US v. Dwight Spears, No. 08-5216 (4th Cir. 2009)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5216 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DWIGHT SPEARS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:08-cr-00112-HFF-3) Submitted: June 25, 2009 Decided: November 10, 2009 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. C. Carlyle Steele, Greenville, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Regan A. Pendleton, William J. Watkins, Jr., Assistant United States Attorneys, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Dwight conspiracy to Spears murder was a convicted federal after law a issues: (1) whether dismiss the indictment testimony the revealed that of in He was sentenced On appeal, counsel raises three district or trial officer enforcement violation of 18 U.S.C. § 115(a)(1)(A) (2006). to 240 months of imprisonment. jury grant court a Spears erred directed had by failing verdict withdrawn to because from the conspiracy; (2) whether the district court erred in failing to dismiss the indictment because Spears committed no overt act in furtherance of the conspiracy; and (3) whether the district court erred by charging the jury that it was Spears burden to prove withdrawal from the conspiracy by a preponderance of the evidence. Spears has filed two pro se supplemental briefs, alleging that his conviction under 18 U.S.C. § 115(a)(1)(A) was erroneous and therefore his indictment should be dismissed for lack of subject 12(b)(3)(B). matter jurisdiction under Fed. R. Crim. P. For the reasons that follow, we affirm in part, vacate in part, and remand. Although we review Spears first argument de novo, United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997), the argument fails because the evidence did not reveal that Spears withdrew from the conspiracy. United States v. Cardwell, 433 F.3d 378, 391 (4th Cir. 2005). 2 The second argument lacks merit because there is no overt act element in a conspiracy offense. See United States v. Shabani, 513 U.S. 10, 13-14 (1994) (noting that absent statutory or congressional guidance to the contrary, the common law understanding of conspiracy does not make the doing of any other act a condition of liability). was required reveals for that conspiracy, conviction Spears e.g., Moreover, even if an overt act engaged casing under in the the acts area statute, in where the furtherance the record of the coconspirators expected to ambush and shoot the Federal Bureau of Investigation agent. See generally United States v. Ochoa-Torres, 626 F.2d 689, 691 (9th Cir. 1980) (noting that a trip in an automobile was an overt act in furtherance of conspiracy). Spears third argument simply is incorrect that it was not his burden conspiracy. defendant to to prove Withdrawal take the defense from a affirmative of withdrawal conspiracy actions from requires inconsistent with the the the object of the conspiracy and communicate his intent to withdraw in a manner likely to reach his accomplices. F.3d at 391. Cardwell, 433 Spears did have the burden to prove the defense. See United States v. Watford, 894 F.2d 665, 670 (4th Cir. 1990) (stating that the burden is on the defendant to show that he withdrew from the conspiracy by affirmative action); United States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986) (same). 3 Once a defendant produces evidence of withdrawal, it then becomes a jury issue which the Government must prove beyond a reasonable doubt that the defendant did not withdraw from the conspiracy. 1989). United States v. West, 877 F.2d 281, 289 (4th Cir. Thus, we affirm Spears conviction. In his final argument, Spears alleges, pro se, that his indictment was defective because the evidence did not support his conviction under 18 U.S.C. § 115(a)(1)(A) (2006). We agree with Spears that evidence did not support his conviction under § 115(a)(1)(A) or under § 115(a)(1)(B), as the Government argues. Rather, the evidence supports his conviction for his unambiguous participation in the conspiracy to murder a federal law § 1114 (West conviction those enforcement Supp. properly documents officer 2009). note The the erroneously in violation indictment conspiracy cite to inapplicable to the instant facts. of to 18 U.S.C.A. and criminal murder; however, § 115(a)(1)(A), which is Rather than dismissing the indictment, however, this court has held that the proper remedy in this circumstance is to vacate and remand for resentencing See United States v. Massuet, under the appropriate statute. 851 F.2d 111, 115 (4th Cir. 1988) (noting that the proper procedure for dealing with the problem of the erroneously cited statute would be to remand the case for resentencing under the proper statute ) (citation omitted); see also United States v. 4 Bennett, 368 F.3d 1343, 1352-55 (11th Cir. 2004) (holding that sufficient evidence supported a conviction for attempt to kill an officer of the United States, under 18 U.S.C. § 1114, where the defendant § 115), was vacated actually on other charged with grounds, violating 543 U.S. 18 1110 U.S.C. (2005). Accordingly, we grant Spears motion to file his second pro se supplemental brief, vacate Spears sentence, and remand for resentencing in accordance with this opinion. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
