Conspiracy - Objects of the Conspiracy

Salinas v. United States, 118 S.Ct. 469 (1997)

A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense. If conspirators have a plan that calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators. A person, moreover, may be liable for conspiracy even though he was incapable of committing the substantive offense.

United States v. Santos-Soto, --- F.3d --- (1st Cir. 2015)

Though the police officer-defendant was guilty of conspiring to deny the dealer’s civil rights by planting drugs on a drug dealer, the conviction for conspiring to possess with intent to distribute the drugs could not be sustained, because there was insufficient evidence that she intended to possess, or distribute the drugs.

United States v. LaPointe, 690 F.3d 434 (6th Cir. 2012)

Defendant was charged with conspiracy to possess with intent to distribute oxycodone. He requested an instruction on the lesser included offense of conspiracy to possess oxycodone (a conspiracy). The trial court erred in failing to instruct the jury as requested. First, the court held that the fact that the indictment alleged that the defendants conspired to distribute and to possess with intent to distribute did not mean that a conspiracy to possess was not a lesser included offense because it is not a lesser offense of the conspiracy to distribute. (An indictment frequently charges in the conjunctive, but a jury can convict of either of the methods). Second, the fact that all conspirators did not share the limited conspiracy to simply possess the drugs did not mean that the defendant did not have that limited agreement with others.

United States v. Hassan, 578 F.3d 108 (2d Cir. 2008)

The defendant was prosecuted for conspiring to import “khat” a plant grown in the Africa that sometimes contains a controlled substance known as cathinone. The plant itself is not illegal, but cathinone is. The evidence was sufficient to prove that he conspired to import khat containing cathinone. However, the jury instruction explaining the offense to the jury was erroneous. The jury instruction suggested that if the defendant conspired to import any controlled substance, the jury could convict the defendant. In this case, however, because of the confusion about whether khat was a controlled substance (it is not, but many government witnesses erroneously testified that it is), the judge should have specifically instructed the jury that the government had to prove that the defendant conspired to import khat containing cathinone in order to convict him of the conspiracy offense.

United States v. Howard, 517 F.3d 731 (5th Cir. 2008)

The defendant was charged with several counts of fraud, including one count that alleged that he falsified the company’s books (or was a co-conspirator with someone else who falsified the books) and thus committed honest services mail fraud. One theory on which the government relied was that pursuant to Pinkerton, he was guilty of the substantive acts of his co-conspirators. That theory, however, relied on an improper definition of honest services mail fraud. Becausethere was no way to determine if the jury relied on this improper theory, as opposed to another theory that would have been a permissible basis for a conviction, the Fifth Circuit agreed with the lower court that the conviction needed to be vacated.

United States v. Arbane, 446 F.3d 1223 (11th Cir. 2006)

The government failed to prove that there were any co-conspirators (other than a government informant) in defendant’s importation offense, thus, a conspiracy conviction could not be sustained. Though there was some evidence of at least one other person’s awareness of the defendant’s plan and that the other person helped store drugs in a foreign county, the evidence was insufficient to prove that the other person conspired to import the drugs. The government is obligated to prove that the defendant and the other person shared the same object in order to find the existence of a conspiracy. If the other person only conspired to possess the drugs, or conspired to distribute the drugs in South America, this would not be sufficient.

United States v. Richardson, 421 F.3d 17 (1st Cir. 2005)

When there are alternate grounds on which a jury can convict a defendant on one count, an issue often arises on appeal whether a deficiency with regard to one alternative requires that the appellate court set aside the verdict. This may occur where there is a conspiracy to commit more than one offense (for example, the defendant is charged with conspiring to sell drugs and launder the proceeds), or a perjury prosecution with numerous false statements alleged in the same count. This case explains how an appellate court considers these types of challenges: if the appellant contends that the evidence was insufficient with regard to one alternative, then the conviction will not be reversed, because the court will assume that the jury relied on the alternative that was supported by sufficient evidence. But if the appellant contends that the deficiency with regard to one of the alternatives was in the jury instruction, then the appellate court will reverse, because the jury will not be presumed to have known that the jury instruction was erroneous and may have relied on the improper definition to convict the defendant of that alternative means of committing the offense. See generally Griffin v. United States, 502 U.S. 46 (1991). See also United States v. Banki, 660 F.3d 665, 677-78 n.9 (2d Cir. 2011).

United States v. Garcia-Torres, 280 F.3d 1 (1st Cir. 2002)

Though the evidence was sufficient to prove that the defendant participated in a kidnapping and murder, there was insufficient proof that he was aware that the crimes were designed to further (or were in any way related to) his colleagues’ drug enterprise. He could not be convicted of conspiracy of possession with intent to distribute cocaine.

United States v. Nattier, 127 F.3d 655 (8th Cir. 1997)

The defendant was charged in one count with conspiring to embezzle money and then to launder the proceeds of this embezzlement. The trial court cured any potential duplicity problem by instructing the jury that in order to convict the defendant on this count, the jury was required to unanimously agree on the particular object of the conspiracy the defendant agreed to commit (i.e., embezzlement, or money laundering, or both).

