Defending Conspiracy Cases: Mission Impossible?

College of William & Mary Law School

William & Mary Law School Scholarship Repository

Popular Media Faculty and Deans

1980

Defending Conspiracy Cases: Mission Impossible?

Paul Marcus

William & Mary Law School, pxmarc@wm.edu

Repository Citation

Marcus, Paul, "Defending Conspiracy Cases: Mission Impossible?" (1980). Popular Media. Paper 38.
http://scholarship.law.wm.edu/popular_media/38

Copyright c 1980 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
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Defending conspiracy cases has never By Paul Marcus been committed by him or by a co-
been an easy ta sk . There were days in conspirator.
which joint trial s of 20, 30, 40, or Is it 'mission impossi-
even 50 defendants were not uncom- ble' today for the "(b) Co-conspirators.
mon , creating insuperable problems "It shall not be a defense to con-
for defense lawyers. 1 Even though defense lawyer in the spiracy that the person or persons
large joint-defendant trials are not as world of conspiracy with whom the accused is alleged to
common today,2 severe problems re- have conspired:
main, particularly in light of the fre- prosecutions? "(I) Has not been prosecuted or
quent use of the conspiracy charge at convicted, or
the federal level. 3 In this article I will the agreement even easier to prove, is "(2) Has been convicted of a dif-
discuss so me of the recent issues the so-called unilateral approach to ferent offense, or
which create special difficulties for conspiracy. This approach was first "(3) Is not amenable to justice, or
criminal defense lawyers. With regard promoted by the drafters of the "(4) Has been acquitted, or
to these issues, there is, as some Model Penal Code and has been "(5) Lacked the capacity to com-
would say, good news and bad news. adopted by a number of state legis- mit an offense."
latures . The typical statute is much The key difference between this
The Bad News the same as Section 8-2 of the Illinois type of statute and the traditional
Criminal Code which provides: conspiracy statute is that under the
Proof of the Agreement standard view the prosecution must
Proving an agreement, obviously "Conspiracy . (a) Elements of the prove that two or more persons ac-
offense. tually agreed. Under the unilateral
central to the conspiracy count, is approach the prosecution need only
rarely a difficult task for the pros- "A person commits conspiracy prove that this defendant agreed with
ecution. There need not be an express when, with intent that an offense be another person . In many cases that
agreement and circumstantial evi- committed, he agrees with another to will matter little . In some cases,
dence can be used to prove the the commission of that offense. No however, the di fference will be
existence of the agreement . One person may be convicted of con- significant. In a recent Indiana case,'
troublesome development, making spiracy to commit an offense unless the defendant was intent on murder-
an act in furtherance of such agree- ing her husband. She asked the aid of
Paul Marcus is the author of The ment is alleged and proved to have two persons, one of whom was a
Prosecution and Defense of Criminal police detective, the other a police
Conspiracy Cases (Matthew Bender). agent. At no time did the officer or
He is a professor of law at the Univer- the agent have any intent to commit
sity of Illinois College of Law. the murder. The defendant was con-

