In conspiracy Prosecution Jury Need Not Be Instructed That It Must Unanimously Agree on Which of Multiple Overt Acts Was Committed; “Severe Aggravated Factors” To Support More Than Double Durational Departure Must Be Found By Jury

State v. Ayala-Leyva, Minn.Ct.App., 5/19/2014.  A jury convicted Mr. Ayala-Leyva of conspiracy to commit first degree controlled substance crime.  The court imposed a 360 month sentence, a more than triple upward departure from the presumptive 86 month guidelines sentence.

The FBI conducted an investigation of a large and well-organized methamphetamine trafficking network but then, turning the tables, dumped the whole thing over to the state for prosecution.  Mr. Ayala-Leyva was alleged to be a part of that network.  Unlike a federally prosecuted drug conspiracy, which requires only an agreement, state conspiracy law also requires one or more “overt acts” in furtherance of the agreement. 

Here, the court’s instructions listed twenty “overt acts” allegedly committed in furtherance of the conspiracy.  However, over defense counsel’s ambivalence, the court did not instruct the jury that it had to agree unanimously on which particular act or acts satisfied the overt act element of the crime.  In response to the trial court’s statement that the parties had agreed that it was not necessary that the jury be so instructed  counsel said “whatever,” that he “did not agree one way or the other with respect to that.”  Counsel did not offer an alternative instruction, and ended by saying that he would leave it to the court’s discretion whether to give such an instruction.

So, the court didn’t give it.  Needless to say, counsel’s remarks were a far cry from an objection.  So, review of the instructions was under plain error.  The court of appeals said that there was no error in not giving the instruction.  The court explained that the twenty overt acts were not elements of the offense, on which there must be unanimity.  Rather, the twenty overt acts were the alleged “facts underlying” that element of the offense.  Each overt act was an alternative means to prove that element of the offense and unanimity wasn’t required.

One of Mr. Ayala-Layva’s witnesses came in from California to testify for him.  When he got to the court house, the prosecutor had him arrested.  Now, the interstate compact on hauling out of state witnesses into your state to testify specifically grants immunity from arrest while in the state.  The prosecutor quickly admitted her mistake and released the defense witness.  After all that, the defense didn’t put this witness on the stand.  While the court found the prosecutor’s actions “troubling” the court concluded that Mr. Ayala-Leyva was not entitled to a new trial as a result of the misconduct.

During closing argument, the prosecutor told the jury that Mr. Ayala-Leyva had “lost” the presumption of innocence, and that the state had presented a “mountain” of evidence against him.  Of course, Mr. Ayala-Leyva only loses the presumption of innocence by the jury’s guilty verdict so that was an incorrect statement.  The court didn’t really say why it was wrong to refer to the state’s evidence as a “mountain of evidence,” but apparently it is.  As with arresting a defense witness, the court of appeals found these remarks “troubling” but, again, not so much that it got Mr. Ayala-Layva a new trial. 

Now to sentencing.  In total, the Blakely jury was asked to find three aggravating factors:  putting a number of people at risk, the offense was a “major controlled substance crime,” and the offense was committed as part of a group of three or more offenders who all actively participated in it.  The problem was, however, that on the first two the jury was not asked to find facts to support those factors.  So, the jury found that Mr. Ayala-Leyva’s conduct had placed a number of people at risk.  However, the jury did not make specific findings of facts to support that conclusion.  The court of appeals agreed with Mr. Ayala-Layva that this factor – putting people at risk – was not supported by adequate findings and could not support a departure.  The jury was also asked to determine whether the offense was a “major controlled substance crime.”  The jury was given a list of circumstances that could support a finding of a major controlled substance crime, but the jury was not asked to vote on each of them.  As a result, this factor was also not adequately supported by findings and could not be the basis for a departure.  A departure of some sort survives, however, because the jury also found that Mr. Ayala-Layva’s committed the crime as part of a group of three or more people who all actively participated in the crime.

When it came time to impose sentence, the trial judge imposed the maximum sentence, a departure three times greater than the presumptive sentence.  A departure greater than double the presumptive sentence requires “severe aggravating circumstances.”  The trial court took it upon itself to find those “severe aggravating circumstances.”  Specifically, the court said that this was the biggest state-prosecuted meth case ever; that there was a really, really large amount of meth seized during the investigation; and there had to be a large number of potential users based on that amount.  Of course, the whole point of Blakely is that it is the jury that must make such findings so the greater than double departure goes by the boards.  The court sends the case back for the trial judge either to impose up to a double departure or to impanel another jury to consider “severe aggravating circumstances.”