USA v. Tejeda et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
ALEX JOSE TEJEDA,
Defendant.
Case No. 3:15-cr-00066-TMB
ORDER ON DEFENDANT’S
MOTION TO VACATE CONSPIRACY
CONVICTION (COUNT 1) AND THE
ASSOCIATED 50-499 GRAM
METHAMPHETAMINE DETERMINATION
(DKT. 411)
I. 	INTRODUCTION
The matter comes before the Court on Defendant Alex Jose Tejeda’s “Motion to Vacate
the Conspiracy Conviction (Count 1) and the Associated 50-to-499 Gram Methamphetamine
Determination and for a Resentencing on the Distribution Conviction (Count 5) Only” (the
“Motion”).1 The Government responded in opposition (“Opposition”), and Tejeda filed a Reply.2
The Motion is fully briefed and ripe for resolution. For the reasons discussed below, the Motion is
GRANTED.
II. 	BACKGROUND
On January 8, 2016, a jury found Tejeda guilty of the following charges: (1) Conspiracy to
Distribute and Possession with Intent to Distribute methamphetamine, heroin, and cocaine, in
violation of 21 U.S.C. §§ 864, 841(a)(1), (b)(1)(A), and (b)(1)(C) (Count 1); (2) Possession with
Intent to Distribute methamphetamine, cocaine, and heroin, and fifty grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (“Count 2”);
1 Dkt. 411 (Motion).
2 Dkts. 412 (Opposition); 414 (Reply).
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(3) Possession with Intent to Distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), and (b)(1)(C) (“Count 4”); and (4) Distribution of heroin and methamphetamine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count 5”).3 Specifically, as to Count 1, the
Conspiracy charge, the jury found that Tejeda “conspired to distribute and possess with intent to
distribute the controlled substance below, which was either known to him or reasonably
foreseeable to him” and selected “[a] mixture and/or substance with a detectible amount of
[m]ethamphetamine . . . [w]eighing at least 50 grams but less than 500 grams” and “[a] mixture or
substance with a detectible amount of heroin” and “cocaine.”4
Tejeda appealed his convictions, and on August 13, 2019, the Ninth Circuit Court of
Appeals issued a memorandum decision affirming Tejeda’s convictions as to Counts 1, 4, and 5,
but reversing as to Count 2.5 The Court of Appeals found that the use of the language on the special
verdict form for Count 2 was plain error, and that error affected Tejeda’s substantial rights because
the form allowed the jury to find Tejeda guilty of possession with intent to distribute if his
possession of the substance “was either known to him or reasonably foreseeable to him[.]”6 The
requisite mens rea for possession with intent to distribute is “knowingly,” therefore the verdict
3 Dkts. 109 (Minute Entry); 114 (Special Verdict Form); 265 (Judgment). The Court sentenced
Tejeda to 180 months on each count to run concurrently. Dkt. 265.
4 Dkt. 114 at 1.
5 Dkt. 371 (Decision); United States v. Tejeda, 784 F. App’x 493 (9th Cir. 2019).
6 Dkts. 114 at 2; 371 at 2–3; Tejeda, 784 F. App’x at 495.
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form permitted the jury to convict him on a legally impermissible theory.7 Accordingly, the Court
of Appeals vacated Tejeda’s sentence and remanded the case for resentencing.8
Following 	remand, 	this 	Court 	granted 	Tejeda’s 	unopposed 	Motion 	to 	Vacate 	his
Conviction of Count 4.9 Subsequently, Tejeda filed a “Motion for Ruling that the Penalties in 21
U.S.C. § 841(b)(1)(C) Apply as a Matter of Law to the Conspiracy Conviction (Count 1)”
(“Enhanced Penalties Motion”) arguing that the special verdict finding was “insufficient as a
matter of law to subject Mr. Tejeda to the enhanced penalties in 21 U.S.C. § 841(b)(1)(B).”10 The
Court denied the Enhanced Penalties Motion.11 Tejeda is currently scheduled to be resentenced on
Counts 1 and 5.12
In the present Motion, Tejeda again argues that “the 10-year minimum and other enhanced
penalties in 21 U.S.C. § 841(b)(1)(B) do not apply” to his convictions.13 This time, Tejeda bases
7 Dkt. 371 at 2–4; Tejeda, 784 F. App’x at 495.
8 Dkt. 371 at 3–4; Tejeda, 784 F. App’x at 495 (the Court of Appeals also, among other things,
vacated the imposition of the three special conditions at sentencing and directed the Court to
correct the form of judgment as to Count 5 on remand).
