Conspiracy - Generally

United States v. Jiminez Recio, 537 U.S. 270 (2003)

The Ninth Circuit decision, which had held that a conspiracy conviction may not be sustained unless the defendant joined the conspiracy before its mission was doomed to failure by police interception, was reversed by the Supreme Court. The fact that the police had infiltrated the conspiracy and seized the drugs, before the defendants agreed to participate in the venture did not protect them from conspiratorial liability.

United States v. Tobin, 676 F.3d 1264 (11th Cir. 2012)

The court held that “willfulness” is not an element of a § 841 offense (distribution of a controlled substance) and therefore, it is no defense that the defendant did not realize that his conduct was illegal or that he had consulted with a lawyer and the lawyer said the conduct was not illegal (this was an Internet Pharmacy prosecution). However, to be convicted of conspiracy to distribute a controlled substance, the defendant is required to act with knowledge of the illegality of his conduct, because under § 846, willfulness is an element of the offense and therefore, advice of counsel is a defense to a § 846 offense.

United States v. Weeks, 653 F.3d 1188 (10th Cir. 2011)

In the context of reviewing an ineffective assistance of counsel claim for a defendant who entered a guilty plea to a conspiracy offense, the Tenth Circuit emphasized that a conspiracy conviction requires proof that the defendant knew that his agreement involved a violation of the law, not simply an agreement to engage in certain conduct: “An agreement with others that certain activities be done, without knowing at the time of the agreement that the activities violate the law, is therefore insufficient to establish conspiracy.”

United States v. Tyson, 653 F.3d 192 (3rd Cir. 2011)

There was sufficient evidence to support defendant’s conviction of several firearms counts, but there was insufficient evidence that his crime was committed as part of a conspiracy with another person. The co-defendant / alleged co-conspirator was acquitted at trial; and though the rule of consistency has been abolished, there was no evidence to support the defendant’s conspiracy conviction, because there was no evidence that the conspirator was in league with him in the commission of the crimes.

United States v. Rigas, 605 F.3d 194 (3rd Cir. 2010)

A conviction under § 371’s conspiracy offense clause bars a subsequent prosecution under § 371’s defraud clause. The two offenses included in § 371 are two ways of committing the same offense. In this case, the prosecution of Rigas under the conspiracy to commit an offense clause was shown to be sufficiently close to the pending defraud clause prosecution that the burden was on the government to prove that the former did not bar, on double jeopardy grounds, a prosecution under the latter provision. ON REHEARING EN BANC, the court affirmed this decision. 605 F.3d 194 (3rd Cir. 2010).

United States v. Boidi, 568 F.3d 24 (1st Cir. 2009)

A conspiracy to possess drugs is a lesser included offense of a conspiracy to possess with intent to distribute. The government acknowledged that possession is a lesser included offense of possession with intent to distribute; but argued that this logic does not apply to conspiracy offenses. The First Circuit rejected this argument, but held that in order to insist on such an instruction, the defendant must show that on the evidence presented, it would be rational for the jury to convict only on the lesser included offense and not the greater one. Failure to instruct the jury on the lesser included offense in this case was error.

United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008)

Determining when a conspiracy ends is important in numerous contexts, including a defense that the statute of limitations has expired; a claim that a co-conspirator statement was not made during the course of a conspiracy and, as in this case, in deciding which version of the Sentencing Guidelines to apply (i.e., a possible Ex Post Facto claim). In this case, the conspirator forged certain documents that enabled them to receive money as the beneficiary of another person who died. The forgery and receipt of the money occurred in 2001. When questioned by the police about these events in 2006, the conspirators lied. The D. C. Circuit held that the conspiracy ended in 2001 when the objects of the conspiracy were achieved. See generally Grunewald v. United States, 353 U.S. 391 (1957); Krulewitch v. United States, 336 U.S. 440 (1949); Lutwak v. United States, 344 U.S. 604 (1953).

United States v. Kapelioujnyj, 547 F.3d 149 (2d Cir. 2008)

The evidence in this § 2315 case was insufficient to prove that the defendant was aware that the stolen properly he was enlisted to help sell was woth at least $5,000.00. The government also failed to prove the interstate commerce element of the offense. Though the stolen property had traveled between New York and New Jersey, the defendant was not, at that time, a member of the conspiracy to sell the stolen property. The fact that the seller was attempting to get others to help sell the stolen item cannot be imputed to the defendant, who was never shown to have entered a conspiracy to sell stolen property across state lines.

