Criminal Practice – Conspiracy Charge Sticks for False Distress Call

U.S. v. Deffenbaugh (Lawyers Weekly No. 001-060-13, 15 pp.) (Niemeyer, J.) No. 11-4951, Feb. 28, 2013; USDC at Norfolk, Va. (Morgan, J.) 4^th Cir.

Holding: Although defendant claims he could not be convicted of federal conspiracy to make a false distress call to the Coast Guard because his girlfriend was not aware a call to the Coast Guard would be part of the plan to fake his death in order to avoid a state probation violation hearing, evidence showed she understood the plan would involve a false distress call and the 4^th Circuit affirms defendant’s conspiracy conviction to violate 14 U.S.C. § 88(c).

After jumping off a boat being piloted by his brother, who was legally blind, defendant swam from off the coast of Virginia to shore where he was picked up by his waiting girlfriend and the two drove to Texas. After receiving a tip from a viewer of America’s Most Wanted, local police and U.S. Marshals arrested defendant nine months later in Baytown, Texas, where he was living under the name “Mike Meyers.” The girlfriend testified as a cooperating coconspirator about the staged disappearance.

On appeal, defendant contends the evidence failed to show that he and his girlfriend agreed to pursue “the same criminal objective” as required to prove a conspiracy. He argues the members of a 18 U.S.C. § 371 conspiracy must have specific knowledge and intent to violate federal law.

The intent needed to violate § 371 does not require the government to show the conspirators knew their conduct would violate federal law, unless the underlying crime included such specific intent. Here, the language of § 88(c) clearly requires that a perpetrator of a § 88(c) crime specifically intend to make a false distress call or to cause one to be made. There can be no question that in this case defendant and his girlfriend knowingly and willfully conspired to cause a false distress call to be made. There is no requirement that the perpetrator must also have knowledge and intent that the recipient of the false distress call be the U.S. Coast Guard.

Defendant and his girlfriend intended and expected the call would not only be made but also that it would be responded to; that the resulting search would be unsuccessful and defendant would be declared dead. The lack of knowledge and intent that a false statement is made to a federal agency or that the victim of an assault is a federal officer is no bar to a prosecution for a federal conspiracy offense.

We also affirm defendant’s 84-month sentence. He contends the district court erred in applying the federal sentencing guideline for fraud and theft, USSG § 2B1.1, to his false distress call conviction; that the court’s inappropriate application of the 18 U.S.C. § 3553(a) factors rendered his sentence unreasonable; and the court failed adequately to explain its decision to impose consecutive sentences.

We conclude the district court’s approach was not plainly unreasonable. At bottom, all the matters discussed by the court related directly to its determination to impose a sentence sufficient, but not greater than necessary, to comply with the purposes of sentencing. The court spoke at length as to why it was giving the sentence imposed, announcing that it sought to achieve the sentencing level of 84-months’ imprisonment, a level it found appropriate when considering the § 3553(a) factors. We conclude defendant received the benefit of a reasoned and individualized assessment as to the appropriate level of punishment for his offense and that the imposition of consecutive sentences was not an unreasonable method to achieve the sentencing goals determined by the court.

Judgment affirmed.