TRIAL October 1980 61

victed of conspiracy to commit as all charges are brought in a single "bound by the rules of evidence."
murder because she had agreed to proceeding" the defendants could be Hence, in the Sixth Circuit the trial
commit the crime, even though the sentenced consecutively for violations judges can rely on the hearsay state-
other "conspirators" had not. of the respective conspiracy ments themselves in determining the
statutes. 12 membership in the conspiracy. If ever
This view of conspiracy law has there was potential for a bootstrap-
been subject to considerable criti- The result in Rodriguez will create ping admissibility finding, it certainly
cisms as the major rationale for the severe difficulties for defense counsel exists today in the federal courts of
conspiracy charge - the fear of group in drug conspiracy cases. Braverman Michigan, Ohio, Kentucky, and Ten-
activity - is nonexistent in such cases. clearly held that a single agreement nessee.
Nevertheless, a growing number of could not be split into several agree-
states has adopted the approach and ments merely because it violated more Related to the problem of proving
than one statute. As stated by Judge the existence of the conspiracy and
The result in Rubin in his dissenting opinion in membership in it is the manner of
Rodriguez will create Rodriguez: presentation of evidence. As every ex-
severe difficulties for perienced criminal defense lawyer
defense counsel in drug "I see little difference between knows, the government is not first re-
fragmenting a conspiracy according quired to prove the existence of the
conspIracy cases. to the number and diversity of its ob- conspiracy and the membership in it
jectives in order to charge several vio- and then offer the hearsay statement
many recent cases have followed it in lations of a single statute, and using to the jury. To the contrary, the
upholding the convictions of defen- the same technique to charge viola- general rule is that the trial judge, in
dants who thought they were agreeing tions of two statutory provisions. The his or her discretion, may allow the
with other people who were in fact teaching of Braverman is that a con- offer of the statement first. A limiting
police agents.s spiracy cannot be so fragmented. "13 instruction would then be given,
noting that the statement is "subject
Cumulative Punishment, Multiple In spite of this criticism, however, to being connected up" by later proof
Conspiracies several circuits have utilized the to the satisfaction of the trial judge.
reasoning in Rodriguezl4 and the
In Braverman v. United States, 7 the Fifth Circuit itself has applied the Such a procedure is fraught with
United States Supreme Court held rule to drug conspiracies and con- great risk, as a later failure to "con-
that a single agreement to commit spiracies under the RICO statute nect up" may not wholly eliminate
more than one substantive crime (Racketeer Influenced and Corrupt the impression the statement made on
"cannot be taken to be several Organizations, 18 USC §1961 , et the jurors' minds. In only one recent
agreements and hence several con- seq.) .IS case, however, was it suggested that
spiracies because it envisages the the trial judge first would be required
violation of several statutes rather Co-Conspirator Declarations to find sufficient proof of the con-
than one."8 Statements made by co-conspir- spiracy before the statement could be
admitted. Ultimately, in that case the
This ruling has been consistently ators during the course of and in fur- Fifth Circuit en banc reversed .17
followed in situations in which a therance of the conspiracy are ad-
single general conspiracy section is missible at trial against the declarant The final co-conspirator declara-
violated - 18 USC §37 I - or in which and any other members of the con- tion issue concerns the use of state-
there have been violations of the spiracy. While the very nature of this ments where the defendant/ con-
general conspiracy statute along with rule has been subject to some spirator is currently on trial but the
a more narrow conspiracy statute.s criticism, it is a well-entrenched
When two specific conspiracy statutes feature of evidence law. Three aspects The courts take the
have been violated, however, the of it, however, are troublesome. position that the state-
courts are far from consistent. ment of the acquitted
First, what kind of evidence can be co-conspirator is ad-
The most recent discussion of this used to prove that the declarant and
issue was by the en banc Fifth Circuit the defendant were both members of missible.
in United States. v. Rodriguez. 10 The the ongoing conspiracy and to prove
defendants were charged with viola- that the statements were made in declarant!co-conspirator was previ·
ting two specific drug conspiracy furtherance of that conspiracy? Most ously acquitted of the same COl-
statutes under Title 21 of the United courts take the position that the hear- spiracy charge. The courts take the
States Code. 11 Only one agreement say declaration itself cannot be used position that the statement of tl!(
was alleged . The court emphasized to prove the membership in the con- acquitted co-conspirator is admis-
Congress' intent to punish severely spiracy. There is, however, a rather sible. All the trial judge in the secold
violations of the drug laws. Because ominous line of cases which suggests trial must determine is that the decl.·
"the Double Jeopardy Clause im- that under the new Federal Rules of ant was a member of the conspiracy
poses no limits on Congress' power to Evidence hearsay evidence itself is ad- and that he or she made the statemCil
define the allowable unit of prosecu- missible to prove the conspiracy. in furtherance and during the coune
tion and punishment, at least so long
For instance, in United States v.
VincentI 8 the Sixth Circuit relied
heavily on the fact that the finding
with regard to the membership in the
conspiracy was a finding to be made
by the trial judge rather than the jury.
As a consequence, the judge is not

