C. Multiple Vs. Single Conspiracies

• Library: Drug Litigation in South Carolina (SCBar) (2021 Ed.)

C. MULTIPLE VS. SINGLE CONSPIRACIES

A conspiracy indictment need not set forth every detail of the alleged conspiracy nor "recite the facts connecting all the accused with one another in the web of the conspiracy nor . . . describe the conspiracy with the same degree of particularity required in describing a substantive offense."¹⁸³ In addition, time is not of the essence in conspiracy offenses.¹⁸⁴ However, when an indictment alleges a single conspiracy involving multiple parties, the State must prove that each individual was a member of the conspiracy alleged.¹⁸⁵

When the indictment alleges a single conspiracy, proof of several smaller conspiracies constitutes a material variance from the indictment.¹⁸⁶ Thus, if the indictment alleges one large conspiracy, but the State's evidence proves several smaller conspiracies, the alleged conspirators cannot be convicted under the indictment in which the larger conspiracy has been charged.¹⁸⁷ As a result, the individual for whom the evidence proves was a member of a smaller conspiracy and not of the conspiracy charged in the indictment is entitled either to a directed verdict of not guilty or to a dismissal of the indictment.¹⁸⁸

The opposite situation arises when two or more indictments each allege a different, single conspiracy involving the same parties.¹⁸⁹ Because multiple indictments may result in consecutive trials, the question of multiple or single conspiracies implicates double jeopardy,¹⁹⁰ which may be raised whether the indictments are tried together or separately.¹⁹¹ When the object of the conspiracy is to commit many crimes, the agreement, not the acts, constitutes the conspiracy.¹⁹² Although several statutes may be violated, the single agreement is the conspiracy, and the conspirators may be tried only once for this conspiracy.¹⁹³

[The] distinction must be made between separate conspiracies, where certain parties in common are common to all the conspiracies, but with no overall goal or common purpose, and one overall continuing conspiracy with various parties joining and terminating their relationship at different times... . In essence, the question is what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, the agreement among all the parties constitutes a single conspiracy. If the court determines only one, continuing conspiracy made up of several statutes, the defendants may be tried only once.¹⁹⁴

Thus, if a defendant can present prima facie evidence that subsequent prosecution on a separate indictment rests solely on the same agreement and conspiracy involved in the first trial, the State will bear the burden of establishing two separate conspiracies.¹⁹⁵ If the State fails to do so, the court must dismiss the indictment as violating double jeopardy. While the State must show separate conspiracies in cases involving multiple general indictments alleging conspiracy to violate the drug code,¹⁹⁶ by separately indicting conspirators on specific violations of the drug code (such as conspiracy to distribute crack cocaine and conspiracy to distribute marijuana), on their faces, the indictments allege two separate conspiracies requiring separate proof.¹⁹⁷

Determining whether one or more conspiracies exist can be quite complex.¹⁹⁸ A court must determine who of the multiple parties agreed to accomplish the criminal objective alleged in the indictment in order to properly address a directed verdict or dismissal motion. Because conspiracies generally are proved by the overt acts of the conspirators in furtherance of the conspiracy, the individual overt acts may appear to be several small conspiracies rather than a single, large conspiracy. In addition, "a single conspiracy may be established by completely different aggregations of proof so that there appears to be several conspiracies."¹⁹⁹

Because of the difficulties involved in mass conspiracy trials, the South Carolina Supreme Court has encouraged separate trials with separate indictments to better focus the alleged conspirators' agreement and to create less confusion.²⁰⁰ However, whether to sever conspirators' trials is in the sound discretion of the trial court.²⁰¹

The trial judge, however, must act cautiously in allowing a joint trial. The judge must carefully consider problems that may arise from a joint trial, such as redacted statements, and must assure protection of each defendant's constitutional right to confront witnesses against him . . . . A proper cautionary instruction may help to protect the individual rights of each defendant and ensure that no prejudice results from a joint trial.²⁰²

A trial court's decision will be reviewed under an abuse of discretion standard.²⁰³ An appellate court must determine whether the defendant's substantive rights were prejudiced by trying multiple defendants together.²⁰⁴ "An appellate court should not reverse a conviction achieved at a joint trial in the absence of a reasonable probability that the defendant would have obtained a more favorable result at a separate trial."²⁰⁵

