UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDGAR RENE MIER-GARCES, Defendant-Appellant.
No. 18-1085
United States Court of Appeals Tenth Circuit
July 28, 2020
PUBLISH. Christopher M. Wolpert, Clerk of Court.
Robert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado, for Defendant-Appellant.
Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the briefs), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
HOLMES, Circuit Judge.
Edgar Rene Mier-Garces was separately charged with conspiracy to distribute controlled substances, in violation of
I
A
Mr. Mier-Garces worked on the Mexican-American border as a “gatekeeper” for a Mexican drug trafficker known as “El Muñeco.” R., Vol. II, at 71 (Report of Investigation, dated Nov. 30, 2015). Generally, in his gatekeeper role, Mr. Mier-Garces assisted in smuggling narcotics into the United States from Ciudad Juarez, Mexico and then smuggling bulk currency back into Mexico from the United States. Mr. Mier-Garces’s role focused on receiving and loading vehicles for couriers. Mr. Mier-Garces would retrieve these vehicles from public locations in the El Paso, Texas metro area and take them back to his residence in
As a result of Mr. Mier-Garces’s gatekeeper activities, he was indicted for participating in drug-trafficking conspiracies in the District of Colorado and the Western District of Texas. Below, we summarize the factual circumstances relating to those indictments and the particulars of those indictments.
1
In addition to Mr. Mier-Garces, there were six other named conspirators in the conspiracy charged in the District of Colorado (“Colorado conspiracy”), including Lucio Lozano and Martha Mota. Although not charged by name along with Mr. Mier-Garces, the following individuals were also participants in the Colorado conspiracy: Franz Neufeld-Reimer, Helena Wieler de Neufeld, and Jack
On August 15, 2014, Mr. Lucero was stopped by police while driving an SUV in New Mexico. The trooper found multiple bricks of cocaine in his car. A subsequent search of his car revealed hotel receipts connecting Mr. Lucero to an individual named Mr. Lozano, who was based in the Denver, Colorado area. Investigators began surveillance of Mr. Lozano’s residence in the Denver area. Surveillance of this house, in turn, led investigators to other individuals who were either distributing cocaine in the Denver area or who were also trafficking narcotics and currency between El Paso and Denver. One of these couriers, Ms. Mota, was arrested on February 5, 2015, while she was returning from Denver to El Paso with bulk currency. Two other couriers, Mr. Neufeld-Reimer and Ms. Wieler de Neufeld, were seen twice in March 2015 transporting narcotics between El Paso and Denver. Like other couriers, they would drop off their vehicle in public locations in the El Paso area, where an individual would take their vehicle for several hours and then return the vehicle to them for the drive. Mr. Mier-Garces admitted loading narcotics on at least two occasions into the vehicles of Ms. Mota, Mr. Neufeld-Reimer (with Ms. Wieler de Neufeld present for the loading), and Mr. Lucero.
Mr. Mier-Garces was indicted on September 3, 2015 in the District of Colorado. A superseding indictment was issued on May 2, 2016. This indictment
2
Mr. Mier-Garces also was indicted for participating in a drug-trafficking conspiracy in the Western District of Texas (“Texas conspiracy”). Specifically, while the transportation of drugs to Denver was occurring, on March 8, 2015, Mr. Mier-Garces asked a confidential informant to transport cocaine from El Paso to Albuquerque. Mr. Mier-Garces took a vehicle from that confidential informant, loaded it with 10.6 kilograms of cocaine at his Chaparral residence, and returned it to the informant believing that the informant would drive the vehicle to Albuquerque. The confidential informant, however, coordinated with federal agents who later conducted a controlled delivery of the vehicle in Albuquerque to individuals who believed the vehicle contained drugs; they were subsequently arrested.
As a result of his participation in this El Paso-to-Albuquerque movement of
B
As Mr. Mier-Garces was seeking to reenter the United States from Mexico on November 18, 2015, he was arrested on a warrant that had been issued based on the Texas indictment. At a post-arrest interview with agents from both the Western District of Texas and the District of Colorado, Mr. Mier-Garces explained his role in the drug-trafficking operation, as summarized above. He also agreed to allow agents to search his home. The search of his home did not result in the discovery of any drugs but did reveal various pieces of evidence consistent with his description of his role, e.g., a safe used to store narcotics and
Mr. Mier-Garces subsequently pleaded guilty to the charges in the Texas indictment, including the drug-conspiracy charge, and was sentenced to fifty-seven months’ imprisonment. Notably, the only drug quantity attributed to Mr. Mier-Garces at sentencing was the 10.6 kilograms; that is, there was no finding that additional drugs were involved in the conspiracy charged in the Texas indictment.
After he pleaded guilty to the Texas charges, Mr. Mier-Garces filed a motion to dismiss the Colorado indictment on the ground that it violated his rights under the Double Jeopardy Clause. The district court held an evidentiary hearing on the motion, largely establishing the information that we have summarized
At the hearing, the court listened to testimony from a prosecutor and an agent from the Western District of Texas, an agent from Colorado, and an investigator from the Federal Public Defender’s Office in the Western District of Texas. Both defense counsel and the government offered oral argument.
