The object of a conspiracy charged under 18 U.S.C. ยง 371 is an essential element of the crime, which must be proven or admitted for a defendant to be convicted. See United States v. Arlt, 252 F.3d 1032, 1034 (9th Cir. 2001) (en banc) ("[T]he specific offense designated as the object of the conspiracy in a ยง 371 indictment does constitute an element of the offense."). The BIA did not err in reviewing Atwal's plea agreement to determine which substantive criminal offense or offenses were the object of the conspiracy to which Atwal plead guilty.
Because the government must prove โthe requisite intent to commit the substantive crime,โ United States v. McCaleb, 552 F.3d 1053, 1058 (9th Cir.2009) (quoting United States v. Sullivan, 522 F.3d 967, 976 (9th Cir.2008)), the object of a conspiracy is an essential element of a conspiracy offense. Cf. United States v. Arlt, 252 F.3d 1032, 1034 (9th Cir.2001) (en banc) (holding โthat the specific offense designated as the object of a conspiracy in a [18 U.S.C.] ยง 371 indictment does constitute an element of the offenseโ); United States v. Alerta, 96 F.3d 1230, 1235โ36 (9th Cir.1996) (adopting a similar remedy when the jury was not asked to decide whether the defendant used a machine gun, as opposed to any other sort of gun, during and in relation to his drug trafficking offense under 18 U.S.C. ยง 924(c) because whether the firearm was fully automatic โis an element of the crimeโ), overruled on other grounds by Arlt, 252 F.3d 1032. Here, in contrast, the tainted drug quantity findings were not elements of the defendants' conspiracy conviction, as explained earlier.
"The Double Jeopardy Clause prohibits the imposition of multiple trials, convictions and punishments for the same offense." United States v. Arlt, 252 F.3d 1032, 1035 (9th Cir. 2001) (en banc). In determining what constitutes the "same offense" in cases like this, involving the general conspiracy statute, 18 U.S.C. ยง 371, we must first consider the elements of the specific offense that the defendant is alleged to have conspired to commit. Id. at 1038.
In this case, Count One alleges a violation of a specific conspiracy statute, 18 U.S.C. ยง 2320(a), while Counts Two and Three allege a violation of the general conspiracy statuteโ18 U.S.C. ยง 371. Under Ninth Circuit law, "a defendant may be tried and convicted under both the general conspiracy statute and a specific conspiracy statute when the substantive offense that is charged as the object of the ยง 371 conspiracy and the substantive offense that is the object of the other charged conspiracy are different." United States v. Arlt, 252 F.3d 1032, 1035 (9th Cir. 2001) (en banc). To determine whether the substantive offense that is the object of the conspiracy charged in Count One is different than the offenses underlying Counts Two and Threeโi.e., is not multiplicitousโin such a situation, the Court "appl[ies] the Blockburger test to the two conspiracy counts to determine whether each provision requires proof of an additional fact which the other does not."
"'The Double Jeopardy Clause prohibits the imposition of multiple trials, convictions and punishments for the same offense.'" United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005) (quoting United States v. Arlt, 252 F.3d 1032, 1035 (9th Cir. 2001) (en banc)). In Arlt, the Ninth Circuit held that "a defendant may be tried and convicted under both the general conspiracy statute and a specific conspiracy statute when the substantive offense that is charged as the object of the [Section] 371 conspiracy and the substantive offense that is the object of the other charged conspiracy are different."
As Count 9 alleges a violation of a different conspiracy statute than the original Indictment, the Arnold five-factor test does not apply; instead, the Court applies the Blockburger all elements test. See United States v. Arlt, 252 F.3d 1032, 1036, 1038 (9th Cir. 2001) (en banc) (applying Blockburger to double jeopardy claim involving two different conspiracy statutes). Binding Ninth Circuit precedent establishes that underBlockburger, a conspiracy to launder money under section 1956(a)(1) has different elements from, and therefore is not the same offense as, a section 846 drug conspiracy.
No. 01-7041. ARLT v. UNITED STATES. C.A. 9th Cir. Certiorari denied. Reported below; 252 F.3d 1032 and 15 Fed. Appx. 559. No. 01-7042. NICHOLS v. UNITED STATES. C.A. 4th Cir. Certiorari denied.
Because Alvarez-Marquez was convicted under two conspiracy statutes, we compare "the specific substantive offense that the defendant is alleged to have conspired to commit." United States v. Arlt, 252 F.3d 1032, 1035-38 (9th Cir. 2001) (en banc). As relevant here, ยง 1327 requires that the defendant conspire to allow, procure, or permit the entry of an alien who is inadmissible because of an aggravated felony conviction.
Further, because each count requires proof of an additional element that the others do not, the counts are not multiplicitous. See United States v. Arlt, 252 F.3d 1032, 1038-39 (9th Cir. 2001) (en banc). We conclude that the district court did not constructively amend the indictment.
Although the two conspiracies involved the same drug smuggling and distribution organization, the two conspiracies were legally distinct because they had two distinct objectives, namely, the importation and the distribution of ecstasy. SeeAlbernaz v. United States, 450 U.S. 333, 344 & n. 3, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); United States v. Arlt, 252 F.3d 1032, 1038-39 (9th Cir.2001) (en banc). Also, the elements of the Count Two conspiracy were not "necessarily decided" by the jury in her favor when it acquitted her on the Count One conspiracy.