Defining the Sprawling Arms of Conspiracy: the United States Court of Appeals for the Eighth Circuit Correctly Addressed the Clean Breast Doctrine as it Affects Withdrawal from a Conspiracy in United States v. Grimmett

• Publication year: 2000

35 Creighton L. Rev. 433. DEFINING THE SPRAWLING ARMS OF CONSPIRACY: THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT CORRECTLY ADDRESSED THE CLEAN BREAST DOCTRINE AS IT AFFECTS WITHDRAWAL FROM A CONSPIRACY IN UNITED STATES V. GRIMMETT

Creighton Law Review

Vol. 35

"[A] few facts will . . . [give] point to Mr. Justice Jackson's description of conspiracy as 'that elastic, sprawling and pervasive offense,' whose development exemplifies, in Judge Cardozo's phrase, the 'tendency of a principle to expand itself to the limit of its logic'-and perhaps beyond."(fn1)

INTRODUCTION

During the twentieth century, the crime of conspiracy expanded into a weapon used by law enforcement agencies against dangerous organizations and criminal group activity.(fn2) The crime of conspiracy, which is traditionally defined as an agreement between two or more people with the intent to commit an unlawful act, serves two important functions in the legal system.(fn3) First, similar to attempt(fn4) and solicitation(fn5) law, conspiracy law punishes preparatory conduct before it develops into a substantive offense.(fn6) Therefore, conspiracy law gives law enforcement officials another tool to use in crime prevention.(fn7) Second, criminal conspiracy law counters special dangers inherent in criminal group activity.(fn8) These special dangers regard the enhancedlikelihood a criminal action will ensue when an agreement is made to commit a criminal act.(fn9) The greater likelihood of action stems from the psychological pressures against withdrawal, which are inherent in the dynamics of criminal group activity.(fn10)

Similar to most crimes, prosecution for conspiracy requires culpability.(fn11) Culpability is the concurrence of an evil mind (mens rea) and an evil act (actus reus).(fn12) Furthermore, like most other crimes, both mens rea and actus reus must exist concurrently for the crime of conspiracy to exist because evil thoughts alone are insufficient for liability.(fn13) Consequently, culpability for conspiracy can be negated by evidence showing an individual has withdrawn from the conspiracy.(fn14) Addressing the act of withdrawal, the United States Supreme Court stated that affirmative acts contrary to the events giving rise to the conspiracy and communicated in a way to notify other conspirators of an individual's cessation in the conspiracy are enough to establish withdrawal and commence the statute of limitations.(fn15)

What exactly constitutes withdrawal is important, in part, because the affirmative act of withdrawal determines when the statute of limitations begins to run on the crime of conspiracy.(fn16) Title 18 of the United States Code section 3282 ("section 3282") provides "no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed."(fn17) The prosecution, therefore, can be barred from bringing conspiracy charges against an individual if such conspiracy charges are brought more than five years after the individual has withdrawn from the conspiracy.(fn18)

Recently, in United States v. Grimmett,(fn19) the United States Court of Appeals for the Eighth Circuit determined that the act of withdrawal did not require a "full and utter" confession to start the statute of limitations period.(fn20) In Grimmett, Patricia Grimmett had helped her boyfriend keep books for his drug business (the sale and distribu-tion of marijuana) until his murder in June 1989.(fn21) In July 1989, Grimmett disclosed the details of the drug conspiracy to the police.(fn22) In 1992, investigators again contacted Grimmett and she voluntarily gave the investigators additional information.(fn23) Then, in November 1994, the police charged Grimmett with conspiracy to distribute marijuana.(fn24) The majority of the court declared that the government was four months too late to bring drug conspiracy charges.(fn25) The court stated that for an individual's withdrawal to begin the statute of limitations period, a conspirator must separate from all aspects of the conspiracy and cooperate with officials.(fn26) The court reasoned that Grimmett's 1989 confession evidenced her cooperation with authorities and separation from the conspiracy; therefore, she had withdrawn from the conspiracy in July 1989.(fn27) Consequently, the five-year statute of limitations had run in July 1994, some four months prior to the charges made by the police.(fn28)

