STATE OF CONNECTICUT v. NEMIAH ALLAN
(SC 18879)
Supreme Court of Connecticut
Argued September 24, 2013—officially released January 28, 2014
Katherine C. Essington, assigned counsel, for the appellant (defendant).
Rita M. Shair, senior assistant state‘s attorney, with whom, on the brief, were Michael Dearington, state‘s attorney, and James R. Dinnan, senior assistant state‘s attorney, for the appellee (state).
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Opinion
McDONALD, J. Today we consider what evidence is necessary to support a conviction for conspiracy to sell narcotics in the context of a buyer-seller relationship between the alleged
In reaching its verdict, the jury reasonably could have found the following facts. On the evening of April 15, 2009, officers of the Meriden Police Department conducted surveillance at the corner of West Main Street and Randolph Avenue in Meriden after receiving complaints of drug activity in that area. From their unmarked vehicles, the surveillance team observed the defendant engaging in the following conduct that, in their experience, was consistent with drug dealing. The defendant walked back and forth near the corner of West Main Street and Randolph Avenue while talking on his cell phone. Police officers observed several vehicles periodically stop at this corner, at which point the defendant approached these vehicles, reached inside, and conducted “some sort of transaction” with the vehicles’ occupants. Then, while the vehicles idled at this corner, the defendant walked a short distance away to a house located at 20 Maple Branch, just off Maple Street. That house was the subject of a separate police investigation due to neighbors’ complaints about drug dealing occurring on its second floor. From the complaints and subsequent surveillance, the police suspected that this residence served as a “stash house,” as drug dealers commonly keep their drugs and money at a location near to where they conduct their drug transactions so as to avoid having any evidence of drug activity on their person in the event of a police stop. Shortly after entering the second floor of the house, the defendant exited the house and returned to the particular vehicle waiting at the street corner. Moments later, the driver of the vehicle would drive away, while the defendant remained at the corner.
Soon thereafter, the officers observed the following incident. A tan Acura drove along West Main Street past the corner where the defendant had been meeting vehicles, turned onto Maple Street, and then turned again onto Maple Branch. As the Acura drove toward this location, the defendant crossed West Main Street and walked up Maple Street while talking on his cell phone. The Acura turned around and parked in close proximity to 20 Maple Branch, facing Maple Street. As the defendant approached Maple Branch, the driver of the Acura flashed the car‘s front lights and then turned off the driving lights while leaving the parking lights on. In response to these signals, the defendant approached the passenger side of the vehicle. He then opened the passenger door and leaned into the vehicle. Moments later, the defendant emerged from the Acura and returned to his corner as the Acura drove away. Following their unsuccessful pursuit of the Acura, the officers returned one to two hours after this incident to arrest the defendant.
The officers took the defendant into custody despite his efforts to resist arrest, gave him Miranda3 warnings, and conducted a search of his person, which yielded no drug related materials. When the officers asked the defendant about the driver of the Acura, he informed them that the driver‘s name was “Fleet” and that Fleet was a drug supplier from Waterbury. The officers knew the name Fleet as a street level drug supplier, but did not know his real name. The defendant further told them that Fleet had driven to Maple Branch to “resupply” him with crack cocaine. Despite this plan, the defendant told the police that Fleet had not delivered the narcotics when they met earlier that evening. The defendant then opened his cell phone and gave the police Fleet‘s cell phone number, which was the last outgoing call made from the defendant‘s cell phone.
When the defendant overheard a police radio transmission indicating that the owner of the Acura was Brandy Clayton, the defendant identified her as Fleet‘s girlfriend.
Thereafter, while the defendant was being processed at the police station, he asked the booking officer what had happened to “the big fat white guy.” When the booking officer asked the defendant to whom he was referring, the defendant replied “the one that I sold drugs to,” presumably referring to Zarabozo, who matched the defendant‘s description. One or two weeks after the defendant‘s arrest, the police executed a search warrant for the second floor apartment at 20 Maple Branch, where they seized crack cocaine packaged for street sale and arrested another individual in connection with that seizure.
