United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2008 Decided December 5, 2008
No. 07-3107
UNITED STATES OF AMERICA,
APPELLEE
v.
PETER R. TURNER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00026-01)
Arthur Luk, appointed by the court, argued the cause for
appellant. With him on the briefs was Michele J. Woods,
appointed by the court.
Edward P. Sullivan, Attorney, U.S. Department of Justice,
argued the cause for appellee. On the brief were Daniel A.
Petalas and Ann C. Brickley, Attorneys. Roy W. McLeese III ,
Assistant U.S. Attorney, entered an appearance.
Before: RANDOLPH, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
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Dissenting Opinion by Circuit Judge TATEL.
RANDOLPH, Circuit Judge: The main issue in this appeal
from a conviction, after a jury trial, is whether the sentence
imposed on the defendant, Peter R. Turner, violated the Ex Post
Facto Clause of the Constitution. U.S. CONST. art. I, § 9. Turner
also raises the question whether the prosecution established his
guilt beyond a reasonable doubt. The evidence, viewed in favor
of the verdict, shows that there was sufficient evidence to
support his conviction.
In 1998, while serving as a volunteer driver for the
Department of Veterans Affairs Medical Center, Turner struck
up a romantic relationship with Vester Mayo, a nurse at the
Medical Center. Vester died in December 2000. She had taken
out a life insurance policy through a federally-administered
program. Her beneficiary designation form, contained in her
personnel file, listed Turner and her mother, Lorenza Mayo, as
co-beneficiaries. In January 2001, Turner filed a claim for his
share of the life insurance benefits and later received a money
market account valued at $20,562.90.
In preparing her claim, Lorenza examined her daughter’s
papers and concluded that Vester’s beneficiary designation form
contained forgeries. The dates on the form were inconsistent,
Lorenza’s name and address were misspelled, and Vester’s
social security number was incorrect. Lorenza reported this to
federal authorities.
The ensuing investigation revealed that shortly after
obtaining his life insurance payout, Turner wrote a $1,000 check
from the proceeds to his friend, LaTanya Andrews. Andrews
was a payroll technician at the Medical Center. She had worked
in the human resources section, which housed employees’
personnel files and was located in the same area as the payroll
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section. A government agent interviewed her in November
2005. At first Andrews said she never received more than $10
from Turner. When the agent showed her the $1,000 check, she
claimed that Turner wrote the check to prove to a car dealership
that she had a checking account. When the agent told her this
made no sense, Andrews said she borrowed the money from
Turner to purchase a car and repaid him sometime before March
2001. Agents found nothing in Andrews’s bank records to
support her claim.
The grand jury charged Turner and Andrews with
conspiracy to defraud the United States, in violation of 18
U.S.C. § 371, and bribery, in violation of 18 U.S.C. § 201(b).
Evidence a reasonable jury could credit showed that Vester’s
signature on the beneficiary form had been forged, that Andrews
had easy access to Vester’s personnel file containing the
beneficiary form, and that Lorenza saw Turner forge her
daughter’s signature on two checks. The jury convicted both
defendants on both counts. On Andrews’s separate appeal, we
affirmed her conviction. United States v. Andrews, 532 F.3d
900 (D.C. Cir. 2008). We now affirm Turner’s.
A sentencing court, applying the Sentencing Guidelines,
must “use the Guidelines Manual in effect on the date that the
defendant is sentenced” unless the court determines that this
would violate the Ex Post Facto Clause of the Constitution, U.S.
CONST. art. I, § 9, in which case the court “shall use the
Guidelines Manual in effect on the date that the offense of
conviction was committed.” U.S. SENTENCING GUIDELINES
MANUAL §§ 1B1.11. The Ex Post Facto Clause bars the
retroactive application of “enactments which . . . increase the
punishment for a crime after its commission.” Garner v. Jones,
529 U.S. 244, 249 (2000). When Turner received his share of
the proceeds of Vester Mayo’s life insurance policy in 2001, the
Guidelines set the base offense level for conspiracy to defraud
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the United States at 10. A 2004 amendment to the Guidelines
increased the base offense level for his crime to 14.1 This was
the base level in the 2006 Guidelines the district court used
when sentencing Turner in September 2007 to 33 months’
imprisonment. As Turner sees it, the district court violated the
Ex Post Facto Clause by applying the later edition of the
Guidelines and thereby increasing his Guideline range from
21–27 months to 33–41 months. Unlike his co-defendant
Andrews, see Andrews, 532 F.3d at 908, Turner preserved this
issue by making a proper objection at sentencing.
