24 November 2019
2 or more persons...
by R.T. Lawton
There are times when law enforcement can't get some of the people operating in the criminal world. These people may be elevated in the hierarchy, insulating themselves by using underlings to do the dirty work, thus appearing to keep their own hands clean. Or, they might be fringe players who contribute goods or services to other criminals, which then allow the crimes of these lawbreakers to go forward. Under these types of circumstances is where the smart investigator looks to the conspiracy laws.
The general conspiracy law is found in 18 U.S. Code 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
From there, some specific conspiracy laws can be found for specific crimes. For instance, illegal drugs/controlled substances come under 21 U.S. Code 846. Attempt and conspiracy. Any person who attempts or conspires to commit any offense defined in this sub-chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
So now, let's construct a simple drug conspiracy case.
Let's say that Jorge and Billy Bob are sitting in Nogales, Sonora, having a few tequilas and bemoaning the fact they're driving broken down pickups instead of Ferrari's. As a possible way out of their lowly financial predicament, Jorge mentions that he has a cousin in the cocaina business. Maybe if he asked nicely, this cousin would front him a kilo of high grade coke. If so, would Billy Bob be able to transport the kilo across the border to Nogales, Arizona, cut it with milk sugar so they then had two kilos of 40% cocaine and sell it to distributors that Billy Bob knew on the U.S. side? Billy Bob replies, "Hell, yeah." And so it begins. There's no crime yet, but it is rapidly heading that way.
We now have two or more persons in agreement, or conspiring to transport and distribute cocaine in violation of 21 U.S. Code 841, Distribution of a Controlled Substance. Next, we need an overt act in furtherance of the conspiracy.
Jorge goes to his cousin in the local cartel and gets a kilo fronted to him. He then waits for Billy Bob to return from the U.S. side of the border. Jorge just committed an overt act in furtherance of the conspiracy and is about to commit more.
Billy Bob has gone to his buddy Larry in Nogales, Arizona, and asked to borrow his fishing boat which has a concealed hiding place built into the fiberglass wall. Larry's not so sure, but finally agrees after Billy Bob explains about the fronted kilo and offers to pay Larry a thousand dollars for the loan of the boat and trailer to smuggle the coke across the border. Larry helps Billy Bob hook up the the boat and trailer to Billy Bob's pickup. Larry has now joined the conspiracy and both have committed overt acts.
Billy Bob drives down to Sonora, meets with Jorge and they hide the coke in the concealed space and fill the empty air space leftover with coffee grounds because they had heard that keeps drug dogs from sniffing it out. More overt acts. Billy Bob heads north and catches a lax search at Customs. He continues home, where he calls an associate to bring over some milk sugar to cut the coke. Agreeing on a price, the associate delivers the milk sugar and leaves. The associate has now joined the conspiracy, plus committed an overt act.
Billy Bob cuts the coke and fronts a half key each to three different friends. A week later, these three friends pay Billy Bob the agreed upon price because they have sold enough to acquire some cash. Billy Bob goes over to Larry's house and pays him the thousand dollars. He then drives south, meets Jorge in a bar and pays what he owes him. A whole bunch of overt acts, plus violations of other federal statutes. Our conspiracy to distribute cocaine is well under way.
Okay, so how do we build the case and prove it in a court of law?
One method would be the use of a Title III, also known as a wire tap. Let's say a reliable informant was sitting at the table when Jorge and Billy Bob had their initial discussion and he then relayed that information to us. We used the info to get a Title III warrant, set up a house with recorders and a tap on Billy Bob's phone, and started listening in on calls. A surveillance team sets up on Billy Bob's house. The first calls we get are the three friends saying they sold their product and are coming over to pay Billy Bob for the coke he fronted them. Surveillance verifies they showed up. Billy Bob calls his associate and says he's coming over to pay for the milk sugar he cut the coke with. Surveillance verifies he went to the associates house. Billy Bob then calls Larry and says he's coming over to pay him the thousand dollars for using Larry's boat with the concealed hiding place to smuggle the cocaine. Surveillance follows Billy over to Larry's house and back. Billy then calls Jorge to say he's coming down to the bar to pay for that kilo of fronted cocaine. Surveillance verifies the trip south and the meeting.
Or, maybe we insert an agent into the group as a buyer and he gets to meet other conspirators and witnesses some overt acts. Plus, if one of the conspirators flips, then they could all be toast. That's one of the reasons we make deals for a lesser sentence.
In any case, we go to grand jury with recordings and surveillance, or witness testimony and surveillance. We also have phone records to back up testimony. (NOTE: Use of a communications facility is both a separate crime and an overt act.) Border crossing records, financial records and sales receipts, if you can find them,for the milk sugar, also back up testimony. With your normal undercover buy, you usually only get the dealer who sold you the drugs. In our conspiracy case here, we got seven clearly involved defendants. And, if Jorge flips, then we start working on his cousin and the cartel.
I think you can see how the conspiracy laws allow us to cast a wider net and catch more fish. I would like to think that the conspiracy laws keep criminals awake at night, but most of them don't think that far. That's why we call it dope. They have to be right every time. We only have to be right once.