62 October 1980 Tw.J.i

of it. As stated by the Seventh Cir- "Once the ex ist ence of a con- such an analysis is th at the va lidity o f
cuit: 18 s piracy is es tablished, eviden ce the remaining count s ma y have great
establishing beyond reasonable doubt significance. They may be par-
"[T]he differences between what a connection of a defendant with a ti cularl y important in determining
must be proved to invoke the hearsay conspiracy, even though the connec- parole dates, jurisdiction under
exception and what must be proved in tion is slight, is su fficient to convict recidivism sta tutes, and the like .
order to convict a person of the crime him with knowing participation in the Thu s, to apply th e doctrine in a
of conspiracy, a s well as the dif- conspiracy. Thus, the word 'slight' routine way so as to avoid the legal
ference in burden of proof , mean that properly modi fies 'connection ' and
neither collateral estoppel nor res not 'evidence .' It is tied to that which ...to apply the doctrine
is proved , not to the type of evidence in a routine way ... can
judicata automatically bars the use of or the burden of proof. "20
often be extremely
statements by a person who has been The rationale behind the rule is damaging to the
acquitted of the crime of con- hard to justify , no matter how formu-
spiracy .... ' , lated . It states that appellate review is defendant.
limited to determining whether slight
This rule makes sense becau se the evidence existed , not to whether there
burdens of the government are very was substantial evidence to support a
different; the prosecution mu st only finding of proof beyond a reasonable
make a prima facie showing, or doubt as to this individual defendant.
demonstra te by a preponderance of

.. .the serious potential The Concurrent Sentence Doctrine issues raised can often be extremely
in federal prosecutions Let us suppose the common situa- damaging to the defendant. Never-
for the unilateral ap- theless , a good many courts apply the
proach does not exist tion . The defendants are convicted of doctrine in precisely that way.n
di stribution (or possess ion) of nar-
at this time. cotics and conspiracy to distribute the The Good News
drugs . The sentences given for the
the evidence , that a statement was two charges are concurrent rather Up to this point I have painted a
made during the course of and in than consecutive. The defendants ap- rather stark portrait of the problems
furtheran ce of the c on s piracy . peal. Focusing it s attention on one of faced in defending conspiracy cases .
Nevertheless, as a matter of policy it the counts - and it does not truly mat- There is some good news, however.
is somewhat difficult to justify thi s ter which - the appellate court con-
rule. After all, a jury found that the cludes that there is no error with Proof of the Agreement
government did not prove that the regard to that count. Will the defen- Most courts do reject the unilateral
defendant was a functioning member dant then have review in the appellate
of the co nspiracy when the statement court of the second count? conspiracy view and rely on the tradi-
was supposed to have been made . tional view that "the crime of con-
Considering the great weight given to In most cases the answer is no ; ap- spiracy requires a conce rt of action
the co-conspirator's declaration in pl ying the concurrent sentence doc- among two or more persons for a
many trials , this evidence may be trine most courts will say it is unnec- common purpose... ."23 Moreover,
decisive . essary to look to the claims with re- the serious potential in federal pros-
gard to the remaining count. These ecutions for the unilateral approach
The Slight Evidence Rule does not exist at this time. The stan-
Proof of guilt must be personal. The co-conspirator dard view under both the general con-
declaration is an spiracy section and the Title 2I drug
The government mu st prove, beyond conspiracy provision s is that proof of
a reasonable doubt, that this defen- established exception a " true agreement " conspiracy is re-
dant committed the crime. Is it possi- to the hearsay rule. quired . Under the early drafts of the
ble, then, that " [o]nce the existence proposed revised criminal code, how-
of a con spiracy is establi shed, even courts are not required to end their ever, the Model Penal Code unilateral
slight evidence connecting a defen- inquiry if the evidence on one count is approach to conspiracy would have
dant to the conspiracy may be suffi- proper. Instead they are allowed to been adopted. In the most recent pro-
cient proof of hi s involvement in the find that, as a matter of discretion, posal put forth the unilateral ap-
scheme"? Not only is such a view "it is 'unnecessary' to consider all the proach has been rejected .24
possible, but it is the prevailing law in allegations made by a particular par-
most circuits. As the Eighth Circuit ty."2' Cumulative Punishment, Multiple
pointed out in the above quote , the Conspiracies
essence of the proof requirement goes Many courts simply apply the con-
to the establishment of the con- current sentence doctrine in a mech- While the en banc disposition in
spiracy , rather than the connection of anistic way and hold that if anyone Rodriguez will no doubt send chills
the defendant to it. ,g Sometimes this count is sufficient and the sentences down the spines of the defense law-
"slight evidence rule " is formulated are to run concurrently they will not yers who see double conspiracy
differently: go any further. The difficulty with charges, the Supreme Court as yet has
not spoken to this point. Further,