The court ruled that Mr. Mier-Garces had failed to carry his burden of demonstrating that the Texas and Colorado conspiracies were in fact one conspiracy. The court noted “that the evidence on that issue [i.e., whether there was in fact one conspiracy] is little, and what little there is, is inadequate.” Id. at 512 (Tr. of Oral Ruling, dated June 6, 2017). While the court noted the geographic overlap of the conspiracies, it did not find that overlap determinative. The court agreed with defense counsel that it was “arguably unusual . . . to see limited one-day conspiracies,” as charged in the Texas indictment, but said that this “does not answer the question whether or not the two [conspiracies] are the same.” Id. at 513. The court noted the potential difficulty raised by the Texas
C
After Mr. Mier-Garces was convicted, the United States Probation Office prepared a Presentence Investigation Report (“PSR”) for his sentencing.1 The PSR included a two-level enhancement under Guidelines § 2D1.1(b)(12) for Mr. Mier-Garces’s maintenance of his residence for the purpose of distributing a controlled substance. Mr. Mier-Garces objected to this enhancement. The district
Mr. Mier-Garces first argues that the district court erred in its Double Jeopardy Clause ruling. We set out our standard of review and the appropriate substantive standards before applying those standards to the relevant facts. We properly consider only the factual record that was before the district court at the time that it ruled on the motion to dismiss because Mr. Mier-Garces did not renew his motion during or after trial.2 See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir. 2008) (“We generally limit our review on appeal to the record that was before the district court when it made its decision . . . .”); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1019 (10th Cir. 2004) (“[W]e may only ‘evaluate the trial court’s decision from its perspective when it had to rule and not indulge in review by hindsight.’” (quoting Old Chief v. United States, 519 U.S. 172, 182 n.6 (1997)); see also Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (explaining that appellate courts “may not consider facts which were not before the district court at the time of the challenged ruling”).
We conclude that the district court did not clearly err in finding that the Colorado conspiracy and the Texas conspiracy were in fact separate conspiracies
A
“We review the factual findings underlying the defendant’s double jeopardy claim for clear error.” United States v. Leal, 921 F.3d 951, 958 (10th Cir. 2019) (quoting United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024–25 (10th Cir. 1996)); accord United States v. Mintz, 16 F.3d 1101, 1104 (10th Cir. 1994). More specifically, a district court’s findings concerning whether a defendant was involved in a “single, continuing conspiracy,” United States v. Beachner Constr. Co., 729 F.2d 1278, 1281 (10th Cir. 1984), or, alternatively, involved in “separate and distinct conspiracies,” United States v. Jones, 816 F.2d 1483, 1486 (10th Cir. 1987), are factual in nature, and thus are reviewed for clear error, see id. (holding that whether offenses involved “separate and distinct conspiracies” was “essentially a finding of fact, and we therefore review it under the clearly erroneous standard”); Beachner, 729 F.2d at 1281 (“The standard we must apply in reviewing the district court’s finding of a ‘single, continuing conspiracy’ is whether it was ‘clearly erroneous.’” (quoting United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981))).3 Notably, as amplified below, the issue of
B
We turn now to the substantive legal standards that apply to Mr. Mier-Garces’s double-jeopardy arguments. After providing a brief overview of the Double Jeopardy Clause, we explain that under our precedent—in order to discern whether separately charged conspiracies are in fact one—the central and determinative question is whether those conspiracies are interdependent. And, by way of preview of our subsequent analysis, we ultimately conclude, like the district court, that Mr. Mier-Garces’s showing of interdependence was inadequate to sustain his double-jeopardy challenge.
1
The Double Jeopardy Clause’s guarantee includes different types of protections. See United States v. Dixon, 509 U.S. 688, 696 (1993) (“This protection applies both to successive punishments and to successive prosecutions for the same criminal offense.”); Leal, 921 F.3d at 959 (“It provides three protections. ‘It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’” (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
“When the government charges a defendant under separate statutes for the same conduct, the test derived from Blockburger v. United States, 284 U.S. 299 (1932), determines whether the crimes are the ‘same offense’ for double jeopardy
In other words, Blockburger’s so-called “same-elements test . . . inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Dixon, 509 U.S. at 696; see Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 YALE L.J. 1807, 1813 (1997) (“Blockburger treats two offenses as different if and only if each requires an element the other does not.”). The Blockburger test involves a legal analysis focused on the elements of the separate statutes. See, e.g., United States v. Cardall, 885 F.2d 656, 665 (10th Cir. 1989) (rejecting the defendant’s “claim that the focus of the double jeopardy analysis [under Blockburger] is conduct, not the legal elements of the offense”); United States v. Davis, 793 F.2d 246, 248 (10th Cir. 1986) (“The double jeopardy test does not focus on the acts charged in the indictment or the evidence at trial, but rather on the elements of the crimes.”); see also United States v. Angilau, 717 F.3d 781, 787 (10th Cir. 2013) (“In assessing whether the
But, as most relevant here, the Double Jeopardy Clause also provides a distinct protection for defendants who have been charged with violating the same statute more than one time when they have in fact only violated it once. See Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978) (“Because only a single violation of a single statute is at issue here, we do not analyze this case under the so-called ‘same evidence’ test [i.e., the same-elements test of Blockburger], which is frequently used to determine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes.”); United States v. Rigas, 605 F.3d 194, 204 (3d Cir. 2010) (en banc) (“The Blockburger test is a tool for determining whether Congress intended to separately punish violations of distinct statutory provisions, and is therefore inapplicable where a single statutory provision was violated.”); United States v. Asher, 96 F.3d 270, 273 (7th Cir. 1996) (“[B]y its very terms the Blockburger test applies only where ‘the same act or transaction constitutes a violation of two distinct statutory provisions’[.]” (quoting Blockburger, 284 U.S. at 304)).
