003); United States v.
Wright, 742 F.2d 1215, 1222 (9th Cir. 1984); United States v. Ferris,
719 F.2d 1405, 1407 (9th Cir. 1983).
6
See, e.g., United States v. Castro, 887 F.2d 988, 993–94 (9th Cir.
1989); United States v. Paris, 827 F.2d 395, 402 (9th Cir. 1987); United
States v. Patel, 762 F.2d 784, 793–94 (9th Cir. 1985).
UNITED STATES V. LAPIER 17
unanimity instruction. Each of these cases turns on its
potential, if any, for jury confusion and a non-unanimous
verdict. In our case, by contrast, we have nearly a perfect
storm: (1) the indictment was broadly worded and did not
name the co-conspirators; (2) the indictment covered a
specific time frame marked by specific dates that included
both conspiracies; (3) the evidence adduced at trial credibly
showed at least two separate conspiracies within the text and
scope of the indictment; (4) the district court itself concluded,
after hearing the government’s case, that the evidence showed
two conspiracies;7 and (5) even the prosecutor admitted that
the government may have proved two separate conspiracies.
Thus, in contrast to the cases cited by the government, the
record in our case establishes a genuine possibility of juror
confusion.
The Ninth Circuit recently discussed an issue related to
this case in United States v. Gonzalez, 786 F.3d 714 (9th Cir.
2015). Gonzalez reaffirmed that “a general unanimity
instruction alone is insufficient ‘if it appears “that there is a
genuine possibility of jury confusion or that a conviction may
occur as the result of different jurors concluding that the
defendant committed different acts.’”” Id. at 717 (quoting
United States v. Chen Chiang Liu, 631 F.3d 993, 1000 (9th
Cir. 2011)). However, the court said there that a specific
unanimity instruction was not required with respect to the
overt act element of a conspiracy—in other words, the jury
need not unanimously agree on the particular overt act that
furthered a “unanimously agreed-upon murder conspiracy.”
Id. at 718. This is consistent with Ninth Circuit and Supreme
Court precedent treating the overt act element somewhat
7
This confirms that the need for a specific unanimity instruction was
plain.
18 UNITED STATES V. LAPIER
differently. See Chen Chiang Liu, 631 F.3d at 1000 n.7;
Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality
opinion) (“Our cases reflect a long-established rule of the
criminal law that an indictment need not specify which overt
act, among several named, was the means by which a crime
was committed.”). But the Gonzalez court affirmatively
emphasized that the district court had augmented the general
unanimity instruction with a specific unanimity instruction
requiring the jurors to agree on “the person or persons who
were the intended victims of the murder conspiracy.”
Gonzalez, 786 F.3d at 716. This “additional unanimity
instruction,” in combination with the “nature of the evidence”
in the case, “adequately protected Gonzalez’s right to a
unanimous verdict.” Id. at 719. The identity of the
co-conspirators in Lapier’s case would seem to be at least as
central to the conspiracy charge as the identity of the planned
victim in Gonzalez.
The Gonzalez court’s citation of Echeverry and Payseno,
and its emphasis on the specific unanimity instruction that
was given by the district court, make clear that Gonzalez did
not intend to disturb the rule that jurors must unanimously
agree that the defendant participated in a particular
conspiracy with at least one particular conspirator and an
agreed-upon criminal object. Where the indictment is broad
enough to encompass multiple separate and distinct
conspiracies, the evidence adduced at trial tends to show
multiple conspiracies, and both the district court and the
prosecutor agreed that the evidence could support multiple
conspiracies, a “genuine possibility of juror confusion” would
seem to exist. If so, the district court must give a specific
unanimity instruction sua sponte requiring the jurors to
unanimously agree on which conspiracy the defendant
UNITED STATES V. LAPIER 19
participated in. See Payseno, 782 F.2d at 834–37; Gilley,
836 F.2d at 1211–13.
The government argues (for the first time on appeal)8 that
there was an overarching “hub-and-spoke” conspiracy
involving Lapier, Kanyid, and Boucher, in which Lapier was
the “hub” who gave Kanyid and Boucher access to the
“lucrative” Great Falls market, Kanyid and Boucher were the
“spokes,” and the trio’s various customers were the “rim”
connecting them all9. There is no evidence supporting this
argument, nor does the analogy fit the facts of this case.
The government offered no evidence that Boucher ever
formed an agreement with Kanyid or that Boucher shared
some common purpose with Kanyid (the two did not know
each other and never met). It acknowledges that Kanyid and
Boucher “did not receive any benefits dependent on the
8
The government at trial sometimes argued that there was a conspiracy
involving all of Lapier’s various suppliers and customers, but neither used
the “hub-and-spoke” metaphor nor presented to the jury its theory that
Lapier’s customers were the “rim” of a “hub-and-spoke” conspiracy
linking Lapier, Kanyid, and Boucher.
9
Such an argument might be more appropriate in a continuing criminal
enterprise (CCE) case, which can encompass several agreements. In a
conspiracy case, by contrast, if the government alleges a single
conspiracy, it must prove a single agreement among specified
conspirators. See, e.g., Bibbero, 749 F.2d at 587 (“To establish the
existence of a single conspiracy, rather than multiple conspiracies, the
government must prove that an overall agreement existed among the
conspirators.”); United States v. Kenny, 645 F.2d 1323, 1335 (9th Cir.
1981) (“To follow the wheel metaphor, establishing a single conspiracy
in a case such as this generally requires that the Government supply proof
that the spokes are bound by a ‘rim’; that is, the circumstances must lead
to an inference that some form of overall agreement exists.”).
20 UNITED STATES V. LAPIER
other’s success,” but argues that “Lapier and other members
of the conspiracy received benefits from both suppliers.”
Boucher became one of Lapier’s suppliers after Kanyid was
imprisoned, and Lapier’s relationship with Kanyid did not
overlap with Lapier’s relationship with Boucher. Once
Kanyid was imprisoned, Kanyid had no further involvement
with Lapier and was no longer a participant in a conspiracy
with Lapier. See Sandez v. United States, 239 F.2d 239, 243
(9th Cir. 1956) (“We think that the moment of any
conspirator’s arrest is decisive as to him, even if it should be
maintained that the arrest of the first conspirator is not
conclusive as to all.”). As in United States v. Gordon, there
was no “commonality of time” between the two conspiracies
that could link them. 844 F.2d 1397, 1401 (9th Cir. 1988).
To show a conspiracy, “the circumstances must lead to an
inference that some form of overall agreement exists,” and
that “each defendant knew or had reason to know of the scope
of the conspiracy and . . . reason to believe that their own
benefits were dependent upon the success of the entire
venture.” Kenny, 645 F.2d at 1335 (citations omitted). Here,
there is no evidence of any “common purpose of a single
enterprise” linking Kanyid and Boucher in any collective
agreement with the alleged rim, which consisted of separate
buyers. Canella v. United States, 157 F.2d 470, 476 (9th Cir.
1946) (quoting Kotteakos v. United States, 328 U.S. 750, 769
(1946)).
IV. Conclusion
The district court’s failure to give a specific unanimity
instruction sua sponte was plain error warranting reversal
because it created a genuine possibility of jury confusion and
of a nonunanimous verdict. We therefore REVERSE the
UNITED STATES V. LAPIER 21
conviction of Lapier on Count One and REMAND to the
district court for further proceedings consistent with this
conclusion.10
10
As noted previously in footnote 1, we do not disturb Lapier’s
conviction on Count II because he does not argue before us any error with
regard to that conviction.