TRIAL October 1980 63

Judge Rubin's dissent is a telling one, the admissibility of his or her out-of- likelihood that the defendant will suf·
focusing on the rationale behind court declaration. The trial judge fer adverse collateral consequences
Braverman. At this time there is no will, however, look to the acquittal from the unreviewed conviction."32
clear indication that the Rodriguez "as relevant and persuasive in the
view will prevail throughout the determination of whether the govern- The Second Circuit was even more
country . At least two other circuits ment has demonstrated the requisite direct when it noted that "utilization
have expressly rejected the reasoning criminal joint venture. "2g of the concurrent sentence doctrine is
of the Fifth Circuit. 25 now the exception rather than the
The Slight Evidence Rule rule. "33
Co-Conspirator Declaration We finally come to an area where
The co-conspirator declaration is Conclusion
the good news is clearly overwhelm-
an established exception to the hear- ing the bad news. The good news Is it "mission impossible" today
say rule. 26 And, more importantly, it comes from the Fifth Circuit in an en for the defense lawyer in the world of
is heavily used in conspiracy prosecu- banc opinion which is likely to have conspiracy prosecutions? No, the
tions. Still, the concerns expressed very significant impact. Judge Cole- good news in some of the important
above may not be as serious as they man in a panel decision stated: areas does help to balance out the bad
appear. While the Sixth Circuit al- news. However, it is still very difficult
lows the use of hearsay to establish "I cannot bring myself to believe for the criminal defense lawyer who is
the conspiracy and its membership, that upon appellate review only handling a conspiracy case. In addi·
most other courts do not. Most courts 'slight evidence' is required to con- tion to the matters discussed above.
say that the "out-of-court statement nect a particular defendant with a there are numerous other matters
itself may [not] be considered by the conspiracy. 'Substantial evidence' which raise concerns for the defense
trial judge in determining its ad- should be, and I believe is the test. "30
missibility. "27 ... the heightened use
In the en banc disposition of the of the conspiracy
The second co-conspirator declara- case the other twelve judges of the
tion problem relates to the order of Fifth Circuit agreed. In an opinion charge .. .is a powerful
proof. This continues to be an area of written by Judge Coleman the court weapon in the pros-
concern, as in many cases the declara- stated:
tion comes in well before the support- ecution's arsenal.
ing evidence is found by the trial "We are convinced that when the
court. Still, if the proper connection sufficiency of the evidence to support including prosecutions under the very
is not made and instructions are not any criminal conviction, including broad RICO statute34 and so-called
likely to cure the harm, the mistrial conspiracies, is challenged on appeal Bruton problems. 35 There is good
remedy always is available . Also, the correct standard of review is reason for the heightened use of the
even though the order of the proof is substantial evidence, it being under- conspiracy charge, especially in joint
within the discretion of the trial stood, of course, that the evidence is trials . The reason is that it is a power·
court, some courts are now stating to be viewed in the light most ful weapon in the prosecution's
that the "preferred" order of proof is favorable to the government. The arsenal:
to have the foundation laid for the 'slight evidence' rule as used and ap-
plied on appeal in conspiracy cases "It is obvious why some pros·
'I cannot bring myself since 1969 should not have been ecutors, with our aid and comfort ,
to believe that upon allowed to worm its way into the are enamoured bringing allegations
appellate review only jurisprudence of the Fifth Circuit. it of mass conspiracy. No matter how
'slight evidence' is re- is accordingly banished as to all ap- thin the proof as to individual defen·
quired to connect a peals hereafter to be decided by this dants, once the jury has looked at the
particular defendant court. "31 sheer numbers involved and has been
with a conspiracy.' shocked by the extensive evidence of
The Concurrent Sentence Doctrine criminal activity by a remote actor,
declaration allowing conditional ad- This doctrine is applied all too the chance that they [sic] will pay
mission only when necessary. 28 serious attention to the absence of
often to limit the substantive legal substantial proof as to one individual
The problem of the acquitted de- challenges by conspiracy defendants. is not particularly great. A doctrine
clarant - while not terribly rare - is In recent years, however, more atten- which permits this impairs lib·
not all that significant as a practical tion has been given to the adverse col-
matter. In most cases the declarant in lateral consequences which can arise erty."3~T
a prior trial is not acquitted. Indeed, from the unreviewed convictions.
in most cases, the declarant and the Several courts now have advised the (see References, page 86)
defendant are jointly on trial so the district judges that they will review all
situation will not arise. In the case in claims in the normal situations.
which the declarant has been acquit-
ted it is true that most courts will not "Despite such statements, we have
say that there is a per se rule against often applied the doctrine mechani-
cally without really considering the
adverse consequences. Because it may
have been unclear in our past cases,
we now expressly hold that a court
may not apply the concurrent
sentence doctrine at least in the situa-
tion where there is a significant

