STATE of New Mexico, Plaintiff-Appellee, v. Carlos J. MALDONADO, Defendant-Appellant, 137 N.M. 699

OPINION ALARID, J. PROCEDURAL HISTORY {1} Defendant was charged by grand jury indictment with conspiracy to commit trafficking in methamphetamine by manufacturing, contrary to NMSA 1978, §§ 30-28-2 (1979) and 30-31-20(A)(l) (1990); or alternatively, with attempted trafficking in methamphetamine by manufacturing, contrary to NMSA 1978, § 30-28-1 (1963) and

Section 30-31-20(A)(l). Defendant filed a motion to quash the indictment, arguing, inter alia, that the Legislature intended the conduct charged in the indictment to be punished as either possession of drug paraphernalia pursuant to NMSA 1978, § 30-31-25.1 (2001) or as possession of drug precursors pursuant to NMSA 1978, § 30-31B-12(A) (2004). Defendant ultimately abandoned the argument based on the drug precursor statute. The district court denied Defendant’s motion to quash the conspiracy count, concluding that tablets containing pseudoephedrine are not drug paraphernalia.

The district court granted Defendant’s motion to quash the attempted trafficking count, reasoning that Defendant’s actions were “mere preparatory acts and not an overt act in furtherance of the crime alleged.” {2} The case proceeded to trial on the conspiracy count. Testimony by the State’s witnesses established that on July 27, 2001, a private security officer at a Wal-Mart store in Las Cruces, New Mexico, observed Defendant concealing in his trousers the contents of four boxes of medicine, each containing 96 non-prescription pseudoephedrine tablets in blister packaging.

Defendant purchased an additional box of tablets. When Defendant left the store without paying for the four concealed boxes of tablets, the security officer detained Defendant and called the police. Mark Sanchez, a Dona Ana County deputy sheriff assigned to the Las Cruces/Dona Ana County Metro Narcotics division, responded. Agent Sanchez advised Defendant of his Miranda rights. Defendant agreed to talk with Agent Sanchez. {3} According to Agent Sanchez, Defendant told him that he had heard that the tablets could be used to manufacture methamphetamine.

Agent Sanchez recalled Defendant telling him that Defendant had planned to sell them to a person named “Güero” for five dollars a box. Defendant denied manufacturing methamphetamine or using the drug. According to Agent Sanchez, Defendant admitted that he had sold tablets to Güero in the past and that he was aware that Güero used the tablets to manufacture methamphetamine. According to Agent Sanchez, Defendant told him that Güero would call “out of the blue,” asking if Defendant had any tablets to sell.

In the course of his investigation, Agent Sanchez was unable to locate Güero. {4} After the close of the State’s case-in-chief, Defendant moved for a directed verdict. Defense counsel argued that: I think getting the pills to give to Güero, knowing what he’s going to do with them is different from saying the defendant and Güero had an agreement to manufacture methamphetamine together, which is what the State has to prove. And they don’t have evidence of that. Right now, it’s an arm’s length transaction. That’s all they have. They’ve got an arm’s length transaction.

The district court denied Defendant’s motion for a directed verdict, reasoning as follows: Well, you’re implying some kind of financial interest in the operation above and beyond the profit on the pills. I don’t see that as an element in trafficking, not under the UJI. I think the fact that he stated that he had done this in the past, the jury could infer that he’s part of this operation.

Or they could decide that there is not— that the State hasn’t proved its elements beyond a reasonable doubt, which are arguments going to the weight of evidence, not the sufficiency of the evidence. {5} Defendant testified in his defense that: I happened to see the pills, and I just remembered that I knew somebody that would give me some money for them. So I just — I was — -I bought the box because that’s all I could afford. Then I took the rest.

When asked how he came up with the plan for selling the tablets, Defendant testified that: I was just visiting the guy that I know Danny, and I happened to meet his little brother [Güero], and he told me if I ever ran into these pills, he’d give me like two or three dollars more for them. {6} Defendant denied having previously sold tablets to Güero. Defendant denied telling Agent Sanchez that he was aware that the tablets were used to make methamphetamine. Defendant denied having a plan with Güero to manufacture methamphetamine.