9 Dkts. 388 (Motion to Vacate Count 4); 390 (Government’s Non-opposition to Dkt. 388); 392
(Text Order Granting Motion to Vacate Count 4). The Court reasoned that verdict form for Count
4 contained the same language as that of Count 2, which allowed the jury to find Tejeda guilty of
possession with intent to distribute methamphetamine if possession of the substance “was either
known to him or reasonably foreseeable to him[.]” See Dkts. 114 at 2–3; 412 at 3; see also Dkts.
388; 390; 392.
10 Dkt. 397 at 2‒3, 7 (Enhanced Penalties Motion) (Tejeda argued he was properly subject to the
penalties in 21 U.S.C. § 841(b)(1)(C), which include no mandatory minimum sentence); see 21
U.S.C. § 841(b)(1)(C).
11 Dkt. 405 (Order Denying Motion re Penalties).
12 Dkt. 410 (Text Order Resetting Hearing).
13 Dkt. 411 at 2.
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his conclusion on the argument that Count 1, his conspiracy conviction, “is invalid due to the error
in the mental state that was told to the jury with respect to the two counts of possession with intent
to deliver that the Government asserted were an object of the conspiracy.”14 Tejeda argues the
conspiracy charge at Count 1 should be vacated because “the jury understood the conspiracy as
inextricably linked to the other charges of possession with intent to distribute controlled substances
and the charge of distribution of controlled substances.”15 Tejeda points to the Court summarizing
the charges to the panel at the beginning of trial as well as the final instructions to the jury
explaining that “it could return a guilty verdict for the conspiracy only it if found an intent to
commit the conspiracy’s unlawful ‘object or purpose[.]’”16
Tejeda argues that his conspiracy conviction must be vacated on the additional grounds
that the jury determined Tejeda “conspired to distribute and possess with intent to distribute” more
than 50 grams, but less than 500 grams, of methamphetamine.17 This determination by the jury
was premised directly on the amount of methamphetamine that served as the basis for the two
possession with intent to distribute convictions—Counts 2 and 4.18 Tejeda points out that at trial,
the Government argued that the conspiracy involved more than 500 grams of methamphetamine
based on methamphetamine found in three locations and methamphetamine underlying the three
14 Id.
15 Id. at 16–17.
16 Id.
17 Id. at 23.
18 Id. at 11, 23.
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substantive charges.19 The three locations were Laura Johnson’s20 closet (445.22 grams located),
Johnson’s purse (7.95 grams located), and the car in which Johnson was a passenger (1.3 grams
located).21 The methamphetamine underlying the three substantive charges included 56.18 grams
found in the trunk of the car Tejeda was driving and 1.72 grams found along the path that Tejeda
took after leaving the car (Count 2), 20.57 grams found in the pocket of Tejeda’s jacket when he
was arrested (Count 4), and 12.63 grams sold by Johnson to an undercover informant (Count 5).22
Tejeda argues that no amount of methamphetamine underlying Counts 2 or 4 can be included in
the amount for the conspiracy overall, and that with respect to Count 5, the jury found the
distribution involved only heroin and not methamphetamine.23 Accordingly, Tejeda argues only
the 1.3 grams found in the car in which Johnson was a passenger and the 7.95 grams found in
Johnson’s purse can be considered for purposes of Count 1 and no enhanced sentencing penalties
apply.24
19 Id. at 23.
20 Johnson was Tejeda’s co-defendant and co-conspirator who ultimately pleaded guilty. See Dkt.
66 (Text Order); Laura Cecelia Johnson, Case No. 3:15-cr-00066-TMB-SAO-2 (Closed Aug. 31,
2016).
