Conspiracy

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….

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Paul Bergrin (via Getty Images)

I have to give Paul Bergrin some credit. This former federal prosecutor, accused of drug dealing, pimping, and murder, has been remarkably successful at eluding conviction for his crimes.

Bergrin was first arrested back in 2009. The U.S. Attorney’s Office for New Jersey, where Bergrin once worked before becoming a defense lawyer, brought him to trial. That trial, which took place in 2011, ended with a hung jury. Some time was taken up with appellate machinations (in which the U.S. Attorney’s Office prevailed).

A new trial, before a different district judge, got underway this January. And today justice finally caught up with the man that New York magazine famously dubbed “the baddest lawyer in the history of Jersey”….

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Gilberto Valle, aka the ‘Cannibal Cop’

Sitting in judgment of another human being is difficult. This case in particular has not been an easy one … [with] material that degrades the human spirit.

– Judge Paul Gardephe, thanking the jury that just convicted Gilberto Valle, the so-called “cannibal cop,” of conspiracy to kidnap.

(More about this grisly case, after the jump.)

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Justice Joan Orie Melvin

Justice Joan Orie Melvin is a member of the Supreme Court of Pennsylvania. As touted on the court’s website, it is “the highest court in the Commonwealth and the oldest appellate court in the nation.”

Yesterday the court acquired a more dubious distinction: it’s the latest state supreme court to see one of its members convicted of a serious felony. And yes, we mean “latest,” not “only” or “first.” Just last month, for example, former Michigan Supreme Court Justice Diane Hathaway pleaded guilty to federal bank fraud. Here in New York, Chief Judge Sol Wachtler of the Court of Appeals, our state’s highest court, served a prison sentence back in the early 1990s.

(Don’t say I didn’t warn you. Back in 2004, I opined that “state court judges are icky.” Article III all the way, baby.)

Back to Justice Orie Melvin of Pennsylvania. What could send Her Honor from the high court to the big house?

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Where is Oliver Stone when you need him?

It was a sparsely populated day today at the Supreme Court. The press box was depleted. The crowd was thin. Perhaps everyone else was still stuck in line waiting to vote?

Yet despite the low turnout, the Supreme Court made a spirited journey to the very heart of our nation’s federal conspiracy law.

To see the issue the Court wrestled with in Smith v. United States, let’s start with a hypothetical….

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