Drug conspiracies.

An agreement between two or more people to commit a crime constitutes a conspiracy. Illegal drug trafficking commonly involves the agreement of several people working in concert to manufacture and distribute drugs. In order to best address the problem of drug trafficking, police and prosecutors must recognize and properly charge drug conspiracies.

Sincere Agreement

Most states follow the federal rule that in order for suspects to be properly charged with a drug conspiracy they must sincerely agree with each other to violate the drug laws.(1) Where there is an apparent agreement between a police informant and a suspect to violate the drug laws, such an agreement will not constitute a conspiracy because the informant is not being sincere.(2) In that case, there is not a true meeting of the minds between the informant and the suspect; the informant actually is trying to thwart the criminal enterprise. There must be at least two suspects who have criminal intent entering into an agreement in order for that agreement to be a conspiracy.

If a suspect is involved in a conspiracy and then decides to cooperate with the police, perhaps because he has been arrested, the pre-arrest agreement with the other suspects would constitute a conspiracy.(3) Any future agreements, on the other hand, between the newly cooperative informant and any single suspect would not constitute a conspiracy but could be used as evidence to prove a past or present conspiracy between the suspect and other conspirators. Increasingly though, states are enacting unilateral conspiracy statutes that allow a suspect to be charged with conspiracy if the suspect agrees with an informant or undercover agent to commit a crime.(4)

Impossibility 

Drug traffickers can be charged and convicted of conspiracy even though they have not completed the drug crime they agreed to commit. This is true even if the police, by arresting the conspirators, make it impossible for them to complete the offense. The courts have defined two types of impossibility - factual impossibility and legal impossibility. A crime is factually impossible if the conspirators would be thwarted by the prior intervention of the police. It is not a defense to conspiracy that the crime that the conspirators agree to commit was factually impossible to complete.(5)

A crime is legally impossible to commit if the planned conduct of the conspirators is not a crime. The general rule is that legal impossibility is a complete defense to a charge of attempt. There is a split in the courts, however, as to whether legal impossibility is a defense to conspiracy.(6) It surely would be a manifest injustice if a court convicted someone of conspiracy for agreeing to do something that is not a violation of the law.

Overt Acts 

In most cases, persons involved in a conspiracy will take steps to commit the agreed-upon crime. The common law rule, however, is that it is not required that the government prove that the suspects committed an overt act in furtherance of the conspiracy in order to prove the crime of conspiracy. If a conspiracy statute does not expressly require an overt act, then a court likely will follow the common law rule that an agreement alone will be sufficient to prove the conspiracy. For example, the federal drug conspiracy statute, 21 U.S.C. [section] 846, simply provides that those who conspire to violate the federal drug laws are to be punished to the same degree as they could be for the drug crime they agree to commit. In United States v. Shabani,(7) the U.S. Supreme Court ruled that because [section] 846 does not expressly require evidence of an overt act in order to prove a drug conspiracy, the U.S. Congress intended to codify the common law standard that an agreement alone is sufficient to prove conspiracy. The general federal conspiracy statute, 18 U.S.C. [section] 371, on the other hand, expressly requires proof of an overt act in furtherance of the conspiracy. Regardless of the language in a particular statute, as a practical matter, overt acts are the most convincing evidence of the sincerity of an agreement. It would be a rare conspiracy prosecution that did not involve overt acts in furtherance of the conspiracy.

Wharton's Rule

As a general rule, individuals can be charged and convicted of both conspiracy and the completed crime that they agreed to commit. There is, however, an exception to that general rule. The exception, known as Wharton's Rule, provides that a conspiracy cannot be charged if the commission of the substantive offense requires concert of action between two people.(8) For example, in order to distribute illegal drugs, there must be both a deliverer and a recipient of the drugs. Under Wharton's Rule, if two people engage in a one-time sale of a small quantity of an illegal drug, the buyer and seller cannot be charged with conspiracy.(9)

There is, however, an exception to Wharton's Rule. If an additional party who is not necessary for the commission of the offense is involved in the transaction, then the rule will not preclude a conspiracy charge.(10) For example, if a drug trafficker employs another to assist him in a drug sale to a buyer, Wharton's Rule would not preclude the assistant from being convicted for conspiracy.(11)

