PEOPLE v JUSTICE (AFTER REMAND)
Docket No. 105352
Supreme Court of Michigan
Decided May 16, 1997
Argued November 13, 1996 (Calendar No. 11).
454 Mich 334
In an opinion by Justice Riley, joined by Chief Justice Mallett, and Justices Brickley, Boyle, and Weaver, the Supreme Court held:
In order to bind a defendant over for conspiracy there must be probable cause to believe that the respective conspirators intended to accomplish the substantive offense. The district court‘s finding, with respect to count I, that probable cause existed to believe that the defendant was guilty of conspiracy, did not constitute an abuse of discretion because the evidence was sufficient to allow a reasonable trier of fact to infer that the defendant and his coconspirator specifically intended to possess with an intent to deliver over 650 grams of cocaine at a point during the period charged by the people. With respect to count II, it was not an abuse of discretion to find that probable cause existed to believe that the defendant con
- Conspiracy is defined at common law as a partnership of two or more persons in criminal purposes that is complete upon formation of an unlawful agreement. It must be shown that the parties specifically intended to further, promote, advance, or pursue an unlawful objective. Direct proof of agreement is not essential; instead, proof may be derived from the circumstances, acts, and conduct of the parties. Courts must examine the circumstantial evidence to determine the conspiracy‘s scope; however, any inferences drawn must be reasonable. To convict a person of conspiracy to possess with an intent to deliver a controlled substance, the people must prove that the defendant possessed the specific intent to deliver the statutory minimum of a controlled substance as charged, that the conspirators possessed the specific intent to deliver the statutory minimum as charged, and that the conspirators possessed the specific intent to combine to deliver to a third person the statutory minimum as charged.
- With respect to count I the people presented evidence that would permit a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that the defendant could have conspired with a coconspirator to possess with an intent to deliver over 650 grams of cocaine, the coconspirator could have conspired with the defendant to possess with an intent to deliver over 650 grams of cocaine, and the defendant and the coconspirator could have possessed the intent to combine to deliver to another coconspirator and others over 650 grams of cocaine. It was not an abuse of discretion by the district court to so find.
- With respect to count II, it was not an abuse of discretion to find that probable cause existed to believe that the defendant could have conspired with a second coconspirator to possess with an intent to deliver more than 225 but less than 650 grams of cocaine at a point during the period charged by the people.
Affirmed.
Justice CAVANAGH, dissenting, stated that the district court abused its discretion in binding the defendant over on the conspiracy charges of possession with intent to deliver over 650 grams of cocaine, possession with intent to deliver between 225 and 650 grams of cocaine.
Notably absent from the majority‘s holding and analysis is the requirement that both conspirators must possess the specific intent
With regard to count I, the record is void of any evidence that there was any kind of agreement that there would be deliveries of the quantities necessary to reach the level charged in this count. Rather than being considered as part of an ongoing conspiracy to deliver cocaine, the testimony indicates that the drug transactions are properly labeled as separate transactions. To have Mr. Justice bound over on count II, the prosecutor would need to pile inference upon inference. Because there is no evidence in the record to indicate that Mr. Justice knew that a coconspirator intended to redistribute some of the cocaine, the prosecution must infer that intent from the quantities delivered to the coconspirator. Then, the prosecution must infer that she intended to redistribute the charged amount of between 225 and 650 grams. It was an abuse of discretion for the court to bind Mr. Justice over on this count because there was insufficient evidence presented at the preliminary examination to support a finding of probable cause.
Justice KELLY took no part in the decision of this case.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Diane M. Smith, Prosecuting Attorney, and Robert J. Engel, Assistant Prosecuting Attorney, for the people.
Steven C. Bullock for the defendant.
Amicus Curiae:
Stuart G. Friedman for Criminal Defense Attorneys of Michigan, Inc.
AFTER REMAND
RILEY, J. In the matter before us, this Court is asked to decide whether the district court abused its discretion in binding defendant over on two counts of conspiring to possess with an intent to deliver cocaine,
This Court holds that in order to bind defendant over on the two counts of conspiracy there must be probable cause to believe that defendant and the coconspirators shared the specific intent to accomplish the substantive offenses charged. We conclude, with respect to count I, that the district court‘s finding that probable cause existed to believe defendant was guilty of conspiracy to possess with an intent to deliver more than 650 grams of cocaine did not constitute an abuse of discretion because the evidence was sufficient to allow a reasonable trier of fact to infer that defendant and the coconspirator had a specific intent to deliver the statutory amount as charged. Also, we conclude, with respect to count II, that it was reasonable to find probable cause existed to believe that defendant conspired with the coconspirator to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine because there was testimony at the preliminary examination that enabled the district court to infer that defendant and his coconspirator specifically intended to combine to deliver over 225 but less than 650 grams of cocaine.