On cross-examination, Defendant conceded that it was “strange” that Güero was willing to pay Defendant more than the tablets cost. Defendant again denied having told Agent Sanchez that he knew that pseudoephedrine was used to make methamphetamine. {7} At the conclusion of the presentation of evidence, defense counsel requested an instruction on possession of drug paraphernalia. The State objected.

The district court refused the instruction, explaining that the State had not charged Defendant with possession of drug paraphernalia and that “[the court] can’t give an instruction on something that has not been charged.” The jury was instructed on the offense of conspiracy to traffic in methamphetamine by manufacture. The jury returned a verdict of guilty on the charge of conspiracy to traffic in methamphetamine by manufacture. Defendant appeals. We reverse.

DISCUSSION {8} After this case was assigned to a panel, we sua sponte requested briefing on the question of whether the conduct proved by the State falls within the statutory definition of conspiracy. We did so to explore a matter implicating fundamental rights of an accused: whether Defendant’s conviction rests on evidence of conduct that does not constitute a crime. See State v. Maes, 2003-NMCA-054, ¶ 5, 133 N.M. 536, 65 P.3d 584; State v.

Gabriel M., 2002-NMCA-047, ¶9, 132 N.M. 124, 45 P.3d 64. {9} Defendant’s conviction presents a recurring question in the law of conspiracy: does a defendant whose only involvement is supplying generally available goods or services become a co-conspirator merely because he knows that the goods or services he provides may or will be used by another for a criminal purpose? See generally 2 Wayne R. LaFave, Substantive Criminal Law § 12.2(c)(3) (2003). This is a question of statutory construction, subject to de novo review. See State v.

Barragan, 2001-NMCA-086, ¶ 22, 131 N.M. 281, 34 P.3d 1157 (recognizing that review of the sufficiency of the evidence supporting a conviction may require a court to engage in statutory construction in determining whether evidence viewed in the light most favorable to the State constituted the charged offense); State v. Rael, 1999-NMCA-068, ¶ 5, 127 N.M. 347, 981 P.2d 280 (recognizing that review of a district court’s denial of a motion for directed verdict may turn upon resolution of matters of statutory

interpretation, subject to de novo review). {10} New Mexico law defines the crime of conspiracy as “knowingly combining with another for the purpose of committing a felony within or without this state.”

Section 30-28-2(A) (emphasis added). Our Supreme Court has interpreted this statute to require proof of two mental states: (1) the intent to agree and (2) the intent to commit the offense that is the object of the conspiracy. State v. Trujillo, 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814. No New Mexico case has considered whether the twin intent requirements of a conspiracy can be established by evidence that the defendant agreed to sell goods to another, knowing that the other might use the goods for an illegal purpose. {11} We are reluctant to extend

Section 30-28-2(

A) to an otherwise lawful sale of goods. It is not at all clear to us that in ordinary usage a seller “agrees” with a purchaser’s intended use of goods or services simply by engaging in an arm’s length sale. Similarly, we are not persuaded that a defendant-seller shares a purchaser’s intent to commit a crime merely because the defendant had knowledge of the purchaser’s intended use of those goods or services at the time of the sale.

In this context, knowledge of the other’s criminal objective is not necessarily equivalent to an intention to bring about the objective. 1 LaFave, supra, § 5.2(b), at 342^43 n. 9 (citing conspiracy as an area of criminal law where there may be “good reason” for distinguishing between knowledge and intent); 2 LaFave, supra, § 12.2(c)(3) at 280 (observing that intent rather than mere knowledge of the unlawful object is usually required to establish a conspiracy).

As Judge Hand aptly observed in reversing convictions for conspiring to operate an illegal still: It is not enough that [the defendant] does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use[.] ... We may hgree that morally the defendants at bar should have refused to sell to illicit distillers; but, both morally and legally, to do so was toto coelo different from joining with them in running the stills. United States v.

