Massachusetts Appeals Court Limits the Reach of the Drug Conspiracy Statute

The Massachusetts Appeals Court yesterday ruled for the first time that the Commonwealth cannot charge an individual with conspiracy to violate the drug laws for a single street-level drug deal.  The name of the case is Commonwealth v. Doty. 

Following an undercover investigation by the Marlborough Police Department, the defendant was charged with distribution of cocaine and conspiracy to distribute cocaine.  An undercover police agent contacted a man named Jonathan Wright and arranged to purchase cocaine from him.  The undercover agent drove to Wright’s house and picked him up.  They drove together to an Olive Garden restaurant and parked.  Wright made a phone call and a truck driven by the defendant arrived within a few minutes.  A Marlborough detective was conducting surveillance and identified the defendant.  The undercover agent gave $100 to Wright, who got into the defendant’s truck.  Shortly thereafter, Wright returned to the undercover agent’s car, said “we’re all set,” and gave him two bags of cocaine.  The prosecutor and the defendant agreed at trial that there was no evidence that the defendant had distributed drugs to Wright in the past.

A jury found the defendant not guilty on the distribution indictment but guilty on the conspiracy indictment.  She appealed and argued that the evidence was insufficient to support her conviction for conspiracy.  In Massachusetts, a conspiracy is defined as an agreement between two or more people to perform an unlawful act.  The Appeals Court agreed with the defendant’s argument and reversed her conviction.

The Court said there were two theories upon which the defendant could have been prosecuted for conspiracy.  The first, which was advanced by the prosecutor, was that the defendant and Wright conspired to distribute cocaine to the undercover agent.  However, the Appeals Court held that there was no evidence to establish that the defendant knew Wright was going to resell the cocaine and shared in his plan.  Therefore, under this theory of prosecution, the evidence was insufficient.

The more interesting part of the opinion is whether the defendant could have been convicted under another theory – that when the defendant sold drugs to Wright, they entered into a conspiracy such that the defendant would sell drugs and Wright would buy them.  For the first time, a Massachusetts appellate court ruled in this case that a relationship between a buyer and a seller of drugs, without more, does not constitute a conspiracy to distribute controlled substances.

In reviewing similar cases from other jurisdictions, the Appeals Court found two rationales for concluding that a drug dealing conspiracy is not born by one seller distributing to one buyer.  First, some courts have concluded that the two participants do not have the same criminal intent.  Because the seller’s purpose is to sell and the buyer’s purpose is to buy, there is no meeting of the minds between the parties.  Their different goals necessarily preclude the conclusion that they are conspiring together.

Second, some courts have concluded that lawmakers did not intend for drug buyers to be exposed to the increased penalties that accompany convictions for conspiracy to distribute drugs.  The Appeals Court here adopted that legal reasoning.  In Massachusetts, the penalty for conspiracy is the same as the penalty for the underlying crime.  Therefore, a drug buyer who was convicted of conspiracy to distribute cocaine could be punished as if he actually distributed the cocaine instead of having only purchased it (which carries a significantly lower penalty).  The Appeals Court ruled that the Legislature could not have intended for this result, and therefore under these circumstances, a one-time, street-level, buyer-seller transaction of drugs cannot be the basis of a conspiracy prosecution.

This is a really important decision, as the Commonwealth often charges conspiracy as a backup plan – even if the jury finds the defendant not guilty of the underlying crime, maybe it will still convict of conspiracy, which is easier to prove (this is exactly what happened in this case).  The ruling here will take away an important weapon frequently used by prosecutors.