Therefore, we affirm both the Court of Appeals decision concluding that there was no abuse of discretion in the district court‘s bindover on count I and
I
On June 26, 1991, pursuant to
A preliminary examination was held on May 13, 1992. At the hearing, it was established that defendant, who lived in Ann Arbor, Michigan, supplied
When Boyer wanted to purchase cocaine, she would telephone defendant. Sometimes she would drive to Ann Arbor to make the purchases, while at other times she and defendant would meet either in West Branch or Bay City, which was approximately halfway between their homes. Boyer‘s husband, and other individuals, occasionally accompanied her on her trips to Ann Arbor.6 When Boyer would arrive at defendant‘s residence, her passengers would usually wait for her while she met with defendant to obtain the cocaine. These individuals were aware of the purpose of the drive and sometimes used some of the
Boyer purchased approximately fifty-four ounces (1,530.90 grams) of cocaine from defendant between the fall of 1989 until she moved to Florida in May of 1990, because she feared the possibility of a grand jury indictment. Thereafter, Kausler began purchasing directly from defendant. Besides meeting defendant at various locations in Ann Arbor, she met him8 between
At the conclusion of the preliminary examination, defendant objected to being bound over, arguing that
Finding persuasive the people‘s contention, the district court concluded that probable cause existed to believe defendant committed the charged offenses.
On November 3, 1992, the circuit court concluded that the district court abused its discretion, finding that there was insufficient evidence at the preliminary examination “to establish probable cause that the defendant conspired to deliver the volume charged.”
The Court of Appeals peremptorily reversed the circuit court‘s order and reinstated the charges. On February 28, 1994, in lieu of granting leave to appeal, this Court vacated the Court of Appeals peremptory order
II
In a preliminary examination, a district court‘s function is to determine whether the evidence is sufficient to cause an individual marked by discreetness and caution to have a reasonable belief that the defendant is guilty as charged. People v. King, 412 Mich 145, 152-153; 312 NW2d 629 (1981); People v. Asta, 337 Mich 590; 60 NW2d 472 (1953).14 A bindover is not a finding of guilt beyond a reasonable doubt. Rather, “[a] preliminary hearing,” the Supreme Court has said, “is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.” Coleman v. Burnett, 155 US App DC 302, 316; 477 F2d 1187 (1973), quoting Barber v. Page, 390 US 719, 725; 88 S Ct 1318; 20 L Ed 2d 255 (1968).15 In Coleman, the court stated:
It is the contrast of probable cause and proof beyond a reasonable doubt that inevitably makes for examinatorial differences between the preliminary hearing and the trial. Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused‘s guilt. Proof beyond a reasonable doubt, on the other hand, connotes evidence strong enough to create an abiding conviction of guilt to a moral certainty. The gap between these two concepts is broad. A magistrate may become satisfied about probable cause on much less than he would need to be convinced. Since he does not sit to pass on guilt or innocence, he could legitimately find probable cause while personally entertaining some reservations. By the same token, a showing of probable cause may stop considerably short of proof beyond a reasonable doubt, and evidence that leaves some doubt may yet demonstrate probable cause. [Id. at 316-317 (emphasis added).]
The decision to bind a defendant over is reviewed for abuse of discretion. King, supra; People v. Talley, 410 Mich 378; 301 NW2d 809 (1981). Thus, in this case, we review for abuse of discretion the district court‘s determination that the evidence was sufficient to warrant a bindover on each count of conspiracy, i.e., we decide whether the evidence was “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of [defendant‘s] guilt”16 for (1) conspiring with Boyer to possess with an intent to deliver more than 650 grams of cocaine and (2) conspiring with Kausler to possess
III
Conspiracy is defined by common law as “a partnership in criminal purposes....” People v. Atley, 392 Mich 298, 310; 220 NW2d 465 (1974), quoting United States v. Kissel, 218 US 601, 608; 31 S Ct 124; 54 L Ed 1168 (1910).17 Under such a partnership, two or more individuals must have voluntarily agreed to effectuate the commission of a criminal offense.18 Establishing that the individuals specifically intended to combine19 to pursue the criminal objective of their agreement is critical because “[t]he gist of the offense of conspiracy lies in the unlawful agreement” [meaning]... [t]he crime is complete upon for
The specific intent to combine, including knowledge of that intent, must be shared by two or more individuals20 because “there can be no conspiracy without a combination of two or more.”21 People v. Blume, 443 Mich 476, 485; 505 NW2d 843 (1993); Atley, supra at 310. This combination of two or more is essential because “[t]he rationale underlying... [the crime of] conspiracy... is based on the increased [societal] dangers presented by the agreement between the plurality of actors.” People v. Davis, 408 Mich 255, 273, n 5, 279; 290 NW2d 366 (1980).22
Identifying the objectives and even the participants of an unlawful agreement is often difficult because of the clandestine nature of criminal conspiracies. Thus, direct proof of the conspiracy is not essential; instead, proof may be derived from the circumstances, acts, and conduct of the parties. See, e.g., People v. Brynski, 347 Mich 599; 81 NW2d 374 (1957).23 Inferences may be made because such evidence sheds light on the coconspirators’ intentions.