The state charged the defendant with sale of narcotics by a person who is not drug-dependent in violation of
The defendant appealed from the trial court‘s judgment to the Appellate Court, and claimed that there was insufficient evidence to allow the jury to find him guilty beyond a reasonable doubt of the crime of conspiracy to sell narcotics in violation of his right to due process. State v. Allan, 131 Conn. App. 433, 435, 437–38, 27 A.3d 19 (2011). The Appellate Court rejected the defendant‘s argument that the state had the burden of proving that the defendant and his coconspirator, Thomas, had entered into an agreement “in the past to distribute narcotics or to distribute narcotics in the future,” concluding that the defendant misunderstood the required elements of the crime charged under Connecticut law. Id., 439–40. The Appellate Court further declined the defendant‘s invitation to apply what he called the “buyer-seller exception” applied by the federal courts in evaluating the sufficiency of evidence to support a conviction of conspiracy to sell narcotics, noting that the defendant had not provided the court with a single Connecticut case endorsing such an exception. Id., 441. After concluding that the evidence was sufficient to support the conspiracy conviction, the Appellate Court affirmed the judgment of the trial court. Id., 443.
Thereafter, we granted the defendant‘s petition for certification to appeal to this court, limited to the following issue: “Did the Appellate Court correctly refuse to adopt the buyer-seller exception to a charge of conspiracy to sell drugs?” State v. Allan, 302 Conn. 949, 31 A.3d 383 (2011).
In response, the state argues that there is no need for this court to adopt the principle that the defendant seeks to engraft onto our law because it already effectively exists.5
I
We begin with the defendant‘s claim that, in evaluating whether there is sufficient evidence to support a conviction of conspiracy to distribute narcotics, Connecticut should apply the buyer-seller “exception.” In order to address this claim, we first examine the requirements to establish a conspiracy under Connecticut law and then consider the parameters for sufficient evidence for the comparable offense under federal law in the context of a buyer-seller relationship. As this analysis reveals, the so-called buyer-seller exception on which the defendant relies is not, in our view, properly viewed as an exception to federal conspiracy law, but, rather, a proper application of fundamental principles of conspiracy jurisprudence that are shared by this state.
Conspiracy is the unlawful act of agreeing to commit a crime. See State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). It has long been recognized as a separate and distinct offense from the commission of the substantive offense that is the object of the agreement. Id. “That agreement is a distinct evil, which may exist and be punished whether or not the substantive crime ensues.” (Internal quotation marks omitted.) United States v. Jimenez Recio, 537 U.S. 270, 274, 123 S. Ct. 819, 154 L. Ed. 2d 774 (2003); see State v. Beccia, supra, 3 (“[t]he gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy” [internal quotation marks omitted]). As criminals united with a common purpose pose a potentially greater danger to the public than an individual acting in isolation, conspiracy is anticipatory and aimed not at the unlawful object, but at the process of agreeing to pursue that object. See State v. Beccia, supra, 3; State v. Jones, 44 Conn. App. 338, 343, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997).
To establish the crime of conspiracy in Connecticut, the state must prove that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy.