Falcone, 109 F.2d 579, 581 (2d Cir.1940) (rejecting the argument that sellers of sugar, yeast, and five-gallon cans became conspirators with the buyers merely because the sellers knew that the buyers intended to use the goods to illegally distill liquor), affd, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); see also Jacobs v.

Danciger, 328 Mo. 458, 41 S.W.2d 389 (1931) (holding that a contract for the sale of brewing hops is not rendered unenforceable on the ground of illegality by the seller’s knowledge that the buyer intended to resell the hops in kits to be used in the manufacture of “home brew”; rejecting the argument that the seller’s “mere knowledge” of the buyer’s intended use was sufficient to establish the vendor’s participation in a conspiracy to violate the National Prohibition Act). {12} In the present case, a rational fact-finder could have found that Güero offered to purchase over-the-counter medications containing pseudoephedrine from Defendant at two or three dollars above the retail price of the drugs; that on one or two prior occasions Defendant sold tablets containing pseudoephedrine to Güero; that Defendant was aware that over-the-counter medications containing pseudoephedrine were used to manufacture methamphetamine; that Defendant believed that Güero manufactured methamphetamine; and that Defendant was in possession of approximately 500 tablets containing pseudoephedrine that Defendant intended to sell to Güero. {13}

Section 30-28-2(

A) does not clearly and unequivocally alert a person in Defendant’s position to the possibility of prosecution and punishment for conspiracy to manufacture methamphetamine. The rule of lenity constrains us “to narrowly construe a penal statute to give clear and unequivocal warning in language that people generally would understand concerning actions that would expose them to penalties.” Gabriel M., 2002-NMCA-047, ¶ 20, 132 N.M. 124, 45 P.3d 64. We are confronted with “an insurmountable ambiguity ... regarding the intended scope” of

Section 30-28-l(A). State v. Davis, 2003-NMSC-022, ¶ 14, 134 N.M. 172, 74 P.3d 1064 (observing that the rule of lenity should be applied after other principles of statutory construction fail to eliminate a reasonable doubt as to legislative intent). We hold that the phrase “knowingly combining with another for the purpose of committing a felony” does not criminalize the conduct proved by the State in this case. {14} Our opinion should not be understood as invariably insulating suppliers of goods or services from liability for conspiracy.

In appropriate cases, evidence of otherwise lawful sales of goods or services combined with other factors may suffice to demonstrate the defendant’s purposeful combination with the buyer in unlawful conduct. Cf. Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943) (distinguishing Falcone, 109 F.2d 579; upholding conspiracy conviction of vendor of morphine sulphate).

Our opinion also should not be understood as suggesting that the Legislature lacks the power to criminalize sales of goods or services when the seller knows that the purchaser intends to use the goods or services to commit a crime. {15} We offer a few comments in response to Judge Sutin’s dissent. {16} The concept of substantial evidence is meaningless unless it is linked to a specific definition of a crime.

Expand the definition of the crime and evidence that might otherwise be insufficient becomes “substantial.” A court cannot decide whether the State has come forward with substantial evidence of a conspiracy without expressly or implicitly engaging in statutory construction of the conspiracy statute.

Defining the outer boundary of the statute prior to conducting substantial evidence review is particularly important where, as here, the prosecution’s theory of its case pushes the concept of conspiracy to its theoretical limits. {17} A trial court “has the right, and it is its duty,” to withdraw a case from the jury and direct a verdict for a defendant when the State has failed to come forward with substantial evidence that the defendant committed the offense charged. State v. Tipton, 57 N.M. 681, 682, 262 P.2d 378, 378 (1953).

When a trial court improperly fails to direct a verdict for the defendant it is our responsibility to correct the error by doing on appeal what the trial court failed to do at trial, and we are not precluded from correcting the trial court’s error in even submitting the case to the jury by the fact that a jury has found against the defendant. {18} As Falcone and Direct Sales Co. demonstrate, there is no clear consensus as to whether the crime of conspiracy has been defined to criminalize the state of mind of a defendant who sells available goods to another knowing that the purchaser will use the items for a criminal purpose.