A criminal agreement is defined by the scope of the commitment of its co-conspirators. See generally Marcus, P, Prosecution and Defense of Conspiracy Cases, §§ 4:01-4:02 (1995). Thus, where a defendant is unaware of the overall objective of an alleged conspiracy or lacks any interest in, and therefore any commitment to, that objective, he is not a member of the conspiracy. [United States v. Smith, 82 F3d 1261, 1269 (CA 3, 1996).]
The agreement to commit a criminal act that is the gist of the offense of conspiracy is punished because of the “special danger to society presented by group as opposed to individual activity.
“Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.”
The predicate substantive offenses with which defendant was charged are embodied in
(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance, a prescription form, an official prescription form, or a counterfeit prescription form. . . .
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv) and:
(i) Which is in an amount of 650 grams or more of any mixture containing that substance is guilty of a felony and shall be imprisoned for life.
(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.
To be convicted of conspiracy to possess with intent to deliver a controlled substance, the people must prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his coconspirators possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory minimum as charged to a third person. See, e.g., Blume, supra at 485, 508, n 31.26
IV
The question that we are asked to decide is not whether the evidence presented at the preliminary examination was sufficient to sustain a conviction of the offenses as alleged,27 but, rather, whether the evidence presented was sufficient to enable the district court to believe probable cause existed to bind defendant over on two counts of conspiracy, i.e.,
A
The Court of Appeals addressed a similar issue in People v. Porterfield, 128 Mich App 35, 38; 339 NW2d 683 (1983). In Porterfield, the defendant argued that the evidence presented at trial “was insufficient... to establish one conspiracy ....” Specifically, the defendant contended “that it was error to charge him with an ongoing conspiracy to deliver over 50 grams of a mixture containing heroin rather than multiple separate conspiracies to deliver amounts under 50 grams.” Id. at 41. He “base[d] his argument solely upon the fact that the alleged separate transactions could not be aggregated to show that there was an agreement to deliver over 50 grams of a mixture containing a controlled substance” because
the evidence merely showed day-to-day operations in which there were no outstanding agreements between the parties beyond the consignment sale of 10 to 20 coin envelopes which held a mixture containing heroin to the two runners whose testimony at trial provided the primary evidence . . . . [Id. at 38.]
However, before it addressed the defendant‘s argument, the Porterfield Court concluded that the people established that (1) the defendant possessed the “intent to deliver over 50 grams of a mixture contain-
We are persuaded that the focus of the Porterfield Court was on the specific intent of the parties to the conspiracy regarding the conspiracy‘s goal, scope, and criminal objective. The Court determined the conspiracy had as its objective the goal of delivering over fifty grams of a mixture containing heroin to the streets for profit. There was testimony that the coconspirators’ conduct, “the mixing, packaging, delivery and sale,” occurred on almost a daily basis, all of which the Court concluded must have “contributed to the promotion of” their objective to deliver to the streets for profit a mixture containing over fifty grams of heroin. Id. at 41. Moreover, the testimony evidenced that one of the coconspirators “was present when [the] defendant purchased three boxes of
Hence, there was strong evidence establishing that the defendant and his coconspirators conspired to deliver approximately 375 grams of a mixture containing heroin. The record clearly evidenced that they knew the scope of their operation. It was irrelevant whether they were actually able to transact this amount before they were arrested.33 The fact that they did transact more than 50 grams is important only to shed light on the defendant‘s agreement, i.e., to deliver, with the help of his coconspirators, approximately 375 grams of a mixture containing heroin.
B
In the instant case, with respect to count I, the district court, relying on Porterfield, supra, concluded that there was probable cause to believe defendant conspired with Boyer to possess with an intent to deliver over 650 grams of cocaine from the fall of 1989 to the spring of 1990. It stated:
The circuit court distinguished Porterfield, supra, concluding that the binding over of defendant on the charges as alleged constituted an abuse of discretion.34
[S]maller amounts could be aggregated to charge [the defendant] with conspiracy to deliver over 50 grams . . . [even though] the evidence [in this instance] . . . is not as strong as it was in Porterfield, the district court did not abuse its discretion in finding that probable cause existed to believe that defendant committed the charged offenses. [Unpublished opinion per curiam, issued December 28, 1995 (Docket No. 173326), slip op at 1-2.]35
Considering all the evidence presented by the people, we agree with the result of the Court of Appeals and conclude that the question whether defendant conspired to commit the substantive offense may be guided by the general principles of conspiracy law articulated in Porterfield.