21 Dkt. 411 at 10–11, 16, 23–24.
22 Id. at 9–12, 24.
23 Id. at 24.
24 Id. at 24–25. Tejeda also argues that the jury clearly did not include the 445.22 grams of
methamphetamine found in Ms. Johnson’s closet as part of the conspiracy, otherwise the jury
would have found the amount exceeded 500 grams. Id. at 11–12, 24.
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Tejeda further argues that despite the Court’s disjunctive instruction regarding the objects
of the conspiracy,25 his conspiracy conviction cannot be sustained on the basis that there was no
error with respect to the distribution conviction (Count 5).26 This is because when a substantive
offense that is one object of a conspiracy is reversed due to legal error, that reversal also invalidates
the conspiracy conviction.27 For these reasons, Tejeda argues he is subject to resentencing only on
Count 5, for the distribution of controlled substances (heroin), with the associated penalties of no
minimum sentence, and a maximum sentence of 30 years under 21 U.S.C. § 841(b)(1)(C).28
The Government opposes the Motion, arguing first that it need not prove Tejeda is guilty
of any of the substantive counts to prove he is guilty of a 21 U.S.C. § 846 drug conspiracy.29 Thus,
the jury could have found Tejeda guilty of a drug conspiracy without considering any of the
substantive counts in the indictment.30 Second, the Government argues it need not prove Tejeda
had any mens rea as to the type or quantify of drugs because there is no mens rea requirement as
to the type or quantity of drugs in a 21 U.S.C. § 846 drug conspiracy case.31 The Government must
25 The Court instructed that the jury had to find that there was a plan to commit at least one of the
objects or purposes of the conspiracy, namely the substantive offenses of distribution or possession
with intent to distribute, and that the jurors had to be unanimous as to the particular crime which
the conspirators agreed to commit. See Dkt. 113 at 18 (Instruction No. 17); see also Dkt. 285 at
46–48 (Fourth Day Trial Transcript).
26 Id. at 20–21 (citing United States v. Choy, 309 F.3d 602 (9th Cir. 2002)).
27 Id. at 21.
28 Id. at 3; see also Dkt. 406 (Revised Final Presentence Investigation Report).
29 Dkt. 412 at 4 (citing United States v. Shabani, 513 U.S. 10, 15 (1994); United States v. Suarez,
682 F.3d 1214, 1219 (9th Cir. 2012)).
30 Id.
31 Id.
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only prove that the conspiracy “‘involv[ed]’” the “‘specific type and quantity of substance
involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type
and quantity.’”32
Third, the Government argues that 21 U.S.C. § 841(b)(1)(A)(viii) requires the jury to find
that the quantity of drugs involved in the entire conspiracy involved 50 grams or more of
methamphetamine to meet the threshold requirement.33 The relevant determination was not based
on the quantity Tejeda personally possessed, and, the Government argues, there was no dispute
that the entire conspiracy involved 50 grams or more of methamphetamine.34 Accordingly, the
Government requests that the Court deny the Motion and sentence Tejeda in accordance with the
penalties set out in 21 U.S.C. § 841(b)(1)(B)(viii).35
Replying to the Opposition, Tejeda reiterates his argument “that the error in the mental
state that was told to the jury with respect to the possession-with-intent-to distribute object of the
conspiracy infects the mental state with respect to the conspiracy itself.”36 A conspiracy conviction
following incorrect jury instructions as to the elements of the substantive offense that is the object
of a conspiracy cannot stand.37 Even though the Government need not prove the commission of
32 Id. at 5–6 (quoting United States v. Collazo, 982 F.3d 596, 616–17 (9th Cir. 2020)).
33 Id. at 6 (emphasis added).
34 Id. The Government points out that Tejeda had five packages of methamphetamine in his car at
the time of his arrest, each containing 28 grams of methamphetamine, along with a baggie with 21
grams found on Tejeda’s person when he was arrested. Id. at 6–7.
