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jurisprudence: The law, lawyers, and the court.

But Conspiracy, Folks …Don't gut conspiracy laws when we need them most.

By Neal Katyal
Posted Wednesday, Nov. 20, 2002, at 10:40 AM ET

Last week, the Supreme Court heard argument in United States v. Recio, one of the most important conspiracy cases to hit the court in 25 years. The issue in this seemingly dry case is the kind of thing we law professors love to use to torment our students: If A conspires with B to commit a crime, but that crime is in fact impossible to commit, then did A really commit the crime of conspiracy? If you ditch the legal jargon, the case revolves around one simple question: When people act in groups, should the law treat them differently than when they act as individuals? The answer, always important, takes on additional meaning after Sept. 11.

In Recio, a Nevada police officer stopped a truck driven by two men—Manuel Sotelo and Ramiro Arce. The officer discovered several million dollars' worth of marijuana and cocaine in the truck. Like all good lawbreakers, Sotelo and Arce initially claimed not to know about the drugs but later admitted that they had agreed to drive the truck to the Karcher Mall in Nampa, Idaho. And, like any really good lawbreaker, Arce cooperated with the government in a sting operation. The truck was driven to Idaho and parked at the mall, where Arce called a pager number as arranged. When someone returned the page, Arce said the truck was at the mall. The voice on the other end said he would "call a muchacho to come and get the truck." Three hours later, a Mr. Recio emerged from a blue car, jumped into the truck, and started driving away. The driver of the blue car, Mr. Lopez-Meza, drove off as well. At that point, the cops stopped both vehicles and arrested Recio and Lopez-Meza.

A grand jury indicted both Recio and Lopez-Meza for conspiracy to distribute drugs, and both argued that they could not have conspired because the government's involvement made it technically impossible for them to succeed in the conspiracy's goal. The U.S. Court of Appeals for the 9^th Circuit—so often the wackiest court in the land—sided with the defendants. Before the Supreme Court, the federal government argued that these defendants agreed to do something illegal, regardless of whether the crime was technically impossible once the sting was in place. The defendants claimed that this highlights how absurd conspiracy law has become: There can still be a conspiracy without even a possibility of a crime.

At stake here is nothing less than a cardinal principle of the criminal law: Does the agreement to commit a crime pose a danger to society, even when the agreement can't succeed? The traditional legal answer has always been "yes." Unlike most other criminal offenses, which require an act that produces a direct harm, the crime of conspiracy happens at or near the moment that Person A agrees to commit a crime with Person B. The crime still occurs even if the object of the conspiracy is never completed. If you agree to rob a bank with your best friend but don't carry it out, you still commit an actionable conspiracy that can land you in jail.

But conspiracy law has fallen out of favor in both the federal and state criminal codes. A diverse coalition of judges and academics over the past half-century has had tremendous success in urging judges and legislatures to cut back on the doctrine. In fact, probably the leading scholarly article in the area of conspiracy is titled "The Unnecessary Crime of Conspiracy." The Model Penal Code, drafted in the 1950s and essentially a blueprint for state law, largely rejects the notion of special punishments for group behavior. And more recently, the same coalition of conspiracy foes won a largely unreported success in the U.S. Sentencing Commission, which declared that under federal law there is no extra punishment for acting as part of a group in many circumstances. The argument against treating group agreements to commit crimes as crimes in themselves is that the harm from a group is limited to its conspiratorial objective; if that objective proves impossible, then the conspiracy simply poses no danger.

At oral argument last Tuesday in Recio, it was suggested that the impact of impossible conspiracies may be akin to the harm that comes from using a voodoo doll in an attempt to kill someone. No one is really hurt, thus no crime has occurred. But if the Supreme Court adopts this popular line of thinking, it will profoundly damage our government's ability to thwart group crime. Groups pose special dangers, and the Supreme Court should reject the modern trend embodied in the 9^th Circuit's Recio decision.

This trend is particularly odd when one considers the rich evidence that has emerged over the past 50 years, as a variety of social psychologists have sought to understand the dynamics of group behavior. As anyone who has ever been to a fraternity party realizes, people in groups tend to subordinate themselves to the group's preferences. One of the earliest of these studies showed that if you ask a person how long a line is, then have several confederates state a wildly off-base answer in his presence, over one-third of the time he will give an obviously wrong answer, too. Group members tend to be more loyal, listen more to each other, and are more likely to reward one other.

