ANALYSIS OF DECEMBER 29, 2021 SUPREME COURT OPINION
(Posted December 30, 2021) My travel schedule kept me away from the keyboard for yesterday’s announcement of the final published opinion of the year from the Supreme Court of Virginia. In Commonwealth v. Richard, the justices take up a criminal-law principle known as Wharton’s Rule.
This is a prosecution for conspiracy to distribute methamphetamine. The prospective seller was a man named Harris. The prospective buyer, alas for Harris, was an undercover investigator for the local sheriff’s office. The two arranged by text messages to meet and exchange about ten grams of meth for a car.
This meant that Harris needed the meth for the trade. He called an acquaintance, Richard, and asked if he could get some from her. No dice, she replied; the police recently raided my home and cleaned me out. But she did want that car, “to leave and start a new life.”
Good for her. Unfortunately, she didn’t hang up the phone; she and Harris concocted an arrangement for him to advance the drugs for her, with her repaying him the value over time. In the interim, they agreed that Harris would own half of the car.
If you’ve thought about this, there are about a dozen ways that this could go wrong. I’ll advance the plot a bit by saying that no one gets hurt in a fiery blaze of weapons; deputies peacefully took both Harris and Richard, plus a pal they had brought along, into custody.
Richard didn’t try to cover anything up; she freely admitted to the arresting deputies what the details of the planned transaction were. That got her indicted for possession with intent to distribute and conspiracy to distribute.
This is where Wharton’s Rule comes in. For those of you who don’t swim in the waters of criminal procedure, the rule provides that when it takes two to complete a crime, you don’t add a conspiracy count. The best example is one listed in today’s opinion: dueling. Precedent establishes that in such situations, the substantive offense and the conspiracy merge when the prosecution proves the substantive offense.
For today’s purposes, involving drug distribution, “when a single buyer and a single seller agree to a drug exchange, that agreement does not constitute a conspiracy, only an illegal sale of drugs.” At trial, Richard asked the judge to give an instruction on this doctrine. The court said no and a jury convicted her. The Court of Appeals reversed, holding that there was enough evidence in the record for a jury plausibly to conclude that the rule applied.
The problem with this is that we didn’t have a single buyer and a single seller. We had one (admittedly phantom) buyer and two sellers. There was plenty of evidence, including Richard’s own candid testimony at trial, that she and Harris had arranged a complex deal for the transaction. That established “preconcert and connivance” between the two, the predicate acts for conspiracy. The justices thus reverse the CAV and reinstate the conviction.
Much of the caselaw in today’s opinion from Justice Goodwyn, writing for a unanimous bench, comes from federal courts. I ran a quick search and found only one previous SCV opinion that mentions the rule, plus five published CAV opinions (in addition to one unpub) mentioning it. This isn’t an issue of first impression in the Supreme Court, but it’s close.