United States v. Mendez, 528 F.3d 811 (11th Cir. 2008)

The defendant was charged with a § 371 defraud clause offense; that is, he was charged with conspiracy to defraud the United States, as opposed to conspiring to commit a federal offense. In order to sustain a conviction under this theory, the government must prove that the government was, in fact, the target of the defendant’s offense. Tanner v. United States, 483 U.S. 107 (1987). In this case, the defendant was alleged to have engaged in a fraudulent effort to produce documents to obtain a Florida commercial driver’s license. This offense did not target the United States, even if there was a collateral impact on the Departument of Transportation’s ability to monitor commercial driver’s licenses.

United States v. Salgado, 519 F.3d 411 (7th Cir. 2008)

The defendants attempted to rob a person who they thought was bringing money to purchase drugs. Actually, the person was an informant, working with the DEA. The informant had no money in his possession. The government prosecuted the defendant for attempting to rob a person who was in possession of money belonging to the United States (18 U.S.C. § 2114) and conspiracy to commit that offense. The Seventh Circuit held that neither theory could be used.The defendant could not be convicted of conspiracy, because the defendants did not know they were attempting to rob a government employee, thus, their agreement could not be to steal government money. They could not be convicted of attempting to steal government money, because the informant had no money in his possession.

United States v. Lopez, 443 F.3d 1026 (8th Cir. 2006)

In gauging the sufficiency of evidence of a defendant’s participation in a conspiracy, courts have sometimes said that if there is proof beyond a reasonable doubt of the existence of a conspiracy, only “slight evidence” is needed to show the defendant’s participation in the conspiracy. The Eighth Circuit – like many other Circuits – held in this case that the slight evidence rule did not relax the requirement of proof beyond a reasonable doubt. Rather, the slight evidence rule simply means that the defendant’s role in the conspiracy may be slight, or minor. The evidence, however, must still establish the defendant’s participation beyond a reasonable doubt.

United States v. Johnson, 440 F.3d 1286 (11th Cir. 2006)

The defendant was charged with money laundering and conspiracy to launder money. The court reversed several counts of conviction. First, the court held that the mere transfer of money from one account to another (even overseas) did not satisfy the “concealment prong” of a money laundering prosecution, without further proof of the defendant’s efforts to conceal the location or source of the money. Second, the court held that the conspiracy conviction could not be sustained, because the only alleged co-conspirator was not shown to have had knowledge of the tainted source of the money. If the other member of the conspiracy, as a matter of law, was not proven to be guilty, then a conspiracy conviction could not be sustained.

United States v. Santos, 449 F.3d 93 (2d Cir. 2006)

The defendants tried to rob an undercover drug agent by flashing fake DEA badges. The use of the fake badge did not amount to “force” in support of a Hobbs Act robbery charge. With regard to one alleged co-conspirator, moreover, the evidence was insufficient to prove that that the defendant was a knowing participant in the conspiracy to rob the victim. Mere presence and association with the other conspirators was all that was established.

United States v. Summers, 414 F.3d 1287 (10th Cir. 2005)

The evidence was insufficient to establish one defendant’s membership in the conspiracy to rob a bank. His presence and companionship with the other perpetrators after the robbery, coupled with evidence that there was one more participant in the robbery (i.e., there was an unidentified getaway driver) did not establish that the defendant was the getaway driver.

United States v. Chandler, 388 F.3d 796 (11th Cir. 2004)

Forty-three defendants were charged with conspiring to commit mail fraud. The conspiracy involved cheating in a McDonald’s game. The leader of the alleged conspiracy stole winning “stamps” from McDonald’s products and then, through a series of transfers, would “sell” the winning stamps to other members of the conspiracy. In fact, down the “food chain” some of the purchasers did not know the source of the winning pieces. The four defendants who were tried in this part of the case were not even alleged to have known that the winning pieceswere embezzled. Instead, the government alleged that these people claimed to be legitimate “winners” when, in fact, they knew that they had purchased the winning pieces from someone else. The definition of “legitimate” was quite problematic, because the McDonald’s game rules did not clearly set forth who was a “legitimate” winner (the transfer of a winning piece from one person to another was not specifically prohibited). The Eleventh Circuit reversed the convictions. First, the appellate court addressed the allegation that the defendant conspired to commit mail fraud by defrauding McDonalds. The fraudulent representation was alleged to be the representation that the game piece was acquired through legitimate means. Yet, it was never clear what this meant. McDonald’s representatives acknowledged that winning pieces were traded on E-bay and that pieces could even be traded on McDonald’s own web site. Thus there was no unequivocal prohibition on trading or selling winning pieces and the act of redeeming the piece did not amount to a representation that the piece was acquired in any one particular manner. Again, there was no proof that these defendants ever knew that the pieces were initially stolen. Second, the court focused on the absence of an agreement that united the alleged conspirators. Given the fact that the ultimate purchasers of the game pieces were unaware that they were stolen, or even obtained illegally, the government failed to prove the existence of one conspiracy with members all having agreed to commit a crime. Moreover, the initial thief – the person who embezzled the pieces – kept it a secret from each of the people he recruited to sell the pieces that there were other sellers and buyers. This was a classic hub-and-spoke conspiracy without a rim. Each spoke in this scenario amounts to a separate conspiracy.