1. The Totality of the Circumstances

Because the State should "exercise . . . caution and discretion [when prosecuting conspiracies] to [e]nsure justice is achieved,"²⁰⁶ the State may employ three theories to answer the question of whether single or multiple conspiracies exist. The theory that has been adopted in South Carolina to determine whether two or more conspiracies rather than a single conspiracy exists is the "totality of the circumstances" test.²⁰⁷ Under this test, a court must consider the following factors:

1. The time periods covered by the alleged conspiracies;

2. The places where the conspiracies are alleged to have occurred;

3. The persons charged as conspirators;

4. The overt acts alleged to have been committed in furtherance of the conspiracies, or any other description of the offenses charged which indicate the nature and scope of the activities being prosecuted; and

5. The substantive statutes alleged to have been violated.²⁰⁸

For example, in State v. Amerson,²⁰⁹ the defendants were charged in two separate indictments, one for conspiracy to traffic in marijuana between November 1986 and December 1989 and the other for conspiracy to traffic in marijuana between February and September of 1990. In this situation, the indictments alleged two conspiracies to violate the same statute, section 44-53-370(e)(1), which proscribes trafficking in marijuana. The trial judge dismissed the second indictment upon a finding that the two conspiracies were in reality a single conspiracy.

In affirming the dismissal of the second indictment, the S.C. Supreme Court held that under the totality of the circumstances only one continuing conspiracy existed. Although the time periods did not overlap, the court found no significant break in activity to indicate a termination of one conspiracy and the beginning of another. Even though some conspirators were arrested during the time of the first alleged conspiracy, the conspiratorial activity in furtherance of the conspiracy continued. Furthermore, through both time periods, the place of the conspiracy remained the same; the core group of people remained the same; the method of operating remained substantially the same; and the substantive offenses were identical for both indictments.²¹⁰

Likewise, in State v. Dasher,²¹¹ the court found a single conspiracy where the dates of the conspiracies overlapped, where the principals involved were substantially the same in both conspiracies, where both conspiracies involved the same place, and where both indictments generally alleged conspiracy to violate the drug code.²¹²

In contrast, in State v. Wilson,²¹³ the defendants were charged under separate indictments for conspiracy to traffic in marijuana and conspiracy to traffic in cocaine. After being convicted in the cocaine trial, the defendant moved at the marijuana trial to quash the indictment based upon double jeopardy, claiming the trafficking in marijuana was part of the same conspiracy involving trafficking in cocaine. The S.C. Supreme Court affirmed the lower court's finding that two separate conspiracies existed. First, the State sought to prove distinct courses of conduct with the cocaine and with the marijuana, and, second, the substantive offense involved in each conspiracy was a separate offense codified under separate sections of the drug code.²¹⁴

A conspirator's participation in a conspiracy ends with his arrest for his role in the conspiracy, and re-entry into the continuing conspiracy constitutes a new conspiracy.²¹⁵ For example, in State v. Harris,²¹⁶ the defendant was indicted in 1996 by the State Grand Jury as part of a 26-person conspiracy to traffic in at least 400 grams of cocaine between 1990 and 1996. In 1991, federal authorities arrested the defendant and charged him with trafficking, distribution, and PWID cocaine. In 1991, the defendant pled guilty to the federal PWID charge but remained out of prison for almost two years until he was sentenced in 1993.

After his indictment by the State Grand Jury, the defendant moved to dismiss the charges against him maintaining that only one conspiracy existed and that his arrest and guilty plea prohibited the State prosecution because it violated Double Jeopardy as well as South Carolina Code Ann. section 44-53-410.²¹⁷ However, one of the defendant's co-conspirators testified at the state trial that the defendant continued his drug dealings with co-defendants after the defendant's arrest in 1991 but prior to his incarceration in 1993. Thus, the trial court ruled that although the defendant's original involvement in the conspiracy ended with his federal arrest, his continued participation in the conspiracy constituted a new act for which the defendant could be prosecuted. The defendant was found guilty of trafficking in cocaine.

The court of appeals...