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The Widest Net: Federal Criminal Conspiracy Law

Defense attorneys and others sometimes lament the extraordinary breadth of federal conspiracy laws. These complaints are nothing new.  In his lecture on Industrial Conspiracies, Clarence Darrow quipped:

When they want a working man for anything excepting work they want him for conspiracy. And the greatest conspiracy that is possible for a working man to be guilty of is not to work— a conspiracy the other fellows are always guilty of  . . .  If any king or ruler wanted to get rid of someone, and that someone had not done anything, they indicted him for what he was thinking about; that is, for conspiracy; and under it they could prove anything that he ever said or did, and anything that anybody else ever said or did, to prove what he was thinking about; and therefore that he was guilty.

Darrow’s wit aside, federal conspiracy law can be shockingly broad. It allows the government to prosecute the agreement to commit a crime, not just the actual crime itself. To convict someone of a conspiracy, the government must prove nothing more than: (1) the existence of an unlawful agreement between two or more persons; (2) the defendant’s knowledge of the agreement; and (3) the defendant’s voluntary participation in the conspiracy.

An agreement may be inferred from a “concert of action,” United States v. Landry, 903 F.2d 334, 338 (5th Cir. 1990), and “[t]he agreement, a defendant’s guilty knowledge and a defendant’s participation in the conspiracy all may be inferred from the ‘development and collocation of circumstances.’” United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992).

Note what is not required— actual commission of the crime.  In a drug conspiracy case, for example, the government is not required to prove any particular defendant actually possessed illegal drugs. Instead, it only has to prove that two or more  people agreed to possess or sell illegal drugs, the defendant knew about the agreement, and the defendant did something to help or further the agreement.  Note also that the government does not have to show an actual, verbal agreement to commit a crime.  The “development and collocation of circumstances” (whatever that means, and I’d suggest it’s a fairly capacious phrase) can be enough.

Understandably, this broad definition of conspiracy can be hard to grasp at first. I often hear the complaint about “ghost drugs” in a conspiracy— the idea that someone can be punished just as much for an agreement to sell drugs as for selling the actual drugs themselves, even where no actual drugs were ever possessed, strikes a lot of people as fundamentally unfair. And it is undoubtedly the case that innocent people have been charged and convicted for conspiracies they were not guilty of.  That’s why it’s important to have an experienced lawyer on your side whenever federal conspiracy laws are involved.

For more information or a consultation, contact the Law Offices of Stephen Haedicke.