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Limits on Federal Drug Conspiracy Liability

Earlier this week, the Second Circuit issued a decision in United States v. Dickerson, vacating a federal drug conspiracy conviction. In so doing, the Court of Appeals affirmed important limitations on the scope of conspiratorial liability.

In simplest terms, a criminal conspiracy is an agreement of two or more persons to engage in unlawful conduct. Individuals found to be part of a conspiracy can be held liable (punished) for any foreseeable act that a conspirator commits in furtherance of the conspiracy. Although conspiracy liability tends to be far-reaching, courts have held that a mere buyer-seller relationship cannot sustain a drug trafficking conspiracy charge.

In United States v. Parker, 554 F.3d 230 (2d Cir. 2009), the Second Circuit spoke to these principles when it found that “[a]s a literal matter, when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer. According to the customary definition, that would constitute a conspiracy with the alleged objective of a transfer of drugs.” Concurrently, the Parker court recognized that, standing alone, the purchase and sale of drugs does not amount to a drug distribution conspiracy.

In Mr. Dickerson’s trial, cooperating witness Jayquis Brock testified that “Dickerson typically purchased two eight‐balls at a time, on several days each week, and occasionally more than once per day.” Although Brock conceded that he did not control Mr. Dickerson’s post-purchase activities and did not consider Mr. Dickerson part of the drug conspiracy of which he (Brock) was an admitted member, the district court denied Mr. Dickerson’s request to vacate the conspiracy conviction, concluding that a jury could find beyond a reasonable doubt that “Dickerson knew of the () group’s drug distribution scheme and agreed to join and participate in it.”  The Court of Appeals disagreed.

The Dickerson court listed a host of factors that demonstrated the insufficiency of the government’s proof:

  • Dickerson bought crack from others not involved with Brock.
  • Brock never sold to Dickerson on credit, that is, he never “fronted” Dickerson.
  • Brock placed no limits on Dickerson’s use or resale of he bought. Indeed, Brock “did not know or care what Dickerson did with the drugs after he purchased them.”
  • Dickerson never shared his profits with Brock or other conspiracy members.
  • Dickerson did nothing to assist the conspiracy.

In rejecting the government’s arguments, the Court offered a useful analogy:

If, for example, Dickerson operated a food truck and purchased fifty loaves of bread at five different supermarkets, each of which sold bread to fifty different food truck operators on a daily basis, those purchases and his subsequent resales of the bread would simply make him a good customer, not a member of any single supermarket enterprise. Although the volume of purchases is high, neither the food truck operator nor the supermarket is dependent on each other. By the same token, a good customer—even a very good customer—of a drug organization may still be just a customer, not a co-conspirator, if the evidence cannot support an inference of mutual dependency or a common stake.

Congratulations to Attorney Jeremiah Donovan on this important win.