Conspiracy and Its Discontents

Federal conspiracy laws make pretty much everything a crime. Good luck out there.

A few years ago I went to a surprise birthday party for a friend of mine who is a fellow criminal defense attorney. The ruse was that we were all getting together to brainstorm an approach to a case. After everyone sat down, the facts of the fake case were laid out.

Here, as I remember them, are those facts:

Client and friend have been charged with conspiracy to commit bank robbery by an AUSA. That AUSA was known for having horrible judgment about charging decisions.

Client and friend were driving during the day and were pulled over for speeding. The cop had probable cause to search (I forget why) and found a ski mask in the trunk and a brochure from a bank in the backseat showing where the locations of that bank’s branches were.

The AUSA charged the client and his friend with conspiracy to commit bank robbery. When asked the obvious question by defense counsel at the initial appearance — WTF? — the AUSA replied “how do you explain away both the map of bank locations and the ski mask?” in a tone that conveyed a dumb person’s version of Q.E.D. The AUSA told the defense lawyer that she’d “see him at trial.”

Before the brainstorming turned into a party, we were asked to think through both pretrial motions and trial strategy.

What’s crazy is that my friend didn’t realize that this was not actually a real case for a good bit. And probably then only because the rest of us were laughing.

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Because federal conspiracy law is insane.

A federal criminal conspiracy is an agreement to commit a federal crime and an overt act in furtherance of that crime. It is used in white-collar cases and in blue-collar cases. (Here’s a link to an example of a crazy white-collar conspiracy discussion)

It has been called the prosecutor’s darling, and for good reason. What has to be proven is minimal: not that the members of the conspiracy committed any substantive crime, but that they agreed that they ought to and then did something — anything — to set that agreement in motion. Like collecting addresses for a bank that two guys agreed to rob.

(This is assuming, of course, that the person isn’t charged under a specific conspiracy statute that doesn’t require an overt act which is a whole other level of crazy. Thanks Congress.)

What’s unsettling about that hypothetical is how, based on very thin evidence like this, a conspiracy allegation just like that one could go to a jury. Really. Our only meaningful check on abuse of conspiracy charges is the desperate hope that federal prosecutors won’t be power-drunk.

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There is generally no equivalent of a 12(b)(6) motion or a summary judgment motion in a criminal case. And when you read the case law on conspiracies, for some judges the hypothetical above could be sufficient to allow a conviction. Sadly, the odds that this is enough for a conviction go up as the two folks in the car are, say, young black guys with prior convictions and they go down if the two people are, say, students at Georgetown Law School.

Because conspiracy charges thrive on background assumptions of jurors.

Conspiracy law, in short, lets prosecutors go after people who are merely near crime on weak grounds. Some, like the Fourth Circuit’s Judge King, think that’s good. Others of us think that maybe if we wanted the executive to have that much power, we shouldn’t have broken away from England in the first place.

Happily, the good people at the National Association of Criminal Defense Lawyers are trying to do something about it. NACDL has started working on conspiracy reform. They’re doing good work to highlight what’s wrong with federal conspiracy law as it exists both in the books and as applied in courtrooms.

Part of the NACDL’s effort is a conference on conspiracy law being held in New York in May. A star-studded panel is going to talk about conspiracy and the problems with it, including Judge Rakoff, Williams & Connolly’s Enu Manigi, and a host of others.

As I’ve written about here before, our current system puts too much discretion in prosecutors’ hands. Baring dramatic reform of our conspiracy laws, that discretion is likely to stay there.


Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.