United States v. Tejeda

UNITED STATES OF AMERICA, Plaintiff, v. ALEX JOSE TEJEDA, Defendant.

Case No. 3:15-cr-00066-TMB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

January 15, 2021

ORDER ON DEFENDANT'S MOTION TO VACATE CONSPIRACY CONVICTION (COUNT 1) AND THE ASSOCIATED 50-499 GRAM METHAMPHETAMINE DETERMINATION (DKT. 411)

I. INTRODUCTION

The matter comes before the Court on Defendant Alex Jose Tejeda's "Motion to Vacate the Conspiracy Conviction (Count 1) and the Associated 50-to-499 Gram Methamphetamine Determination and for a Resentencing on the Distribution Conviction (Count 5) Only" (the "Motion").¹ The Government responded in opposition ("Opposition"), and Tejeda filed a Reply.² The Motion is fully briefed and ripe for resolution. For the reasons discussed below, the Motion is GRANTED.

II. BACKGROUND

On January 8, 2016, a jury found Tejeda guilty of the following charges: (1) Conspiracy to Distribute and Possession with Intent to Distribute methamphetamine, heroin, and cocaine, in violation of 21 U.S.C. §§ 864, 841(a)(1), (b)(1)(A), and (b)(1)(C) (Count 1); (2) Possession with Intent to Distribute methamphetamine, cocaine, and heroin, and fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) ("Count 2");(3) Possession with Intent to Distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) ("Count 4"); and (4) Distribution of heroin and methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) ("Count 5").³ Specifically, as to Count 1, the Conspiracy charge, the jury found that Tejeda "conspired to distribute and possess with intent to distribute the controlled substance below, which was either known to him or reasonably foreseeable to him" and selected "[a] mixture and/or substance with a detectible amount of [m]ethamphetamine . . . [w]eighing at least 50 grams but less than 500 grams" and "[a] mixture or substance with a detectible amount of heroin" and "cocaine."⁴

Tejeda appealed his convictions, and on August 13, 2019, the Ninth Circuit Court of Appeals issued a memorandum decision affirming Tejeda's convictions as to Counts 1, 4, and 5, but reversing as to Count 2.⁵ The Court of Appeals found that the use of the language on the special verdict form for Count 2 was plain error, and that error affected Tejeda's substantial rights because the form allowed the jury to find Tejeda guilty of possession with intent to distribute if his possession of the substance "was either known to him or reasonably foreseeable to him[.]"⁶ The requisite mens rea for possession with intent to distribute is "knowingly," therefore the verdictform permitted the jury to convict him on a legally impermissible theory.⁷ Accordingly, the Court of Appeals vacated Tejeda's sentence and remanded the case for resentencing.⁸

Following remand, this Court granted Tejeda's unopposed Motion to Vacate his Conviction of Count 4.⁹ Subsequently, Tejeda filed a "Motion for Ruling that the Penalties in 21 U.S.C. § 841(b)(1)(C) Apply as a Matter of Law to the Conspiracy Conviction (Count 1)" ("Enhanced Penalties Motion") arguing that the special verdict finding was "insufficient as a matter of law to subject Mr. Tejeda to the enhanced penalties in 21 U.S.C. § 841(b)(1)(B)."¹⁰ The Court denied the Enhanced Penalties Motion.¹¹ Tejeda is currently scheduled to be resentenced on Counts 1 and 5.¹²

In the present Motion, Tejeda again argues that "the 10-year minimum and other enhanced penalties in 21 U.S.C. § 841(b)(1)(B) do not apply" to his convictions.¹³ This time, Tejeda baseshis conclusion on the argument that Count 1, his conspiracy conviction, "is invalid due to the error in the mental state that was told to the jury with respect to the two counts of possession with intent to deliver that the Government asserted were an object of the conspiracy."¹⁴ Tejeda argues the conspiracy charge at Count 1 should be vacated because "the jury understood the conspiracy as inextricably linked to the other charges of possession with intent to distribute controlled substances and the charge of distribution of controlled substances."¹⁵ Tejeda points to the Court summarizing the charges to the panel at the beginning of trial as well as the final instructions to the jury explaining that "it could return a guilty verdict for the conspiracy only it if found an intent to commit the conspiracy's unlawful 'object or purpose[.]'"¹⁶

