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.