Another way to defeat a Wharton's Rule defense is to establish sufficient evidence that the buyer and seller have a long standing criminal relationship that involves repeated sales of large quantities of illegal drugs. Such facts would be circumstantial evidence that there is an agreement beyond a simple one-time transaction. Consequently, the buyer and seller could be charged with conspiracy in addition to the substantive drug charge.(12)

Some courts do not apply Wharton's Rule at all to drug cases; they permit a buyer and seller to be convicted of conspiracy even though there is not a third party present or any other exception to the rule.(13) Those courts rely on the U.S. Supreme Court decision of Iannelli v. United States,(14) in which the Court stated that Wharton's Rule is merely a judicial presumption that is to be applied in the absence of legislative intent to the contrary. For instance, in United States v. Bommarito,(15) the U.S. Court of Appeals for the Second Circuit determined that because the federal drug conspiracy statute, 21 U.S.C. [section] 846, provides that it is a violation to conspire to commit any of the crimes under Title 21, the U.S. Congress did not intend that conspiracy charges under [section] 846 were to be limited by Wharton's Rule.

Circumstantial Evidence

In order to prove a conspiracy, it is not necessary to have direct evidence from a witness who was present and actually heard the criminal agreement. A conspiracy can be established through circumstantial evidence. For example, in United States v. Iglesias,(16) the defendant handed a white object to a person on a dry-docked boat as others on the boat craned their necks and looked around. A later search of the boat by U.S. Customs agents found that it contained 521 kilograms of cocaine wrapped in white burlap bags. The court found that sufficient evidence existed to support the defendant's conviction for conspiracy to possess with intent to distribute cocaine.

In United States v. Alvarez,(17) the entire bench of the U.S. Court of Appeals for the Fifth Circuit ruled that, based on circumstantial evidence, the defendant, Alvarez, was guilty of conspiracy to import marijuana into the United States. An illegal drug supplier arrived in Miami from Colombia and stayed at Alvarez's house. Alvarez arrived with the supplier at a meeting with undercover DEA agents. As Alvarez was loading some appliances onto the undercover plane, one of the DEA agents asked Alvarez if he would be present at a remote landing strip to help unload the plane when it returned. Alvarez nodded his head indicating that he would be there. The plane was to return with the marijuana from Colombia, but no mention of the illegal cargo was made to Alvarez by the DEA agent who asked him the question. As Alvarez and the others were leaving, DEA agents arrested them. The Alvarez court ruled that absent Alvarez's head nod, there would have been insufficient evidence that Alvarez was involved in the conspiracy. His agreement, however, to be available to off-load a plane at a remote airfield indicated that he knew of the illegal enterprise and was a willing participant.

Those courts that follow Wharton's Rule ordinarily would not permit a single act of purchasing or selling illegal drugs to be the basis for a charge of conspiracy unless there is some additional circumstantial evidence from which it can be inferred that the actor is part of a larger conspiracy. The additional evidence must establish that the suspect had knowledge of the larger conspiracy and intended to join it.(18) For example, in United States v. Barlin,(19) the defendant was found in possession of approximately 1/4 kilogram of 86 percent pure cocaine and $5,000 in cash. She had just left an apartment that served as the center of a drug distribution network and her name was found on a list of names of people in the network prepared by one of her fellow conspirators. The court held that sufficient evidence existed, in addition to the possession of cocaine, to infer that the defendant was part of a larger conspiracy.

A key fact in determining whether a single transaction is an isolated purchase or actually part of an established conspiracy to distribute illegal drugs is the quantity of the drugs involved in the transaction. The larger the quantity of drugs, the more reasonable it is to infer that the transaction is not an isolated sale, but an act that is part of a larger conspiracy. In United States v. Boone,(20) the court ruled that a single transaction involving 383 grams of cocaine along with conversations between the purchaser and wholesaler indicating there would be future sales was enough to infer a conspiracy between the buyer and the seller. Such evidence suggested that the wholesaler had a direct interest in seeing that the buyer successfully resold the drugs.