This Note will first discuss the facts and circumstances surrounding Grimmett's withdrawal from the conspiracy and review the holding of Grimmett.(fn29) Second, the Background of this Note will examine case law that delineates the events that indicate culpability to commit a conspiracy crime.(fn30) Specifically, the Background will discuss the facts and circumstances that indicate mens rea and actus reus for a conspiracy crime.(fn31) Third, this Note will discuss the development of the law regarding withdrawal from a conspiracy.(fn32) Fourth, the Analysis of this Note will specifically discuss the Eighth Circuit decision in Grimmett and demonstrate that Grimmett had the necessary concurrence of mens rea and actus reus (culpability) to commit the drug conspiracy crime.(fn33) The Analysis will then examine how the Grimmett majority was correct in determining that Grimmett had withdrawn from the conspiracy despite the dissent's argument that a full and utter disclosure was required.(fn34) The Analysis will continue by showing that the United States Supreme Court has never required a full and utter confession.(fn35) Finally, this Note will conclude by commending the Grimmett majority for concluding that Grimmett had sufficiently negated her mens rea and actus reus and had withdrawn from the conspiracy thereby barring the government's drug charges.(fn36)

FACTS AND HOLDING

On June 27, 1989, Dennis Moore and Kevin Wyrick murdered Elmont Kerns.(fn37) Kerns was a marijuana dealer who supplied large amounts of marijuana to several other drug dealers.(fn38) When Kerns attempted to collect money from Moore for marijuana that Kerns had sold on credit, Wyrick, Moore's accomplice, entered Kerns' home and shot him several times.(fn39) On several occasions during the investigation of Kerns' murder, the police questioned Kerns' girlfriend, Patricia Grimmett, who lived with Kerns and helped manage Kerns' drug distribution activities.(fn40) Grimmett stated that she would help the police in any way possible and she admitted that she had kept Kerns' drug records because Kerns could barely read or write.(fn41) However, Grimmett stated that Kerns used codes she did not understand so she could not decipher Kerns' drug books.(fn42)

To help the police decipher Kerns' codes, Grimmett identified Kerns' drug "runners" who understood the code.(fn43) Furthermore, Grimmett supported her statement that Kerns was a marijuana dealer by leading the police to a hidden storage area in Kerns' home where Kerns kept marijuana and a large sum of money.(fn44) Grimmett also identified the cocaine suppliers whom she and Kerns used for their personal cocaine habits and she also identified Moore as one of Kerns' associates.(fn45) After Grimmett's disclosures, the police termi-nated the murder investigation and did not bring charges against Grimmett or anyone she identified.(fn46)

Nearly three years later, in 1992, federal agents interviewed Grimmett another time because they believed Grimmett might enlighten them in their continuing investigation of Moore.(fn47) During this investigation, Grimmett disclosed several additional facts regarding her involvement with Kerns.(fn48) She admitted she occasionally collected money with Kerns and occasionally received deliveries of cocaine for her personal use.(fn49) Grimmett also disclosed that she knew of Kerns' trips to Columbia to buy drugs and clean out debtors who were late with their payments.(fn50) Grimmett also admitted that in the process of keeping Kerns' drug books, she learned a code word used in the books.(fn51) Two years after Grimmett's 1992 interview, on November 14, 1994, investigators charged Grimmett in the United States District Court for the Western District of Missouri with conspiracy to distribute marijuana.(fn52)

Grimmett filed a motion to dismiss the district court action, contending that the five-year statute of limitations started to run when she confessed to the police in 1989; therefore, the statute of limitations had expired by the time she was charged with conspiracy to distribute marijuana in 1994.(fn53) The district court denied Grimmett an evidentiary hearing on the motion to dismiss, opining that her withdrawal was not a possible defense to the charge of conspiracy to distribute marijuana.(fn54) Grimmett pleaded guilty to the conspiracy to distribute marijuana charge; however, she reserved her privilege to appeal the judge's decision denying her motion to dismiss.(fn55) After the district court sentenced Grimmett, she appealed to the United States Court of Appeals for the Eighth Circuit and the Eighth Circuit accepted the appeal.(fn56)

On appeal before the Eighth Circuit, Grimmett argued that the charges were barred by the statute of limitations because her involvement with the conspiracy had ceased in July 1989.(fn57) Therefore, Grimmett contended that the district court erred by not holding an...