More specifically in the conspiracy context, “[w]hen the government charges a defendant with committing two (or more) conspiracies [involving the
Accordingly, in this context, where the defendant is separately charged with two (or more) conspiracy offenses under the same conspiracy statute, the double-jeopardy analysis is centered on the factual question of whether the charged conspiracies are actually in fact one. See, e.g., Beachner, 729 F.2d at 1281; cf. Amar, supra, at 1817 (“[U]nder the Double Jeopardy Clause, an offense must not
2
We recently addressed a double-jeopardy challenge in a very similar setting involving two drug-trafficking conspiracy prosecutions brought under
In the double-jeopardy context,
[w]hen, as here, a defendant claims that a second conspiracy charge is for the same conspiracy as the first conspiracy charge[,] . . . “the court must determine whether the two transactions [alleged in the charges] were interdependent and whether the [co-conspirators] were ‘united in a common unlawful goal or purpose.’”
Id. at 960 (third and fourth alterations in original) (quoting Mintz, 16 F.3d at 1104); accord Sasser, 974 F.2d at 1550. More specifically, “[o]f principal concern is whether the conduct of the alleged co-conspirators, however diverse and far-ranging, exhibits an interdependence.” United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990), overruled on other grounds by United States v. Gaudin, 515 U.S. 506 (1995); accord Leal, 921 F.3d at 960; Sasser, 974 F.2d at 1550. And “the focal point of the analysis” for determining whether two charged conspiracies are interdependent is the inquiry into whether they are “united in a common unlawful goal or purpose.” Daily, 921 F.2d at 1007; accord Sasser, 974 F.2d at 1550.
A “common goal, however, is not by itself enough to establish interdependence: ‘What is required is a shared, single criminal objective, not just similar or parallel objectives between similarly situated people.’” United States v. Carnagie, 533 F.3d 1231, 1239 (10th Cir. 2008) (quoting United States v. Evans, 970 F.2d 663, 670 (10th Cir. 1992)); see id. (noting that although the two separate groups alleged to be joined in one conspiracy “had the same general objective—to profit from submitting fraudulent FHA loans—it does not necessarily mean that the separate groups were interdependent”). “Conspiracies aimed at different ends are not interdependent.” Leal, 921 F.3d at 961.
“A shared objective is present when ‘the activities of [the] alleged co-conspirators in one aspect of the charged scheme were necessary or advantageous to the success of the activities of co-conspirators in another aspect of the charged scheme, or the success of the venture as a whole.’” Id. at 960 (alteration in original) (quoting Daily, 921 F.2d at 1007); see Sasser, 974 F.2d at 1550 (explaining “interdependence” as requiring such a shared objective). “[T]he
If, as here, there is not “direct evidence” that the separately charged conspiracies shared a single unlawful objective—evidence that would cogently support a finding of interdependence—at least primarily, “courts look for commonalities in time, place, and personnel. If two conspiracies involved the same people, occurred in the same place, and happened at roughly the same time, courts are more likely to find the conspiracies were interdependent.” Leal, 921 F.3d at 961. But these factors are not intended to be exhaustive; more specifically, we may at least consider other factors that our case law has
In that regard, in seeking to determine whether separate conspiracy charges actually pertain to one conspiracy, we also have looked at whether there is a commonality among the conspiracies’ overt acts. See, e.g., Daniels, 857 F.2d at 1393 (noting that the indictments “each set forth different overt acts“); Wilkett, 655 F.2d at 1015 (concluding that the defendant could not be retried because the government sought to introduce the same evidence of overt acts in both the Eastern and Western Districts of Oklahoma). Of course, in drug-trafficking conspiracies prosecuted under
Furthermore, we also have taken into account whether there are any commonalities between the statutory violations that are the objects of the charged conspiracies. For example, in United States v. Puckett, 692 F.2d 663 (10th Cir. 1982), we noted that the defendant had been convicted of conspiring “to violate . . .
All of these factors may not be relevant to the double-jeopardy determination in a given conspiracy case. Importantly, the defendant “carr[ies] the burden of proving double jeopardy.” Mintz, 16 F.3d at 1104; accord Rodriguez-Aguirre, 73 F.3d at 1025; see also Leal, 921 F.3d at 959 n.6 (noting “the defendant bears the burden of showing a double jeopardy violation” and rejecting invitation to adopt a burden-shifting framework that other circuits use). Consequently, courts are guided by the “arguments in [defendants’] briefing” in determining which factors are relevant to the resolution of the double-jeopardy
3
Notwithstanding our articulation above of the controlling substantive standards, we acknowledge that the double-jeopardy law in our circuit is not pellucid on this matter in the context of separate conspiracy prosecutions that, as here, involve the same conspiracy statute. And that lack of clarity is evident in the parties’ briefing. Thus, we pause to explain our process for discerning the controlling standards for resolving Mr. Mier-Garces’s double-jeopardy challenge. More specifically, we elaborate on our decision to generally follow the framework articulated in Leal.
a
In his opening brief, Mr. Mier-Garces invoked the so-called “totality of the circumstances test” and insisted that it was applicable in the context of separate conspiracy charges under the same conspiracy statute to resolve “the multiple/single conspiracy issue.” Aplt.’s Opening Br. at 15 (quoting In re Grand Jury Proceedings, 797 F.2d 1377, 1380 (6th Cir. 1986)). As to the nature of that test, he observed the following:
[w]hen applying the totality of the circumstances test, five general factors are to be considered: “(1) the time periods covered by the alleged conspiracies; (2) the places where the conspiracies are alleged to have occurred; (3) the persons charged as coconspirators; (4) the overt acts alleged to have been committed in furtherance of the conspiracies, or any other
descriptions of the offenses charged which indicate the nature and scope of the activities being prosecuted; and (5) the substantive statutes alleged to have been violated.”