In the instant case, the relationship between Boyer and defendant may be broken down into two phases. The first phase,36 lasted from fall 1989 until February 1990. During this phase, Boyer testified that she made one or two trips to Ann Arbor a month, even though not every trip was for the purpose of purchasing
The second phase, as alleged by the people in the indictment,38 began in February 1990 and lasted until May 1990. In February, the quantities Boyer purchased increased because of Kausler‘s needs. Purchases occurred at a rate of one or two a week, and the parties began to use designated locations, approximately halfway between Ann Arbor and Petoskey, to make the purchases. Boyer testified that she told defendant that she was purchasing the larger amounts so that she could sell it to Kausler. The amount purchased from mid-February until May totaled fifty ounces (1,417.50 grams).39
Our assessment of this record persuades us that the people presented evidence that would permit “a person of ordinary prudence and caution to conscientiously entertain a reasonable belief”40 that (1) defendant could have conspired with Boyer to possess with an intent to deliver over 650 grams of cocaine; (2) Boyer could have conspired with defendant to possess with an intent to deliver over 650 grams of cocaine; (3) defendant and Boyer could have possessed the intent to combine to deliver to Kausler and others over 650 grams of cocaine. See Porterfield, supra. Our conclusion is made in recognition that this is merely a bindover and not an issue of
We therefore conclude that it was not an abuse of discretion to find that defendant could have conspired with Boyer to possess with an intent to deliver over 650 grams of cocaine between the fall of 1989 and the spring of 1990.
C
We now turn to whether the district court‘s finding of probable cause with respect to count II was an abuse of discretion.
The district court made the following findings in concluding that there was probable cause to believe defendant conspired with Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine between the spring of 1990 and December 1990:
When we get to the Kausler matter, we got a little bit different situation, but there was definitely a conspiracy there to deliver. She was buying eight ounces. She paid in advance for that money [sic (cocaine)] and there was an agreement to send the cocaine up here. And although she said she didn‘t use it all, this Court‘s going to infer that she couldn‘t have used eight ounces, that she had it for other purposes, and she did later testify she sold sometimes two or three grams. And she distribute[d] to someone on the
way back. And they tried it. Driving—not on that occasion, but other ones when she went with Yeager, she was dealing directly with this man. Mr. Yeager was involved. He was getting part of it. He was known there.
Our assessment of the record persuades us that it was not an abuse of discretion to find that probable cause existed to believe defendant conspired with Kausler to possess with an intent to deliver more than 225 grams but less than 650 grams of cocaine.
The people alleged that the agreement was formed at a point sometime between March 1990 to December 1990. The district court inferred that defendant formed an intent to deliver over 225 grams but less than 650 grams of cocaine sometime during that period. It also must have inferred that Kausler formed the very same intent as defendant and that this intent was shared by both of them to combine to deliver over 225 grams but less than 650 grams of cocaine.
We conclude that the record was sufficient to enable the district court to find that probable cause existed to believe that (1) defendant could have conspired to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine, (2) Kausler could have conspired to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine, and (3) defendant and Kausler could have possessed the intent to combine to deliver to others the statutory minimum as charged. See Porterfield, supra. Kausler testified that she and defendant agreed to combine and specifically intended to pursue the criminal objective of delivering that amount of cocaine. Specifically, when being questioned by the people, Kausler outlined the course of her dealings with defendant after Boyer left for Florida:
[The People]: When was the first time after that that you had a transaction with Mr. Justice directly?
[Kausler]: It wouldn‘t have been very long after that. Maybe a month, at the most.
[The People]: And where did the first transaction take place, when you went by yourself?
[Kausler]: I don‘t remember. It, it—I don‘t remember. It was either at his house, or at West Branch.
[The People]: Okay, let‘s talk about West Branch. How many times did you meet him there?
[Kausler]: Anywhere between two and five.
[The People]: And what would happen when you‘d met?
[Kausler]: I usually get cocaine.
[The People]: Would you be by yourself? Everytime [sic]?
[Kausler]: No.
[The People]: Who else would go with you?
[Kausler]: James Yeager.
* * *
[The People]: How much, uh, would you purchase when you met him at West Branch, each time? Was it did it vary, or . . .
[Kausler]: It varied, um . . .
[The People]: From what to what?
[Kausler]: . . . sometimes it was two, sometimes it was four ounces.
* * *
[The People]: What would be the total number of times that you directly purchased from [defendant]?
[Kausler]: It‘s very difficult to remember the exact amount, but probably ten, maybe more.
Kausler also testified that on one occasion she purchased approximately 226.80 grams of cocaine from defendant, and he was aware that she was distributing the cocaine. See n 9.
[The People]: Okay, what was the discussion?
[Kausler]: We were—I think we were talking about why Cathy wanted me to send her the money for coke. And then, um, have [her] send me the coke from [defendant], so she could get—get more money, and step on it.
[The People]: Um . . .
[Kausler]: Excuse me.