The government counters that the conspiracy continued
through 2005 when Andrews lied to the investigators in order to
conceal her role and Turner’s role in the fraud. Because the
base offense level for Turner’s conspiracy when he committed
the offense (through 2005) was the same as the Guideline base
offense level when he was sentenced (2007), the government
says there is no ex post facto problem.
Turner’s argument and the government’s answer require us
to determine the duration of the conspiracy between him and
Andrews. Typically, questions about when a conspiracy ended
arise in cases in which the defendant raises a statute of
limitations defense, as in Grunewald v. United States, 360 U.S.
391 (1957), or in which the defendant objects that a co-
conspirator’s statement was hearsay because it was not made in
1
The amendment imposed a two-point increase in the
offense level for a defendant who is a “public official.” See U.S.
SENTENCING GUIDELINES MANUAL § 2C1.1 (2004). The
government concedes that the district court erred when it
determined that Turner was a public official under the amended
Guidelines. Because we hold that the Ex Post Facto Clause
required the court to use the 2000 Guidelines, the error will not
be repeated on remand.
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furtherance of an ongoing conspiracy, as in Krulewitch v. United
States, 336 U.S. 440 (1949), and Lutwak v. United States, 344
U.S. 604 (1953). Even though we must determine the duration
of a conspiracy in a different context – sentencing – cases such
as those just cited are controlling.
The government says that the conspiracy continued through
2005 because the indictment alleged that one object of the
conspiracy was “to conceal the conspiracy itself and the acts
committed in furtherance thereof.” The government’s idea is
that “the language of the indictment is controlling.” Gov’t Br.
at 30. If this is supposed to mean that one need look only at the
indictment to determine the duration of the conspiracy, the
government is quite mistaken. The indictment in Lutwak, 344
U.S. at 617, charged a conspiracy to transport a woman across
state lines for the purpose of prostitution, and – like the
indictment in this case – alleged concealment of the crime as
part of the conspiracy. Yet the Supreme Court held that the
conspiracy did not continue after the transportation occurred.
The indictment in Grunewald charged that “one of the terms of
the illegal agreement was that continuing efforts would be made
‘to avoid detection and prosecution by any governmental
body.’” United States v. Grunewald, 233 F.2d 556, 565 (2d Cir.
1956). Yet the Supreme Court held that the conspirators’ acts
of concealment after the central object of the conspiracy had
been accomplished did not extend the life of the conspiracy.
Grunewald, 353 U.S. at 414; see Forman v. United States, 361
U.S. 416, 423–24 (1960), overruled on other grounds by Burks
v. United States, 437 U.S. 1 (1978). The portion of this court’s
opinion in United States v. Hitt, 249 F.3d 1010, 1015–16 (D.C.
Cir. 2001), upon which the government relies, simply strings
together citations and quotations from the cases. It does not,
indeed could not, disagree with Grunewald or Lutwak.
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But the government says it proved a conspiracy continuing
after 2001, the year Turner reaped the results of his fraud and
paid Andrews $1,000 for her help. The government’s evidence
consisted of Andrews’s lying to investigators in 2005. Was this
part of the conspiracy or had the conspiracy ended by then? The
indictment did not allege, and the government did not prove, any
express agreement between Turner and Andrews to conceal their
offense after they had pocketed the proceeds. Yet one might
reason that because a conspiracy cannot function except in
secrecy, an agreement to avoid detection was implicit. The
theory is plausible, but in Krulewitch and again in Lutwak and
once again in Grunewald the Supreme Court rejected the theory
“that in every conspiracy there is implicit an agreement as a part
thereof for the conspirators to collaborate to conceal the
conspiracy.” Lutwak, 344 U.S. at 616. The government’s
position here is identical to the position it took in Grunewald: “a
conspiracy to conceal is being implied from elements which will
be present in virtually every conspiracy case, that is, secrecy
plus overt acts of concealment.” 353 U.S. at 404. If this were
enough to keep the conspiracy alive after accomplishment of its
central objects, the statute of limitations would never run until
the conspirators’ death, conviction, or confession. “Sanctioning
the government’s theory,” the Court held in Grunewald, 353
U.S. at 402, “would for all practical purposes wipe out the
statute of limitations in conspiracy cases, as well as extend
indefinitely the time within which hearsay declarations will bind
co-conspirators.”