Id. at 15–16 (quoting United States v. Alvarado, 440 F.3d 191, 198 (4th Cir. 2006)).
Mr. Mier-Garces argued that this test should be applied in lieu of the well established and seminal double-jeopardy test announced by the Supreme Court in Blockburger, because in cases such as this one, “the Blockburger analysis proves difficult of application since it assumes a violation of ‘two distinct statutory provisions.’” Id. at 14 (italics added) (quoting United States v. Allen, 539 F. Supp. 296, 304 (C.D. Cal. 1982), which in turn quotes Blockburger, 284 U.S. at 304). In his opening brief, Mr. Mier-Garces did not mention interdependence—much less argue that interdependence is relevant to the double-jeopardy determination in circumstances such as these—and, more specifically, did not expressly argue that the Texas and Colorado conspiracies were interdependent. Rather, he simply argued the two conspiracies shared the general “common goal” of importing cocaine. Id. at 23. Only in his reply brief did Mr. Mier-Garces expressly make interdependence arguments. See Aplt.’s Reply Br. at 7–9.
In asking us to apply a totality-of-the-circumstances test, Mr. Mier-Garces relied exclusively on out-of-circuit authority—not our own. See, e.g., United States v. Sertich, 95 F.3d 520, 523–24 (7th Cir. 1996) (“To determine whether the two charges arise out of one conspiracy, the court must look to such factors as whether they involve the same overt acts, people, places, or time period; whether they share similar objectives or modus operandi; or whether the two conspiracies depend upon each other for success.“); United States v. Smith, 82 F.3d 1261, 1271 (3d Cir. 1996) (“The ultimate purpose of the totality of the circumstances inquiry is to determine whether two groups of conspirators alleged by the government to have entered separate agreements are actually all committed to the same set of objectives in a single conspiracy.“).
This reliance on out-of-circuit authority is not surprising because, as the government pointed out in its response brief, see Aplee.’s Resp. Br. at 12, in the context of conspiracy prosecutions involving the same conspiracy statute, we have expressly rejected on more than one occasion the totality-of-the-circumstances test and applied instead what we have labeled a “same-evidence” test, see Puckett, 692 F.2d at 668 (electing to “adhere to the same evidence test” though the defendant “urge[d]” the panel “to employ the ‘totality of the circumstances’ test“); see also Sasser, 974 F.2d at 1549 n.4 (noting Puckett‘s adherence to the same-evidence test, in responding to the defendant‘s “suggest[ion] that we adopt a ‘totality of the circumstances’ test“); Jones, 816 F.2d at 1486 (“This circuit applies the ‘same evidence’ test to determine the validity of a double jeopardy
As we have formulated it, the same-evidence test “provides that offenses charged are identical in law and fact only if the facts alleged in one would sustain a conviction if offered in support of the other.” Puckett, 692 F.2d at 667; accord Mintz, 16 F.3d at 1104; Wilkett, 655 F.2d at 1013. Notably, we have associated this test with Blockburger. See, e.g., Mintz, 16 F.3d at 1104; Puckett, 692 F.2d at 667; see also Sasser, 974 F.2d at 1549 (referring to “the Blockburger ‘same evidence’ test“). In its response brief, the government asserted that the same-evidence test was the correct one to apply in addressing Mr. Mier-Garces’s double-jeopardy challenge. The government further asserted, however, that “[t]he defendant must also show that the two conspiracies were interdependent and that the conspirators in each shared a single criminal objective.” Aplee.’s Resp. Br. at 12.4
Although the Court in Leal did not refer to the factors outlined above as a “totality of the circumstances” test, they are the same factors that other Circuits consider when examining the “totality of the circumstances” in order to determine whether successive conspiracy prosecutions violate the protections against double jeopardy. Similarly, the factors examined in Leal are the same factors that Mier-Garces examined in his opening and reply briefs . . . .
Id. at 2. And he tries to show us, through citations to his earlier briefing, that he
On the other hand, the government asserts that ”Leal did not overrule this Court’s ‘same evidence’ test, which remains the applicable test in this circuit. It confirmed, however, that two conspiracies cannot be the same offense without interdependence.” Aplee.’s Suppl. Br. at 1. Further, says the government, Leal underscores that where separate conspiracy charges are at issue in the double-jeopardy challenge, the “inquiry necessarily involves consideration of whether the second charge is based on a ‘different set of facts’ than the first.” Id. at 2 (quoting Daniels, 857 F.2d at 1393). Under the government’s reasoning, however, even the same-evidence test recognizes the determinative nature of the interdependence factor: “[i]n the parlance of the ‘same evidence’ test, where two conspiracies are not interdependent, evidence of one could not possibly prove the other.” Id. at 3. Nevertheless, the government insists that ”Leal‘s focus on interdependence did not supplant the ‘same evidence’ test or mean that only interdependence matters. . . . Most significantly, because the essence of a conspiracy is the agreement, there must be a single agreement with a single set of objectives.” Id. (citation omitted).