[The People]: . . . did he provide any cocaine to you, at that time? On that visit?
[Kausler]: It seems like he gave me some, so I could get high, yes.
* * *
[The People]: You don‘t remember how much that was?
[Kausler]: No. But at that point, I was addicted, so it took a bit to get high.
[The People]: Did you, uh, make any arrangements, at that time, for a very large purchase?
[Kausler]: Possibly.
[The People]: Okay. What was that, uh, transaction about?
[Kausler]: That probably would have been my last transaction. Eight ounces [226.80 grams of cocaine].
Kausler‘s testimony evidenced that it was not “palpably and grossly violative of fact and logic”42 for the district court to have inferred that defendant possessed the requisite intent to conspire with Kausler to possess with intent to deliver more than 225 grams but less than 650 grams of cocaine at a point during the period charged by the people.43
CONCLUSION
This Court holds that in order to bind defendant over for conspiracy there must be probable cause to believe that the respective coconspirators intended to accomplish the substantive offense. We conclude, therefore, that, with regard to count I, the district court‘s finding that probable cause existed to believe defendant was guilty of conspiracy did not constitute an abuse of discretion because the evidence was sufficient to reasonably infer that defendant and Boyer could have intended to possess with an intent to deliver over 650 grams of cocaine at a point during the period charged by the people. Also, we conclude with respect to count II that it was not an abuse of discretion to find probable cause existed to believe defendant conspired with Kausler to possess with an intent to deliver over 225 grams but less than 650 grams of cocaine because testimony permitted the district court to reasonably infer that defendant and Kausler combined to accomplish the criminal objective as charged. Therefore, we affirm both the deci-
MALLETT, C.J., and BRICKLEY, BOYLE, and WEAVER, JJ., concurred with RILEY, J.
CAVANAGH, J. (dissenting). I agree with the majority‘s holding that to bind Mr. Justice over on the two counts of conspiracy there must be probable cause to believe that he and his coconspirators shared the specific intent to accomplish the substantive offenses charged. However, notably absent from the majority‘s holding and analysis is the requirement that both conspirators must possess the specific intent to deliver the charged amounts from the time of the formation of the conspiratorial agreement that is the basis of the conspiracy charge. I disagree with the majority‘s conclusions on both counts because I do not find sufficient evidence in the record to establish that Mr. Justice and his respective coconspirator specifically intended to deliver the charged amounts at the time that the conspiratorial agreement was formed.
Regarding count I, I would hold that the district court abused its discretion in binding Mr. Justice over on conspiracy to possess with intent to deliver over 650 grams of cocaine. I believe the evidence was insufficient to allow a reasonable trier of fact to infer that he and his coconspirators had a specific intent to deliver over 650 grams of cocaine at the time that
I. THE BINDOVER
To bind a defendant over for trial, the district court must find that a specific crime has been committed and probable cause to believe the defendant committed the crime charged. People v King, 412 Mich 145, 152-153; 312 NW2d 629 (1981). In determining whether bindover is proper, the court should consider the credibility of the witnesses in addition to their competency, and the weight to be accorded their testimony. It is also true that the district court should not dismiss the charge when there is conflicting evidence or reasonable doubt about the defendant‘s guilt because those are issues for the jury.
However, King also instructs:
The inquiry is not limited to whether the prosecution has presented evidence on each element of the offense. The [district court] is required to make [its] determination “after an examination of the whole matter.” Although the prosecution has presented some evidence on each element, if upon
an examination of the whole matter the evidence is insufficient to satisfy the [district court] that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then [it] should not bind the defendant over on the offense charged but may bind him over on a lesser offense as to which [it] is so satisfied. [Id. at 154 (emphasis added).]
The majority should have kept these concepts in mind when it reviewed for abuse of discretion the district court‘s determination that the evidence was sufficient to warrant a bindover on each conspiracy count. I would hold that the district court abused its discretion in binding the defendant over on either count because there was insufficient evidence to establish that either offense was committed and probable cause to believe that Mr. Justice committed either offense.
II. CONSPIRACY
The majority acknowledges:
To be convicted of conspiracy to possess with intent to deliver a controlled substance, the people must prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his coconspirators possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his coconspirators possessed the specific intent to combine to deliver the statutory minimum as charged to a third person. See, e.g. [People v Blume, 443 Mich 476, 485, 508, n 31; 505 NW2d 843 (1993)]. [Ante at 349.]
Further, the majority also acknowledges that ” ‘[t]he gist of the offense of conspiracy lies in the unlawful agreement’ . . . [meaning] . . . [t]he crime is com-
Putting these concepts together, it follows that for the defendant to be guilty of the charged conspiracy counts, Mr. Justice and his coconspirators would have had to have intended to deliver the charged amounts from the time that they formed an agreement to deliver the cocaine to third persons. If Mr. Justice and his coconspirators did not specifically intend to deliver the charged amounts, then they could not have had an agreement to deliver the charged amounts. If there was no agreement to deliver the charged amounts, then there was no conspiracy.
