STEVEN MICKENBERG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Steven Mickenberg was convicted of conspiracy to traffic in cocaine, but the Florida District Court of Appeal reversed, finding insufficient evidence of the express or implied agreement required for conspiracy. The court held that mere aiding and abetting, even if sufficient for a principal conviction, does not establish the separate crime of conspiracy.
The court reversed the conviction, holding that the state failed to prove beyond a reasonable doubt that Mickenberg entered into any agreement to traffic in cocaine. While Mickenberg clearly aided and abetted Ruiz's trafficking, aiding and abetting is insufficient to establish the separate crime of conspiracy, which requires proof of an actual agreement and intent to commit the offense.
[1] A conspiracy requires proof of an express or implied agreement between two or more persons to commit a criminal offense.
[2] To prove conspiracy, the state must establish both an agreement and an intention to commit the offense.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Evidence that a person aided and abetted another in the commission of an offense, although sufficient to convict the person as a principal in such offense is insufficient to convict either person of a conspiracy to commit the subject offense.”
Establishes the critical distinction between aiding and abetting liability and conspiracy liability.
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Join FLexlaw to unlock all legal intelligenceDuring 1986-1987, Mickenberg delivered cocaine from his roommate Alejandro Ruiz to Thomas Martin for a delivery charge. Michael Perry testified he pic…
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RYDER, Acting Chief Judge.
Steven Mickenberg attacks his conviction for conspiracy to traffic in 400 grams or more of cocaine.' Because we hold that the evidence was insufficient to warrant a conviction, we reverse and remand with directions that the circuit court discharge him.
Mickenberg and three other eodefendants were charged with conspiring with each other and seven other individuals to traffic in 400 grams or more of cocaine in violation of section 893.135(1), Florida Statutes (1989). Five of the coconspirators testified at trial for the state. The following is the evidence against Mickenberg presented in the light most favorable to the state.
Thomas Martin testified that during 1986-1987, he made his living selling cocaine. He met Mickenberg through Alejandro Ruiz, his supplier and Mickenberg’s roommate for eighteen months during the time in question. Mickenberg mainly delivered the cocaine to Martin for Ruiz, and Martin paid an additional $1,000.00 as a delivery charge. He contacted Ruiz to set up the deals and never discussed price or quantity with Mickenberg. Martin did not believe he had ever talked to Mickenberg about arranging for a delivery.
Michael Perry testified that he and Michael Spinger, another codefendant, made several trips to Miami to pick up cocaine from Ruiz. He became a “mule” for Martin and Spinger. On one occasion, he picked up a bag from Mickenberg, but he never actually saw any drugs. He did not recall on which trip he saw the drags. In the summer of 1987, he met Mickenberg in Lakeland where he picked up two kilos of cocaine. He never talked with Mickenberg about setting up the Lakeland trip, and he knew that Mickenberg was not involved in setting up the exchanges.
Three other coconspirators testified, but two did not know Mickenberg. The third testified to a cocaine transaction when he and another codefendant, Scott Soares, went to Ruiz’s apartment. Soares went into a bedroom with Mickenberg. When they came out, Mickenberg put a large amount of cash in a wall unit. Mickenberg admitted taking the cash for Ruiz, but denied giving anything in exchange.
The trial court denied the appellant’s motion for judgment of acquittal at the close of the state’s case and at the close of all of the evidence. The appellant argued that the state had failed to show an express or implied agreement between two or more persons to commit a criminal offense and that a conspiracy involves more than aiding and abetting.
The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Ramirez v. State, 371 So. 2d 1063, 1065 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1201 (Fla.1980). To prove the crime of conspiracy, the state must prove an agreement and an intention to commit an offense. Saint Louis v. State, 561 So. 2d 628, 629 (Fla. 2d DCA 1990). Mere presence at the scene is insufficient to establish a conspiracy. Saint Louis. Conspiracy is a separate and distinct crime from the offense that is the object of the conspiracy. Ramirez, at 1065. Evidence that a person aided and abetted another in the commission of an offense, although sufficient to convict the person as a principal in such offense is insufficient to convict either person of a conspiracy to commit the subject offense. Ramirez, at 1065. One danger that lurks in the criminal charge of conspiracy is the tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition. Ramirez, at 1066-67.
A review of the record shows that the state did not prove beyond a reasonable doubt that Mickenberg entered into an agreement with Ruiz or the other coconspira-tors to traffic in cocaine. Clearly, Mieken-berg was aiding and abetting Ruiz in trafficking in cocaine. His participation, however, does not reach the level of the separate crime of conspiracy. We conclude, therefore, that the evidence was insufficient to withstand the appellant’s motion for judgment of acquittal. Accordingly, we reverse and direct that he be discharged.
Because we reverse on this point, we do not address the appellant’s other issues on appeal.
Reversed and remanded.
CAMPBELL and PATTERSON, JJ., concur.
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Barron v. State, 990 So. 2d 1098 (Fla. 3d DCA 2007)…g., Watkins v. State, 826 So. 2d 471, 475 (Fla. 1st DCA 2002)(evidence that the defendant uttered [a counterfeit] check insufficient to convict defendant “as a principal to [underlying, separate and distinct crime of] forgery”); Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994)(evidence that a person aided and abetted another in the commission of an offense, although sufficient to convict the person as a principal to that offense is insufficient to convict the person of a conspiracy to commit the s…
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Kanisky Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2008)…itation omitted). Many other decisions state the proposition that “[c]onduct that aids and abets an offense is insufficient to prove conspiracy.” McClain v. State, 709 So. 2d 136, 137 (Fla. 1st DCA 1998) (citation omitted). See Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994); Quinonez v. State, 634 So. 2d 173, 174 (Fla. 2d DCA 1994); McCants v. State, 587 So. 2d 673 (Fla. 1st DCA 1991); Garcia v. State, 548 So. 2d 284, 285 (Fla. 3d DCA 1989); LaPolla v. State, 504 So. 2d 1353, 1357 (Fla. 4th DCA…
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Arguelles v. State, 842 So. 2d 939 (Fla. 4th DCA 2003)…ndant cannot be a conspirator by merely being present at the scene of the offense, driving to the scene knowing the purpose of the journey, or aiding and abetting in the commission of the offense. See Sheriff, 780 So. 2d at 921; Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA 1994) (reversing conspiracy conviction where defendant merely aided and abetted); Pennington v. State, 526 So. 2d 87, 88 (Fla. 4th DCA 1987) (reversing conspiracy conviction where defendant was merely present at the scene and aide…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Florentino Ramirez v. State, 371 So. 2d 1063 (Fla. 3d DCA 1979)
- Vilacin Saint Louis v. State, 561 So. 2d 628 (Fla. 2d DCA 1990)