With the exception that federal law does not require proof of an overt act in furtherance of a conspiracy to violate its narcotics laws, federal conspiracy law generally reflects the same fundamental requirements as Connecticut law.6 United States v. Shabani, 513 U.S. 10, 15, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994). Like Connecticut law, under federal law, “[a] drug-distribution conspiracy . . . requires proof that the defendant knowingly agreed—either implicitly or explicitly—with someone else to distribute drugs.” United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010); see United States v. Parker, 554 F.3d 230, 234–35 (2d Cir.), cert. denied sub nom. Baker v. United States, 558 U.S. 965, 130 S. Ct. 394, 175 L. Ed. 2d 301 (2009). As a result of the long running “war on drugs” waged by the federal government, however, a problem has perplexed the lower federal courts that our courts have not encountered: under what circumstances may a conspiratorial agreement to distribute drugs arise in a buyer-seller relationship. This issue has arisen primarily in circumstances in which a defendant has been apprehended while purchasing drugs from an existing criminal enterprise and the question is whether the defendant was
Two lines of reasoning have emerged for this conclusion. One group of federal Circuit Courts of Appeals have reasoned that, in a buyer-seller relationship, there is no singularity of purpose and thus no meeting of the minds. “Mere proof of a buyer-seller agreement without any prior or contemporaneous understanding does not support a conspiracy conviction because there is no common illegal purpose: In such circumstances, the buyer‘s purpose is to buy; the seller‘s purpose is to sell.” (Internal quotation marks omitted.) United States v. Donnell, supra, 596 F.3d 924–25; see United States v. Brown, supra, 726 F.3d 1001 (“People in a buyer-seller relationship have not agreed to advance further distribution of drugs; people in conspiracies have. That agreement is the key.“). Accordingly, a mere buyer-seller relationship lacks an essential element necessary to form a conspiracy. See United States v. Brown, supra, 1001 (“[w]e discuss buyer-seller relationships at such length because they do not qualify as conspiracies” [emphasis in original]). Another group of federal Circuit Courts of Appeals have reasoned that, under the common-law definition of conspiracy, “when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer. . . . [This] would constitute a conspiracy with the alleged objective of a transfer of drugs.” (Emphasis added.) United States v. Parker, supra, 554 F.3d 234; see United States v. Delgado, supra, 672 F.3d 333 (indicating that mere buyers would be guilty of conspiracy to distribute under general conspiracy principles in absence of exception). Nonetheless, these courts further reason that Congress
As we discuss later in this opinion, we view the first group‘s characterization to be the correct view of the law. Nonetheless, regardless of whether a court characterizes this issue as a proper application of conspiracy law or an exception to a literal application of that law in furtherance of legislative intent, a survey of federal case law indicates that the principle that conspiracy to sell narcotics cannot be found on the mere basis of a buyer-seller relationship universally stems from two tenets of common-law conspiracy. First, mere association with a member of a conspiracy or acquiescence in the object or purpose of a conspiracy is not sufficient to satisfy the intent elements of conspiracy. United States v. Wardell, 591 F.3d 1279, 1288 (10th Cir. 2009), cert. denied, U.S. , 132 S. Ct. 430, 181 L. Ed. 2d 280 (2011). Second, conspiracy is a separate and distinct offense from the underlying crime that is the object of the agreement. United States v. Brown, supra, 726 F.3d 997. Accordingly, in the context of a drug sale between two alleged coconspirators, the federal courts have held that there must be evidence of an agreement to distribute drugs and that such an agreement must be in addition to the purchase and sale between the two parties. See id., 998; United States v. Parker, supra, 554 F.3d 235. Liability will arise as a coconspirator, therefore, when “[the buyer and seller] shared a conspiratorial purpose to advance other transfers, whether by the seller or by the buyer.” United States v. Parker, supra, 235. By contrast, when the government‘s proof shows no more than a simple sales transaction between alleged coconspirators, its case for conspiracy will fail. Id.; United States v. Moran, 984 F.2d 1299, 1304 (1st Cir. 1993) (“[a]s for the classic single sale—for personal use, without prearrangement, and with nothing more—the precedent in this circuit as well as others treats it as not involving a conspiracy“).
The question then has arisen as to whether the seller‘s knowledge that the buyer intends to resell the illicit goods is sufficient to establish a conspiracy between the buyer and seller. In resolving this question, many circuits have relied on two decisions that examined under what circumstances a supplier of goods to a known criminal enterprise becomes a party to the existing conspiracy. See Direct Sales Co. v. United States, 319 U.S. 703, 63 S. Ct. 1265, 87 L. Ed. 1674 (1943); United States v. Falcone, 109 F.2d 579 (2d Cir.), aff‘d, 311 U.S. 205, 61 S. Ct. 204, 85 L. Ed. 128 (1940). In United States v. Falcone, supra, 580, the defendants were convicted of conspiracy to operate illicit stills because they had supplied distillers with sugar, yeast, and cans. The Second Circuit reversed the convictions, holding that mere knowledge by the defendants that their buyers planned to use the seemingly innocuous supplies in an illegal fashion did not evince their intention to join the conspiracy. Id., 581–82. The court noted: “It is not enough that he does not [forgo] a normally lawful activity, of the fruits of which he knows that others will make unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome.” Id., 581. In affirming the Second Circuit‘s decision, the Supreme Court held that, if a supplier knows about the unlawful use of his supplies by a buyer, but does not have knowledge of the conspiracy in which the buyer is a member, the supplier cannot be deemed to have joined the conspiracy. United States v. Falcone, 311 U.S. 205, 207, 61 S. Ct. 204, 85 L. Ed. 128 (1940).