III. COUNT I
Count I involves an alleged conspiracy between Mr. Justice and Cathy Boyer to deliver over 650 grams of cocaine to third persons. Although the charge alleges a conspiracy between the Fall of 1989 through the Summer of 1990, the record evidence only establishes Boyer‘s possible intent to deliver when Suzanne Kausler entered the picture in February 1990. Before February 1990, there is no evidence in the record that Boyer intended to deliver cocaine to third persons. Even if she intended to do so, there is no evidence that Mr. Justice knew she intended to do so or that he intended to combine with her to do so.
What the majority focuses on in Count I are the transactions occurring between February and May 1990 in which Boyer purchased cocaine on behalf of Kausler. For Mr. Justice to be properly bound over on
The lack of evidence to establish that Mr. Justice and his coconspirators possessed the requisite intent
IV. COUNT II
Count II alleges that Mr. Justice conspired with Suzanne Kausler to deliver or possess with intent to deliver between 225 and 650 grams of cocaine between March 1990 and December 1990. This count concerns only the drug transactions occurring between Kausler and Mr. Justice after the Boyers were preparing to move to Florida. It was only after this time that Kausler began to deal directly with Mr. Justice.
To bind Mr. Justice over on this count, the prosecutor must establish that Mr. Justice specifically intended to deliver between 225 and 650 grams of cocaine, Kausler specifically intended to deliver between 225 and 650 grams of cocaine, and Mr. Justice and Kausler specifically intended to combine to deliver that amount to third persons. At this point, we
As this Court instructed in Blume, supra at 485-486:
Clearly, the prosecutor must present more evidence than the seller‘s knowledge of the buyer‘s proposed illegal purpose. For intent to exist, the defendant must know of the conspiracy, must know of the objective of the conspiracy, and must intend to participate cooperatively to further that objective. ” ‘[T]o establish the intent, the evidence of knowledge must be clear, not equivocal . . . because charges of conspiracy are not to be made out by piling inference upon inference. . . .’ ” [People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974)], quoting Direct Sales Co [v United States, 319 US 703; 63 S Ct 1265; 87 L Ed 1674 (1943)].14
To bind Mr. Justice over in this case, the prosecutor would need to pile inference upon inference. Because
Similar to the majority‘s conclusion regarding count I, I believe it was an abuse of discretion for the court to bind Mr. Justice over on this count because there was not sufficient evidence presented at the preliminary examination to support a finding of probable cause on this conspiracy count.
V. CONCLUSION
I believe that the transactions involved in both counts were not part of a defined conspiracy, but rather were separate transactions. Thus, I believe it was an abuse of discretion for the court to have bound Mr. Justice over on either count. “[T]he fact that there was some redistribution of the cocaine does not establish that there was an agreement that the coconspirators would redistribute it and return for more when the supply was exhausted. There simply was no evidence that defendant and Kausler or Boyer were involved in an ongoing conspiracy to deliver the aggregate quantities charged.” People v Justice, unpublished opinion per curiam of the Court of Appeals, issued December 28, 1995 (Docket No. 173326) (WHITE, J., dissenting), slip op at 4. For these reasons, I would reverse the decision of the Court of
KELLY, J., took no part in the decision of this case.
Notes
Count I concerns the alleged drug transactions between Mr. Justice and Cathy Boyer.Count I
[Defendant], . . . from about Fall, 1989 through Summer, 1990, . . . did unlawfully conspire, combine, confederate and agree together with Cathy Boyer to Deliver and/or Possess with Intent to Deliver More than 650 grams of a mixture containing the controlled substance cocaine; contrary to
MCL 333.7401(2)(a)(i) ;MSA 14.15(7401)(2)(a)(i) .Count II
[Defendant], . . . from about March, 1990, through December, 1990, . . . did unlawfully conspire, combine, confederate and agree together with Susan Cosler [sic] to Deliver and/or Possess with Intent to Deliver more than 225 grams, but less than 650 grams of a mixture containing the controlled substance cocaine; contrary to
MCL 333.7401(2)(a)(ii) ;MSA 14.15(7401)(2)(a)(ii) .
Called as a prosecution witness, Cathy Boyer, the alleged coconspirator in count I, provided this testimony:
Q. That was for that one incident, right? That one time?
A. Right.
Q. And then when you needed it again, you would call him up, and you would go down again? Correct?
A. Or he would come part-way.
Q. Okay. But each time, you had to make a phone call, correct?
A. One of us did.
Q. Okay, so there wasn‘t an on . . .
A. Either he called us, or we called him.
Q. Okay, there wasn‘t an on-going plan, “I‘ll meet you every Wednesday.”
A. No.
Q. “I‘ll meet you every Friday.”
A. No.
Q. “I‘ll met [sic] you twice a week.”
A. No.
Q. Each one was arranged individually?
A. Right. When Suzy needed it, we called him.
Q. Okay. Each delivery that you testified to, you indicated was a different price. Each one was separately bargained for, is that a fair statement?