Nothing we have written thus far is inconsistent with
Forman v. United States, 361 U.S. at 423–24. The main charge
in Forman was a conspiracy to evade income taxes. The Court
seemed to agree – the opinion is a bit opaque on this point – that
a “subsidiary conspiracy” to conceal the conspiracy would not
extend the conspiracy’s life. But the court added that the
“essence of the conspiracy” to evade taxes was concealing
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income and to be successful the concealing had to continue until
the statute of limitations ran. Id. at 420, 424. Thus, a jury could
have found that the conspiracy in Forman continued even after
the tax returns were filed, but it could not base this finding on
some subsidiary conspiracy to conceal the main conspiracy.2
We admit that the Forman line is a bit elusive. Grunewald itself
is not all that clear. The Court in Grunewald hinted – but did not
hold – that the conspiracy there might have been extended if,
rather than an implied agreement, there had been “an express
original agreement among the conspirators to continue to act in
concert in order to cover up, for their own self-protection, traces
of the crime after its commission.” 353 U.S. at 404; see Pyramid
Secs. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1118 (D.C. Cir.
1991). The distinction between an “express” agreement to
conceal and one that is inferred is not so easily justified – both
would have the effect of indefinitely extending the limitations
period and, as the Court recognized, such a subsidiary
agreement is implicit, if not explicit, in every conspiracy. See
Grunewald, 353 U.S. at 403-04; Lutwak, 344 U.S. at 616;
Krulewitch, 336 U.S. at 444.
2
In trying to squeeze this case into the Forman
framework, the dissent asserts that the “essence” of the
conspiracy here was concealing the “rightful” beneficiary’s
identity. That is an exceedingly odd formulation. One would
have thought that the “essence” or main objective was getting
hold of the insurance proceeds. Of course Turner and Andrews
wanted to avoid detection, and of course, after Turner got the
money, disclosure of the “rightful” beneficiary would have done
him and Andrews in. But extending the life of a conspiracy on
that basis is exactly what the Supreme Court refused to do in
Grunewald and Lutwak and Krulewitch. All the dissent has
managed in so many words is to restate the same theory those
decisions reject.
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However murky the distinction just mentioned, it is one that
is of no consequence in this case. As we have discussed, the
only possible way to find an agreement between Turner and
Andrews to conceal their conspiracy is to infer its existence
from Andrews’s encounter with the agents in 2005. That puts
the case squarely within the Krulewitch-Lutwak-Grunewald
pattern and leads to the conclusion that the conspiracy did not
continue after 2001. We therefore disagree with the district
court’s ruling that the conspiracy continued through January
2006.
This brings us to the question whether sentencing Turner
under the newer Guidelines violated the Ex Post Facto Clause.
The Guidelines in effect in 2001 yielded a sentencing range for
Turner of 21 to 27 months’ imprisonment. Under the later
Guidelines the district court came up with a sentencing range of
33 to 41 months. These disparities render Turner’s case
analogous to Miller v. Florida, 482 U.S. 423, 424 (1987). In
Miller, the defendant’s “presumptive sentence” under the
Florida guidelines in effect when he committed the offense was
3 ½ to 4 ½ years’ imprisonment. By the time the court
sentenced the defendant, revisions in the state’s guidelines had
increased his presumptive sentence to 5 ½ to 7 years’
imprisonment. The trial court imposed a 7-year sentence. The
Supreme Court held that the newer guidelines constituted an ex
post facto law because the defendant had been “substantially
disadvantaged.” Id. at 432. It was no answer to say that the
defendant might have received the same sentence under the old
version of the guidelines. Id. at 432. While the Florida trial
court was not bound to give the presumptive sentence, the
court’s discretion to give a different sentence was quite limited,
and so as a practical matter the change in the guidelines
increased the defendant’s sentence. Quoting Weaver v. Graham,
450 U.S. 24, 36 (1981), the Court concluded that the new
guidelines made “more onerous the punishment for crimes
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committed before [their] enactment.” Miller, 482 U.S. at 435.