Social psychologists have also found that at times people in groups tend to take more risks than they would as individuals. In a study done by a graduate student named J.A. Stoner 40 years ago, people were asked whether they would invest in a high-return but potentially risky stock or a lower-return and safer one. Stoner found that when the questions were given to groups instead of individuals they preferred the former, leading him to dub the phenomenon a "risky shift." Later work shows that this tendency to agree to take greater risks is part of a larger phenomenon of extremeness that manifests itself in groups. And more recent research, both in the psychological field as well as by the Nobel-Prize-winning economist George Akerlof, has confirmed that groups create a special, social identity that can lead individual members to behave against their own self-interest. Yet lawyers, prompted by University of Chicago's Cass Sunstein, are only beginning to understand the implications of this rich body of psychological research.

The odd thing is that conspiracy law is one of the few places in which American law has been ahead of—rather than behind—interdisciplinary scholarship. Indeed, in 1961 in Callanan v. United States, the justices' classic approach to conspiracy recognized what social science now confirms: that the harm committed by people in groups eclipsed that of lone individuals. Observed that court: "Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed."

Today more than ever, conspiracy laws are vital in the war against terrorism, both because they permit the government to intervene at the earliest stages of criminal planning and because they recognize and single out group activity for special punishment. Perhaps the most important practical feature of all is that conspiracy law facilitates the "flipping" of terrorists and other criminals. As everyone knows from television, suspects are placed in separate rooms where detectives tell them that their only hope of avoiding a brutal sentence is to give evidence against the other conspirators. A branch of economics, game theory (featured in the book and movie A Beautiful Mind), uses this practice as the paradigm example of how to induce generally loyal parties to defect against each other.

By attaching a high, up-front penalty at an early stage in criminal planning, the offense of conspiracy gives prosecutors leverage to extract information from individuals. Not only does this help prosecutors build cases, it also makes it harder for conspirators to trust one another, since the possibility of group members defecting sows distrust throughout the group. Yet this practice of flipping, too, has been under increasing attack in recent years. If the Supreme Court in Recio continues the national trend of minimizing the harm of crimes perpetrated by groups, prosecutors will find it far more difficult to extract such information and to sow distrust within criminal enterprises.

The Court of Appeals in Recio made a dangerous decision. At least a couple of the justices last week, perhaps thinking the case ripe for a short, quick rebuke to the 9^thCircuit, appeared to be dozing off during parts of the oral argument. But this is the kind of case that has real-life implications for policing and for the war on terror. The court should use the case to demonstrate the prescience of American conspiracy law and to illustrate the unique harm in criminal groups. Not only does it provide us with a practical tool for stopping terrorists, but it also recognizes the heightened moral and social dangers of group, as opposed to individual, crime.

DISCUSS

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Neal Katyal teaches law at Georgetown University. He argued the Hamdan case before the lower courts and the U.S. Supreme Court.

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Notes From The Fray Editor:

There are several strands of argument in the discussion of Katyal's piece: 1. Defenses of the anti-conspiracy movement/indictments of the government's use of conspiracy statutes; 2. Defenses of the 9^th circuit/quibbles about Katyal's characterization of the ruling here; 3. A discussion of Katyal's testimony before the Judiciary Committee on civil liberties in wartime, begun by Beverly Mann here. Waaay down at the bottom is Katyal's response, which addresses all three.

Remarks From The Fray (Issue 1):

"The court should use the case to demonstrate the prescience of American conspiracy law and to illustrate the unique harm in criminal groups."

How disarmingly disingenuous! Years after conspiracy laws explode in applications that are largely horrific (using them to put low level, barely culpable poor people in jail basically forever on the basis of the harms committed by kingpins who are rarely brought to justice), brainmeisters like Katyal bootstrap vague sociological theories to the original legislative intent and call it "prescience". But as Frank Pentangelo testified before Congress in Godfather II, "It's all lies."

RICO and other conspiracy laws were not created in light of the tendency of human beings to be even bigger shitbags in groups than as individuals. That is just some law professor's ex post facto justification based on muddy thinking. Conspiracy laws were created for one purpose: as a means to substantially increase the ability to gain convictions, ostensibly of major kingpins.

How? By the method acknowledged by Katyal: putting the heat on quasi criminals and forcing them to turn. … That means drivers, book keepers, accountants, gofers, etc. …
Except that, largely it didn't work that way. The reason for the backlash against conspiracy laws is that their main effect is to catch a ton of tiny fish without a lot of success against kingpins. The case here is a perfect example. Who did they catch? Some drive who I wager was paid less than $200 for the pickup. These guys often would flip, but can't because they just don't know enough to give effective testimony. As Pentangelo's right hand man, Cicci, testified in Godfather II, "The family had a lot of buffers, Senator."

And prosecutors are lazy. Their record looks the same whether the 10,000 convictions include anyone important or not. So why take the chance of losing a high profile case when you can pump up your stats with all these little fish?

So, in the face of this abuse and failure of conspiracy law, prosecutors and their apologists are scrambling to find new and exciting justifications for this absurd result. And this is a pretty weak effort. Why?