A. Not always.
Q. Well . . .
A. Sometimes it would be the same price . . .
Q. Okay.
A. . . . for a month, and then it might . . .
Q. Okay.
A. . . . according to supply and demand, it could be . . .
Q. Okay.
A. . . . nine hundred dollars one day, and two days later be fifteen hundred.
Q. Okay, but each time it was separately bargained for?
A. Right.
Q. It could be the same price, it could be a different price?
A. Right.
Q. Okay. Payment was made after each delivery?
A. With each delivery, right.
* * *
Q. Each time that you went down to see Mr. Justice, he never knew if he was going to see you again, then, is that a fair statement?
A. Yep.
Q. Until you called him again the next time?
A. Unless I went to see him as a friend.
Q. Right.
A. We were friends.
Q. Right. Okay.
A. Whether I went there for drugs or not, I still saw him. He was my friend.
Suzanne Kausler, the alleged coconspirator in count II, provided similar testimony, regarding the occasions on which she dealt directly with the defendant.
Q. Okay. But each of these meetings was an individual meeting? Is that a fair statement?
A. Yes, sir.
Q. In other words, you didn‘t tell Mr. Justice, “Well, I‘ll see you every Wednesday, at . . .
A. No.
Q. . . . West Branch.
A. Correct.
Q. Or, “I‘ll be down in Ann Arbor every Monday.”
A. I understand what you‘re saying.
Q. Okay. Each one—you made a phone call, saying . . .
A. One time, right.
A. Correct.
James Yeager, a prosecution witness, stated that he may have made as many as “a dozen, or less” trips where he met with defendant (Yeager agreed “to plead guilty to Possession of Cocaine,” in exchange for his testimony). He testified that the “[s]mallest, [purchase was] probably a half ounce [approximately 14.175 grams] . . . [and that] . . . the largest . . . [was] four ounces [113.40 grams],” with four ounces being purchased on “just . . . one of the trips.” Nonetheless, the district court noted that Yeager could not testify “with any possible accuracy,” and sustained defense counsel‘s objection regarding “an estimate of the total amount, of ounces, for all the trips that [he] made.”
[The People]: How were the arrangements made to have a transaction there?
* * *
[Kausler]: I had [defendant‘s] phone number, and we‘d made an arrangement on the phone.
[Boyer]: You know. I mean, we‘d told him [defendant] that she was, you know, she was doing a lot of it herself, but she was also having other people distribute it. But, you know, that was, you know, how else would she be able to get three ounces [85.05 grams] and have it gone in three days, and be wanting more, if she wasn‘t getting rid of some of it. She couldn‘t physically do that much.
[The People]: What would you say would be the total amount of cocaine that you purchased from [defendant] from the time that you first became involved with him, until the time you stopped using?
[Kausler]: Including Cathy [Boyer]?
[The People]: Yes.
[Kausler]: I‘m trying to remember what it said in the, uh, testimony this morning, that I was reading. Because I‘m—I have a mental block right now. I can‘t even think.
[The People]: Okay. Well, how about just time [sic] period after Cathy [Boyer] left? From Memorial day ‘til the time you quit?
[Kausler]: I‘m gonna say twenty—fifteen, twenty ounces.
This Court stated in Atley at 314-316, that a conspiracy may be established by circumstantial evidence or an inference, provided that the evidence and circumstances are ” ‘within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts.’ (Emphasis added.)” Id. at 311 . . . .The [district court] “must have . . . good reason to believe [the defendant is] guilty of the crime charged.” The [district court] has “the duty to pass judgment not only on the weight and competency of the evidence, but also the credibility of the witnesses” and may consider evidence in defense. He or she should not, however, discharge “when evidence conflicts or raises reasonable doubt of [the defendant‘s] guilt,” since that presents the classic issue for the trier of fact. [Citations omitted.]
Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
. . . [T]he person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed. [
MCL 750.157a(a) ;MSA 28.354(1)(a) .]
The dissent went further by remarking:
[W]hile “knowledge is the foundation of intent,” and mere knowledge of a conspiracy or its illegal objective, without more, is not enough to prove intent, we may examine the defendant‘s conduct to determine whether the defendant provided “informed and interested cooperation, stimulation, [or] instigation.” [Blume, supra at 507-508 (BOYLE, J., dissenting; citations omitted; emphasis added).]
The rule has long been recognized that a conspiracy may, and generally is, established by circumstantial evidence and that positive proof is not required but the circumstances must be within safe bounds of relevancy and be such as to warrant a fair inference of the ultimate facts.