35 Id. at 7.
36 Dkt. 414 at 2; see also Dkts. 400 at 3 (Government’s Response to Defendant’s Motion re
Penalties) (noting 21 U.S.C. § 841(b)(1)(B)(viii) applies given Tejeda’s prior drug conviction);
412 at 3.
37 Dkt. 414 at 2–3.
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any overt acts in furtherance of the conspiracy, the jury nevertheless has to be correctly instructed
as to the mental state of the crime or crimes about which the co-conspirators are conspiring.38
III. 	DISCUSSION
A. 	Legal Standard
21 U.S.C. § 841(a) provides that “it shall be unlawful for any person knowingly or
intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance; or . . . to create, distribute, or dispense, or possess
with intent to distribute or dispense, a counterfeit substance.”
21 U.S.C. § 846 (“§ 846”) provides that “[a]ny person who attempts or conspires to commit
any offense defined in this subchapter shall be subject to the same penalties as those prescribed for
the offense, the commission of which was the object of the attempt or conspiracy.” To convict a
defendant of conspiracy under § 846 “the government must prove beyond a reasonable doubt that
each 	defendant 	agreed 	with 	another 	person 	that 	some 	member 	of
the conspiracy would commit a § 841(a) offense, and that each defendant had the requisite intent
necessary for a § 841(a) conviction.”39 Although a conviction for a § 846 conspiracy does not
require proof of an overt act or conviction for a substantive count in furtherance of the
38 Id. at 3, 5–6. Additionally, Tejeda states that the Government’s reliance on Collazo is misplaced
because Collazo does not bear on the issue raised in Tejeda’s current motion, namely the validity
of the conspiracy conviction itself. Id. at 4. Collazo instead clarifies the findings that a jury must
make with respect to the determination as to the amount of drugs involved in a conspiracy. Id.
39 Collazo, 982 F.3d at 617.
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conspiracy,40 the Government must nevertheless prove the mental state with respect to its
object(s).41
If a conviction that is the object of, or one of the objects of, a conspiracy is overturned as
the result of legal error, the conspiracy conviction cannot stand.42 As the Ninth Circuit described
40 See Shabani, 513 U.S. at 15; Suarez, 682 F.3d at 1219.
41 	Collazo, 	982 	F.3d 	at 	617–20 	(“[T]o 	obtain 	a conviction and 	a 	particular 	sentence
for conspiracy to distribute controlled substances under § 846, the government must prove only
that the defendant’s mental state was the same as if the defendant had been charged with the
underlying offense.”) (applying the rationale from United States v. Feola, 420 U.S. 671, 686
(1975), interpreting the general federal conspiracy statute, 18 U.S.C. § 371 (“[T]o sustain a
judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must
prove at least the degree of criminal intent necessary for the substantive offense itself.”)); see also
United States v. Roselli, 432 F.2d 879, 884, 889 (9th Cir. 1970) (citations omitted), cert. denied
sub. nom. Teitelbaum v. United States & Jacobs v. United States, 401 U.S. 924 (1971)
(“[C]onviction of conspiracy to commit the substantive offense require[s] proof of the knowledge
essential to conviction of the substantive offense itself, for ‘if this minimum intent is not present,
no offense is contemplated’ by the alleged conspirators.”); United States v. Baker, 63 F.3d 1478,
1493 (9th Cir. 1995) (“Establishing a defendant’s guilt of conspiracy to commit a substantive
crime requires proof of the mens rea essential for conviction of the substantive offense itself.”)
(citing Roselli, 432 F.2d at 889).
42 See Choy, 309 F.3d at 605, 608 (defendant was convicted of a conspiracy in violation of 18
U.S.C. § 371); United States v. DeLuca, 692 F.2d 1277, 1281 (9th Cir. 1982) (“The judge’s
instruction here permitted the jury to convict by unanimously finding any one of the three objects.