In the federal system, the courts of appeals relied on Miller to
hold that applying post-offense Guideline revisions would
violate the Ex Post Facto Clause if the revisions increased a
defendant’s sentencing range. See United States v. Seacott, 15
F.3d 1380, 1384–86 (7th Cir. 1994) (collecting cases).
Since Miller, the Supreme Court has rendered the federal
Sentencing Guidelines advisory only. United States v. Booker,
543 U.S. 220 (2005). The Seventh Circuit believes Booker
alters the ex post facto analysis. See United States v. Demaree,
459 F.3d 791, 795 (7th Cir. 2006). The court of appeals
concluded “that the ex post facto clause should apply only to
laws and regulations that bind rather than advise, a principle
well established with reference to parole guidelines whose
retroactive application is challenged under the ex post facto
clause.” Id. at 795 (citing Garner, 529 U.S. at 251, 255–56; Cal.
Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)). The court
gave two other reasons. One was that after Booker district
judges have “unfettered” freedom to impose sentences outside
the sentencing range and sentences within the range are not
presumptively reasonable. Demaree, 459 F.3d at 795. The
second was that if new Guidelines could not be used because of
an ex post facto problem, district judges would get around the
problem by saying that they were just taking into account the
information that led to the new Guideline. Id.
As to Demaree’s second reason, we reject the idea that
district judges will misrepresent the true basis for their actions.
As to Demaree’s first reason, the Supreme Court has since
confirmed that appellate courts may apply a presumption of
reasonableness to a district court sentence calculated in
conformity with the Guidelines. United States v. Rita, ___ U.S.
___, 127 S.Ct. 2456 (2007); see United States v. Dorcely, 454
F.3d 366, 376 (D.C. Cir. 2006). As a result, judges are more
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likely to sentence within the Guidelines in order to avoid the
increased scrutiny that is likely to result from imposing a
sentence outside the Guidelines. See, e.g., Graham C. Mullen &
J.P. Davis, Mandatory Guidelines: The Oxymoronic State of
Sentencing After United States v. Booker, 41 U. Rich. L. Rev.
625 (2007). It is hardly surprising that most federal sentences
fall within Guidelines ranges even after Booker – indeed, the
actual impact of Booker on sentencing has been minor. See
UNITED STATES SENTENCING COMMISSION, FINAL REPORT ON
THE IMPACT OF UNITED STATES V. BOOKER ON FEDERAL
SENTENCING 57 (2006); UNITED STATES SENTENCING
COMMISSION, FINAL QUARTERLY DATA REPORT FISCAL YEAR
2007 1 (2008). Practically speaking, applicable Sentencing
Guidelines provide a starting point or “anchor” for judges and
are likely to influence the sentences judges impose. See United
States v. Settles, 530 F.3d 920, 923–24 (D.C. Cir. 2008);
Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial,
117 Harv. L. Rev. 2463, 2515–19 (2004); see also Demaree, 459
F.3d at 792.
In addition, under the law of this circuit the existence of
discretion does not foreclose an ex post facto claim, as Demaree
supposed. “The controlling inquiry,” we held in Fletcher v.
Reilly, 433 F.3d 867, 876 (D.C. Cir. 2006), is how the parole
authority “exercises discretion in practice” and whether “the
exercises of discretion . . . actually ‘create [ ] a significant risk
of prolonging [an inmate’s] incarceration’” (quoting Garner,
529 U.S. at 251). The proper approach is therefore to conduct
an “as applied” constitutional analysis, see Miller, 482 U.S. at
435, not the sort of facial analysis conducted in Demaree. When
the district court sentenced Turner to 33 months’ imprisonment,
it did not pull the number out of thin air. Turner’s sentencing
range under the Guidelines then in effect was 33–41 months, see
U.S. SENTENCING GUIDELINES MANUAL, Sentencing Table, or
so the court thought. It is obvious that the court decided to
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sentence Turner at the low end of the 2006 Guideline sentencing
range. Had the court used the 2000 Guidelines, Turner’s
sentencing range would have been 21–27 months, and it is likely
that Turner’s sentence would have been less than 33 months.