For example, in People v Missouri, n 19 supra, the defendants argued that the evidence only established a “buyer-seller relationship.” The Court of Appeals disagreed by concluding as follows:
[A]ll parties shared the knowledge that the narcotics were to be be ultimately delivered for consumption by street users. All agreed to meet the object—delivery—by fulfilling their agreements to provide narcotics at various links along the chain. . . . [Id. at 343 (emphasis added).]
On the basis of this evidence, the Court held that a “chain” conspiracy was established, i.e., drug smugglers sold to intermediaries who, in turn, sold to retailers. Id. at 343, citing United States v Bruno, 105 F2d 921 (CA 2, 1939), rev‘d on other grounds 308 US 287; 60 S Ct 198; 84 L Ed 257 (1939). See also People v Cyr, 113 Mich App 213; 317 NW2d 857 (1982).
[T]here was sufficient evidence to prove beyond a reasonable doubt that the coconspirators, Facen and Williams, combined with the defendant, each having the knowledge that they were going to deliver and continue to deliver heroin for profit. The evidence established that both Facen and Williams had the requisite intent to commit the crime of delivery of a controlled substance. [Id. at 40.]
[T]hat there was sufficient evidence to establish defendant‘s intent to combine with others to deliver over 50 grams of a mixture containing heroin. Although a codefendant was acquitted, testimony established that there was an intent to combine with Facen and Williams to deliver the narcotics. Furthermore, the testimony also indicated that defendant introduced Williams to established customers so that Williams could be trusted on the street. Facen and Williams helped package the merchandise for sale. Facen received the heroin from either Williams or the defendant. Both Williams and Facen‘s testimony tended to show that the sales were not isolated incidents designed for a quick profit but were part of an ongoing venture to deliver heroin as long as it could be supplied, and sales were made in different areas where there would be known customers. [Id. at 40, i.e., all agreed to accomplish the objective of the agreement. See id. at 38-40 (emphasis added).]
The circuit court stated:
These factors do not establish a brightline for determining aggregation in other cases. And so it‘s not that every case has to meet the factors listed in Porterfield. However, this case, People v Justice, in my judgment does not come close to the factors that were involved in Porterfield. . . .
There was no evidence. At least it‘s not argued here today that there was any evidence that the second transaction, or subsequent transactions, were arranged during the course of the previous transaction. On the contrary, later transactions were not even discussed.
And so this court finds that there was insufficient evidence at preliminary examination to establish probable cause that the defendant conspired to deliver the volume charged. . . .
If I find aggregation in this case, I think it would be necessary almost in any case where there were multiple transactions to aggregate them, and I don‘t think this case meets the requirements of Porterfield. Even though inferences can be drawn and the volume is alleged to have been substantial, they were, in my estimation, separate transactions.
The Court of Appeals concluded:
The evidence indicated that Boyer and Kausler understood that, whenever they needed cocaine, they would call defendant. Boyer testified that she would get cocaine from defendant for her personal use and pay him for it when she could afford it. If, as defendant contends, he never knew if he would hear from Boyer again, he would not allow Boyer to pay him after he had already given her the cocaine. Boyer introduced Kausler to defendant so that she could purchase the drug directly from him. Both defendant and Kausler traveled more than one hundred miles to engage in the drug transactions. Boyer testified that both she and Kausler redistributed the cocaine purchased from defendant. [Id. at 2.]
On being questioned by the people, Boyer testified about the approximate quantities and dates of her purchases from defendant:
[The People]: Just to, uh, clarify dates. Could you, um, tell us when it was that you first started obtaining large quantities from Tommy Justice, and when you stopped?
[Boyer]: Um . . . .
[The People]: Whether it for yourself [sic], or for Suzy, or whoever.
[Boyer]: It would have have [sic] to have been from some—the middle of February, and we stopped at the first of May. At the beginning of May.
[The People]: Of what years?
[The People]: And what would be the total amount that you bought, during that whole time period?
[Boyer]: Um, I‘m not sure. Totally ever? That whole . . .
[The People]: Just during, uh, that time period of February ‘90 to May ‘90? Total number of ounces?
[Boyer]: For Suzy.
[The People]: For whoever.
[Boyer]: About—anything I say would be a guess.
[The People]: Well, your best approximation?
[Boyer]: We got her probably four or five ounces a week, for probably eight or nine, between eight and ten weeks, is all we dealt with her.
[The People]: Do you recall, uh, your testimony at the Grand Jury?
[Boyer]: Mm-huh. (Affirmative response)
[The People]: Do you recall testifying that you bought 50 ounces?
[Boyer]: That‘s about what it would be.
[The People]: That sound about right?
[Boyer]: You take eight—if you take eight weeks, times four or five a week, it‘d be about—you know, it was at a period, probably eight to ten weeks, ‘cause we started in the middle of February and we ended the, like the second week of May. Then there were some weeks that there were more, and some less.