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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:88-cr-01026-MP-AK

CHARLES L DAVIS,

Defendant.

___________________________/

O R D E R 

This matter is before the Court pursuant to the Order at Doc. 3397, which required the

parties to brief the issue of whether the Sentencing Reform Act of 1984 applied to Mr. Davis. 

The parties have each filed memoranda on the issue, docs. 3398 and 3399, respectively. In his

memorandum, Mr. Davis argues that he should not be held responsible for participation in the

conspiracy after February, 1987, since he alleges he had broken all ties with the conspiracy,

changed his identity and moved to St. Thomas and Maryland because he feared that Terry

Fitzwater was planning to kill him. The government, however, argued that

[i]n the subject case, there is a complete lack of evidence that defendant Davis

took affirmative steps prior to the effective date of the sentencing guidelines to

terminate and disavow any participation in the conspiracy. In the absence of such

proof, this Honorable Court should sentence Davis in accordance with the

guidelines.

Doc. 3398, p. 4-5.

Following enactment of the Sentencing Reform Act, numerous appellate courts addressed

the question of whether the Act applied to “straddling” conspiracies, i.e., conspiracies which

began prior to and continued after the enactment of the Act. See United States v. Bakker, 925

F.2d 728, 739 (4th Cir.1991). In addressing this question, the Eleventh Circuit concluded that a

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1

As an initial matter, it should be noted that the current record in this case demonstrates

that the conspiracy continued after November 1, 1987. Originally, the Eleventh Circuit found

that the record in this case at the time of the appeal of Defendants Wright, Knowles and Squires

did not contain evidence proving that the conspiracy continued after that date. United States. v.

Knowles, 66 F.3d 1146, 1163-64 (11th Cir. 1995). The basis of the Eleventh Circuit's decision

was that the testimony of Mark Govea, concerning the use of the boat Olives by Archie Jones for

a drug run in December of 1987, "alone [was] insufficient to tie Archie Jones' venture in

December 1987 to the charged conspiracy." Id. In the trial of Jose Sepulveda, however, the

government offered additional testimony regarding four cashier's checks distributed in

November of 1987 and regarding Mr. Sepulveda's communications with Archibald Jones

concerning the trading of the Olives for another boat, in order to sink the Olives. See

Presentence Report ¶¶ 50,51; Transcript of Sentencing, doc. 3247, pp. 147-48. Based on such

testimony, the undersigned concluded during sentencing that the evidence now clearly indicates

that the conspiracy continued after the effective date of the Act. See Transcript of Sentencing,

doc. 3248, pp. 90,93, and 105. This decision was upheld on appeal, Doc. 3321, pp 2-3, n.1.

Case No: 1:88-cr-01026-MP-AK

conspiracy that began before the effective date of the Act and continued after that date is subject

to sentencing under the Act. See United States v. Terzado-Madruga, 897 F.2d 1099, 1123 (11th

Cir.1990). This determination that the Act applies to “straddling” conspiracies eventually led to

a more complex question - whether a defendant is subject to the Act when he was involved in a

“straddling” conspiracy but committed no overt acts after the date of the enactment of the Act.1

This issue was directly addressed by the Eleventh Circuit in United States v. Diaz, 190

F.3d 1247 (11th Cir. 1999) (involving the appeal of a decision of this Court). Diaz involved a

conspiracy “that began before the effective date of the guidelines and continued after that date...”

Id. at 1257. The Eleventh Circuit concluded that in these circumstances, “[A] defendant must

take affirmative steps prior to the effective date to terminate and disavow any participation in the

conspiracy in order for the guidelines not to apply to his sentencing.” 190 F.3d at 1257, citing

United States v. Peeples, 23 F.3d 370, 374 (11th Cir.1994). In the absence of any proof that

Diaz took such steps, the Eleventh Circuit concluded he was subject to the Act. Diaz at 1257. 

In U.S. v. Peeples, 23 F.3d 370 (11th Cir. 1994), however, the case cited by Diaz, the

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Case No: 1:88-cr-01026-MP-AK

Court found that two of the three defendants who had run an airstrip and helped drug smugglers

using the strip were not subject to the Guidelines even though the conspiracy continued after

November 1, 1987. The Court reasoned as follows: 

The particular context to analyze the scope of agreements by these participants is

that the airstrip continued to be potentially available by its location on the ranch

whether or not there was any current authorization by Joe or John Peeples for its

use in smuggling operations. Under these circumstances, actual evidence of

continued involvement in a specific activity is the most reliable indicator of the

time frame that each participant remained actively engaged in the conspiracy. Our

consideration of factors of foreseeability or withdrawal from the conspiracy is not

blurred by the noncriminal elements of personal or family relationships or places

of residence which coexisted with the conspiracy's functions. A measure of the

duration of criminal involvement, if not based on actual individual agreement and

activity, would impose an indefinite standard beyond the evidence of guilty

conduct.

After a review of the record, we are convinced that the evidence against Joe

Peeples and Fred Borgardt does not demonstrate a continuation of their pattern of

illegal conduct through the effective date of the sentencing guidelines. Cessation

of activity and no evidence of further agreement or conduct by Joe Peeples and

Fred Borgardt lends no support to finding reasonable foreseeability regarding an

indefinite continuation of their involvement in the conspiracy. Here, the enterprise

had sporadic and unpredictable episodes, with little foreseeability or opportunities

to express intent to withdraw.

Together, the Peeples and Diaz cases suggest the contours of the withdrawal principle, and both

cases require the consideration of the evidence in the case regarding whether Mr. Davis took

affirmative steps, before the effective date of the Sentencing Reform Act, to terminate his

participation in, and to disavow any participation in, the conspiracy. 

Because Mr. Davis is pleading guilty, he has not had the chance to offer such evidence,

and the government has not had the chance to contest any such evidence. Moreover, the

statement in the plea agreement that “The United States acknowledges that there is no evidence

to demonstrate the defendant’s continued participation in the criminal conduct underlying the

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Case No: 1:88-cr-01026-MP-AK

charged conspiracies following the last overt act charged in the pending indictment, said act

occurring on or about February 3, 1987" does not completely settle the matter, because more

than merely ceasing participation is required. The defendant must meet the burden of

demonstrating he took "affirmative steps" to terminate his participation or to disavow further

participation. For the above reasons, an evidentiary hearing must be held, during which the

defendant shall be given the opportunity to demonstrating that he has met his burden of proving

withdrawal. 

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Clerk is directed to set an evidentiary hearing on the sole issue of whether

Mr. Davis withdrew from the conspiracy before the effective date of the

Sentencing Reform Act of 1984.

2. Sentencing in this case will be set after resolution of this issue, allowing sufficient

time for the probation officer to prepare the pre-sentence report .

DONE AND ORDERED this 9th day of June, 2005

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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