He expressly advised that the jury ‘need not find that the conspiracy existed to commit all three
criminal 	activities.’ 	Because 	under 	this 	instruction 	the 	jury 	could 	have 	focused 	on
a legally insufficient object of the conspiracy, we reverse the convictions of all defendants
under count 1.”); see also United States v. Gaitan-Ayala, 454 F. App’x 538, 540 (9th Cir. Aug. 9,
2010) (unpublished opinion) (“If a conviction for one or more substantive crimes is
overturned because of factual rather than legal insufficiency, but at least one substantive crime
that is charged in the conspiracy has a sufficient factual basis, the conspiracy conviction must
stand. Because one of the substantive crimes charged in count 1 has a sufficient factual basis—
and because the undisclosed evidence did not materially affect the proof of the conspiracy itself—
the conviction on count 1 must be sustained.”) (citation omitted); United States v. Palazzolo, 71
F.3d 1233, 1234–38 (6th Cir. 1995) (reversing a general verdict finding defendants guilty of
conspiracy because district court’s instructions improperly defined structuring charge, which was
one of three possible substantive offenses on which disjunctive instructions permitted jury to base
conspiracy conviction, where it was impossible to be certain the jury’s general guilty verdict was
not based solely on admittedly erroneous instruction related to structuring offense.).
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in United States v. Choy, in which the defendant was convicted on a multi-count conspiracy charge
for conspiring, among other things, to commit bribery and money laundering:
Where substantive offenses underlying a conspiracy conviction are successfully
challenged, 	the 	reason 	for 	reversal 	affects 	the 	viability 	of 	the 	conspiracy
conviction. . . . [T]he conspiracy conviction must be overturned if the conviction
on the substantive count for either bribery or money laundering was the result of
legal error. . . . If, on the other hand, the government merely failed to introduce
sufficient evidence to sustain guilt on either of those charges, then the conspiracy
conviction can stand on the theory that the jury found a conspiracy to commit the
other offenses for which there was sufficient evidence. . . .Therefore, if we
determine that [defendant’s] convictions for money laundering and bribery must be
reversed, we must also decide whether there was merely a failure of proof, or
whether either conviction was legally erroneous, in which case the conspiracy
conviction also fails.43
The Ninth Circuit ultimately concluded that striking the underlying bribery conviction for
legal error required striking the conspiracy conviction.44
B. 	Analysis
Here, Count 1, the conspiracy charge, must be vacated because an object of the
conspiracy—possession with intent to distribute controlled substances—was reversed due to legal
error. Accordingly, Tejeda’s Motion is GRANTED.
As to Count 1, the Court instructed the jury:
The defendant is charged in Count 1 of the Indictment with conspiracy to distribute
and possess with intent to distribute a mixture or substance containing a detectable
amount of methamphetamine, a mixture or substance containing a detectable
amount of heroin, and a mixture or substance containing a detectable amount of
cocaine in violation of Title 21 of the United States Code [§§] 846, 841(a)(1),
(b)(1)(A) and (b)(1)(C). In order for the defendant to be found guilty of that charge,
the government must prove each of the following elements beyond a reasonable
doubt:
43 Choy, 309 F.3d at 605, 608–09 (internal quotation marks omitted) (citing Griffin v. United
States, 502 U.S. 46, 59, (1991)).