United States v. High, 117 F.3d 464 (11th Cir. 1997)

The defendants were charged in one count with conspiring to violate several criminal laws, one of which was structuring currency transactions in violation of the CTR laws (31 U.S.C. § 5324). The trial was held prior to the decision in Ratzlaf v. United States, 510 U.S. 135 (1994), which held that a defendant had to be shown to have known the illegality of his conduct before he could be convicted of a CTR structuring violation. The trial court erroneously instructed the jury on this object of the conspiracy (incorrectly stating that ignorance of the criminal law was no defense). The Eleventh Circuit held that where the trial court erroneously sets forth the elements of one of the objects of a multi-object conspiracy, the conviction on the conspiracy count may not be sustained, even if there is sufficient evidence on the other objects and the other objects were property defined.

United States v. Idowu, 157 F.3d 265 (3rd Cir. 1998)

The government failed to prove that the defendant was aware of the specific unlawful object of the conspiracy. Though the government satisfactorily proved that the defendant was a knowing participant in some form of unlawful activity involving contraband, there was insufficient proof that he was aware that the co-conspirator was involved in a drug transaction. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Durham, 825 F.2d 716 (2d Cir. 1987)

The defendants were charged with a conspiracy to commit arson. They requested an instruction that they must have had the specific intent to commit the arson in order to be guilty of the charged conspiracy. Their theory of defense was that they simply intended to take money for the venture, but never actually commit the arson. The trial court refused to give the instruction; this constituted reversible error.

United States v. Thomas, 114 F.3d 403 (3rd Cir. 1997)

While the evidence was sufficient to prove that the defendant knew he was engaged in some kind of illicit activity, the evidence did not establish that he knew the object of the conspiracy was possession with intent to distribute a large quantity of cocaine. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Alston, 77 F.3d 713 (3rd Cir. 1996)

This was a pre-1994 (i.e., Ratzlaf-controlled) CTR prosecution in which the defendant was charged with a double-edged §371 conspiracy (conspiracy to commit a CTR offense and conspiracy to defraud the U.S.), as well as with a substantive CTR violation. The court concludes that the erroneous instruction regarding willfulness infected the entire case. Obviously, the substantive count was invalid because of Ratzlaf. In addition, the conspiracy to commit the CTR offense was void because, in order to convict a defendant of conspiracy under the “offense” clause, the government must prove whatever level of mens rea is required for conviction of the underlying substantive offense. The Third Circuit concluded here, moreover, that proving a conspiracy to defraud the United States also requires proof that the defendant know the CTR structuring prohibition.

United States v. Schramm, 75 F.3d 156 (3rd Cir. 1996)

The defendant, who was a wholesaler of diesel fuel, was charged with conspiring to evade the payment of retail state fuel taxes. He claimed that the evidence only supported a charge that he conspired to evade the payment of wholesale federal fuel taxes. This was a valid defense. The evidence did not show that the defendant knew, or should have known, that the retailers intended to evade the payment of their retail taxes. The mere fact that defendant’s actions aided the retailers in evading their taxes was not sufficient without proof that he knowingly engaged in that conspiracy. In a conspiracy charge like this, the object of the conspiracy, as alleged, must be proved.

United States v. Wexler, 838 F.2d 88 (3rd Cir. 1988)

Where there was substantial evidence that the jury could conclude that the defendant was involved in a conspiracy concerning the movement of a truck’s cargo, there was no evidence that the defendant knew the cargo was hashish. His conviction for conspiracy to distribute hashish was reversed on sufficiency grounds. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. CaraballoRodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Palazzolo, 71 F.3d 1233 (6th Cir. 1995)

The defendant was charged with a conspiracy which had three illegal objects, one of which was structuring financial transactions. The trial court instructed the jury erroneously about the mens rea element of the structuring offense (see Ratzlaf v. United States, 114 S.Ct. 655 (1994)). The conspiracy conviction had to be set aside. Because the jury may have relied on the invalid object – that is, the object that was improperly defined – the general verdict could not be upheld.

United States v. Martinez, 83 F.3d 371 (11th Cir. 1996)

The government must prove that the object of the conspiracy, as alleged in the indictment, is, in fact, the object the defendant agreed to achieve. Here, the defendant participated in the theft of a suitcase, which the other participants knew contained drugs. He claimed that he thought he was participating in a theft of money. Because there was no testimony that he was told that the theft involved drugs, his conviction for conspiracy to possess with intent to distribute drugs was reversed.

United States v. Howard, 918 F.2d 1529 (11th Cir. 1990)

The evidence was not sufficient to support the defendant’s conviction for conspiring or attempting to kidnap a DEA agent. The defendants were attempting to “rip-off” the undercover DEA agent. When he was inspecting the cocaine he was about to purchase, the agent was pushed into a car and guns were drawn. He immediately drew his gun and escaped. This was not sufficient evidence to prove that the defendants were attempting to kidnap, or conspiring to kidnap, him.