United States v. Cruz

HALL, Circuit Judge,

concurring in part and dissenting in part.

Joey Mesa, Jaime Tenorio, Peter Balajadia, and Robert Taitano conspired to distribute more than 200 grams of crystal methamphetamine. When Balajadia informed Mesa that he was unable to complete the delivery, Billy Cruz voluntarily agreed to participate in the drug conspiracy. Cruz flew from California to Honolulu, met Balajadia in his hotel room, and put on a pair of underwear with a pouch sewn into it that he believed contained methamphetamine worth up to $169,000. Had the authorities not intervened, Cruz would have flown to Guam and delivered the drugs. Under Supreme Court and Ninth Circuit precedent, Cruz should be held liable for all of his actions. Accordingly, I dissent from that portion of the majority opinion reversing Cruz’s conspiracy conviction.

The inchoate offense of conspiracy centers upon the agreement to commit an unlawful act, not the commission of the unlawful act itself.' “The accomplishment of the conspiracy’s goal is immaterial to the crime.” United States v. Rueter, 536 F.2d 296, 298 (9th Cir.1976). In United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), the Supreme Court recognized two ends served by the law of conspiracy. First, the law of conspiracy protects society from the dangers of concerted criminal activity. 420 U.S. at 693, 95 S.Ct. at 1260. Second, “[t]he law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order to permit the imposition of criminal sanctions for the agreement alone, plus an overt act ..., regardless of whether the crime agreed upon is actually committed.” 420 U.S. at 694, 95 S.Ct. at 1268. This second end recognizes the criminal intent crystallized in a conspiratorial agreement as dangerous and punishable apart from whether the substantive offense ever is, or even can be, brought to fruition. See also United States v. Roselli, 432 F.2d 879, 892 n. 18 (9th Cir.1970) (“ ‘[Conspiracy] is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices.’”) (quoting United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 685, 59 L.Ed. 1211 (1915)), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971).

Conspiracy is a continuing offense. While a conspirator can withdraw from an ongoing conspiracy, see United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir.1992),1 the withdrawal of one or more conspirators typically will not affect the culpability of the remaining conspirators. See United States v. Taylor, 802 F.2d 1108, 1117 (9th Cir.1986) (conspiracy to sell bank bonds continued even after two of the conspirators, unbeknownst to the remaining conspirators, had been arrested and a portion of the bonds seized), cert. *803denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987). This is so even where the withdrawal results from the arrest of a conspirator of which the other conspirators are unaware, see id., and even where achievement of the ends of the conspiracy is no longer objectively possible. See United States v. Bosch, 914 F.2d 1239, 1241 (9th Cir.1990) (“We have ‘rejected the doctrine of legal impossibility as a defense to a charge of conspiracy.’ ”) (quoting United States v. Everett, 692 F.2d 596, 599 (9th Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1498, 75 L.Ed.2d 930 (1983)); United States v. Brooklier, 685 F.2d 1208, 1217 (9th Cir.1982) (“[Fjactual impossibility is no defense to an inchoate offense.”).

After Balajadia and Taitano had been arrested in connection with the conspiracy to transport drugs to Guam and the drugs had been seized, Mesa and Tenorio, unaware of the arrests and seizure, continued to act in furtherance of the conspiracy. Their criminal intent unabated, they contacted Cruz, who agreed to travel to Honolulu to pick up the drugs from Balajadia and complete their transport to Guam. Cruz’s agreement to join in the plot to transport the drugs, standing alone, supports his culpability under 21 U.S.C. § 846. In United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994), the Supreme Court held that the government need not prove an overt act in order to establish a violation of § 846. Instead, “the criminal agreement itself is the actus reus.” 513 U.S. at 16, 115 S.Ct. at 386. There can be little doubt that by not only agreeing to assist Mesa and Tenorio in transporting the drugs to Guam, but also traveling to Honolulu and attempting to carry out the transport, Cruz evinced the criminal intent necessary to hold him complieit in the conspiracy.2

