Saturday, February 19, 2011

The "Slight Evidence" and Similar Formulations for Connection to a Conspiracy

In our Tax Fraud and Money Laundering Class last Monday, Larry Campagna and I addressed conspiracy under Title 18 USC § 371. We covered the key concepts for conspiracy, including the differences between the offense and the defraud / Klein conspiracy. In addressing conspiracy concepts common to both types of conspiracies, we cautioned the class about this comment in the text we use (our own, so this is mea culpa):
Although the Government must prove that a defendant was a member of a conspiracy, this requirement may be satisfied by a showing of only a “slight connection” to the conspiracy so long as the connection is proven beyond a reasonable doubt.
This formulation in the book is the same as in CTM 23.05[2] (2008 ed.), except there is one key difference of emphasis as follows (emphasis supplied)

Although the government must prove that a defendant was a member of a conspiracy, this requirement may be satisfied by a showing of even a "slight connection" to the conspiracy, so long as the connection is proven beyond a reasonable doubt.
I don't know that the difference between the quoted formulations is particularly meaningful, but it appears to me to act act subtley to suggest even a slighter connection.

There are various formulations of this concept that have developed over the years -- "slight connection," "slight evidence," and "not overwhelming" evidence that have developed over the years.

I cited the class to the fairly recent Second Circuit decision in United States v. Huezo, 546 F.3d 174 (2d Cir. 2008), here, cert. den. ___ U.S. ___, 130 S. Ct. 142 (2009). I thought I would present that case for readers' consideration. Huezo involved a money laundering conspiracy under 18 U.S.C. § 1956(h), which for basic conspiracy concepts parallels the general conspiracy under 18 U.S.C. § 371. (The key difference that I am aware of is that the money laundering conspiracy does not require an overt act.) The Court made its key holding on these "slight" formulations in a footnote. (I am reminded of Justice Scalia's famous statement that "I don't read footnotes, normally" (which, I suppose, if nothing else might be read as an invitation to ignore footnotes in Justice Scalia's opinions).) At any rate, I quote the relevant portion of the footnote (p. 180, n.2):
The “not overwhelming evidence” or “slight evidence” formulation risks misleading not only jurors but district and appellate courts reviewing post-verdict challenges as to the sufficiency of the evidence. The “slight evidence” formulation may lead juries and reviewing courts improperly to focus on simply the quantity of evidence of a defendant's participation in a conspiracy rather than the quality of that evidence (whether quantitatively extensive or limited) viewed in the context of the particular conspiracy at issue. The relevant inquiry - and the determinative inquiry - is not whether a particular quantum of evidence has been presented but whether the evidence that has been adduced establishes, in the mind of a reasonable juror, the defendant's guilt beyond a reasonable doubt. Cf. United States v. Murray, 618 F.2d 892, 903 (2d Cir. 1980) (“A single act may be sufficient for an inference that an individual is involved in a conspiracy; the qualitative nature of the act viewed in the context of the entire conspiracy determines whether that inference can be drawn in a particular case.” (emphasis added) (internal quotation marks and citations omitted)).

We now hold that the ‘not overwhelming evidence’ and ‘slight evidence’ formulations do not accurately describe the government's burden of proof in conspiracy cases, and the use of these formulations should be discontinued. We note that prior to filing, this opinion has been circulated to all members of this court.
The majority opinion also notes its agreement with Judge Newman’s concurring opinion in which Judge Newman at length deconstructs the validity and dubious history of the various “slight” formulations in the various Circuits, including the Second. In his deconstruction of the dangers of those formulations, Judge Newman gives appropriate credit to Judge Easterbrook’s earlier leading opinion in United States v. de Ortiz, 883 F.2d 515, 524 (7th Cir. 1989) (Easterbrook, J., concurring), reh'g granted and judgment vacated on other grounds, 897 F.2d 220 (7th Cir. 1990).

With these authorities, I suspect that the ongoing viability of these "slight" formulations is suspect and doubt that any court of appeals confronting the issue directly would bless and perpetuate them except if it feels itself bound by precedent to perpetuate, shall I say, error. (For the same reason, I would hope that the DOJ will revise its CTM to give a clearer explanation of the Government's burden.)