b
After considering the parties’ arguments, we have determined that Leal‘s
To begin, recall that States v. Leal” cite=“921 F.3d 951” court=“10th Cir.” type=“short“>Leal‘s framework puts the factor of interdependence front and center in the inquiry concerning whether two (or more) separate conspiracies based on the same statute are in fact one and makes the presence of a single, shared unlawful objective the key indicator of such interdependence. There, we held that
[w]hen, as here, a defendant claims that a second conspiracy charge is for the same conspiracy as the first conspiracy charge and therefore is a double jeopardy violation, “the court must determine whether the two transactions [alleged in the charges] were interdependent and whether the [co-conspirators] were ‘united in a common unlawful goal or purpose.’”
Leal, 921 F.3d at 960 (second and third alterations in original) (quoting Mintz, 16 F.3d at 1104). In this regard, Leal does not plow new ground: our prior case law has repeatedly centered its double-jeopardy analysis, in circumstances such as these, on an interdependence inquiry, focusing primarily on the presence of a single, shared unlawful objective to discern such interdependence. See United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990) (“Of principal concern is whether the conduct of the alleged co-conspirators, however diverse and far-ranging, exhibits an interdependence.“); id. (“As to the existence of a single conspiracy, the focal point of the analysis is whether the alleged co-conspirators were united in a common unlawful goal or purpose.“); accord United States v. Carnagie, 533 F.3d 1231, 1239 (10th Cir. 2008); Mintz, 16 F.3d at 1104; Sasser, 974 F.2d at 1550.
Leal, however, does highlight the relevance of “commonalities in time, place, and personnel” to the determination of whether two (or more) separate
Furthermore, acknowledging that “we must endeavor to interpret our cases
Almost two decades ago, in Wilkett, we insightfully observed the following:
[T]he same evidence test is not always adequate for testing applicability of the former jeopardy principle where the two crimes charged are both conspiracies. Conspiracies frequently involve several or even dozens of overt acts and may extend over several months or years. Thus, it may frequently be possible to show the existence of a single conspiracy through proof of more than one set of facts. If two charges of conspiracy are in fact based on a defendant’s participation in a single conspiracy, the former jeopardy clause bars the second prosecution. As a consequence, it may be necessary to look beyond the question of
what evidence will be offered in proof of the two conspiracies, and to determine whether under all the circumstances a single conspiracy is present.
655 F.2d at 1013–14 (emphasis added) (citations omitted).5 And, in practice, panels of our court have heeded Wilkett‘s advice. That is, notwithstanding their invocations of the same-evidence test, they have conducted extensive factual analyses of the charged conspiracies, focusing on commonalities—including time, place, and personnel—in order to assess whether the separate conspiracies at issue were in fact one. See Mintz, 16 F.3d at 1104–06; Sasser, 974 F.2d at 1549–50; Puckett, 692 F.2d at 667–68; see also United States v. Cardenas, 105 F. App‘x 985, 987–88 (10th Cir. 2004) (unpublished); cf. United States v. Martinez, 562 F.2d 633, 637–38 (10th Cir. 1977) (cited by Puckett in support of the same-
Notably, none of these same-evidence cases expressly rested their holdings on a determination as to whether the requirements of the same-evidence test were satisfied—that is, on an explicit conclusion regarding whether “the facts alleged in one [conspiracy] would sustain a conviction if offered in support of the other [conspiracy].” Puckett, 692 F.2d at 667.6 In other words, these cases have not adhered rigidly to the language of that test. On the other hand, some of the key cases that have expressly invoked the same-evidence test have recognized the centrality of the interdependence factor to the determination of whether separately charged conspiracies are actually one. See, e.g., Mintz, 16 F.3d at 1104; Sasser, 974 F.2d at 1550; see also Cardenas, 105 F. App‘x at 987.
Therefore, we read our cases that have expressly invoked the same-evidence test as essentially standing for two important, broad propositions: stated
To be sure, our cases invoking the same-evidence test have associated it with Blockburger. See, e.g., Mintz, 16 F.3d at 1104; Puckett, 692 F.2d at 667; see also Sasser, 974 F.2d at 1549 (referring to “the Blockburger ‘same evidence’ test“). And yet, in Leal, we made clear that, in circumstances such as these where at issue are separate conspiracy charges involving the same statute, Blockburger is not applicable. See 921 F.3d 951.7 However, even though there appears to be at first blush some conflict between our invocation of Blockburger in our same-evidence-test cases and our pronouncement about Blockburger in Leal, that
To begin, as we read them, our same-evidence-test cases have never held that Blockburger‘s test is controlling double-jeopardy precedent in the context of separate conspiracy prosecutions involving the same statute; therefore, Leal‘s pronouncement, insofar as it declares Blockburger is not controlling in this context, does not engender a real conflict with those cases. Specifically, it is most reasonable to read our same-evidence-test cases as historically relying on Blockburger to tacitly provide support—by way of analogy—for our court’s formulation of a comparison-based, heavily fact-intensive double-jeopardy test: that is, the same-evidence test that inquires whether “the facts alleged in one [conspiracy] would sustain a conviction if offered in support of the other [conspiracy].” Puckett, 692 F.2d at 667; cf. McMurray, 680 F.2d at 699 (“It is apparent that the issue as to whether one or more conspiracies existed in the cases before us is to be resolved by an examination of the facts. The problem is a factual one and each case is unique.“).