Turner did not have to show definitively that he would have
received a lesser sentence had the district court used the 2000
Guidelines. See Miller, 482 U.S. at 432. It is enough that using
the 2006 Guidelines created a substantial risk that Turner’s
sentence was more severe, thus resulting in a violation of the Ex
Post Facto Clause. See Miller, 482 U.S. at 433.
We therefore must remand for resentencing. We have
considered and rejected Turner’s other arguments, including his
claim that he should have been sentenced to home confinement
because of his medical condition. On remand the district court
will of course consider Turner’s medical condition as it exists at
time of resentencing.
So ordered.
TATEL, Circuit Judge, dissenting in part: Although I
share my colleagues’ concerns about the implications of the
government’s argument, I cannot so easily dismiss Forman v.
United States, 361 U.S. 416 (1960), overruled on other
grounds by Burks v. United States, 437 U.S. 1 (1978).
In Forman the Supreme Court considered whether the
applicable six-year statute of limitations barred the
government from prosecuting a tax evasion conspiracy seven
years after the filing of the last fraudulent tax return. The
conspirators were two partners in a pinball machine business
who robbed the machines at the most profitable locations,
concealed the money from the location owners who were
entitled to a cut, and omitted the “holdout income” from the
partnership’s books and tax returns. Forman, 361 U.S. at
418-19. At the same time, Forman’s business partner, Seijas,
kept diaries recording his share of the purloined profits but
paid no individual income tax on them. Id. at 419. The
indictment charged the partners with conspiracy to evade
Seijas’s individual income taxes and to provide false
statements to the Treasury Department to conceal his true
income tax liability. Id. at 417. A jury convicted the partners
on both counts. Id.
On appeal the Ninth Circuit acknowledged record
evidence that Forman participated in a conspiracy to evade
Seijas’s income taxes, that he made false statements
concealing the evasion within the six years immediately prior
to the indictment, and that concealment of the holdout income
continued until Seijas turned his diaries over to federal agents
just before the filing of the indictment. Forman v. United
States, 259 F.2d 128, 133-34 (9th Cir. 1958). But finding that
the case had been submitted to the jury on a theory foreclosed
by Grunewald v. United States, namely that “a subsidiary
conspiracy to conceal may . . . be implied from circumstantial
evidence showing merely that the conspiracy was kept a
secret,” 353 U.S. 391, 402 (1957), it reversed the conviction.
2
Forman, 259 F.2d at 134-35. On rehearing, however, the
Ninth Circuit agreed with the government that a permissible
alternative theory could support a conviction, so it remanded
for a new trial. Forman v. United States, 261 F.2d 181, 183
(9th Cir. 1959). Specifically, it concluded that the overt acts
charged in the six-year period before the indictment “could
well have been in furtherance of and during a conspiracy
having as its objective not the concealment of the
conspirators’ conspiracy but tax evasion” itself. Id.
The Supreme Court affirmed, agreeing that the
government could attempt to prove in a new trial that the
conspiracy continued seven years after the last fraudulent tax
return. Forman, 361 U.S. at 422-24. Critically for our
purposes, the Court relied not on the existence of a
“subsidiary conspiracy” between the partners in the ensuing
years to conceal their already-completed crime, but rather on
the possibility that the tax evasion conspiracy itself continued
until that date. Id. Because the filing of fraudulent tax returns
was “but the first step in the process of evasion,” id. at 423-
24, and because the partners would be unable to achieve their
objective until the government could no longer collect taxes
on the withheld income, id. at 424, the Court concluded that
the indictment alleged and that evidence supported “one
continuing conspiracy” of tax evasion, id. In other words, the
Court held, the conspiracy could continue until seven years
after the filing of the last fraudulent tax return because the
acts of concealment furthered the conspiracy’s very objective.
