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United States v. Moe

United States Court of Appeals, Ninth Circuit

March 27, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MARIA LOURDES MOE, Defendant-Appellant

Argued and Submitted, Portland, Oregon: November 17, 2014.

Page 1121

[Copyrighted Material Omitted]

Page 1122

Appeal from the United States District Court for the District of Montana, D.C. No. 6:13-cr-00003-SEH-1, Sam E. Haddon, District Judge, Presiding.

SUMMARY[*]

Criminal Law

The panel affirmed a conviction for conspiracy to possess with intent to distribute methamphetamine.

Rejecting the defendant's contention that the evidence presented to the jury established only a buyer-seller transaction, the panel held that the evidence was sufficient to support her conviction for conspiracy, where the evidence indicated an ongoing relationship of mutual trust, there was testimony that the defendant was involved in the business of methamphetamine trafficking, there was evidence that the defendant's supplier knew that the defendant was engaged in redistributing the methamphetamine that she was buying from him, and the supplier had an interest in fostering those downstream sales.

The panel held that the district court did not err by failing to instruct the jury on how to determine a single conspiracy versus multiple conspiracies, where the defendant stood trial alone and the facts to do not support a multiple conspiracies defense.

The panel held that the district court did not err in rejecting the defendant's proposal to instruct the jury on the difference between a buyer-seller relationship and a conspiracy relationship, where the instructions as a whole accurately informed the jury that a conspiracy could not be found based only on the sales by the supplier to the defendant.

The panel held that the district court did not err when it curtailed as irrelevant cross-examination of the supplier aimed at showing that he associated with other individuals and was involved in other conspiracies, where the multiple conspiracy theory of defense did not apply.

Concurring, Judge Hurwitz urged this court to follow the Seventh Circuit, which requires district courts to give a buyer-seller instruction whenever a jury could conceivably have determined that the buyer-seller relationship which existed did not involve an overarching conspiratorial agreement.

Michael Donahoe, Federal Defenders of Montana, Helena, Montana, for Defendant-Appellant.

Paulette L. Stewart, Assistant United States Attorney, Helena, Montana, for Plaintiff-Appellee.

Before: Richard R. Clifton, Milan D. Smith, Jr., and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Clifton; Concurrence by Judge Hurwitz.

OPINION

Page 1123

CLIFTON, Circuit Judge:

Maria Moe appeals her conviction for conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. Her primary arguments rest on the so-called " buyer-seller rule," under which a conviction for conspiracy cannot be based solely on the purchase of an unlawful substance, even though such a transaction necessarily involves an agreement between at least two parties, the buyer and the seller. " Rather, conspiracy requires proof of 'an agreement to commit a crime other than the crime that consists of the sale itself.' Were the rule otherwise, every narcotics sale would constitute a conspiracy." United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) (quoting United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993) (en banc)).

Moe contends that the evidence presented to the jury established only that she purchased methamphetamine from a supplier--that is, established only a buyer-seller transaction--not that she was engaged in a conspiracy with the seller in connection with subsequent distribution. She also contends that the district court should have given an instruction to the jury regarding the buyer-seller rule. We conclude that the evidence was sufficient to support the conviction. We further conclude that although a specific buyer-seller instruction may be useful and might be required in some circumstances, it was not necessary here. We are not persuaded by any of Moe's other arguments, and therefore affirm.

I. Background

Maria Moe was indicted in January 2013 on two counts: conspiracy to possess with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. § 846, and distribution of 50 grams or more of methamphetamine, 21 U.S.C. § 841(a)(1). She pleaded not guilty and went to trial.

During the two-day trial that followed, the government called five witnesses. These included four government agents and one cooperating witness, Shawn Ellifritt. Ellifritt testified that he supplied methamphetamine to Moe. Moe lived in Helena, Montana, but traveled to Spokane, Washington, to buy methamphetamine from Ellifritt. She typically purchased a half ounce of methamphetamine one time per month. From December 2009 until December 2010, Moe made at least seven purchases. Ellifritt estimated that these transactions involved approximately 140 grams of methamphetamine. Moe and Ellifritt communicated by phone. There were at least 94 cell phone contacts between Ellifritt and ...


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