44 Choy, 309 F.3d at 607–08 (citing Griffin, 502 U.S. at 55–56, 59).
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First, beginning on a date unknown, but by at least on or about November 13, 2014,
and continuing until on or about November 14, 2014, there was an agreement
between two or more persons to distribute and possess with intent to distribute a
mixture or substance containing a detectable amount of methamphetamine, a
mixture or substance containing a detectable amount of heroin, or a mixture or
substance containing a detectable amount of cocaine;
Second, the defendant knew the agreement had an unlawful object or purpose; and
Third, the defendant joined in the agreement with the intent to further its unlawful
object or purpose.45
The Court further instructed that the jury had to find that there was a plan to commit at
least one of the objects or purposes of the conspiracy, namely the substantive offenses of
distribution or possession with intent to distribute, and that the jurors be unanimous as to the
particular crime which the conspirators agreed to commit.46 The jury found that Tejeda “conspired
to distribute and possess with intent to distribute the controlled substance . . . which was either
known to him or reasonably foreseeable to him” of at least 50 grams or more of methamphetamine
but not more than 500 grams, as well as a mixture or substance containing a detectable amount of
heroin and cocaine.47
Here the Government needed to prove at least the degree of criminal intent necessary for
the underlying offenses—distribution of controlled substances (Count 5) and possession with
intent to distribute controlled substances (Counts 2 and 4)— for the conspiracy count (Count 1).48
The Court of Appeals reversed the conviction on Count 2 after concluding the language on the
45 See Dkt. 113 at 18; see also Dkt. 285 at 46–48.
46 Dkts. 113 at 18; 285 at 48 (“You must find that there was a plan to commit at least one of the
crimes alleged in the [I]ndictment as an object or purpose of the conspiracy with all of you
agreeing as to the particular crime which the conspirators agreed to commit.”).
47 Dkt. 114 at 1.
48 See Collazo, 982 F.3d at 620; Feola, 420 U.S. at 686.
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special verdict form for Count 2 was plain error, and that error affected Tejeda’s substantial rights
because the form allowed the jury to find Tejeda guilty of possession with intent to distribute if
his possession of the substance “was either known to him or reasonably foreseeable to him[.]”49
Instead, because the requisite mens rea for possession with intent to distribute is “knowingly,” the
verdict form permitted the jury to convict Tejeda on a legally impermissible theory.50 This Court
then vacated Count 4, which contained the same language as Count 2—allowing the jury to find
Tejeda guilty for possession with intent to distribute if the substance “was either known or
reasonably foreseeable to him.”51
Despite the Court’s instruction that the jury could find a conspiracy if it found a plan to
commit at least one of the crimes alleged in the Indictment as an object or purpose of the
conspiracy, the special verdict from did not separate out the counts preceding the conclusion that
Tejeda was guilty of conspiracy. Accordingly, there is no way for the Court to know whether the
jury determined Counts 2, 4, 5 or a combination of the counts served as the object of the
conspiracy. Thus, the reversal by the Court of Appeals of one of the possible objects of the
conspiracy—Count 2—based on the legal error of the mens rea instruction, and this Court’s
reversal of Count 4 for the same reason, must result in vacation of the conspiracy conviction.52
49 Dkts. 371 at 2–3; 114 at 1–4; Tejeda, 784 F. App’x at 495.
50 Dkt. 371 at 2–4; Tejeda, 784 F. App’x at 495.
51 Dkts. 388; 390; 392.
52 See Choy, 309 F.3d at 605, 608; DeLuca, 692 F.2d at 1281; see also Griffin, 502 U.S. at 59 (The
Supreme Court pointed out that a “more natural” meaning of “legal error’” is “a mistake about the
law, as opposed to a mistake concerning the weight or the factual import of the evidence.”).
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Because the Court vacates Count 1, and Count 5 only found Tejeda guilty of distributing
heroin,53 the Court concludes that Tejeda is not subject to the enhanced penalties under 21 U.S.C.
§ 841(b)(1)(B)(viii) associated with the jury’s determination that he conspired to distribute and
possess 50-499 grams of methamphetamine.
Accordingly, for the foregoing reasons, Tejeda’s Motion at Docket 411 is GRANTED.
The Court will sentence Tejeda on Count 5 only in accordance with the provisions of 21 U.S.C.
§ 841(b)(1)(C).54
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 15th day of January 2021.
/s/ Timothy M. Burgess____________
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
53 Dkt. 114 at 1, 4; see also Dkt. 416 at 9, ¶ 6 n.1 (“All parties agree that ‘methamphetamine’
should be stricken, rather than ‘heroin,’ based on the special verdict form and [Tejeda’s] appeal
argument.”).
54 In light of this Court’s Order vacating Count 1, the United States Probation and Pretrial Services
Office is instructed to prepare and submit a revised presentence investigation report.
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