Conspiracy is probably the most charged offense in the federal courts. At core, its elements are simple (generally). A and B have completed the crime of conspiracy if they (1) have an agreement to do something illegal and (2) some co-conspirator committed an overt act in furtherance of the conspiracy. The overt act does not have to be illegal.

So, if Larry says to Doug, “Let’s lie through email to potential investors about how viable our real estate plan is,” then Doug says “That’s a great idea, let’s do it!” and the two put together a letter they would email to potential investors that contains a number of lies about how viable an investment is, they’ve probably conspired to commit wire fraud.

The tricky bit is that the agreement that’s at the core of a conspiracy charge — like many kinds of contracts — can be implied. It’s rare that folks in a conspiracy negotiate the terms of the conspiracy or memorialize it.

So, if Larry and Doug just sit down and work — together — on a letter that lies to investors, one may (depending on the other facts in the case) think that the two have an implied agreement to commit fraud and that they’re guilty of participating in a fraud conspiracy.

The tricky part is when one person says, in essence, it would be really freaking cool to do X (where X is illegal) but doesn’t really mean that she wants to do X.

For example, some people may think that it would be funny to blow a raspberry on Justice Scalia’s belly. But just because Doug tells Larry that it would be cool to blow a raspberry on Justice Scalia’s belly, and Larry then looks up Justice Scalia’s next public appearance, does not necessarily mean that either one of them actually intends to storm Justice Scalia’s security detail just to blow on the Justice’s stomach.

And, of course, a jury is most likely to find that Doug and Larry are guilty the more they’re doing something that the jurors themselves think of as not funny and, in fact, really quite repugnant.

Like kidnapping, killing, and eating women, or trying to foment a jihad….

Score One for Cannibalism Fetishists

Gilberto Valle was a New York City cop. He also spent a massive amount of time on internet webpages where people gather to share their common interests in eating women.

His wife (who, as it happens, was one of the people he talked about eating) found records of his online conversations on his computer (a Macbook, FWIW).

She went to the FBI. The FBI looked at a number of chat sessions where Valle talked about kidnapping, raping, killing, and eating women.

The FBI and U.S. Attorney’s Office for the Southern District of New York read his chat logs and found that 21 of 24 conversations about kidnapping and eating women were pure fantasy. But, they thought 3 of them were serious discussions of an actual plan that he intended to carry out.

The folks at the U.S. Attorney’s Office in SDNY charged Valle with conspiracy to kidnap (which is surprising — I thought they only do insider trading cases in SDNY these days).

Most jurors are anti-cannibalism. And they react negatively to reading cannibalism fantasy stories. So, Valle’s defense that he was just writing these fantasy stories didn’t find a sympathetic audience with the jury — he was convicted.

On Tuesday, though, Judge Gardephe granted a motion for a judgment of acquittal in a remarkable 118-page opinion. In that opinion, the Court held that there was no reason to think that Valle’s internet conversations had any hope of being carried out — he was merely indulging in a fantasy conversation.

Judge Gardephe does a thorough comparison of the details of the chats that the government said were merely fantasy and the ones that it said were actual plans to carry out a kidnapping. It’s an analysis only the rarest of jurors would undertake — to say that this time when he said he was constructing a rotisserie it was a fantasy, so how could it have meant he was serious when he later talks about building a rotisserie.

Most people just shut down when you talk about a human-sized rotisserie.

However, as the Court said,

Valle’s depraved, misogynistic sexual fantasies about his wife, former college classmates, and acquaintances undoubtedly reflect a mind diseased. But . . . [a]n exhaustive analysis of Valle’s internet communications – both the chats that the Governemnt concedes are fantasy and the chats the Government alleges are ‘real’ – and a careful consideration of the circumstances surrounding those communications – including what happens and what does not happen – demonstrate that the Government has not met its burden.

It’s nice to see justice for the cannibalism fetishist.

The Fourth Circuit Does Not Like Jihadists

Compare Valle’s case with the Fourth Circuit’s opinion in February in United States v. Hassan.

There, a number of people were accused of a number of conspiracies to support terrorism. One, Hassan, was acquitted on one conspiracy, but convicted on others.

The evidence at trial showed that Hassan, in essence, liked guns, posted pro-Jihad things on Facebook, later asked his girlfriend to take those posts down, traveled to the Middle East, and was friends with some similarly minded guys who pled guilty to the conspiracies.

The question was whether Hassan — who held these beliefs — agreed to do anything to carry them out. Not only did the Fourth Circuit affirm his conviction, Judge King took the time to write a sonnet to the breadth of federal conspiracy charges:

The trial record reveals that the appellants strove to conceal their nefarious activities from outsiders uncommitted to violent revolution around the world, habitually congregating in secret to discuss their plans and to reinforce, in the manner of zealots, each other’s resolve. That the conspiracy was infiltrated and almost all of its cohorts arrested before they could bring their criminal schemes to fruition should in no way inspire the conclusion that the appellants have been prosecuted for merely harboring ideas, convicted of nothing more than an Orwellian “thoughtcrime.”

(for the rest of Judge King’s Ode to the Federal Conspiracy, check out this Volokh post).

What Judge King describes as “reinforc[ing], in the manner of zealots, each other’s resolve” is what many of us would also describe as “talking” (or, perhaps, “talking animatedly”).

For the record, I’m anti-jihad (as well as anti-cannibalism). But if I weren’t, and I wanted to get together with others who thought that would be a preferable policy choice to talk about our shared interest, that conversation shouldn’t be a crime. Even if we also flew to the Middle East. And owned a gun.

And, of course, when you’re pro-jihad or pro-cannibalism, a jury is more likely to think you’re gross and weird and less likely to want to slow down and think about whether you’re actually so pro-[creepy thing] that you’d carry through on your beliefs or whether you’re just a freak talking to other freaks.

This isn’t just a problem for jihadists and cannibals. Jurors also don’t like crime or people who may have committed a crime. And the more someone has views that are on the outs with society, or supports something that isn’t popular, the less likely they are to have a jury focus on what they thought versus what they did.


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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