Three years later, in Direct Sales Co. v. United States, supra, 319 U.S. 715, the Supreme Court affirmed a drug manufacturer/distributor‘s conviction of conspiracy to violate federal narcotics laws in connection with sales to a physician of morphine—a drug that was highly regulated but one that the distributor lawfully could distribute and the physician lawfully could dispense. The court noted that the evidence established, inter alia, that the distributor repeatedly had sold excessively large quantities of morphine over a long period of time to the coconspirator physician such that the distributor must have known the physician was dispensing the drugs illegally. Id., 713. The court determined that United States v. Falcone, supra, 311 U.S. 205, was not controlling in this circumstance because morphine is a “restricted commodit[y], incapable of further legal use except by compliance with rigid regulations,” whereas the supplies in Falcone were “articles of free commerce . . . .” Direct Sales Co. v. United States, supra, 710. The court found the distinction between the character of the goods important to the nature and extent of proof necessary to establish the supplier‘s knowledge of the buyer‘s unlawful purpose and to show that by making the sale the supplier intends to further, promote, and accomplish that purpose. Id., 711. The court acknowledged that not every instance of the sale of restricted goods in which the seller knows the buyer intends to use them unlawfully will support a charge of conspiracy. Id., 712. This may be true, the court noted, of “single or casual transactions, not amounting to a course of business, regular, sustained and prolonged, and involving nothing more on the seller‘s part than indifference to the buyer‘s illegal purpose and passive acquiescence in his desire to purchase, for whatever end. A considerable degree of carelessness coupled with casual transactions is tolerable outside the boundary of conspiracy.” Id., 712 n.8. The court then examined the evidence and concluded that it demonstrated there is “informed and interested cooperation, stimulation, instigation. And there is also a ‘stake in the venture’ which, even if it may not be essential, is not irrelevant to the question of conspiracy.” Id., 713; id. (noting that distributor‘s stake was in making profits, which would only come from encouraging physician‘s illegal operations).
From these cases, certain principles emerged. Although the Supreme Court indicated that a seller‘s “‘stake in the venture‘” is not essential to sustain a conviction; id.; several Circuit Courts of Appeals
As one court noted, however, “the cases otherwise say little about how the various factors are to be weighed.” United States v. Baugham, supra, 449 F.3d 172. Although the evidence deemed sufficient may include several of these factors; see, e.g., United States v. Johnson, supra, 592 F.3d 756 n.5 (noting if individual purchases drugs in large quantities on frequent basis on credit, inference of conspiracy properly follows); the existence of a single factor in addition to the buyer-seller relationship may be sufficient. See, e.g., United States v. Yearwood, supra, 518 F.3d 226 (noting large quantities of drugs alone supports reasonable inference that parties were coconspirators). The recent trend appears to clarify that, while case law had suggested that there is a bright line approach based on enumerated factors to distinguish buyer-seller relationships from conspiracies, a “‘totality of the circumstances‘” approach is appropriate. See United States v. Brown, supra, 726 F.3d 1001; see also United States v. Hawkins, supra, 547 F.3d 74 (“[n]o single factor is dispositive“). As such, the court must make a “holistic assessment” of the evidence in “deciding whether the jury reasonably discerned an agreement to further trafficking of drugs.” United States v. Brown, supra, 1002.
A close examination of the cases in which the courts have distinguished mere
In light of the aforementioned case law and considerations articulated therein, we conclude that the federal courts’ approach to analyzing the sufficiency of evidence to support a conviction for conspiracy to distribute drugs is consistent with our own conspiracy jurisprudence. Under our conspiracy law, a mere buyer-seller relationship, without more, would not constitute a conspiracy to distribute drugs.10 Under the specific intent
In light of this conclusion, we now turn to the question of whether there was sufficient evidence in the present case to support the defendant‘s conviction of conspiracy to sell narcotics. The defendant argues that the evidence, specifically his statements made to the police, was sufficient to sustain only a conviction of attempted possession of narcotics. We disagree.
