Monday, June 12th, 2017

Multiple Conspiracies, Reasonable Foreseeability, and Government Misconduct in Closing, Oh My… A Clean Sweep for the Defendant as Judge Oetken Grants Rule 29 and Rule 33 Motions in a Noteworthy Opinion

John Pauling contested two counts at trial in an eight-count indictment relating to various drug and gun charges. First, he challenged a 924c charge (possessing a gun in furtherance of a drug conspiracy) and was acquitted by the jury.  Second, he challenged the weight of the drugs in the drug conspiracy count that would have triggered a five-year mandatory minimum.  The jury convicted him on that count.  Judge Oetken now vacates that conviction, leaving Pauling with no mandatory minimum.  A copy of the opinion is attached here.

In an opinion worth reading for its explanation of the distinction between a single conspiracy and multiple conspiracies, Judge Oetken in referencing the common wheel analogy, found that the government failed to show there was “a ‘rim’ around the ‘spokes,’ such that the spokes became coconspiractors.” At trial, the Court gave a multiple conspiracies instruction over the government’s objection, finding the government’s argument that the “single/multiple conspiracy analysis does not apply to the trial of a single defendant” unpersuasive in a drug conspiracy case where “the question is not merely whether the defendant is guilty or not guilty but also the quantity of drugs involved.”

Having found multiple conspiracies, the Court analyzed the only conspiracy that could have triggered the threshold weight for a conviction under 21 U.S.C. 841(b)(1)(B). In another noteworthy section of the opinion, the Judge Oetken gives a fact-specific elaboration of what constitutes reasonable foreseeability for purposes of assessing drug quantities and finds that the government failed to present sufficient evidence and instead relied “upon a series of inferences rooted in speculation rather than evidence.”

As a final kicker, Judge Oetken found that if his Rule 29 opinion is not upheld on appeal, he would also grant a new trial under Rule 33 because the government committed misconduct in using a misleading chart in its closing argument. The chart which purported to list Pauling’s drug transactions, and which was not shown to defense counsel before closings (and after the government represented that it would not use any charts) left out a small, one-gram transaction that could have been the basis for a later request from a buyer for “same thing as last time.”  Without the one-gram deal on the chart, the “last time” could have been construed to refer to a larger transaction.  The Court found the misconduct substantial and prejudicial.


NB:  The Federal Defenders represents Mr. Pauling.

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