United States v. Jones, 371 F.3d 363 (7th Cir. 2004)

Defendant accompanied another man to a gun store where the other man purchased a gun as a straw purchaser (filling in an incorrect name on the “owner of firearm” space in the paperwork). The defendant’s presence when the gun was purchased, however, was not sufficient to convict of conspiring to commit the false statement offense. Even if he knew what the other man was doing, such knowledge, alone, does not mean that he conspired to commit the offense. “Even though a jury may infer facts, each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.”

United States v. Ceballos, 340 F.3d 115 (2d Cir. 2003)

The defendant was convicted of conspiracy to distribute drugs and conspiracy to bribe a public official. The evidence was insufficient to establish his knowing participation in a conspiracy to bribe the public official. The government used undercover agents posing as drug purchasers who were capable of producing phony green cards through their supposed connection with a corrupt INS agent. The undercover agents would buy drugs from a middleman and pay partly in cash and partly in phony green cards which they (and the undercover INS agent) would manufacture for the middleman. As the operation continued, the undercover agents eventually convinced the middleman to introduce them to their drug supplier, the defendant in this case. This evidence did not establish the defendant’s participation in the bribery conspiracy. Even if he knew that the money owed to him, as the drug supplier, was obtained by the purchaser from the proceeds of another crime committed by the purchaser, this does not make him a member of the purchaser’s conspiracy.

United States v. Syme, 276 F.3d 131 (3rd Cir. 2002)

The Third Circuit explains that where a conspiracy alleges that the defendants conspired to commit an offense in several ways, if the evidence is sufficient with regard to certain ways, but not others, a general verdict of guilty will be sustained on the theory that the jury properly evaluated the evidence and convicted on the sufficient basis. However, where the judge instructs the jury incorrectly about one of the ways, the verdict will not be upheld, because the jury may not have realized the legal elements of one of the alternative methods of committing the offense. In this case, the conviction was upheld. See generally Griffin v. United States, 502 U.S. 46 (1991); Yates v. United States, 354 U.S. 298 (1957); Stromberg v. California, 283 U.S. 359 (1931).

United States v. Hernandez, 141 F.3d 1042 (11th Cir. 1998)

To be guilty of conspiring to commit murder-for-hire the government must show an agreement by two or more persons to achieve the unlawful purpose of murder-for-hire, the defendant’s knowing and voluntary participation in the agreement, and an overt act committed by any one of the conspirators in furtherance of the conspiratorial objective. In this case, the court found insufficient evidence, where the defendant was present when other family members discussed a murder-for-hire, but he did not participate in the discussion or participate in the actual homicide.

United States v. Wilson, 160 F.3d 732 (D. C. Cir. 1998)

The evidence was insufficient to prove that the defendant aided and abetted, or conspired with others to murder the victim. Though the defendant advised the two principals of the victim’s whereabouts, there was insufficient evidence that he knew that the other two intended to kill the victim. Even though he knew the two were looking for the victim, there was no proof that he knew why.

United States v. Garcia, 151 F.3d 1243 (9th Cir. 1998)

Gang membership itself cannot establish guilt of a crime, and a general agreement, implicit or explicit, to support one another in gang fights does not provide substantial proof of the specific agreement required for a conviction of conspiracy to commit assault. There can be no conviction for guilt by association. Though the defendant participated in a fight with others, there was no proof of a concerted or coordinated effort to engage in a fight.

United States v. Williams, 809 F.2d 75 (1st Cir. 1986)

During the course of the trial, a number of overt acts alleged in the conspiracy count of the indictment were not proven. The Court rules that the better practice is to edit the conspiracy count by removing those overt acts before submission of that count of the indictment to the jury. Reading to the jury overt acts in the indictment which were not supported by the evidence is an error of constitutional dimension.