Filed: Nov. 10, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWIGHT SPEARS, Defendant - Appellant.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 Affirmed in part, vacated in part, and remanded by unpublished per curiam opinio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWIGHT SPEARS, Defendant - Appellant.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 Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion..
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UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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 Spears was convicted after a jury trial of
conspiracy to murder a federal law enforcement officer in
violation of 18 U.S.C. § 115(a)(1)(A) (2006). He was sentenced
to 240 months of imprisonment. On appeal, counsel raises three
issues: (1) whether the district court erred by failing to
dismiss the indictment or grant a directed verdict because
testimony revealed that Spears had withdrawn from the
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).
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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). Moreover, even if an overt act
was required for conviction under the statute, the record
reveals that Spears engaged in acts in furtherance of the
conspiracy, e.g., casing the area where the 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 of withdrawal from the
conspiracy. Withdrawal from a conspiracy “requires the
defendant to take affirmative actions inconsistent with the
object of the conspiracy and communicate his intent to withdraw
in a manner likely to reach his accomplices.” Cardwell, 433
F.3d at 391. 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. United States v. West, 877 F.2d 281, 289 (4th Cir.
1989). 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 law enforcement officer in violation of 18 U.S.C.A.
§ 1114 (West Supp. 2009). The indictment and criminal
conviction properly note the conspiracy to murder; however,
those documents erroneously cite to § 115(a)(1)(A), which is
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. See United States v. Massuet,
851 F.2d 111, 115 (4th Cir. 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 charged with violating 18 U.S.C.
§ 115), vacated on other grounds,
543 U.S. 1110 (2005).
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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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