The Blockburger test provides a sound basis for such an analogy because it contemplates a comparison-based, double-jeopardy analysis—albeit one involving two separate statutes: “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304 (emphasis added).
Blockburger would not reasonably have been cited in these same-evidence-test cases for more than such an analogy because the concern of the comparison-based Blockburger test is legal, whereas the focus of the comparison-based, same-evidence test is factual. In this regard, as we suggested in our overview of double-jeopardy principles, see supra Part II.B.2, the Blockburger test focuses on statutory elements—not facts or evidence,8 see Grady v. Corbin, 495 U.S. 508, 521 n.12 (1990) (“The Blockburger test has nothing to do with the evidence
Therefore, Blockburger itself is not a same-evidence test but, rather, a
It is true that Leal went further than merely indicating that Blockburger was not controlling precedent: it indicated that, in circumstances such as these where
The upshot is that, contrary to Mr. Mier-Garces’s suggestion, our same-evidence-test cases can coexist harmoniously with Leal’s framework. Stated otherwise, the apparent conflict between these cases and Leal is not real.
In sum, we have determined that Leal’s framework helpfully synthesizes and clarifies our precedent and, thus, embodies the proper substantive standards for resolving Mr. Mier-Garces’s double-jeopardy challenge. Leal’s framework underscores the central and determinative importance in our case law of interdependence in the assessment of whether two separately charged conspiracies under the same conspiracy statute are actually a single conspiracy. And it provides a helpful, coherent framework for examining other factors that we historically have found to be relevant in our interdependence inquiry. Lastly, contrary to Mr. Mier-Garces’s suggestion, we do not believe that Leal is really irreconcilable with our same-evidence-test cases nor does it really conflict with those cases’ invocation of Blockburger. Accordingly, we proceed to apply Leal’s framework in resolving Mr. Mier-Garces’s double-jeopardy challenge.
* * *
At first blush, our adoption of the Leal framework puts Mr. Mier-Garces in a precarious position because he advanced interdependence arguments for the first
C
1
As noted, the “the focal point of the analysis” for determining whether two charged conspiracies are interdependent is whether they are “united in a common unlawful goal or purpose,” Daily, 921 F.2d at 1007; accord Sasser, 974 F.2d at 1550—understood in the narrow sense of “a shared, single criminal objective, not just similar or parallel objectives between similarly situated people,” Carnagie, 533 F.3d at 1239 (quoting Evans, 970 F.2d at 670). Mr. Mier-Garces argues that both conspiracies—i.e., the Texas and Colorado conspiracies—had the same general goal of “distributing controlled substances for profit,” Aplt.’s Reply Br. at 9, and, more particularly, that both conspiracies were aimed at “the importation of
Mr. Mier-Garces argues that the money earned in the Albuquerque transaction undertaken pursuant to the Texas conspiracy facilitated the venture as a whole because a “one-time agreement to assist in a one-time collection of
However, Mr. Mier-Garces’s citations to Dickey and similar cases are unconvincing. To start, in each of the cases Mr. Mier-Garces cites on this
Furthermore, even setting aside this distinction, we still think Mr. Mier-Garces’s argument is unconvincing. While “it is not necessary that each conspirator agree with all others or even know of the others, or have contact with each of them,” McMurray, 680 F.2d at 698, there must be “a shared, single criminal objective, not just similar or parallel objectives between similarly situated people,” Evans, 970 F.2d at 670. While the Colorado and Texas conspiracies had “parallel” objectives, Mr. Mier-Garces fails to convincingly explain how they were mutually reinforcing.
His failure on this point is underscored by Leal. There, we also acknowledged the principle—cited above—that “[w]here large quantities of narcotics are being distributed, each major buyer may be presumed to know that he is part of a wide-ranging venture, the success of which depends on performance by others whose identity he may not even know.” 921 F.3d at 962 (alteration in original) (quoting Watson, 594 F.2d at 1340). But we held that this general principle did not establish interdependence. Id. at 962. Even though members of the two distinct conspiracies in Leal “each aspired to ‘distribute large amounts of narcotics . . . for profit,’ that would not establish they were pursuing that goal as part of a shared endeavor.” Id. (citation omitted). As in Leal, though
Thus, we conclude that the district court did not clearly err in concluding that there was no direct evidence of a shared, single criminal objective that would permit a finding of interdependence. However, even without such direct evidence, courts may still conclude that two purportedly distinct conspiracies are in fact one conspiracy based on, inter alia, “commonalities in time, place, and personnel.” Id. at 961. Therefore, guided by Mr. Mier-Garces’s arguments, we consider other factors that nevertheless may demonstrate the existence of a single conspiracy.
2
“[C]ommonalities in time” can be relevant to whether two purportedly distinct conspiracies are in fact one. Id.; accord McMurray, 680 F.2d at 699. The superseding indictment in this case, i.e., the Colorado conspiracy, charged that a conspiracy existed from December 8, 2013, until March 22, 2016. The
We reached such a conclusion over forty years ago in a similar case involving two drug-trafficking conspiracies in Martinez, where the defendants “emphasize[d] the fact that December 11, 1973, the approximate date of the alleged conspiracy charged in the Texas indictment, f[ell] within the time period covered by the indictment in this Oklahoma case, which cover[ed] the period from about November, 1973, until January, 1977.” 562 F.2d at 635. We observed that “[t]he mere fact that the same parties are charged with being members of two conspiracies, and that both conspiracies concerned transactions in the same items and overlapped in time, does not establish that the two conspiracies are the same.” Id. at 638. And we concluded that the district court did not clearly err in determining that the defendant presented insufficient proof that the two conspiracies involved the same unlawful agreement. See id. Martinez supports our determination here.
