363 P.3d 120
Ariz. Ct. App.2015Background
- Usef Simmons was tried by jury and convicted on multiple drug-related charges arising from undercover purchases arranged by phone in Cochise County, Arizona.
- The undercover agent repeatedly contacted Simmons using a cell number linked to him to arrange buy-sell transactions between Jan 28 and Feb 12, 2013.
- Some transactions involved third parties (codefendants Cristy Mast and Shannon Curry) who met the agent and made the deliveries; other scheduled meetings resulted in only the agent showing up.
- Simmons was found in possession of a cell phone tied to the contact number when arrested; phone data before Feb 22 was not recovered.
- The indictment included five counts charging use of a wire/electronic communication to facilitate or conspire to commit drug felonies (A.R.S. § 13-3417(A)); the jury convicted on those counts among others.
- On appeal, the primary legal question was whether a seller (principal) communicating only with the buyer (other principal) can be convicted under § 13-3417(A) when there is no evidence he used a wire/electronic communication with a third party to facilitate or conspire.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a seller can violate § 13-3417(A) by using a phone only to arrange a buy-sell transaction with the buyer | State: Simmons used his cell to communicate with the officer about sales; that use violated § 13-3417(A) regardless of later events | Simmons: A principal-to-principal phone call in a buy-sell is not ‘‘facilitation’’ or ‘‘conspiracy’’ under the statute; convictions on those counts are invalid | Vacated convictions for five § 13-3417(A) counts because principal-to-principal communications alone do not meet statutory definitions of facilitate or conspire |
| Meaning of “facilitate” and “conspire” in § 13-3417(A) | State: Broad/common meaning applies; communications that make a sale easier suffice | Simmons: Statutory definitions of facilitation and conspiracy control and require aiding someone other than a primary actor or an agreement beyond a simple buy-sell | Court: Apply statutory definitions (§§ 13-1004, 13-1003); these exclude ordinary buyer-seller communications as facilitation or conspiracy |
| Sufficiency of evidence that Simmons used wire/electronic communication with third parties (Mast, Curry) | State: Presence of third-party sellers and phone use by Simmons suffice to support counts involving those dates | Simmons: No evidence he used the phone to communicate with Mast or Curry before Feb 22; phone data unavailable | Court: Insufficient evidence to show Simmons used phone to facilitate or conspire with Mast or Curry; vacated those counts |
| Whether conspiracy conviction for broader scheme is supported | State: Phone arrangements plus others’ deliveries prove conspiracy | Simmons: (raised but not dispositive) challenge to conspiracy classification | Court: Conspiracy conviction under § 13-1003(A) (count 14) is supported and remains intact |
Key Cases Cited
- State v. Sarullo, 219 Ariz. 431 (App. 2008) (standard: view facts in light most favorable to sustaining convictions)
- State v. Fernandez, 216 Ariz. 545 (App. 2007) (discussion of fundamental error review)
- State v. Stroud, 209 Ariz. 410 (App. 2005) (insufficiency of evidence as fundamental error)
- Abuelhawa v. United States, 556 U.S. 816 (2009) (interpreting federal analog: buyer-seller phone calls do not constitute facilitation)
- United States v. Lennick, 18 F.3d 814 (9th Cir. 1994) (conspiracy requires agreement to commit a crime beyond the sale itself)
- State v. Chitwood, 73 Ariz. 161 (1952) (agreement to commit offense that requires concerted action not shown by simple buy-sell)
- State v. Garfield, 208 Ariz. 275 (App. 2004) (vacating convictions when evidence insufficient)