Well, two reasons off the top of my head. First is that punishment ought to be based not just on the overall impact of the conspiracy, but also be tempered by the individual culpability of the person being sentenced. Conspiracy laws make all conspirators equally liable for all the crimes, when clearly that just is not the case. In fact, criminal organizations are structured specifically to place the greatest risk on the people with the least to gain from the enterprise. That's how you rise in those organizations.

Second, the theory of group nastiness is not applicable. Those studies involve the pressure that a group puts on someone while all are present. Guess what? Criminal conspiracies don't happen amidst open forum discussions. I can't imagine that many criminal organizations have large group meetings, where the pressure of the group risk taking culture will affect the choices of an individual conspirator. Quite the opposite. Mostly, conspiracy convictions are based on disparate, separate and barely if at all coordinated acts by the conspirators. Meetings are one on one, or tiny minimal groups. Almost none of the typical conspirator even knows what the whole scheme is, let alone the harmful effects. Where does this alleged "group risk taking" pressure occur? Certainly not among these low leve individuals who are given only a tiny roles in the entire process.

So, not only is this a dishonest argument in the sense that it pretends that "group mentality" was a motivation for the law; it is also dishonest in applying the findings of group risk taking and other aberrant behavior and applying it to the much different context of a criminal conspiracy.

-- doodahman

(To reply, click here.)

what you say is true enough but the REAL real reason the feds love conspiracy charges is Fed.R.Evid. 801(d)(2)(E). That lovely provisions says that a hearsay statement (out of court statement introduced for its truth) is somehow transformed into being NOT hearsay if it is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." So if A and B are discussing an impossible to accomplish plan to commit a crime and they discuss C, about whom there is evidence (even if limited to the subject conversations) that he's down with B's ongoing criminal conduct, then the statement comes in for its truth against C, who was sleeping at the time in another city. A powerful tool indeed, especially when A rolls over and enhances his standing with Team America by describing conversations he says he had out on the street with C some years (or days) ago.

-- Piney

(To reply, click here.)

Remarks From The Fray (Issue 2):

Mr. Katyal misstates the 9th Circuit's holding and does it a disservice through his mischaracterization. The 9th Circuit found that someone cannot be convicted of conspiracy when they are "brought into the drug scheme only after law enforcement authorities had already intervened, and defendant's involvement was prompted by the intervention." The 9th Circuit held that, prior to the seizure of the drugs by the government, the defendants were pawn drivers who no knowledge of an ongoing drug conspiracy.

While the government argued that the drivers really knew they were going to be driving a truck full of drugs, the 9th Circuit (rightly or wrongly) found that the facts showed that the defendants were merely hired on short notice to drive a truck, and there was insufficient evidence to prove beyond a reasonable doubt that they knew of the conspiracy to distribute drugs prior to when the government initiated the sting.

One the government had seized the drugs, there was no "conspiracy" in operation. You can't conspire with the government to seize drugs, because it is running a sting, not a drug conspiracy. Thus, it wasn't that the conspiracy was "impossible." Instead, the court held there was no conspiracy period at the time of defendants involvement.

-- truthsquad

(To reply, click here.)

The judicial ruling that controlled in Recio is United States v. Cruz, 127 F.3d 791 (1997), cert. denied, 522 U.S. 1097 (1998). In Cruz, the 9th Circuit ruled that an individual who was recruited to deliver drugs after the seizure of the same did not engage in conspiracy. Construed narrowly and in conjunction with previous 9th Cir. decisions on the duration of thwarted conspiracies, this is a very limited restriction on law enforcement powers.

Katyal's contention that Cruz guts conspiracy laws is untenable, because there is still a "high, up-front penalty at an early stage in criminal planning." To illustrate this, let's draw another fact pattern:

A, B and C enter into a narcotics conspiracy wherein A provides B with twenty pounds of methamphetamines in Mexico, B transports the drugs to Santa Cruz, and C takes possession of the drugs for distribution. B is caught by federal agents on the outskirts of Santa Cruz, and the feds decide to continue with a sting operation. B calls C to take possession, but finds that C was suddenly called out of town on personal business. The federal agents tell B to find another person to take possession of the narcotics, so B calls D, an old friend, and asks him to pick up the drugs for sale.

Under Cruz, ABC are all guilty of conspiracy, although C did not take active part in the crime. D, however, was brought in after the feds stopped the enactment of the conspiracy, so he is not guilty. If B had a flat tire while on the way to Santa Cruz, had called C, found him out of town, and got D involved before the seizure, then D *would* be guilty of conspiracy. (D may still be found guilty of other crimes, but joining in the original conspiracy is not one of them.)