We begin with the well established principles that guide our review. In reviewing a sufficiency of the evidence claim, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury‘s verdict. . . .
“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .
“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury‘s verdict of guilty.” (Internal quotation marks omitted.) State v. Stephen J. R., 309 Conn. 586, 593–94, 72 A.3d 379 (2013).
In considering this question, we recognize that, due to the clandestine nature of conspiracies, a conviction is usually based on circumstantial evidence. “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Intention is a mental process which, of necessity, must be proven either by the statements or the actions of the person whose conduct is being examined.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 356–57, 521 A.2d 150 (1987). In deliberating the conspiracy charge, the jury was allowed to infer the existence of the requisite agreement between the defendant and Thomas not just from the defendant‘s statements to the police, but also from proof of the separate acts of each of them and from the circumstances surrounding the commission of these acts. State v. Patterson, supra, 276 Conn. 462. We conclude that the totality of this evidence was sufficient to allow the jury to conclude that the defendant and Thomas conspired to sell narcotics.
There was ample evidence to support the conclusion that the defendant was in the business of selling drugs. Undoubtedly, the most persuasive evidence of this fact comes from the defendant‘s own statements. At the police station, the defendant admitted to having sold drugs to Zarabozo, who had crack cocaine in his possession after the money exchange with the defendant and who admitted to previous drug transactions with the defendant. The defendant further acknowledged seeking
The evidence also supports the conclusion that Thomas, known to the Meriden police as a street level dealer operating under the name Fleet, intended to agree with the defendant to assist him in this enterprise. See Salinas v. United States, 522 U.S. 52, 65, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997) (“[o]ne can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense“). The defendant‘s characterizations of Thomas as a drug dealer from Waterbury and his statement that Thomas’ purpose in meeting with him was to “resupply” him with crack cocaine reasonably connotes not only a past relationship but also the procurement of drugs for a purpose and in a quantity consistent with resale versus personal use. Other evidence reflects an established relationship of mutual trust. See United States v. Hawkins, supra, 547 F.3d 76 (identifying mutual trust as factor establishing conspiracy). The defendant had Thomas’ cell phone number. Thomas either knew to park away from the location of the defendant‘s exchanges with potential customers or was directed to do so by the defendant. When Thomas arrived, he signaled to the defendant with his car lights in a manner that caused the defendant to approach Thomas’ car. If, as the defendant claimed to police, Thomas did not deliver the drugs as planned, the fact that Thomas came to inform the defendant in person that he did not have the drugs that evening also allows for the inference that Thomas had an interest in the defendant‘s venture and that he expected to resupply him in the future. This evidence in its totality takes the relationship between the defendant and Thomas out of a mere buyer-seller relationship and into a conspiratorial relationship, where both parties agreed and intended to sell narcotics, with Thomas taking the role of the distribution supplier and the defendant acting as the reseller to consumers on the street. Moreover, the defendant‘s cell phone call to Thomas, followed by Thomas’ drive to Maple Branch, the flashing of his vehicle‘s lights, and the defendant‘s approach to Thomas’ vehicle were all acts that the jury could have construed and reasonably inferred therefrom to be overt acts in furtherance of the conspiracy. See State v. Elijah, 42 Conn. App. 687, 697, 682 A.2d 506 (“[a]n overt act . . . may be committed by either coconspirator“), cert. denied, 239 Conn. 936, 684 A.2d 709 (1996); id., 695 (“it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct” [internal quotation marks omitted]).
Finally, to the extent that the defendant emphasizes that the jury acquitted him of
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
Notes
We further note that our research has revealed one case in which the buyer-seller rule or exception has summarily been characterized as an “affirmative [defense] . . . .” United States v. Diaz, 190 F.3d 1247, 1258 (11th Cir. 1999), cert. denied, 534 U.S. 878, 122 S. Ct. 180, 151 L. Ed. 2d 125 (2001). We view this isolated reference as simply reflective of the generally accepted proposition that this theory is advanced by the defendant as part of his or her defense.