Mere Presence

Mere presence during conspiracy discussions is not sufficient to implicate a person in the conspiracy. On the other hand, it is not necessary that a person actually say anything at a conspiracy meeting in order to be charged with conspiracy if other circumstantial evidence indicates that the silent person tacitly has agreed to participate in the conspiracy. For example, in United States v. Baptista-Rodriguez,(21) the defendant was at several meetings set up in order to plan a cocaine importation operation between Colombian cocaine traffickers and boat drug transporters. The defendant was identified at one of those meetings as one of the "boat people." The court affirmed the defendant's conspiracy conviction after making the commonsense observation that "[i]t is highly unlikely that conspirators attempting a 500 kilogram smuggling operation would have tolerated the recurrent presence of a mere bystander, especially during the operational stage of the scheme."(22) Even though the defendant never said anything during the meetings, it was reasonable to infer that he was a participant in the conspiracy rather than a mere bystander.

In Baptista-Rodriguez, the defendant was found to be a conspirator because he was at a meeting arranged for the sole purpose of planning the crime. If, on the other hand, a suspect is present with drug conspirators, but there is a plausible innocent explanation for his presence, then his mere presence would not be enough to infer that he is part of the conspiracy. For example, in United States v. Pantoja-Soto,(23) five subjects were in a gas station after business hours. DEA agents had probable cause to believe that there was methaqualone inside the station. A DEA undercover officer and an informant had previously negotiated with two of the five people in the station for the delivery of 50,000 methaqualone tablets. The informant went into the station and returned with a sample of three methaqualone tablets. When the agents entered the station to make the arrests, two of the subjects tried to run but were caught. The illegal drugs were found in a box in one of the service bays. The court ruled that the three subjects who had no previous dealings with the informant were merely present in the station and were not guilty of conspiracy. There was no evidence that they had agreed to assist in the delivery of the drugs. The court felt that there was no evidence that the three even knew that the drugs were in the station, even though two of the three tried to run when the DEA raided the garage to make the arrests.

Mere Knowledge

Even if the suspects in Pantoja-Soto knew that the drugs were in the station, that knowledge alone would not be sufficient to prove either conspiracy or possession. In order to prove a conspiracy charge, there must be some evidence, either direct or circumstantial, that the person joined in an agreement with others to violate drug laws. Mere association with criminals without agreeing to assist in the commission of a crime is not enough to prove conspiracy. For instance, in United States v. Vasquez-Chan,(24) the defendant was a live-in housekeeper who knew that the homeowner was involved in large-scale drug trafficking. The police found approximately 600 kilograms of cocaine in the house. The housekeeper admitted that she knew the drugs were in the house. The court reversed her conspiracy conviction because the evidence proved only that she was a housekeeper and there was insufficient evidence that she had agreed to assist in the illegal venture.

In fact, a subject who knows that another person possesses illegal drugs is not in a conspiracy with the possessor, even if he discusses the drugs with the criminal possessor, as long as he does not offer assistance or advice on how to distribute the drugs or commit other crimes. For example, in United States v. Kelly,(25) the court ruled that an attorney had not conspired with his client to violate the federal drug laws even though the attorney knew that the client had a kilogram of cocaine and advised him not to meet with others who wanted to take delivery of it. The attorney feared that his client was being "set up" to be arrested.

The court felt that once the attorney in Kelly knew about the cocaine, he was in a Catch-22. If he told his client to deliver the cocaine, he would be guilty of conspiracy; but if he told him not to deliver it, he could be (and he was) accused of conspiring to assist the client in concealing the substance from the government. The court also ruled that the attorney was not guilty of aiding and abetting the possession with intent to distribute the illegal drugs. In order for the government to prove that a person is in a conspiracy, it is not sufficient for the government to prove that the suspect knew of the planned crime or even that the suspect discussed the crime; the government must prove that the suspect agreed with another person to play a role in the successful completion of the crime.

