Police found marijuana hidden in a car that Maurice Crowder and a colleague tried to ship from Arizona to Illinois. Crowder was then charged with, convicted of, and sentenced for two crimes: attempted possession with intent to distribute and conspiracy, both in violation of 21 U.S.C. § 846. Sounds like double-dipping, right? After all, both crimes of conviction arose from the same underlying criminal plot. Crowder appealed to the Seventh Circuit on this basis, arguing that he could not be punished for both crimes.
Crowder’s appeal raised an issue that has divided other circuits. The Ninth Circuit prohibits double punishment for attempt and conspiracy under § 846 if both convictions arise from a “single course of action.” By contrast, the Sixth, Eighth, and Tenth Circuits permit double punishment in these circumstances.
In United States v. Crowder (No. 08-3320) (Kanne, J.), the Seventh Circuit sided with the Sixth, Eighth, and Tenth Circuits, and affirmed Crowder’s conviction and sentence.
The court’s analysis was brief and focused on administrability concerns with the Ninth Circuit’s test; the court preferred an approach that “does not lend itself to a fact-specific inquiry that inevitably will lead to unnecessary appeals and leave parties and courts ‘without much hope of guidance.'”
It’s not clear to me, though, why the Ninth Circuit’s test was viewed as so hopeless. Its application to Crowder’s case, for instance, would seem straightforward enough. Perhaps there are other cases that would present complicated scope-of-the-conspiracy problems, but this merger issue does not appear to present itself very often — § 846 has been around since 1970, but the issue had apparently only been addressed previously in four circuits. It’s hard to see a crush of “unnecessary appeals” suddenly arising because one test or another is adopted.
Crowder, though, is consistent with the tendency of the federal courts not to recognize that conspiracy is truly an inchoate offense (just like attempt). The Model Penal Code has it right: attempt, solicitation, and conspiracy are all simply points along a single inchoate spectrum, and a defendant should not be punished for more than one of these offenses “for conduct designed to commit or culminate in the commission of the same crime.” MPC § 5.05(3).
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