64 October 1980 T~

Marcus, p. 61

I See. e.g.• Capriola v. United States. 61 F.2d 5 (7th Cir. 1932). cert. denied 287 U.S. 671, where 59 defendants were tried together, and
Allan v. United States, 4 F.2d 688 (7th Cir. 1924), cert. denied 267 U.S. 597, where 63 defendants were tried together.

2 But see. United States v. Peterson, 611 F.2d 1313 (10th Cir. 1979). where 14 defendants were joined together for trial, and United States
v. Barrentine. 591 F.2d 1069 (5th Cir. 1979). where 18 defendants were joined together. For good discussions of the practical problems
involved with multi-defendant conspiracy cases, see, two recent articles in the April 1978 edition of this magazine: Kadish and Nafman,
"Handling the Multi-Defendant Criminal Case" and Van Camp, "Preparing the Criminal Defense Case" (vol. 14, no. 4, pp.33-41).

3 See generally. Marcus, "Conspiracy: The Criminal Agreement in Theory and in Practice," 65 Georgetown Law J. 925 (1977) .
4 Garcia v. Indiana. 394 N.E.2d 106 (1979).
• The Prosecution and Defense of Criminal Conspiracy Cases at §2.04.
• See. e.g.• New York v. Schwimmer. 394 N.E.2d 288 (1979); State v. St. Christopher, 305 Minn. 226. 232 N.W.2d 798 (1975).
1 317 U.S . 49 (1942).
• Id. at 53.
9 As in United States v. Mori, 444 F.2d 240 (5th Cir. 1971), cert. denied 404 U.S. 913. where it was the general conspiracy statute, §371,

and the then-drug control statute, 21 U.S.c. §174.
10 612 F.2d 906 (5th Cir. 1980).
\I 21 U.S.c. §§846, 963, punishing conspiracies to import and to distribute.
12 Note 10, supra. at 924.
13 ld. at 926.
14 United States v. Houltin, 525 F.2d 943, 950 (5th Cir. 1976), vacated sub nom. Croucher v. United States. 429 U.S. 1034 (1977); United

States v. Maralla, 518 F.2d 681 (9th Cir. 1975); United States v. Garner, 574 F.2d 1141(4th Cir. 1978), cert. denied 439 U.S. 936.

