United States v. Blankenship - 970 F.2d 283 (7th Cir. 1992)

Rule:

A supplier to a criminal organization may not be sentenced for all of that organization's sins when he facilitated only one.

Facts:

Nancy Nietupski, a grandmother in her early 60s, ran a methamphetamine ring through her extended family. She started on the west coast, working with her nephew William Zahm. Later she moved to her sister's farm in Illinois. While sister Violet Blankenship supplied a base of operations, nephew Robert Blankenship helped distribute the drug and collect debts. Nietupski initially bought methamphetamine from outside sources. When these proved unreliable, Zahm helped her enter the manufacturing end of the business. "Cooking" methamphetamine is messy, and there is a risk of explosion when volatile chemicals such as acetone reach high temperatures. Nietupski and Zahm moved their laboratory frequently, to reduce the risk of detection. In February 1989 Zahm leased from Thomas Lawrence a house trailer in which to set up shop for a day. Nietupski told Lawrence what Zahm planned to make and offered $ 1,000 or one ounce of methamphetamine; Lawrence preferred the cash and took $ 100 as a down payment. He covered the floor of the trailer with plastic for protection. Zahm postponed the operation when he could not find a heating control. A few days later Lawrence got cold feet, telling Marvin Bland (one of Nietupski's assistants) that he wanted the chemicals and equipment removed. Bland complied. Zahm soon joined William Worker to set up a new methamphetamine ring. Agents of the DEA infiltrated the Zahm-Worker clique. Zahm cut his losses by turning against his aunt, whose operations collapsed. Eighteen persons from the Nietupski ring were indicted. Robert Blankenship, Thomas Lawrence, and six others were in one group, all charged in a single count with conspiring to manufacture and distribute methamphetamine. Of the six, three pleaded guilty and three were acquitted. Blankenship and Lawrence, convicted by the jury, received identical sentences of 120 months' imprisonment plus five years' supervised release. Lawrence has filed two appeals, one from his sentence and the second from an order denying his motion under Fed. R. Crim. P. 33 for a new trial.

Issue:

May Lawrence be charged for conspiracy for joining the entire Nietupski operation?

Answer:

No.

Conclusion:

In charging Lawrence with joining the Nietupski conspiracy, the prosecutor sought to hold him responsible for that organization's entire activities, just as if the landlord were to be punished for all 50 wire rooms, or Direct Sales for the drugs Dr. Tate had to scrounge from its rivals. Members of conspiracies may be punished for all of the crimes within the scope of the venture. The Sentencing Guidelines, when coupled with the sky-high punishments authorized for drug crimes, produce the same vicarious liability without the bother of obtaining convictions. In a drug case the court must impose a sentence computed by reference to all "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction". When the "offense of conviction" is a conspiracy, this means counting the full sales of the criminal enterprise throughout its duration. Thus Robert Blankenship, who was a cog of the Nietupski organization from the time his aunt moved to Illinois, and Thomas Lawrence, who obtained $ 100 by opening his trailer to a single failed "cook," received identical sentences--ten years in prison without possibility of parole. Neither Direct Sales nor any of this court's cases permits a supplier to a criminal organization to be sentenced for all of that organization's sins when he facilitated only one. If the United States Code contained a facilitation statute along the lines of New York's, Lawrence would receive a sentence proportioned to his own iniquity rather than that of Nietupski and her henchmen. So too if the Code penalized abetting criminal attempts. But it does not, and if the only options are conspiracy, with full responsibility for all of the venture's other crimes, and no crime, then no crime comes much closer to describing Lawrence's responsibility. Although the guidelines permit a reduction of four levels for marginal figures such as Lawrence, a sentence based on the sales of the full organization, less 30% (the effect of a four-level reduction), still vastly overstates the culpability of persons who supply goods and services to criminals. Much like in United States v. Falcone, Lawrence knew what Zahm wanted to do in the trailer, but there is a gulf between knowledge and conspiracy. There is no evidence that Lawrence recognized, let alone that he joined and promoted, the full scope of the Nietupski organization's activities. He may have joined, or abetted, a more limited agreement to manufacture a quantity of methamphetamine, but he was not charged with that offense. Lawrence facilitated an attempted crime, and probably conspired to do this, but he did not subscribe to the broader agreement on which his conviction depends.