Wednesday, November 06, 2002
Moving on to next week's Supreme Court arguments: there's no court on Monday, so only four cases to discuss.
First case up is U.S. v. Recio. When I say "Ninth Circuit ruled in favor of some guys who had been convicted of a drug conspiracy", what the first thing that pops into your head? Probably "Supreme Court will REVERSE." (At least if you're the type of person who cares enough about such things to read these predictions). Especially after this week's blast of per curiam reversals of the Ninth Circuit even without full briefing and argument, it seems that this Term, the Court is continuing its pattern of reversing the Ninth Circuit often. (I previously discussed this pattern here, asserting that it does not mean that the Ninth Circuit errs more often than other Circuits, but that the pattern is an artifact of the Supreme Court's near-complete right to pick what lower court errors it chooses to bother itself with correcting.).
Anyway, getting back to the case: Recio and his co-defendant only showed up to transport the drugs after the government had already got wind of the operation, intercepted the drugs, arrested some participants, and (with the cooperation of one of those arrestees) continued on with the operation in order to sting further participants. One of the arrestees sent word to his colleagues that a new driver was needed to pick up the truck, and that's when Recio and his co-defendant showed up. Here's the Ninth Circuit's opinion (pdf), reversing the convictions for insufficient evidence that Recio and his co-defendant were actually part of a conspiracy when they showed up on the scene. The Government, seeking cert, says that the operative question is whether a conspiracy to traffic in drugs ends, by definition, when the government intercepts the drugs. In other words, on this view, the question is whether the government has to prove that Recio and his co-defendant were in fact in on the conspiracy before the government derailed it; the Government doesn't want to have to prove that. Frankly, from my reading of the opinion of the Ninth Circuit and of the briefs available on Findlaw, I'm not even sure that this question should ultimately be dispositive; ultimately this looks to be mostly a case about evidence and inference rather than about grand legal principles. But the Court took the case, so presumably some governing legal principle – beyond "that darn Ninth Circuit should be tougher on crime" – will emerge.
Someday, I hope, the Supreme Court will do something to stop the thus-far-unchecked expansion of "conspiracy" in drug trafficking cases; though the concept of "conspiracy" is supposed to require actual proof of an agreement to pursue a common goal, that requirement often gets glossed over (or at least stretched very thin and supported by conjecture) in drug cases. I am reminded of how one Eleventh Circuit Judge used to describe some of that Court's opinions in conspiracy cases: "Drugs on boat. Defendant on boat. Affirmed." But don't hold your breath for this Court to stop this trend.
So I'm saying REVERSE and will eat a handful of pecans (a high-stakes bet from my point of view) if I'm wrong.
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