Punishment Permitted for Both Attempt and Conspiracy in Seventh Circuit

seventh circuitPolice 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).

This Post Has 4 Comments

  1. Rick Sankovitz

    Good critique, Michael. Blockburger is not a real good fit with inchoate crimes like attempt and conspiracy. I wonder if appellate counsel pointed out the wisdom of the Model Penal Code.

    Do you know if the district court imposed consecutive sentences? I read the opinion quick, but didn’t see any attack on sentencing discretion.

  2. Michael M. O'Hear

    Good question. The sentences were concurrent, so Mr. Crowder may not have been harmed. Of course, others may not be so fortunate . . . .

  3. Rick Sankovitz

    Between the concurrency of the sentences and the fact that Crowder’s lawyer did not raise the issue in the trial court, maybe it was too easy for the court to take up this issue and fall in line with the apparent majority.

    There’s the old saying about hard cases making bad law, but easy cases, too, can lead to unfortunate results because the court may not be forced by the consequences of its ruling to think harder. I can’t say what went on here because, obviously, I wasn’t one of the judges or the litigants, but I think I can say that if the court is presented with an appeal of two long consecutive sentences premised on an attempt which was part and parcel of a conspiracy, I think this precedent may be vulnerable.

  4. Laura Broussard

    My cousin got arrested for a lot of drugs and money like 10 different charges. Days later my aunt, other cousins (2) and her daughter n laws with attempt and conspiracy. Could the courts convict them for something they didn’t do

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