Addendum 2/20/11:  It struck me that I had not adequately addressed the objection to the "slight connection" formulation I started with.  That formulation is the least objectionable on the grounds stated -- the possible lessening of the beyond a reasonable doubt standard.  The "slight connection" formulation does restate the requirement of proof of that connection beyond a reasonable doubt; the general concept, I suppose, is that the defendant does not have to be at the center of the conspiracy or a principal participant so long as the evidence establishes beyond a reasonable doubt to have participated.  If the jury understands it that way, then I suppose it is not objectionable.  The question is whether it would be understood correctly by the jury.  Judge Newman concluded that that formulation did not solve the problem.  Judge Newman said (p. 188-189)
The First, Fourth, and Ninth Circuits, in rejecting use of the phrase "slight evidence" to describe what is required to prove the defendant's connection to a conspiracy, have stated that the evidence need show only a "slight connection" between the defendant and the conspiracy, even though that slight connection must be proven beyond a reasonable doubt. See Marsh, 747 F.2d at 13 & n.3; Burgos, 94 F.3d at 861-63; Esparza, 876 F.2d at 1391-92. The Fourth Circuit endeavored to explain the distinction in these words:
Requiring [sic] that the defendant's connection to the conspiracy be "slight" in no way alleviates the Government's burden of proving the existence of the conspiracy and the defendant's connection to it beyond a reasonable doubt. The term "slight" does not describe the quantum of evidence that the Government must elicit in order to establish the conspiracy, but rather the connection that the defendant maintains with the conspiracy.
Burgos, 94 F.3d at 861 (emphases in original). The Ninth Circuit's explanation is similar:
Once the existence of a conspiracy is established, evidence establishing beyond a reasonable doubt a connection of a defendant with the conspiracy, even though the connection is slight, is sufficient to convict him with knowing participation in the conspiracy. Thus, the word "slight" properly modifies "connection" and not "evidence." It is tied to that which is proved, not to the type of evidence or burden of proof.
United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original).

I doubt that the typical jury can appreciate the distinction. Far better, as Judge Easterbrook has urged, to discard all references to "slight" and "not overwhelming" because these words inevitably create the risk of lowering the standard of proof significantly below "beyond a reasonable doubt." Moreover, there are several ways to explain to juries what the prosecution is not required to prove to establish the defendant's connection to the conspiracy, without using words connoting a reduced quantity of evidence. A widely used model instruction states:
I instruct you that to become a member of the conspiracy, the defendant need not have known the identities of each and every other member, nor need he have been apprised of all their activities. Moreover, the defendant need not have been fully informed as to all of the details, or the scope, of the conspiracy in order to justify an inference of knowledge on his part. Moreover, the defendant need not have joined in all of the conspiracy's unlawful objectives.
 1 L. Sand, supra, at P 19.01, Instruction 19-6.
My quick LEXIS-NEXIS search for court of appeals cases decided after Huezo indicates that the Fourth and Ninth Circuits continue the "slight connection" formulation, mostly in unpublished decisions.  There are, however, a few published decisions, but they merely cite the precedent rather than address the concerns raised by Ortiz and Huezo.  Of course, Ortiz has been decided for some time now, and those courts have not changed their minds.  So, my doubt that any court of appeals would not see the light on this issue after Huezo is perhaps exaggerated.  And, I found that a few courts (notably the Fourth and Ninth Circuits mentioned by Judge Newman) even continue to support the "slight evidence" formulation that even DOJ CTM does not cite.

1 comment:

  1. I quoted Justice Scalia on footnotes, and just now recalled that I had discussed footnotes in a footnote to an article I wrote earlier. Here are seome footnote quotes I footnoted in the article:

    "Encountering [a footnote], is like going downstairs to answer the doorbell while making love." Attributed to Noel Coward in Arthur A. Austin, "Footnotes as Product Differentiation," 40 Vand. L. Rev. 1131, 1152 (1987); NPR Weekend Edition Transcript, "The Possible Demise of the Footnote" (Sept. 7, 1996). The attribution to Coward may be imperfect, as Prof. Austin develops in a subsequent, appropriately long, footnote. See Arthur A. Austin, "Footnote*, Skulduggery** and Other Bad Habits***," 44 U. Miami L. Rev. 1009, 1012 n.20 (1990). Still, regardless of who said or should have said it, the point is well made.

    ** Over the years the footnote has regularly provided a safe refuge for untenable hypotheses. Writers are inclined to behave as if they will be held less accountable for indiscretions committed below the text than in it. . . . Lunacy in small print is lunacy nonetheless, and it is particularly reprehensible when it is not even amusing.

    Arthur A. Austin, "Footnote*, Skulduggery** and Other Bad Habits***," 44 U. Miami L. Rev. 1009 (1990) (as an article title footnote, with the other article title footnotes omitted), quoting Bowersock, "The Art of the Footnote," 53 Am. Scholar 54, 61 (1983/1984). To the extent that I have lunacy here, I hope it is at least amusing.

    "Sometimes, he wrote, the only places to find any individuality or whimsy in the pages of Supreme Court decisions is on their bottoms." David Margolick, "The Footnote Fetish in Judicial Opinions: A Weather Vane of High Court Philosophy," The New York Times, Jan. 4, 1991 (attributing statement to Tony Mauro).

    "Happiness is a long footnote. Happiness for whom? For him who writes it?" Arthur A. Austin, "Footnote*, Skulduggery** and Other Bad Habits***," 44 U. Miami L. Rev. 1009, 1016 (1990).

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