Monday, December 3, 2007
Come Be My Conspiracy: Fifth Circuit Wrongfully Finds Not Guilty Plea Places Intent At Issue In All Conspiracy Cases
The Fifth Circuit Court of Appeals' recent decision in United States v. Swarn, 2007 WL 4013541 (5th Cir. 2007) gives me a good reason to attack what I feel is a wrongfully decided line of cases. Along with others, Lou Gene Swarn was charged with conspiracy with intent to distribute cocaine and the use of a communication facility in furtherance of the conspiracy. Swarn pled not guilty to all charges. At trial, over Swarn's objection, the prosecutor introduced into evidence his prior felony convictions for possession of cocaine pursuant to Federal Rule of Evidence 404(b). Federal Rule of Evidence 404 generally prohibits the use of other crimes or wrongs to prove that an individual has a propensity to act in a certain manner and the he acted in conformity with that propensity at the time of the alleged crime.
Thus, Federal Rule of Evidence 404 would have prohibited the prosecutor from introducing Swarn's cocaine convictions to prove that he had a propensity to use/sell cocaine and that he acted in conformity with that propensity at the time of the alleged conspiracy. Federal Rule of Evidence 404(b), however, allows for evidence of prior crimes or wrongs to be admitted for other purposes, such as proving intent and knowledge. And, in line with prior Fifth and Eleventh Circuit precedent, the court held that Swarn, like all defendants in conspiracy cases, put his intent at issue solely by pleading not guilty to the conspiracy charges. To me, this line of cases make no sense.
Sure, if a defendant in a conspiracy case pleads not guilty and claims that he agreed with other people to sell bags filled with white powder but argues that he thought that the bags contained baking soda, he would put his intent at issue. The prosecutor would thus be allowed to introduce evidence of his prior cocaine convictions to show that he knew that the white powder was cocaine and that he knew he was dealing drugs.
On the other hand, that same defendant could plead not guilty and claim that he didn't even know the other people selling drugs and that he never possessed a bag of drugs. Or, the same defendant could claim that he was friends with the other people selling drugs but left the moment they started passing around bags of drugs. In either case, the defendant would not be claiming that he committed certain otherwise criminal acts without the requisite criminal intent; instead, he would be claiming that didn't commit anything resembling a criminal act, meaning that intent wouldn't even be an issue.
I believe that the first Fifth/Eleventh Circuit case to find that a defendant pleading not guilty in a conspiracy case always puts intent at issue was United States v. Roberts, 619 F.2d 379 (5th Cir. 1980). To me, it is a decision ripe with illogic. In Roberts, the defendant was allegedly a minor player in a gambling conspiracy. At trial, he pleaded not guilty, and the prosecutor sought to introduce evidence his prior gambling conviction to prove his intent pursuant to Federal Rule of Evidence 404(b).
The Fifth Circuit granted the prosecution's motion over the defendant's objections, finding:
(1) that the offense of conspiracy requires an element of "intent or knowledge which is often difficult to prove;"
(2) that "[i]ntent is particularly difficult to prove when a defendant is a passive or minor actor in a criminal drama;" and
(3) that "if the government does not present intent evidence in its case in chief the defendant may simply rest and argue lack of intent to the jury without giving the opportunity to present such evidence in rebuttal." Roberts, 619 F.2d at 382-83.
Based upon these findings, the Fifth Circuit categorically concluded that "[i]n every conspiracy case, therefore, a not guilty plea renders the defendant's intent a material issue" unless and until the defendant affirmatively takes the issue of intent out of the case. Id. at 383. The Fifth Circuit then noted that when defense counsel moved to exclude evidence of the defendant's prior gambling conviction he indicated "that he would not actively contest the issue." Id. at 383. The court, however, found that this offer did not constitute the defendant affirmatively taking the issue of intent out of the case because it "did not reduce the burden on the prosecution to establish intent...." Id.
Let's look first at the court's first finding. The Fifth Circuit noted that a conspiracy charge requires proof of intent, which is often difficult to prove. This finding is correct, but that is simply because courts have recognized that in any crime, such as robbery or burglary, where intent is an element, "intent is often difficult to prove and often must be inferred from circumstantial evidence." See, e.g, United States v. Jernigan, 341 F.3d 1273, 1279 (11th Cir. 2003). And yet, with other intentional crimes, when a defendant simply pleads not guilty, his intent must, as the Jernigan court noted, be inferred from circumstantial evidence, not proven by prior bad act evidence admitted pursuant to Federal Rule of Evidence 404(b).
Perhaps the Fifth Circuit's second finding provides a rationale for treating conspiracy cases differently. The first thing I note is that the Fifth Circuit found that intent is particularly difficult to prove when a defendant is a passive or minor actor in a criminal drama. At best, this means that conspiracy cases should be treated differently than other cases involving intentional crimes when the defendant is a street level player. When the defendant is upper management, presumably intent should be less difficult to prove, and the case should be treated like any other case involving an intentional crime.
Moreover, there are plenty of cases where Rule 404(b) evidence is at issue, the defendant is a "minor actor" in a criminal drama, and yet a conspiracy is not charged. Thus, for instance, in United States v. Griggs, 149 F.3d 1188 (8th Cir. 1988), Griggs was charged with aiding and abetting the robbery of a post office based upon being the getaway driver; there was no conspiracy charge. Under the Fifth Circuit's analysis, by pleading not guilty, Griggs should have placed intent at issue, but no court has come to such a conclusion.
Furthermore, conspiracy is not the only type of crime where courts have noted that intent is especially difficult to prove. For instance, numerous courts have noted that it is especially difficult to prove intent to defraud. See, e.g., United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007). Under the Fifth Circuit's analysis, a defendant pleading not guilty in a fraud case should place intent at issue, but no court has come to such a conclusion.
Let's finally look at the court's last ruling. The Fifth Circuit stated that "if the government does not present intent evidence in its case in chief the defendant may simply rest and argue lack of intent to the jury without giving the opportunity to present such evidence in rebuttal." Roberts, 619 F.2d at 382-83. Again, this rationale could apply to any intentional tort.
More importantly, the Fifth Circuit rejected the perfect compromise that was raised by defense counsel in Roberts. As noted, defense counsel in that case indicated "that he would not actively contest the issue" of intent when he moved to exclude evidence of the defendant's prior gambling conviction. The court, however, found that this offer did not constitute the defendant affirmatively taking the issue of intent out of the case because it "did not reduce the burden on the prosecution to establish intent...." Yet this offer by defense counsel would have prevented the very issue that worried the court: that defense counsel could preclude the introduction of Rule 404(b) evidence during the prosecution's case and then argue lack of intent to the jury.