Individuals who know about a conspiracy and supply commodities that flow without restriction in commerce to a confederate of the conspiracy would not themselves be members of the conspiracy. For example, in United States v. Falcone,(26) suppliers sold yeast and sugar to a member of an illegal distilling conspiracy. The U.S. Supreme Court in Falcone found that, while the evidence showed that the suppliers knew that the recipient of the yeast and sugar was making illegal alcohol, that alone did not put them in a conspiracy with the bootlegger. While the government must prove that a person knew of the conspiracy in order to prove a conspiracy charge, such knowledge by itself is insufficient to establish that a person is guilty of conspiracy. To sustain a conspiracy conviction, there must be evidence of an agreement. The Falcone Court stated that there was no evidence of an agreement between the suppliers and the bootlegger.

In another U.S. Supreme Court case, Direct Sales v. United States,(27) the evidence showed that a mail-order wholesaler continued to supply a small-town doctor with morphine after the Bureau of Narcotics warned the wholesaler that the doctor was illegally supplying the morphine to addicts. In addition to the government warning, the circumstances indicated that the morphine was being dispensed unlawfully. The morphine was sold to the small-town doctor in large quantities with great frequency and over a long a period of time. The sales consisted almost exclusively of morphine and had increased to an average monthly quantity sufficient for 400 average doses a day. Finally, the drug wholesaler offered special inducements to the doctor to purchase large quantities. The U.S. Supreme Court ruled that the mail-order wholesaler and the doctor were in a conspiracy to violate federal drug laws. The conspiracy was established even though none of the wholesaler's representatives had personal communication with the physician. The supplier had more than mere knowledge of illegal activity; a continuous pattern of conduct established a tacit agreement between the doctor and the wholesaler to illegally distribute a controlled substance.

The difference between the Direct Sales case and the Falcone case is that the commodities sold in Falcone were articles of free commerce, whereas the morphine in Direct Sales was a restricted commodity that was incapable of further legal use except by compliance with rigid regulations. In addition, the Direct Sales wholesaler was supplying a controlled commodity in such large quantities, and he was encouraging future large purchases. Circumstantial evidence showed that the supplier had more than mere knowledge of the illegal resales; the wholesaler actually had a stake in the success of the illegal distribution of the drugs.

The Direct Sales Court stated that it made no difference that no express agreement existed between the wholesaler and the doctor. The secretive nature of conspiracies often necessitates that the evidence be circumstantial. It is the fact of the illegal agreement and not the form of the agreement that matters.(28)

Therefore, where a supplier encourages known illegal drug traffickers to purchase supplies that ordinarily are difficult to obtain and often are used in the production of illegal drugs, it can be reasonably inferred that he is implicitly promoting the illegal drug enterprise. For example, in United States v. Grunsfield,(29) the court ruled that a chemist was in a conspiracy with illegal drug manufacturers because he supplied large amounts of chemicals and equipment on three to four occasions to individuals who the chemist knew were illegal PCP manufacturers. The supplier in Grunsfield, like the defendant in Direct Sales, did more than merely supply the conspiracy; in fact, he promoted the illegal enterprise and made large profits on the sales of the chemicals. Unlike the defendant in Falcone, the chemist in Grunsfield supplied materials that were difficult to obtain and were often used in the production of illegal drugs.

Vicarious Guilt (Pinkerton Rule)

The criminal jeopardy suffered by one who enters an agreement with another to commit a crime goes beyond simply the charge of conspiracy. In Pinkerton v. United States,(30) the U.S. Supreme Court held that if individuals enter into a conspiracy, they are not only guilty of the conspiracy but each are also vicariously guilty of the object crimes committed in furtherance of the conspiracy by any of the other conspirators. In addition, under Pinkerton, conspirators are vicariously guilty of crimes committed by any of the other conspirators that are reasonably foreseeable consequences of the conspiracy. The Pinkerton Rule is the law in the federal courts and in many state courts,(31) although some states have chosen not to adopt the rule.(32)

If a person joins a conspiracy well after its inception, such a late joiner is guilty of conspiracy to the same degree as the early joiners, even if the late joiner only played a minor role in the conspiracy.(33) A late joiner, however, would only face vicarious guilt under Pinkerton for substantive offenses committed by other conspirators after he joined the conspiracy.

