TYSK: 5 Reasons Conspiracy Charges are Bears

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I can’t tell you how many times I’ve spoken with someone who was recently arrested for a federal drug conspiracy, and that person says “they didn’t even find drugs on me!” While I definitely feel for that person, I also know that, when it comes to conspiracy charges, actual possession is largely irrelevant.

There are at least five reasons conspiracy charges are absolute bears for defendants to deal with:

  1. All that is required is an agreement to engage in the existing criminal activity; no overt act is required. “To prove that a defendant is guilty of conspiring to distribute illegal drugs under 21 U.S.C. § 846, the Government must prove beyond a reasonable doubt: ‘(1) the existence of an agreement between two or more persons to violate narcotics laws, (2) knowledge of the conspiracy and intent to join it, and (3) voluntary participation in the conspiracy.’ … The Government need not prove an overt act to show participation in a conspiracy.” United States v.  Turner, 319 F.3d 716, 721 (5th Cir. 2003) (internal citations omitted).
  2. Many defendants have no knowledge of the identities of the people they are charged with. Indeed, it is quite common for the “mules” to have no knowledge of the other “mules” in a drug trafficking organization, often by design. The fewer weak links and areas that can be exploited, the better, as far as the organization is concerned.
  3. Punishment for a conspiracy is exactly the same as for the actual commission of the crime. According to 21 U.S.C. § 846, “any person who … conspires to commit any [drug] offense … shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the … conspiracy.”
  4. All conspirators are liable for all the activity conducted by the entirety of the conspiracy, unless the conspirator withdraws from the conspiracy.  See, e.g., United States v. Skorniak, 59 F.3d 750, 758 (8th Cir. 1995) (“[T]he government’s theory of the case was that [codefendant] withdrew from the conspiracy in 1989 or 1990, thus making him unaccountable for the subsequent activities for the conspiracy for which [defendant] was held accountable.”)
  5. General notions about hearsay are relaxed for statements made by co-conspirators.  “An out of court statement by a coconspirator is not hearsay and may be introduced as an admission by a party opponent.” United States v. Roach, 164 F.3d 403, 409 (8th Cir. 1998) citing Fed. R. Evid. 801(d)(2)(E).

There are certainly other considerations to take into account when conspiracy charges are brought, but these are the five most common concerns I’ve heard from my clients.

Terrorism Charges

As expected, according to the AP, one of the individuals arrested last week in Denver for making false statements has apparently been indicted in New York on conspiracy to use weapons of mass destruction charges.

Under 18 U.S.C. § 2332a, it is a crime to conspire to use a weapon of mass destruction against, among other things, any person or property in the United States.  It is a crime punishable by up to life imprisonment.  A couple of really important caveats about this charge, though.  First, if the alleged target is a person or property located in the United States, some jurisdictional requirements need to be satisfied; one of the following must be shown:

  • the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
  • such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
  • any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
  • the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce;

Second, “weapons of mass destruction” does not mean what many think it means.  Yes, it means the nuclear, biological, or chemical weapons which were the supposed reason for invading Iraq.  But it has a much broader definition than just the nasty stuff.  It also includes a destructive device as defined by 18 U.S.C. § 921:

  • a bomb,
  • a grenade,
  • a rocket having a propellant charge of more than four ounces,
  • a missile having an explosive or incendiary charge of more than one-quarter ounce,
  • a mine, or
  • a device similar to any of the devices described in the preceding clauses.

It also means a rifle (other than a shotgun) having a barrel with a bore of more than one-half inch in diameter.  Antique rifles are exempted from this particular definition, however.  Flare guns, too.

Federal Point Shaving Indictment

I don’t have any real basis for thinking this, but I suspect that most people probably think that point-shaving is undesirable behavior, but not necessarily criminal in nature.  Well, lest anyone think otherwise, the Detroit Free Press reports that six individuals have been indicted by a federal grand jury for allegedly violating 18 U.S.C. §§ 224 (“Bribery in Sporting Contests) and 1952 (“Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises”).

The general provisions of section 224 state that it is a crime for an individual to conspire with others “to carry into effect any scheme in commerce to influence, in any way, by bribery and sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest.”  It is punishable by a fine, up to five years in prison, or both.

Section 1952 is somewhat different.  It states that it is a crime for a person “travel[] in interstate or foreign commerce or use[] the mail or any facility in interstate or foreign commerce,” with the intent to distribute the proceeds of any criminal activity; commit any crime of violence to further any unlawful activity (this is not alleged in the indictment); or otherwise promote the carrying on of any unlawful activity.  Punishment for violating section 1952 is a fine, up to five years in prison, or both, unless a crime of violence is committed, in which case, the punishment can be a fine, up to twenty years in prison (life if death occurs), or both.

