921 F.3d 951
10th Cir.2019Background
- In 2016 an ATF confidential informant (CI) bought meth after contacting Gaspar Leal, who arranged two separate transactions: the "Tapia" sale (June 8, 2016) and the "Carmona" sales (July 25 and Aug 3, 2016).
- Leal received payment in his jail commissary for arranging the Tapia transaction and placed calls from jail to facilitate both deals; different sellers and facilitators were involved in each transaction.
- Leal was tried and convicted on a conspiracy charge arising from the Tapia transaction (jury convicted Dec. 20, 2017) and later indicted in a superseding Carmona indictment charging a separate conspiracy continuing through Aug. 3, 2016.
- Leal moved to dismiss the Carmona conspiracy count on double jeopardy grounds, arguing both indictments charged the same conspiracy; the district court denied the motion.
- The Tenth Circuit considered whether the two charged conspiracies were interdependent (a shared single criminal objective), which would make a second prosecution barred by double jeopardy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Tapia and Carmona indictments allege the same conspiracy for double jeopardy purposes | Leal: both prosecutions arise from a single conspiracy he formed with the CI and others; the Carmona indictment’s open start date suggests overlap | Government/District Ct: the two transactions involved different sellers, facilitators, times, and lacked evidence of a shared objective or dependence | Court: No double jeopardy; the conspiracies were not interdependent and thus are separate offenses |
| Whether the involvement of the same CI (and Leal’s repeated role) makes the schemes one conspiracy | Leal: CI participation and Leal’s repeated arranging of deals show a continuing scheme | Government: an informant cannot be a co-conspirator; CI’s presence does not establish interdependence between independent sellers | Court: CI’s role cannot by itself create a single conspiracy; informant cannot be counted as conspirator; Leal failed to show shared goal |
| Whether Rule 404(b) evidence that the Tapia deal will be used at the Carmona trial proves interdependence | Leal: planned introduction of Tapia evidence shows common plan and supports interdependence | Government: 404(b) notice shows intent/knowledge/absence of mistake, not necessarily a single conspiracy | Court: 404(b) evidence may show similarity or plan but does not establish the necessity/advantage relationship required for interdependence |
| Whether temporal overlap is shown by the Carmona indictment’s unspecified start date | Leal: unspecified start could encompass the Tapia period, creating overlap | Government/District Ct: record shows Carmona planning began around July 21, after Tapia (June 8); no evidence agreements overlapped | Court: No time overlap shown; district court’s finding of no overlap not clearly erroneous |
Key Cases Cited
- Abney v. United States, 431 U.S. 651 (1977) (pretrial denial of double jeopardy dismissal is immediately appealable under collateral order doctrine)
- Braverman v. United States, 317 U.S. 49 (1942) (conspiracy crime defined by the agreement that embraces its objects)
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two statutory offenses are the same for double jeopardy)
- Kotteakos v. United States, 328 U.S. 750 (1946) (wagon-wheel conspiracy concept; separate conspiracies may exist without a unifying rim)
- Watson v. United States, 594 F.2d 1330 (10th Cir. 1979) (major buyers from a single wholesaler may be inferred to know of a wide-ranging conspiracy)
- Mintz v. United States, 16 F.3d 1101 (10th Cir. 1994) (interdependence found where separate schemes shared an ultimate goal)
- Sasser v. United States, 974 F.2d 1544 (10th Cir. 1992) (defendant bears burden to prove two conspiracies are the same; mere common participant insufficient)
- Pickel v. United States, 863 F.3d 1240 (10th Cir. 2017) (elements of conspiracy and evidence needed to show co-conspirators’ activities benefited each other)
- Evans v. United States, 970 F.2d 663 (10th Cir. 1992) (distinguishes chain and wagon-wheel conspiracies; shared single objective required for rim)
- Daily v. United States, 921 F.2d 994 (10th Cir. 1990) (focus on interdependence—whether conduct in one aspect was necessary or advantageous to another)
- Barboa v. United States, 777 F.2d 1420 (10th Cir. 1985) (no indictable conspiracy when agreement is only between defendant and government agents/informers)
- United States v. Jones, 858 F.3d 221 (4th Cir. 2017) (substantial overlap in personnel, time, and scope can make one conspiracy encompass earlier conduct)