Furthermore, more recently, a panel of our court arrived at a like
Notably, Mr. Mier-Garces points us to Fifth Circuit cases where commonalities in time were found to militate in favor of a finding that one conspiracy existed. See United States v. Rabhan, 628 F.3d 200, 205 (5th Cir. 2010); United States v. Winship, 724 F.2d 1116, 1126 (5th Cir. 1984). But the commonalities in time in those cases were more substantial than the one day here, and we do not find them persuasive. In short, we conclude that the one-day overlap here does not appreciably undermine the district court’s finding of separate conspiracies, much less render it clearly erroneous.
3
Likewise, the geographic overlap here does not meaningfully point in the direction of one conspiracy. The Texas indictment was based on Mr. Mier-Garces’s agreement to distribute cocaine from El Paso to Albuquerque. All of the conduct underlying the conspiracy occurred either in the greater El Paso
Thus, while there was geographic overlap as to Mr. Mier-Garces’s conduct in the two conspiracies, this does not necessarily tell us much about the overlap of the conspiracies more generally. As the district court noted,
[a] defendant in one jurisdiction . . . could be involved in multiple conspiracies[.] [E]ven though his conduct in [one jurisdiction] all took place in [that jurisdiction], that would not preclude him from being involved in multiple conspiracies one or more of which may extend [beyond] the borders of [that jurisdiction].
R., Vol. III, at 512. The court’s reasoning is sound. Whenever one individual is involved in multiple conspiracies, there is likely to be at least some geographic
Compare the situation here to that in Mintz. There, we concluded that the district court’s finding that marijuana operations in Kansas and Florida were part of the same conspiracy was not clearly erroneous in part because “the ultimate goal was to mix the two types of marijuana [i.e., from Kansas and Florida] for sale in New York.” 16 F.3d at 1106. The planned convergence in a single location (i.e., New York) was strong evidence that a single conspiracy existed. But here the district court was presented with minimal evidence that these conspiracies in different states interacted with each other or that they were pursuing a unified “ultimate goal.” Id.
Our assessment that the evidence of geographic overlap does not meaningfully point in the direction of one conspiracy is further underscored by a comparison with the Tenth Circuit panel’s decision in United States v. Rodriguez-Moreno, 215 F.3d 1338, 2000 WL 504858 (10th Cir. 2000) (unpublished table decision). There, marijuana was imported from Mexico and stored in McAllen, Texas. Id. at *1. The defendant was charged with one
Finally, Mr. Mier-Garces also notes that when the government offered a factual basis in support of his guilty plea in the Western District of Texas, it stated that “drug couriers would then transport the drugs to destination cities in the U.S. and the money couriers would smuggle the drug proceeds back into Mexico.” Suppl. App., Vol. I, Ex. S, at 44 (Tr. of Guilty Plea Hr’g, dated Mar. 30, 2016). However, this general reference to the drug couriers’ transportation activities in the United States is insufficient to establish that the Colorado and
In sum, we conclude that, though both conspiracies had in common Mr. Mier-Garces’s activities in the greater El Paso area, this geographic overlap does little to advance Mr. Mier-Garces’s argument that the conspiracies were one.
4
Next we consider any commonalities in personnel between the conspiracies. This factor supports the district court’s finding that the Texas and Colorado conspiracies were separate conspiracies. In particular, other than Mr. Mier-Garces, none of the individuals named in the Colorado indictment were named in the Texas indictment and vice versa. The only named conspirator in the Texas indictment was Mr. Mier-Garces; otherwise the indictment just referred generally to “known and unknown” co-conspirators. R., Vol. II, at 66. Whatever door for speculation this common, but opaque, indictment reference may have generated—see, e.g., United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976) (noting that “the indictment alleged that the two conspired with each other and other unknown persons.”)—was firmly closed shut by the government at the hearing, when it presented evidence that known conspirators in the Colorado
Mr. Mier-Garces’s primary argument to the contrary centers on the role of an individual that Mr. Mier-Garces refers to as “El Señor.” He claims that El Señor was “the Mexico-based source of the cocaine” and that he and Mr. Mier-Garces were “the constants, and the central characters” in both the Texas and Colorado conspiracies. Aplt.’s Opening Br. at 22; see id. (asserting that the Texas and Colorado conspiracies “revolve[d] around the same two, central characters,” namely, Mr. Mier-Garces and El Señor). But the central problem with this argument is that Mr. Mier-Garces did not present information about El Señor to the district court at the time it ruled on the motion to dismiss; indeed,
Moreover, even if we could assume that El Señor and El Muñeco are the same person, the evidence about that person that was before the district court at the time of its ruling does not establish an overlap in personnel such that this factor would significantly favor a finding of one conspiracy. Mr. Mier-Garces’s post-arrest interviews mentioned El Muñeco’s role in coordinating the smuggling of narcotics into the United States. But even if this individual also had
In sum, we conclude that this factor does not undercut the district court’s finding of separate conspiracies, much less does it serve to make that finding implausible.
