US v. Dwight Spears

Filing 920091110

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWIGHT SPEARS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:08-cr-00112-HFF-3) Submitted: June 25, 2009 Decided: November 10, 2009 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. C. Carlyle Steele, Greenville, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Regan A. Pendleton, William J. Watkins, Jr., Assistant United States Attorneys, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwight conspiracy to Spears murder a was convicted law after a jury trial of in federal enforcement officer violation of 18 U.S.C. 115(a)(1)(A) (2006). to 240 months of imprisonment. issues: dismiss (1) the whether the He was sentenced On appeal, counsel raises three court a erred by failing to district or grant Spears indictment directed had verdict because the testimony revealed that withdrawn from conspiracy; (2) whether the district court erred in failing to dismiss the indictment because Spears committed no overt act in furtherance of the conspiracy; and (3) whether the district court erred by charging the jury that it was Spears' burden to prove withdrawal from the conspiracy by a preponderance of the evidence. Spears has filed two pro se supplemental briefs, alleging that his conviction under 18 U.S.C. 115(a)(1)(A) was erroneous and therefore his indictment should be dismissed for lack of subject matter jurisdiction under Fed. R. Crim. P. 12(b)(3)(B). For the reasons that follow, we affirm in part, vacate in part, and remand. Although we review Spears' first argument de novo, United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997), the argument fails because the evidence did not reveal that Spears withdrew from the conspiracy. United States v. Cardwell, 433 F.3d 378, 391 (4th Cir. 2005). 2 The second argument lacks merit because there is no overt act element in a conspiracy offense. See United States v. Shabani, 513 U.S. 10, 13-14 (1994) (noting that absent statutory or congressional guidance to the contrary, the common law understanding of conspiracy does not make the doing of any other act a condition of liability). was required that for conviction engaged the Moreover, even if an overt act under in the in statute, the record of the reveals Spears e.g., acts furtherance the conspiracy, casing area where coconspirators expected to ambush and shoot the Federal Bureau of Investigation agent. See generally United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980) (noting that a trip in an automobile was an overt act in furtherance of conspiracy). Spears' third argument simply is incorrect that it was not his burden to prove the defense a of withdrawal from the the the conspiracy. defendant to Withdrawal take from conspiracy "requires with affirmative actions inconsistent object of the conspiracy and communicate his intent to withdraw in a manner likely to reach his accomplices." F.3d at 391. Cardwell, 433 Spears did have the burden to prove the defense. See United States v. Watford, 894 F.2d 665, 670 (4th Cir. 1990) (stating that the burden is on the defendant to show that he withdrew from the conspiracy by affirmative action); United States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986) (same). 3 Once a defendant produces evidence of withdrawal, it then becomes a jury issue which the Government must prove beyond a reasonable doubt that the defendant did not withdraw from the conspiracy. 1989). United States v. West, 877 F.2d 281, 289 (4th Cir. Thus, we affirm Spears' conviction. In his final argument, Spears alleges, pro se, that his indictment was defective because the evidence did not support his conviction under 18 U.S.C. 115(a)(1)(A) (2006). We agree with Spears that evidence did not support his conviction under 115(a)(1)(A) or under 115(a)(1)(B), as the Government argues. Rather, the evidence supports his conviction for his unambiguous participation in the conspiracy to murder a federal 1114 law (West enforcement Supp. officer in The violation indictment to of 18 and U.S.C.A. criminal however, which is 2009). note the conviction those properly conspiracy to murder; documents erroneously cite 115(a)(1)(A), inapplicable to the instant facts. Rather than dismissing the indictment, however, this court has held that the proper remedy in this circumstance is to vacate and remand for resentencing under the appropriate statute. 851 F.2d 111, 115 (4th Cir. See United States v. Massuet, 1988) (noting that the "proper procedure for dealing with the problem of the erroneously cited statute would be to remand the case for resentencing under the proper statute") (citation omitted); see also United States v. 4 Bennett, 368 F.3d 1343, 1352-55 (11th Cir. 2004) (holding that sufficient evidence supported a conviction for attempt to kill an officer of the United States, under 18 U.S.C. 1114, where the defendant was actually on other charged grounds, with 543 violating U.S. 18 U.S.C. (2005). 115), vacated 1110 Accordingly, we grant Spears' motion to file his second pro se supplemental brief, vacate Spears' sentence, and remand for resentencing in accordance with this opinion. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional would process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 5

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