Cruz’s culpability is not inconsistent with United States v. Castro, 972 F.2d 1107 (9th Cir.1992), cert. denied, 507 U.S. 944, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993), in which we stated that a conspiracy “is presumed to continue until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy.” Id. at 1112. Just as an individual conspirator’s withdrawal from or disavowal of a conspiracy terminates only his participation in the conspiracy, so the efforts of a conspirator to defeat the object of the conspiracy severs only that particular conspirator from the conspiracy. See, e.g., Lothian, 976 F.2d at 1261 (listing “affirmative[ ] act[s] to defeat the purpose of the conspiracy” as one means of withdrawal); United States v. Nicoll, 664 F.2d 1308, 1315 n. 6 (5th Cir. Unit B Jan. 1982) (“To prove withdrawal, a conspirator must show he acted affirmatively to defeat or disavow the purpose of the conspiracy.”), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982). Balajadia’s agreement to cooperate with authorities did no more than sever his own participation in the conspiracy. We should not misconstrue Castro to allow remaining conspirators to avoid culpability for acts in furtherance of a conspiracy simply because one or more of their associates have withdrawn or taken steps to defeat the object of the conspiracy.3

*804United States v. Robertson, 659 F.2d 652 (5th Cir. Unit A Oct.1981), is instructive. The court, even assuming that the primary objective of a conspiracy to distribute marijuana had been thwarted by the Border Patrol before the defendant joined in the conspiracy, nonetheless held that the defendant could be held complieit in the original conspiracy. Id. at 657 n. 2. “There is no indication defendant knew the object of the conspiracy had become impossible. Since a ‘culpable conspiracy may exist even though, because of the misapprehension of the conspirators to certain facts, the substantive crime that is the object of the conspiracy may be impossible to commit,’ any actions taken by a person to achieve the goals of a conspiracy believed to be still in existence would be participating in the conspiracy.” Id. (citations omitted).4

Even if the thwarting of the principal objective of a conspiracy were an event of some significance to the remaining conspirators, we have held in other contexts that an entire conspiracy does not terminate, so long as subsidiary objectives have yet to be achieved. In United States v. Walker, 653 F.2d 1343, 1350 (9th Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982), for instance, the defendant was convicted of bid rigging a timber sale by the United States Forest Service. The court ruled that the conspiracy continued, and thus the statute of limitations did not begin to run, until the defendant had cut the timber, paid a noncompetitive price for it, sold it for an excess profit, and split the excess with his coconspirators. The statute of limitations had not expired because some payoffs of coconspirators took place within the five year limitations period. Walker, 653 F.2d at 1349-50.5 The result has been the same in co conspirator statement cases where the primary objective of the conspiracy had been defeated, not accomplished, before the secondary objective of receiving payment was sought. See United States v. Mason, 658 F.2d 1263 (9th Cir.1981) (holding that conspiracy had not terminated after DEA agent and cooperating conspirator had taken delivery of cocaine from another conspirator but had not yet received payment).

In this case, the conspiracy involved the transportation of drugs to Guam in exchange for payment. While the main objective of transportation ended once the drugs were seized, the subsidiary objective of receiving *805payment in exchange for the transportation continued when Cruz agreed to take Balajadia’s place and deliver the drugs to Guam. In other words, the broad objective was to receive ill-gotten gains from transporting methamphetamine, and the conspiracy continued as Cruz attempted to earn his fee for transporting the drugs.

Cruz’s agreement to transport the drugs represents exactly the sort of deliberate plot to subvert the law that the criminalization of conspiracy is intended to prevent. The fact that he could not carry out his role in the conspiracy because the drugs had been seized should not mitigate the illegality of his agreement. The possibility that a person inBalajadia’s position can ensnare an unlimited number of acquaintances into the conspiracy web after he has agreed to cooperate with authorities is mitigated by the defense of entrapment, which the majority agrees should be rejected in this case. We should not subvert our drug laws and the law of conspiracy to protect those unfortunate enough to join a conspiracy after it has been penetrated by law enforcement.

I therefore would hold that any rational jury could have found beyond a reasonable doubt that the conspiracy continued beyond the time Cruz became involved.6 I would affirm the district court.7

. A conspirator can withdraw from a conspiracy in at least three ways: (1) by disavowing the unlawful goal of the conspiracy; (2) by affirmatively acting to defeat the purpose of the conspiracy; or (3) by taking "definite, decisive, and positive" steps to disassociate himself from the conspiracy. Lothian, 976 F.2d at 1261; see also United States v. Loya, 807 F.2d 1483, 1493 (9th Cir.1987); United States v. Smith, 623 F.2d 627, 631 (9th Cir.1980).