The important question in this case, in our view, is not whether Judge Hand’s decision in Falcone or Justice Rutledge’s opinion in Direct Sales Co. represents the better view, nor is it whether as a matter of public policy the legislature ought or ought not penalize as a conspiracy the type of conduct at issue in this case. Rather, the dispositive question is whether the language employed by the Legislature clearly evinces an intention to extend the definition of conspiracy to the conduct at issue in the present case.

This is a question of statutory construction which it is the duty of courts, not juries, to resolve: “Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime.” Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (emphasis added). {19} Judge Sutin would have the reader of his dissent believe that he is merely engaging in substantial evidence review.

In reality, the dissent turns upon its implicit adoption of a relaxed definition of the state of mind required to establish a conspiracy and the importation of this definition into

Section 30-28-2. In the guise of deferring to hypothesized jury inferences, the dissent blurs the crucial distinction between merely knowing that the purchaser may commit a felony and sharing the purchaser’s purpose to commit a felony. The dissent tailors the law of conspiracy to fit the State’s evidence. {20} We emphasize that we are not asserting that Judge Hand’s approach as articulated in his opinion in Falcone necessarily represents the better view (although it does have the virtue of maintaining a clear distinction between knowing and intentional conduct).

We merely recognize that Judge Hand’s approach represents a view of the state of mind required to establish the crime of conspiracy that is entirely reasonable and that is at least as valid as the approach taken by the Supreme Court in Direct Sales Co. As far as we can tell, there is no legislative history to speak of to shed light on the meaning of

Section 30-28-2. Traditional rules of statutory construction do not compel us to choose one approach over another. In such a case, the rule of lenity directs us to resolve doubts in favor of the accused by applying the narrower definition of the offense to the defendant.

Our application of the rule of lenity to ambiguous statutory language does not, of course, preclude the Legislature from responding to our construction by enacting a statute that eliminates the statutory ambiguity and that unequivocally criminalizes the conduct in question. {21} For the reasons set forth above, we reverse Defendant’s conviction. {22} IT IS SO ORDERED. ROBINSON, J., concurs. SUTIN, Judge (dissenting). . The Legislature enacted the predecessor to

Section 30-28-2 in 1919. 1919 N.M.

Laws ch. 31, § 1, ch. 31, § 1 provided: Any person or persons who shall knowingly combine with any other person or persons for the purpose of committing a felony, within or without this state; or any person or persons who shall knowingly unite with any other person or persons, whose object is the commission of a felony or felonies, within or without this state, shall, on conviction, be fined not less than twenty-five dollars, nor more than five thousand dollars, or imprisoned in the state prison not less than one year nor more than fourteen years, or both in the discretion of the court. .

We note that at least two states have adopted criminal facilitation statutes that clearly and unequivocally eliminate the requirement that the defendant share the co-conspirator's intent to commit a crime. Ky.Rev.Stat. Ann. § 506.080 (Michie 1995); N.Y. Penal Law, §§ 115.00 to 115.08 (McKinney 2004). . Juries do not work from the actual language adopted by the Legislature; they are provided with paraphrases of the Criminal Code in the form of UJIs approved by the Supreme Court. As with any paraphrase, there is the danger that the meaning communicated by the original text will be lost. .

The dissent seems to us to overstate the degree to which the Supreme Court in Direct Sales Co. qualified Falcone. Consider the following language from Direct Sales Co.: A considerable degree of carelessness coupled with casual transactions is tolerable outside the boundary of conspiracy. There may be also a fairly broad latitude of immunity for a more continuous course of sales, made either with strong suspicion of the buyer's wrongful use or with knowledge, but without stimulation or active incitement to purchase. 319 U.S. at 712 n. 8, 63 S.Ct. 1265.