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Massachusetts Appeals Court Decision in Commonwealth v. Daly Invalidates Conspiracy Conviction

While it is not a crime to think about committing a crime, or in general to talk about committing a crime, it is a crime to agree with someone else to commit a crime.  Usually one additional thing is required, an “act in furtherance” of the conspiracy – something to demonstrate that the agreement is not mere idle talk.  This is the crime of conspiracy.  It requires two people.  It is an amorphous crime, something prosecutors love and defense attorneys detest, because it has such open-ended reach.

Where the conspiracy is to distribute drugs, the “act in furtherance” is dispensed with.  All that is necessary to commit the crime is that you agree with one other person to distribute illegal drugs.  You don’t need to do anything – you only need to agree with another that you will do something.

The Massachusetts Appeals Court recently, in Commonwealth v. Daly, (Sept. 3, 2015) set at least a lower limit on the broad reach of the crime of conspiracy.  Following in the path of a number of federal courts, the Appeals Court held that a buyer and seller in a drug transaction are not guilty of conspiracy to distribute drugs, despite the indisputable fact that they have by the nature of the transaction agreed to a sale of drugs that necessarily entails distribution from one to the other.

In doing so, the Court canvassed two lines of argument that such an agreement should not constitute the crime of conspiracy to distribute.  The first, which the court did not adopt, reasons, curiously, that there is no conspiracy because the seller agrees to sell while the buyer agrees to buy, hence there is no “meeting of the minds.”  E.g. United States v. Moran, 984 F.2d 1299 (1st Cir. 1993).  This is curious because basic contract law finds a “meeting of the minds” where two parties agree on a transaction – goods or services exchanged for money – and in the case of drugs, both are agreeing to a distribution.  But the court looks narrowly at what is in each party’s mind, and finds that one is agreeing to distribute, the other to be distributed to, and finds it wanting because both are not agreeing to distribute.  (By contrast, two parties agreeing to work together to sell drugs are guilty of conspiracy.) In effect, a third person – whether a member of the conspiracy or not – is necessary to find a criminal conspiracy.

A second argument purports to look to legislative intent.  The legislature (or Congress, in the federal cases which the Daly court follows) intended to punish drug dealers more harshly than drug users.  This is apparent in the substantive crimes applicable to each – distribution is a serious felony, while simple possession is a misdemeanor.  The end user, who buys and consumes, merely possesses.  If two parties to a sale are guilty of conspiracy to distribute (which carries the same punishment as the substantive crime of distribution), then the end user can in every case be punished equally with the dealer.  The legislature could not have intended such a result, hence a simple sale was not intended by the legislature to be a criminal conspiracy.

The Appeals Court concluded, based on this second argument, that the Massachusetts legislature did not intend for the crime of conspiracy to include the agreement between a seller and an end-user buyer.  The Court’s preference for the legislative intent argument may have something to do with a side discussion of Wharton’s Rule and the fact that the Supreme Judicial Court, in an earlier case, rejected that rule.  Wharton’s Rule states that if a particular substantive crime requires two people for its commission (e.g. bigamy, or as in this case, the sale of drugs), the two necessary parties cannot be charged as well with conspiracy, without the involvement of a third person.  This rejected rationale looks suspiciously like the first argument (that there is no meeting of the minds when an alleged conspiracy consists only of buyer and seller).  While the Appeals Court noted the decision and asserts that the SJC didn’t address the no-meeting-of-the-minds rationale, it nonetheless plunked for the other rationale as the basis for its decision.

This was good news for Ms. Daly, but it took another analytical step for her to get out of the woods, because in her case there was a third person, a police informant as luck would have it.  The informant, call him A, arranged with another, call him B, to purchase drugs.  B then made a call to Daly and arranged a meeting.  A and B drove to a parking lot, as did Daly.  A gave money to B; B left his car and got into Daly’s, then returned with drugs, which he gave to A.

Because there was no evidence that Daly was aware of A or A’s involvement with the drugs she sold to B, the Appeals Court concluded that there was not enough evidence to convict her of a conspiracy with B to distribute to A.  The case then reduced to a conspiracy between Daly and B, for Daly to distribute to B.  This, for the reasons outlined, was not a criminal conspiracy. Daly was absolved (though, notably, she unquestionably intended to distribute drugs to B, a charge that was tried and, inexplicably, of which she was acquitted by the jury).

It is implicit in the decision but worth stating, that a transaction involving, say, a kilo of cocaine, will still be chargeable as a conspiracy even if the buyer and seller are the only parties charged, and indeed even if they are the only known parties.  This is because quantities that permit an inference that they are intended for distribution also permit the inference that both buyer and seller know, and intend, that the buyer will be distributing, rather than consuming, the kilo.  Upon that inference they have agreed to distribute to one or more third parties.

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