. While it is true that Cruz had not been involved in the conspiracy from its start, " '[o]ne may join a conspiracy already formed and in existence, and be bound by all that has gone before in the conspiracy, even if unknown to him.’ ” United States v. Bibbero, 749 F.2d 581, 588 (9th Cir.1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed.2d 847 (1985) (quoting United States v. Knight, 416 F.2d 1181, 1184 (9th Cir.1969)).

The majority attempts to distinguish Bibbero on the ground that the defendant in that case understood the full scope of and actively participated in the conspiracy. Cruz understood the full scope of the conspiracy to transport drugs, agreed to participate in the conspiracy, and traveled to Honolulu to carry out the drug transport. The mere fact that Cruz could not actually achieve the conspiracy’s primary objective, which had been thwarted by the government’s seizure of the drugs, is irrelevant in light of conspiracy law's focus on the agreement itself, not accomplishment of the substantive offense, and of our rejection of the impossibility defense to a charge of conspiracy.

. Of course, the arrest of all conspirators will both defeat the object of the conspiracy and terminate the conspiracy with regard to each conspirator. See Castro, 972 F.2d at 1112 (deeming a drug conspiracy an ongoing offense because “the object of the conspiracy was not defeated until the final seizure of cocaine and the arrest of the coconspirators.”)

. See also United States v. Katz, 601 F.2d 66, 68 (2d Cir.1979) ("Appellants seem to [argue] that after the coconspirator's arrest and relinquishment of possession of the bonds to government authorities the objective of the conspiracy could no longer be attained. But impossibility is not defense to a conspiracy charge, and so again the argument that the entire conspiracy terminated must fail.”) (citation omitted).

The majority states that it was factually impossible for Cruz to have joined the conspiracy among Mesa, Tenorio, Balajadia, and Taitano after Balajadia and Taitano had been arrested. The majority instead contends that Cruz could only have become a member of a new conspiracy with Mesa and Tenorio. However, we have long recognized that changes in the membership or roles of coconspirators do not convert a single conspiracy into multiple conspiracies. See United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir.1993) ("A mere change in participants ... [is] insufficient to support a finding of multiple conspiracies.”), cert. denied, 511 U.S. 1071, 114 S.Ct. 1648, 128 L.Ed.2d 368 (1994); Marino v. United States, 91 F.2d 691, 696 (9th Cir.1937) ("In the situation where a conspiracy has been formed, the joinder thereof by a new member does not create a new conspiracy.... Where, after formation of a conspiracy, one of the conspirators withdraws, such withdrawal neither creates a new conspiracy, nor changes the status of the remaining members.”), cert. denied, 302 U.S. 764, 58 S.Ct. 410, 82 L.Ed. 593 (1938). Moreover, it is well established that conspirators who take steps to defeat the object of a conspiracy or otherwise withdraw from the conspiracy can escape liability only for the underlying substantive offense, if it is brought to fruition, and not for the conspiracy itself. See Lothian, 976 F.2d at 1262 (”[0]nce an overt act has taken place to accomplish the unlawful objective of the agreement, the crime of conspiracy is complete and the defendant is liable despite his later withdrawal.”). Thus, because Cruz willingly participated in the unlawful agreement among Mesa, Tenorio, Balajadia, and Taitano with the intent of advancing the object of that agreement, it is quite logical for all five to be charged as part of the same conspiracy to distribute methamphetamine.

. Other circuits have agreed that the limitations period does not commence until the conspirators have received the anticipated economic benefits of their crime. United States v. Girard, 744 F.2d 1170, 1172-73 (5th Cir.1984); United States v. Helmich, 704 F.2d 547, 549 (11th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 353, 78 L.Ed.2d 317 (1983); United States v. Mennuti, 679 F.2d 1032, 1035 (2d Cir.1982).

. Such a ruling would require the court to consider the merits of Cruz’s contention that the trial court abused its discretion when it limited the scope of his closing argument. The court’s ruling simply prevented Cruz from making an erroneous legal argument: that the conspiracy had ended simply because several coconspirators had been arrested at the airport. Thus, remand would not be necessary.

. I agree with the majority that the possession conviction must be reversed- However, remanding for resentencing is unnecessary. Nothing in the record suggests that Cruz's conviction for possession enhanced his sentences for conspiracy or attempt. See United States v. Baker, 10 F.3d 1374, 1421 (9th Cir.1993), cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994).