Now, say that after the federal seizure of the narcotics, D agrees to take possession of the drugs, calls E and strikes a deal for distribution and sale of the drugs. Under Cruz, he's still not guilty of the ABC conspiracy, but I read the case to allow the government to press conspiracy charges on DE, although they cannot connect DE to ABC, since D was brought in after termination of the first conspiracy.

Given this, I find it hard to swallow the argument that an affirmation of the appellate court in this issue would represent a massive blow to federal law enforcement powers. Co-conspirators who have not actively participated in a conspiracy are still liable under Pinkerton for the acts of their fellow conspirators, and are guilty of entering into the conspiracy at all. Cruz draws a fine, but crucial, distinction in the law; it does not take a sledgehammer to it.

-- TheWatchfulBabbler

(To reply, click here.)

Katyal responds:

So this is my first post to Slate, and I greatly appreciate all the feedback in Fray. I'm writing a long and serious article on the subject that will appear in Yale Law Journal in a few months, a draft of which will be posted at www.ssrn.com soon.

First of all, many comments about the ninth circuit, the most humorous of which was Bah's post, ad hominem'ing me for supposedly ad hominem'ing the Ninth Circuit. Look, I think it's hard to defend the Ninth Circuit, as jcsimms rejoinder to Capybara demonstrates. Had space permitted, I would have happily detailed my views on the Circuit. I spent nearly two years examining the Ninth Circuit as part of an inter-agency working group; it's not as if I said this casually. Just a couple of weeks ago, the Supreme Court summarily reversed the Ninth Circuit three times in a single day. This can't be chalked up to just the politics of the conservative Justices – these were unanimous reversals – the Ninth Circuit's rulings were so out of the bounds that Justices Stevens, Souter, Ginsburg, and Breyer believed they should be quickly discarded. We are talking about a court with a reversal rate of between 80-90%, and many of those reversals are unanimous, too. For more on the Ninth Circuit's problems, see this post.

Some of you, particularly truthsquad's excellent post, ask whether I am mischaracterizing the issue in Recio as one about impossibility. With all due respect, I think that the case is an impossibility one. Remember that Recio applied the holding of the earlier Cruz case, which said: "Here, the conspiracy * * * had been terminated by the government's seizure of the methamphetamine before Cruz became involved. * * * [I]t was factually impossible for Cruz to have been a member of th[e] conspiracy because [two conspirators] had been arrested and the drugs seized before he was even invited to join." Unfortunately, both Cruz and Recio are pretty muddled opinions in general, so I can completely understand how one could read Recio and not think it raises the impossibility question. Indeed, at oral argument, Recio's lawyer, who did his client no favors with his rambling discourse loosely styled as an argument, tried to say that the case was akin to entrapment, akin the lines of truthsquad's intuition sans truthsquad's eloquence
But he was smacked down by several Justices, who reminded him that entrapment wasn't presented by the case. In sum, I think the case does turn on factual impossibility, which is why the Court took it, and why nine judges of the Ninth Circuit voted for en banc hearing to hear the case. Their dissent to the en banc denial stated, "In holding that a conspiracy endures only as long as its ultimate goal remains objectively achievable, Cruz imports a defense of factual impossibility into the law of conspiracy in direct conflict with the long_standing, black letter principle that impossibility is not a defense to a conspiracy charge. The Supreme Court and our own Court have made this very point many times before." It is worth reading their full dissent here [270 F.3d 845]

Others point to the possibility for prosecutorial abuse. You are absolutely right. Conspiracy charges, like many others in criminal law, can be used by powerful prosecutors to harm small fish. But that is a problem much larger than conspiracy law, and we should deal with it on that level, with appropriate funding for defense attorneys, broad latitude in the cross-examination of cooperating witnesses, cautionary jury instructions about snitches, vibrant disclosures of Brady material, and the like. BTW, Piney (here) is exactly right about the use of hearsay in conspiracy cases, prosecutors like it for that reason, but if we got rid of conspiracy, the hearsay exception would probably still exist under traditional agency principles.

Finally, I appreciate the kind words about my testimony on military tribunals. If you want to read more on that, you can read a Yale Law Journal piece I co-wrote with Laurence Tribe, available here. Let me close with two thoughts. First, if we don't have an adequate criminal justice system to deal with modern threats, I fear that this will make the temptation to use tribunals—and its even more evil cousin, the indefinite detention—all the greater. Second, the permissive rules surrounding conspiracy prosecutions emerged in the context of our particular criminal justice system, with its emphasis on the right to counsel, juries, grand jury presentment, individual rights, cross-examination, Brady disclosures, and the like. What I fear today is that the broad rules surrounding conspiracy doctrine can be used to justify the indefinite detention of people in military brigs. These permissive rules surrounding conspiracy only work with a vibrant power to test the government's claims, and it appears that such testing is out of the question for those indefinitely detained. That is the worst of every world.