I." United States v. Smith. 574 F.2d 308 (5th Cir . 1978).
606 F.2d 149, 153 (6th Cir. 1979).

I.17 United States v. James, 576 F.2d 1121 (5th Cir. 1978), 590 F.2d 575 (5th Cir. en banc 1979).
United States v. Gil. 604 F.2d 546, 549 (7th Cir. 1979).
19 United States v. Schmaltz, 562 F.2d 558,560 (8th Cir. 1977). See also. United States v. Friedman, 593 F.2d 109 (9th Cir. 1979); United

States v. Kearney. 560 F.2d 1358 (9th Cir. 1977).
20 United States v. Dunn. 564 F.2d 348, 357 (9th Cir. 1977).
21 Benton v. Maryland, 395 U.S. 785, 791 (1969).
22 See. e.g.• United States v. Muller, 550 F.2d 1375 (5th Cir. 1977); United States v. Carpio. 547 F.2d 490 (9th Cir. 1976).
23 United States v. Mancillas, 580 F.2d 1301 (7th Cir. 1978).
2' As reported out by the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives. See. H.R. 6233,

January 10, 1980, as well as the testimony on this point of the author in the Hearings before the Subcommittee, 95th Cong., 1st and 2nd
Sess., Serial No . 52 at 336.
,. United States v. Adcock, 487 F.2d 637 (6th Cir. 1973); United States v. Honneus. 508 F.2d 566 (1st Cir . 1974), cert. denied 421 U.S. 948.
2. This out-of-court declaration offered for the truth of the matter asserted is not labeled hearsay under the new Federal Rules,
801(D)(2)(e). The designation aside, the Federal Rules do not change the essence of the normal co-conspirator hearsay exception.
21 United States v. Macklin, 573 F.2d 1046, 1048 n.2 (8th Cir. 1978). See also, United States v. Papia, 560 F.2d 827, 835 (7th Cir. 1977);
United States v. James. 590 F.2d 575 (5th Cir. 1979); United States v. DeFillippo. 590 F.2d 1228 (2nd Cir. 1979); United States v. Giese.
597 F.2d 1170 (9th Cir. 1979).
2. United States v. James, 590 F.2d 575, 581-82 (5th Cir. 1979); United States v. Bell. 573 F.2d 1040 (8th Cir. 1978).
2. Note 18, supra.
30 United States v. Malatesta, 583 F.2d 748, 764 (5th Cir. 1978) [concurring opinion) .
31 United States v. Malatesta. 590 F.2d 1379, 1382 (5th Cir. en banc 1979).
32 United States v. Rubin. 591 F.2d 278, 280 (5th Cir. 1979).
33 United States v. Ruffin. 575 F.2d 346, 361 (2nd Cir. 1978).
3' For discussion of the RICO statute, particularly as it impacts on the co-conspirator declaration rule, see. Marcus, "Co-Conspirator
Declarations : The Federal Rules of Evidence and Other Recent Developments, From a Criminal Law Perspective," 7 A mer. J. Crim. L.
287 (1979) .
.. This problem is particularly acute in light of the Supreme Court's decision in Parker v. Randolph. __U.S.__• 99 S.C!. 2132 (1979).

See. Marcus, "The Confrontation Clause and Co-Defendant Confessions: The Drift from Bruton to Parker v. Randolph." 1979 U"iv.
of III. L. F. 559.
3. United States v. Watson, 594 F.2d 1330, 1345 (10th Cir. 1979) [dissenting opinion of Judge McKay).

October 1910 m Al