One factor in determining the foreseeability of a substantive crime for which a suspect is to be held vicariously accountable under Pinkerton is the degree of the suspect's involvement in the conspiracy.(34) A person who plays a minor role in a conspiracy is less likely to be held vicariously accountable for the substantive crimes committed during a conspiracy than would the major participants in that same conspiracy.(35)

The Connecticut Supreme Court case of State v. Diaz(36) provides an example of the application of the Pinkerton Rule. In Diaz, the defendant was one of five streetside drug dealers who opened fire with a hail of 33 nine millimeter rounds and seven .45 caliber rounds at a car that was driving past them. One of the rounds killed a customer who had stopped to buy illegal drugs. The Supreme Court of Connecticut ruled that under Pinkerton, once Diaz and the others entered into the conspiracy to murder, all of them were guilty of conspiracy to commit murder, and in addition, each was also vicariously guilty of the murder itself, regardless of who actually fired the round that killed the victim.

In Diaz, the defendant was found vicariously guilty of a murder that was the object crime of the conspiracy. What if a conspirator commits an unplanned murder during the course of a drug crime? Would such an unplanned murder be a reasonably foreseeable consequence of the drug conspiracy that could be pinned to each of the drug conspirators? In United States v. Alvarez,(37) the U.S. Court of Appeals for the Eleventh Circuit ruled that the murder of an undercover federal agent during a shootout at a motel drug bust was a reasonably foreseeable consequence of drug trafficking. While the court limited the liability for the murder under the Pinkerton rule to those members that played major roles in the drug conspiracy, the court ruled that the three defendants in that case were, in fact, major participants in the drug conspiracy. One defendant was an armed lookout; a second was the leader of the drug conspiracy, who introduced the agent to the drug sellers; and a third was the motel manager, who acted as interpreter for some of the drug negotiations. The court ruled that all three were properly convicted of the agent's murder, even though none of them actually took part in the shooting.

If a suspect is found vicariously guilty of an unintended but foreseeable crime, the fact that the suspect did not participate in the unforeseeable crime would be relevant when determining the sentence. In Alvarez, for instance, the shooters each received life imprisonment plus 50 years, whereas the armed lookout received 22 years' imprisonment, the drug deal leader received 25 years' imprisonment, and the hotel manager received 30 years' imprisonment. Conclusion

Drug trafficking usually involves an agreement between two or more people to cooperate in the illegal drug enterprise. One effective way to address the drug trafficking problem is through the conspiracy laws. Drug traffickers can be charged and convicted of conspiracy, even though they have not completed the drug crime they have agreed to commit. In addition, in many jurisdictions, a person who is a member of a conspiracy is vicariously guilty of any reasonably foreseeable crimes committed by the members of the conspiracy even though those crimes were not part of the plan.

Endnotes

1 E.g., United States v. Lively, 803 F.2d 1124, 1126 (11th Cir. 1986); State v. Gruillon, 562 A.2d 481,484-86 (Conn. 1989); State v. Pacheco, 882 P.2d 183, 185-88 (Wash. 1994).

2 803 F.2d at 1126.

3 Id.

4 See e.g., New York v. Schwimmer, 394 N.E.2d 288 (N.Y. 1979) (defendant conspired with an undercover officer and an informant to steal diamonds); Ohio v. Marian, 405 N.E.2d 267, 270 (Ohio 1980) (defendant conspired with an informant to murder his wife); State v. Null, 526 N.W.2d 220, 229 (Neb. 1995) (defendant was in conspiracy with party who feigned agreement).

5 United States v. Jannotti, 673 F.2d 578, 591 (3d Cir. 1982), cert. denied, 457 U.S. 1106, overruled in part on other grounds by Mathews v. United States, 485 U.S. 58 (1988).

