When a group of confederates undertake to commit a series of criminal acts, is there one conspiracy or multiple conspiracies? The case of State v. Glisson, ___ N.C. App. ___, 796 S.E.2d 124, (Feb. 7, 2017), dealt with that issue. The answer, it turns out, is fact-specific and less than crystal clear.
Facts. The facts in Glisson involved a series of sales of oxycodone, an opiate, by the defendant to an undercover agent in Jones County. There were three transactions, leading to a total of 18 charges against the defendant. The defendant’s husband accompanied her to each sale, and there was at least some circumstantial evidence indicating he was aware of the transactions. The first two transactions took place a month apart; the final transaction occurred around three months later. The defendant was ultimately convicted of multiple conspiracy counts, including conspiracy to traffic opiates (among other charges). As readers may be aware and as previously noted , conspiracy to traffic is punished at the same level as the substantive trafficking offense, a statutory deviation from the usual rule that conspiracy is punished one class lower than the substantive offense. On appeal, the defendant challenged the sufficiency of the evidence of one of her conspiracy convictions, arguing in part that the evidence supported only one continuing conspiracy.
The Rules. “There is no simple test for determining whether single or multiple conspiracies are involved: the essential question is the nature of the agreement or agreements[;] . . . factors such as time intervals, participants, objective, and number of meetings must all be considered”. State v. Rozier, 69 N.C. App. 38 (1984). Where separate conspiracies are charged, the State is required to show both that there was more than one agreement and that the agreements were separate and distinct. Id. The duration of a conspiracy is determined by looking at the purpose or object of the conspiracy: “The offense continues until the conspiracy comes to fruition or is abandoned.” State v. Medlin, 86 N.C. App. 114 (1987).
Double Jeopardy concerns can arise where multiple conspiracy charges are involved. “Convicting and punishing a defendant for multiple counts of conspiracy where the evidence shows a conspiracy with some of the same people over a short period of time to commit a series of related crimes violated the defendant’s state and federal constitutional rights.” State v. Roberts, 176 N.C. App. 159 (2006). That multiple criminal acts are contemplated by a single conspiracy does not transform the conspiracy into separate conspiracies. Braverman v. U.S., 317 U.S. 49 (1942). Likewise, “a single conspiracy is not transformed into multiple conspiracies simply because its members vary occasionally and the same acts in furtherance of it occur over a period of time.” State v. Fink, 92 N.C. App. 523 (1989). On the other hand, separate agreements to commit multiple crimes at the same time are properly punished as multiple conspiracies. State v. Gay, 334 N.C. 467 (1993). As noted by the court in the Rozier case, “defining the scope of a conspiracy or conspiracies remains a thorny problem for the courts.” 69 N.C. App. at 52.
Glisson Opinion. The court in Glisson applied the Rozier test to determine that the evidence here was sufficient to support conviction of multiple conspiracies. Factors pointing to a single conspiracy included that the parties to the agreement were the same, and the apparent objective was the same: to sell and deliver oxycodone. The court, however, weighed more heavily the passage of time between the transactions, as well as that the transactions were initiated by law enforcement each time. Further, the court noted that each transaction was for different amounts, and at no point during the transactions were future transactions planned. “There was no evidence to suggest that Defendant planned the transactions as a series.” Slip op. at 10. Thus, the jury was entitled to infer that each transaction was planned separately and independently of the others, and the evidence supported multiple conspiracies for each.
Cases Approving of Multiple Conspiracies. A deeper look at some of the cases interpreting these rules may be helpful. In State v. Roberts, 176 N.C. App. 159 (2006), two conspiracy to commit robbery convictions were upheld where the defendant planned a robbery with the same two co-conspirators one night and again the next night with different victim. The court rejected the argument that because the two robberies were so close in time (within 24 hours of each other), only one conspiracy was shown. There, the evidence showed that the defendant planned one robbery one night and another the next. The first conspiracy was complete with the robbery of the first victim the first night. That the robberies were close in time did not preclude separate conspiracies. Likewise, in State v. Tirado, 358 N.C. 551 (2004), convictions for multiple conspiracies to rob and murder were approved. There, although the two killings occurred within 24 hours of each other, the court ruled that the “series of meetings, the variety of locations and participants, their different objectives, and the statements of the conspirators” could establish multiple conspiracies. 358 N.C. at 578. In State v. Gay, 334 N.C. 467 (1993), convictions for conspiracy to commit both burglary and murder based on the same event were affirmed where the evidence showed that the agreement to commit murder was reached weeks before the murders, and there was a separate plan formed on the morning of the offenses to enter the home.
Cases Disapproving of Multiple Conspiracies. There is no shortage of cases going the other way. In State v. Medlin, 86 N.C. App. 114 (1987), the defendants were convicted of seven counts of conspiring to break and enter residences. The offenses all occurred within 4 months of each other, involved all the same participants, and the objective of the agreement remained the same throughout. After each crime, the group would meet to plan the next break-in. This was seen as a series of ongoing acts, not multiple separate agreements. The facts in State v. Hicks, 86 N.C. App. 36 (1987), were similar, and the result was the same. The seminal Rozier case found error in the conviction of the defendant of multiple conspiracies where the agreement was for a larger amount of drugs but the transactions occurred in increments over the span of six days only. In State v. Shelly, 176 N.C. App. 575 (2002), the evidence showed one agreement to commit two murders; the time between the killings was short, the same participants remained involved throughout, there was seemingly only one ongoing agreement: to kill both victims. In State v. Howell, 169 N.C. App. 741 (2000), conspiracy convictions for trafficking by possession and transportation were reduced to one count of conspiracy where the agreement entailed the delivery of the heroin and the transportation and possession of the drugs were integral part of the single agreement. Howell seems to conflict with State v. Sanderson, 60 N.C. App. 604 (1983), where separate convictions for conspiring to traffic marijuana by possession and manufacturing were approved. The Sanderson case was decided before Rozier and seems to me to be a bit of an outlier in terms of the analysis; the court in Sanderson focused only on the separate nature of the different trafficking offenses and did not apply the framework for analyzing the separate conspiracies used by other cases.
Takeaway. So where does that leave us? The question of when the evidence supports multiple conspiracies remains a “thorny” issue, and is a highly fact-specific inquiry. No single factor seems to control. Ultimately, whether there are multiple conspiracies turns on the scope and nature of the agreement or agreements. As a result, a more ambitious, organized, and far-reaching conspiracy may constitute a single conspiracy, while crimes planned on an ad hoc basis may result in separate conspiracies.
The pattern jury instruction for conspiracy, N.C.P.I Crim. 202.80, does not deal with allegations of multiple conspiracies. Rozier and other cases make it clear that when conspiracy charges are submitted to the jury, the jury should determine whether one or more conspiracies exist. To that end, defense counsel should consider drafting and requesting a special jury instruction on the issue, where appropriate, and not necessarily accept that the evidence supports multiple, separate conspiracies.
Trivia. Speaking of organized conspiracies, in researching this post, I came across the case of State v. Overton, 60 N.C. App. 1, (1982). That case didn’t involve multiple conspiracy charges, but rather one large, international drug conspiracy. There, a group of retired soldiers shipped drugs from Thailand to the U.S. through military and government channels, with the involvement of several North Carolina residents. If the facts in that case sound familiar, that’s because they probably are: Overton was involved in the massive heroin smuggling operation led by Frank Lucas, of American Gangster infamy. The (single) conspiracy there spanned more than 8 years.