Tejeda argues that his conspiracy conviction must be vacated on the additional grounds that the jury determined Tejeda "conspired to distribute and possess with intent to distribute" more than 50 grams, but less than 500 grams, of methamphetamine.¹⁷ This determination by the jury was premised directly on the amount of methamphetamine that served as the basis for the two possession with intent to distribute convictions—Counts 2 and 4.¹⁸ Tejeda points out that at trial, the Government argued that the conspiracy involved more than 500 grams of methamphetamine based on methamphetamine found in three locations and methamphetamine underlying the threesubstantive charges.¹⁹ The three locations were Laura Johnson's²⁰ closet (445.22 grams located), Johnson's purse (7.95 grams located), and the car in which Johnson was a passenger (1.3 grams located).²¹ The methamphetamine underlying the three substantive charges included 56.18 grams found in the trunk of the car Tejeda was driving and 1.72 grams found along the path that Tejeda took after leaving the car (Count 2), 20.57 grams found in the pocket of Tejeda's jacket when he was arrested (Count 4), and 12.63 grams sold by Johnson to an undercover informant (Count 5).²² Tejeda argues that no amount of methamphetamine underlying Counts 2 or 4 can be included in the amount for the conspiracy overall, and that with respect to Count 5, the jury found the distribution involved only heroin and not methamphetamine.²³ Accordingly, Tejeda argues only the 1.3 grams found in the car in which Johnson was a passenger and the 7.95 grams found in Johnson's purse can be considered for purposes of Count 1 and no enhanced sentencing penalties apply.²⁴

Tejeda further argues that despite the Court's disjunctive instruction regarding the objects of the conspiracy,²⁵ his conspiracy conviction cannot be sustained on the basis that there was no error with respect to the distribution conviction (Count 5).²⁶ This is because when a substantive offense that is one object of a conspiracy is reversed due to legal error, that reversal also invalidates the conspiracy conviction.²⁷ For these reasons, Tejeda argues he is subject to resentencing only on Count 5, for the distribution of controlled substances (heroin), with the associated penalties of no minimum sentence, and a maximum sentence of 30 years under 21 U.S.C. § 841(b)(1)(C).²⁸

The Government opposes the Motion, arguing first that it need not prove Tejeda is guilty of any of the substantive counts to prove he is guilty of a 21 U.S.C. § 846 drug conspiracy.²⁹ Thus, the jury could have found Tejeda guilty of a drug conspiracy without considering any of the substantive counts in the indictment.³⁰ Second, the Government argues it need not prove Tejeda had any mens rea as to the type or quantify of drugs because there is no mens rea requirement as to the type or quantity of drugs in a 21 U.S.C. § 846 drug conspiracy case.³¹ The Government mustonly prove that the conspiracy "'involv[ed]'" the "'specific type and quantity of substance involved in the offense, but not the defendant's knowledge of (or intent) with respect to that type and quantity.'"³²

Third, the Government argues that 21 U.S.C. § 841(b)(1)(A)(viii) requires the jury to find that the quantity of drugs involved in the entire conspiracy involved 50 grams or more of methamphetamine to meet the threshold requirement.³³ The relevant determination was not based on the quantity Tejeda personally possessed, and, the Government argues, there was no dispute that the entire conspiracy involved 50 grams or more of methamphetamine.³⁴ Accordingly, the Government requests that the Court deny the Motion and sentence Tejeda in accordance with the penalties set out in 21 U.S.C. § 841(b)(1)(B)(viii).³⁵

Replying to the Opposition, Tejeda reiterates his argument "that the error in the mental state that was told to the jury with respect to the possession-with-intent-to distribute object of the conspiracy infects the mental state with respect to the conspiracy itself."³⁶ A conspiracy conviction following incorrect jury instructions as to the elements of the substantive offense that is the object of a conspiracy cannot stand.³⁷ Even though the Government need not prove the commission ofany overt acts in furtherance of the conspiracy, the jury nevertheless has to be correctly instructed as to the mental state of the crime or crimes about which the co-conspirators are conspiring.³⁸

III. DISCUSSION

A. Legal Standard

21 U.S.C. § 841(a) provides that "it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or . . . to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance."

21 U.S.C. § 846 ("§ 846") provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." To convict a defendant of conspiracy under § 846 "the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit a § 841(a) offense, and that each defendant had the requisite intent necessary for a § 841(a) conviction."³⁹ Although a conviction for a § 846 conspiracy does not require proof of an overt act or conviction for a substantive count in furtherance of...