Indeed, even the Grunewald Court recognized that a
conspiracy could extend in this manner, though it found that
the government hadn’t proceeded on such a theory in that
case. There the Court stated that “acts of concealment done
in furtherance of the main criminal objectives of the
conspiracy” can prolong the conspiracy because “successful
3
accomplishment of the crime necessitates concealment”; by
contrast, “acts of concealment done after these central
objectives have been attained, for the purposes only of
covering up after the crime,” cannot prolong the conspiracy.
Id. at 405. In Grunewald the Court suggested that this
distinction may turn more on the scope of the conspiracy
alleged and proven to the jury than on the particular acts of
concealment. Thus, although the Court disagreed that acts
concealing a conspiracy to obtain rulings that temporarily
barred prosecution for tax evasion furthered the conspiracy
beyond the date the defendants obtained the rulings, it
emphasized that the very same acts could continue the
conspiracy if its objective were to evade tax liability
permanently rather than simply to obtain temporary no-
prosecution rulings. See id. at 408-11. Indeed, the Court
reversed the defendant’s conviction only because it doubted
that this second theory of the conspiracy’s objectives had
been submitted to the jury. Id. at 411.
Dismissing Forman’s relevance, this court concludes that
the case before us must fall in the Grunewald line of cases
because “the only possible way to find an agreement between
Turner and Andrews to conceal their conspiracy is to infer its
existence.” Maj. Op. at 8. Perhaps the court means that
proving a subsidiary conspiracy to conceal the principal
criminal conspiracy after the latter realizes its objectives
requires direct evidence of an agreement to conceal that is
lacking here. If so, I agree, but Forman’s holding and
Grunewald’s reasoning require that we answer a second
question: whether the concealment could continue the
principal conspiracy itself by furthering its very objectives.
Sidestepping this question, my colleagues observe that the tax
evasion conspiracy in Forman continued because the
“‘essence’” of tax evasion is concealment, Maj. Op. at 6-7
(quoting Forman, 361 U.S. at 420), without considering
4
whether the “essence” of the conspiracy here could amount to
concealment as well. I believe the answer to that question is
yes. Just as “the ‘essence of [a] conspiracy’ to evade taxes
[is] concealing income,” Maj. Op at 6-7 (quoting Forman,
361 U.S. at 420), the essence of the conspiracy here is
concealing the identity of the rightful beneficiary of federal
insurance proceeds.
I see no basis for distinguishing this case from Forman.
As in Forman, where the government charged the defendants
with conspiring to make false statements for the purpose of
“concealing from the Treasury Department” the conspirators’
true tax liability, 259 F.2d at 129-30, the government here
charged Turner and Andrews with conspiring to “defraud the
United States by impairing, impeding, and defeating the
lawful functions and duties” of the agencies charged with
implementing and overseeing the federal life insurance
program, Indictment ¶ 7(a). At trial, the government
produced evidence that these agencies have ongoing duties
and investigatory authority to ensure that federal life
insurance proceeds are properly distributed, as well as
authority to recover wrongful distributions. The government
also produced evidence that the agencies actually conducted
such an investigation and that overt concealment occurred
during 2005. In other words, the indictment charged and the
government offered evidence that the original receipt of
insurance proceeds was “but the first step in the process of”
defrauding the United States government, Forman, 361 U.S.
at 423-24, and that the ongoing concealment advanced this
broader goal.
I share my colleagues’ concern that, under the
government’s theory, the statute of limitations might never
run “until the conspirators’ death, conviction, or confession,”
Maj. Op. at 6—provided, of course, that the conspirators
5
engage in overt acts of concealment in the meantime. Indeed,
just as in Forman, the government could charge virtually any
conspiracy to commit a property crime as one that necessarily
entails continuing concealment. See, e.g., Grunewald, 353
U.S. at 405 (“[R]epainting a stolen car would be in
furtherance of a conspiracy to steal [because] the successful
accomplishment of the crime necessitates concealment.”).
But these are the consequences of the Supreme Court’s
holding in Forman and its reasoning in Grunewald. Because
I feel bound by both, I reluctantly dissent.