The indictment has been thoughtfully posted by the Detroit Free Press.  As with all indictments, it must be remembered that the individuals involved are innocent until proven guilty, and that anything in an indictment is merely an allegation.

IEEPA, Ireland, and Iran

The United States Department of Justice has announced that an Irish firm has been charged in a 25-count indictment for providing “sensitive technology” to Iran.  (Link.)  The charges are broken down like this:  there are two counts of conspiracy, nineteen counts of violating the International Emergency Economic Powers (IEEPA) Act, four counts of false statements, and forfeiture allegations.

The defendants in the case are: Mac Aviation Group; Thomas McGuinn; Sean McGuinn; and Sean Byrne.  All entities and people are located in Ireland, it appears. How then, does the United States find its extraterritorial jurisdiction, which expanded greatly under the Bush Administration?

According to the DOJ presser, it is alleged that helicopter engines and other aircraft components were purchased from U.S. firms and then transshipped to Iran using companies in Malaysia and the United Arab Emirates.  The engines were manufactured by Rolls Royce in Indiana, and the “other aircraft components” include 50 “‘5th stage vanes'” and 32 bolts.  Yeah, bolts.

IEEPA is a tough little statute.  1977 Congress passed the legislation and, while it sought to clarify the President’s powers, it nonetheless gives the President an enormous amount of power.  One of these powers is to issue regulations relating to trade, including foreign entities which transship American products, and if a person violates those regulations, he can be punished with up to 20 years in prison.  See 50 U.S.C. § 1705(b).

One other thing: an AP story, which I think has been expanded in the Irishtimes.com, states that the United States is seeking the arrest and deportation of the individuals.  It would be awfully surprising if Ireland “deported” its own citizens to the United States for trial.  What is likely meant is “extradition,” which is a vastly different process.  And it’s worth noting, too, that Ireland has a reputation as a troublesome extradition partner of late, though that may be changing.

Public Corruption

Couple of interesting press releases from the DOJ today involving public corruption.

The first involves a South Korean businessman who was arrested “on a criminal complaint charging him with one count of conspiracy to defraud the United States, to commit wire fraud and to commit bribery, and one count of bribery.”  (The allegations stem out of a telecom contract involving employees of the Army Air Force Exchange Service.)  What is interesting about the charges is that they are brought in a criminal complaint.  The vast majority of federal charges are brought initially via indictment, and criminal complaints are typically used when it is felt that there is an emergency requiring the individual to be arrested immediately.  A criminal complaint is a written statement of the essential facts constituting the offense charged, and it must be presented under oath to a magistrate judge or other competent judicial authority.  If the magistrate judge feels there is probable cause, then he will issue an arrest warrant.  After the individual is arrested and brought before the magistrate judge, a couple of things can happen.  First, the case can proceed on the complaint, or, if the individual so chooses, he can ask that his case go to the grand jury for a formal indictment to be issued.  Sometimes, the complaint process is used to buy time to get more charges incorporated into an indictment.

The other public corruption case involves the Foreign Corrupt Practices Act, which is one of those laws that shows just how far the United States’ extraterritorial jurisdiction extends.  Aibel Group, Ltd, a UK-based company, pleaded guilty in the Southern DIstrict of Texas on a two-count criminal information, “charging a conspiracy to violate the FCPA and a violation of the FCPA.”  Aibel Group has agreed to pay a $4.2 million fine, and “to serve a two year term of organizational probation that requires, among other things, that it submit periodic reports regarding its progress in implementing antibribery compliance measures.”

Fishers of Men Update

Earlier today I mentioned that three individuals had been indicted on student loan fraud and FEMA fraud, but that the US Attorney’s Office hadn’t put a press release up.  It has now.  According to the press release, the charges involve nine counts of bank fraud, one count of conspiracy to commit bank fraud, each of which carries a maximum of 30 years imprisonment, a fine of up to one million dollars, or both, per count, and one count of conspiracy to defraud the United States.

(And just so there’s no confusion, I know the press release says that bank fraud carries a fine of up to $250,000 for bank fraud, but the statute says $1,000,000, and, as I mentioned earlier, the ultimate sentence, if the allegations are proven beyond a reasonable doubt or if there’s a plea, will be determined by the district judge based on guidance from the sentencing guidelines.)