6 See United States v. Bosch, 951 F.2d 1546, 1550 (9th Cir. 1991) (rejecting legal impossibility as a defense to conspiracy). Contra, Montana v. Houchin, 765 P.2d 178, 180 (Mont. 1988) (legal impossibility is a defense to conspiracy). See generally Jeffrey F. Ghent, Annotation, Impossibility of Consummation of Substantive Crime as Defense in Criminal Prosecution for Conspiracy or Attempt to Commit Crime, 37 A.L.R.3d 375 (1971).

7 115 S. Ct. 382 (1994).

8 See United States v. Varelli, 407 F.2d 735, 748 (7th Cir. 1969) (conviction for conspiracy reversed because the single crime of purchasing stolen goods required an agreement between the buyer and seller).

9 E.g., United States v. DeLutis, 722 F.2d 902, 905 (1st Cir. 1983); State v. Utterback, 485 N.W.2d 760, 770 (Neb. 1992), overruled in part on other grounds by State v. Johnson, 256 Neb. 133, __N.W.2d __ (Neb. 1999). But see Johnson v. State, 587 A.2d 444, 452 (Del. 1991) (Wharton's Rule does not prohibit the charging of conspiracy in addition to a charge of possession with intent to distribute drugs because possession with intent to distribute does not require concert of action between two people in order to commit it).

10 Curtis v. United States, 546 F.2d 1188, 1190 (5th Cir. 1977).

11 United States v. Jones, 801 F.2d 304, 311 (8th Cir. 1986).

12 See United States v. Moran, 984 F.2d 1299, 1302-04 (1st Cir. 1993).

13 E.g., United States v. Philips, 959 F.2d 1187, 1190 (3d Cir. 1992); Commonwealth v. Cantres, 540 N.E.2d 149, 152 (Mass. 1989).

14 420 U.S. 770 (1975).

15 524 F.2d 140, 144 (2d Cir. 1975).

16 915 F.2d 1524 (11th Cir. 1990).

17 625 F.2d 1196 (5th Cir. 1980) (en banc).

18 United States v. Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir. 1991).

19 686 F.2d 81, 90-91 (2d Cir. 1982).

20 641 F.2d 609, 611-12 (8th Cir. 1981).

21 17 F.3d 1354 (11th Cir. 1994).

22 Id. at 1374.

23 739 F.2d 1520 (11th Cir. 1984).

24 978 F.2d 546, 553 (9th Cir. 1992).

25 888 F.2d 732, 740-42 (11th Cir. 1989).

26 311 U.S. 205, 211 (1940).

27 319 U.S. 703 (1943).

28 Id. at 714.

29 558 F.2d 1231, 1236 (1977).

30 328 U.S. 640 (1946).

31 E.g., State v. Tyler, 840 P.2d 413, 424 (Kan. 1992); State v. Romano, 456 A.2d 746, 761 (R.I. 1983); Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1976); State v. Bridges, 628 A.2d 270, 281 (N.J. 1993).

32 E.g., State ex. rel. Woods v. Cohen, 844 P.2d 1147, 1151 (Ariz. 1992); People v. McGee, 399 N.E.2d 1177, 1182 (N.Y. 1979); Commonwealth v. Stasiun, 206 N.E. 2d 672, 679 (Mass. 1965).

33 United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980) (en banc).

34 United States v. Christian, 942 F.3d 363, 367 (6th Cir. 1991); United States v. Johnson, 886 F.2d 1120, 1123 (9th Cir. 1989); United States v. Moreno, 588 F.2d 490, 493 (5th Cir. 1979); United States v. Chorman, 910 F.2d 102, 112 (4th Cir. 1990).

35 See United States v. Castaneda, 9 F.3d 761, 766-68 (9th Cir. 1993) (It was a violation of due process to find the defendant vicariously guilty of a 18 U.S.C. [section] 924(c) gun/drug violation where she played only a slight role in the drug conspiracy. The court ruled that because of her minor role in the conspiracy, she could not have reasonably foreseen that the other conspirators would use firearms during the drug conspiracy.).

36 679 A.2d 902, 911-12 (Conn. 1996).

37 755 F.2d 830, 849-51 (11th Cir. 1985).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Special Agent Edward M. Hendrie, DEA, is a legal instructor at the FBI Academy.