5
Mr. Mier-Garces makes one principal argument to the contrary.11 He argues that, though the two charged conspiracies “differ[ed] in the particulars of how th[eir] goal was to be accomplished,” the fact that the government moved to introduce at the Colorado trial Mr. Mier-Garces’s guilty plea in the Western District of Texas—on the ground that it was relevant to show his knowledge and lack of mistake under
6
Finally, both indictments alleged conspiracies to violate the same drug trafficking statute, namely
* * *
III
Mr. Mier-Garces separately argues—albeit briefly—that the district court erred in applying
A
“When reviewing a district court’s application of the Sentencing Guidelines, we review legal questions de novo and we review any factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Craig, 808 F.3d 1249, 1255 (10th Cir. 2015) (quoting United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005)). “A factual finding is clearly erroneous ‘only if [it] is without factual support in the record or if, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.’” Id. (alteration in original) (quoting United States v. Mullins, 613 F.3d 1273, 1292 (10th Cir. 2010)).
B
In determining whether manufacturing or distributing a controlled substance was the primary or principal use of the premises, “the court should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.”
- the frequency and number of drugs sales occurring at the home;
- the quantities of drugs bought, sold, manufactured, or stored in the home;
- whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and
- the significance of the premises to the drug
United States v. Murphy, 901 F.3d 1185, 1191-92 (10th Cir. 2018); accord United States v. Lozano, 921 F.3d 942, 946 (10th Cir. 2019).
C
Mr. Mier-Garces argues that the district court “erred in concluding that the government had proved by a preponderance of the evidence that Mier-Garces’ home in Chaparral was used primarily or principally for distributing a controlled substance.” Aplt.’s Opening Br. at 27. We disagree.
The district court made the factual finding that the primary purpose of the property was the storage or distribution of controlled substances. That finding was based on the court’s subsidiary findings that “there’s no question that the way this worked is drugs came up from Mexico, [and] they were stored [at the house] until they were transferred up to other parts of the United States.” R., Vol. IV, at 934. And the court further found that “[t]he reverse process ensued, when money was coming back. At a bear [sic] minimum, [the home] [wa]s for storage.” Id. The court relied on pictures of the home that demonstrated that it was a place “that a person does not really live in.” Id. at 935. This was because the pictures revealed that there was “no furniture,” no refrigerator, “no stove,” “stuff thrown all over the floors,” and “a mess” that rendered the home “not usable.” Id.; see Suppl. App., Vol. I, Ex. 57 (photographs of Mr. Mier-Garces’s home).
In our view, for two salient reasons, there can be little (if any) doubt that the district court’s determination to impose the enhancement was not clearly erroneous or otherwise improper. First, the commentary to the Guidelines makes clear that “storage of a controlled substance for the purpose of distribution” can qualify as maintaining the premises for the purposes of distributing controlled substances.
Second, the district court’s finding that Mr. Mier-Garces did “not really live” in the house is not clearly erroneous. Mr. Mier-Garces argues that his “period of incarceration should not be extended because he is untidy.” Aplt.’s Opening Br. at 27-28. But Mr. Mier-Garces was not punished for failing to clean his room; the extreme untidiness was only relevant because it indicated that he did not actually live at the home. And the significance of that fact has not been lost on prior panels of this court: they have noted that similar features of a home may indicate that it is primarily or principally being used for the distribution of controlled substances. See United States v. Mays, 606 F. App’x 911, 916 (10th Cir. 2015) (unpublished) (noting “[t]he house had no bedroom furniture” before affirming application of the enhancement); United States v. Cortez-Diaz, 565 F. App’x 741, 748 (10th Cir. 2014) (unpublished) (noting that “[t]he court also
Mr. Mier-Garces also attempts to explain away the fact that he did not receive mail at his home as being caused by his frequent travel; he thus argues that it made sense for him to have his mail sent to his mother’s home. Aplt.’s Opening Br. at 27-28. But this at most shows that multiple inferences were available to be made—some innocent, and some suggestive of the primary or principal use of the home for drug trafficking. It does not show that the district court clearly erred. See, e.g., United States v. Cortes-Gomez, 926 F.3d 699, 708 (10th Cir. 2019) (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it . . . . Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985))). And while Mr. Mier-Garces points to other features of the home that purportedly demonstrate that he lived there,13 none of
Furthermore, even if Mr. Mier-Garces had stayed there regularly, the regular and repeated use of the home for drug trafficking would still have provided the district court with ample basis to find that a primary or principal use of the home was for drug distribution. See Murphy, 901 F.3d at 1191 (“[O]ne may use his home (in the broad sense of the word) for lawful purposes 100% of the time and also use it (in the same broad sense of the word) for unlawful drug activity 100% of the time. In other words, both simultaneous uses may well be primary.” (underlining omitted)); see also id. (“A substantial drug distribution that regularly and quickly passes through the home (two or three days) on a bi-monthly or tri-monthly basis may qualify as a primary use of the premises for drug-related purposes . . . .”).
In sum, we conclude that the district court did not err in applying this enhancement.
IV
For the foregoing reasons, we conclude that the district court correctly determined that the Double Jeopardy Clause was not violated and that a
Notes
By choosing one set of overt acts in one indictment and a different set of overt acts in another indictment, the government is able to carve one large conspiracy into several smaller agreements. The “same evidence” test, which focuses on the evidence required to support a conviction for each indictment, provides no protection to the defendant from this type of prosecutorial action.Id. at 315.