What Constitutes a Conspiracy?
When Does a Conspiracy Exist?
The essence of conspiracy is the agreement to commit an illegal act. Iannelli v. United States, 420 U.S. 770, 43 L.Ed.2d 616, 95 S.Ct. 1284 (1975); United States v. Snider, 720 F.2d 985 (8th Cir. 1983), cert. denied, 465 U.S. 1107, 80 L.Ed.2d 142, 104 S.Ct. 1613 (1984). The agreement must be between two or more persons. United States v. Moss, 591 F.2d 428 (8th Cir. 1979). A government agent or informant cannot be the only other member of the conspiracy. See, e.g., United States v. Mahkimetas, 991 F.2d 379, 383 (7th Cir. 1993) (joining nine other circuits, the court noted that a conspiracy "may [not] be formed between a criminally-motivated person and a government agent or informer"); Montgomery v. United States, 853 F.2d 83 (2nd Cir. 1988); United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984).
Most federal statutes require that at least one of the co-conspirators commit an overt act during the course and in furtherance of the unlawful agreement. For example, an overt act is required for a conspiracy under 18 U.S.C. §371 (to commit offense against or to defraud the United States), 18 U.S.C. §1117 (to commit murder); 18 U.S.C. §1201 (kidnapping); and 18 U.S.C. §1751 (Presidential assassination). An over act is not required for 18 U.S.C. §241 (violate civil rights); 18 U.S.C. §2385 (advocate overthrow of government); 21 U.S.C. §846 (drugs); and 21 U.S.C. §963 (RICO). See generally, Grunewald v. United States, 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963 (1957); Blumenthal v. United States, 332 U.S. 539, 92 L.Ed. 154 68 S.Ct. 248 (1947). Also see United States v. Shabani, 63 U.S.L.W. 4001 (U.S. Nov. 1, 1994) (a federal drug conspiracy in violation of 21 U.S.C. §846 does not require that any co-conspirator commit an overt act). If the statute requires an overt act and there is none, an essential element of this claimed conspiracy is missing and Rule 80(d)(2)(E) would not apply.
Not Members of the Conspiracy
The proponent of the evidence must prove that your client and the declarant knew of the conspiracy, purposefully associated themselves with it and affirmatively cooperated in it, or at least agreed to cooperate in the objective of the conspiracy. United States v. Cox, 942 F.2d 1282 (8th Cir. 1991), cert. denied, 117 L.Ed.2d 520, 112 S.Ct. 1298 (1992); United States v. Braidlow, 806 F.2d 781 (8th Cir. 1986); United States v. Casperson, 773 F.2d 216, 221 (8th Cir. 1985). Mere knowledge of the existence of a conspiracy or mere presence or association with individuals engaged in illegal conduct is not sufficient to establish that a part knowingly contributed efforts in furtherance of a conspiracy and thus participated in a conspiratorial agreement. Casperson, 773 F.2d at 221; United States v. Soto, 716 F.2d 989 (2nd Cir. 1983) (mere presence, even with knowledge that a crime is being committed there, is not sufficient to establish that defendant was a member of the conspiracy).
Single acts, without more, are also insufficient to link a defendant to a conspiracy. United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir. 1989). See also United States v. Arvanitis, 902 F.2d 489 (7th Cir. 1990) (statement by one of the RICO conspirators was improperly admitted against the defendant because proof that the defendant was a purchaser of the RICO conspiracy's services was not sufficient to establish the defendant's participation in that conspiracy); United States v. DeLutis, 722 F.2d 902 (1st Cir. 1983) (court reversed defendant's convictions for conspiracy to distribute cocaine and conspiracy to possess with intent to distribute cocaine because evidence of a single isolated act by the defendant was insufficient to establish that he had knowledge of the conspiracy); United States v. DeNoia, 451 F.2d 979 (2nd Cir. 1971) (mere delivery of heroin to an alleged co-conspirator while carrying a firearm was not enough to convict for conspiracy).
Busted, Now What?
Getting arrested, whether it is by the Federal Government or the State is a traumatic experience. It usually is based upon an Indictment or action that occurs at the time the arrest is perfected. If you are indicted, a warrant for your arrest may be issued for the charges that were presented to the grand jury. Once you have been arrested, critical decisions that you make will determine the outcome of your case. This newsletter is designed to give you some ideas on what kind of decisions will be required if you have been arrested or indicted.
A. COOPERATION
One of the first, and potentially most critical decisions you will have to make is whether or not, upon your arrest, to cooperate with the government. Arrests occur by Indictment and arrest warrant; others occur by the actual commission of the crime at the time of the incident. A third means of arrest is through search warrants perfected on houses, cars and other personal property. Either way, oftentimes upon your arrest, the government will ask you, or tell you, if you cooperate immediately, that it could go "better for you." Agents of the Drug Enforcement Administration (DEA), FBI, ATF, Secret Service or other task force agencies of the State in which you are arrested will pressure you to cooperate immediately with a promise of leniency in the future. This is your first and most difficult choice. In our experience the agent will support lenient outcomes in the sentencing procedures if you cooperate upon arrest and the results are significant to the arrest and prosecution of other co-defendants. There are occasions, however, that despite extensive efforts to cooperate, the arrest of others is not perfected. When this happens, though you believe you should receive some consideration, often you do not. Cooperation is usually an ongoing process. It is our recommendation that you obtain an attorney as soon after your arrest as feasible to represent your interests, either through cooperation or preparing for trial. Cooperation is the single most mitigating factor in the sentencing of defendants. Some agents will tell you that if you cooperate immediately at the time of your arrest, and without counsel, things will go better and/or that this moment is your only chance to cooperate.
After you are arrested, and if you do not choose to cooperate immediately, or cannot based upon the fact that you are a second generation defendant who has been fingered by a cooperating witness, you should immediately retain counsel. Several vehicles to attack your case can mitigate the outcome immediately after your arrest or Indictment... Read More
