Below, federal conspiracy attorney David Benowitz answers questions regarding federal conspiracy charges and common scenarios in these cases.
David Benowitz: Conspiracy is essentially an agreement between more than one person to do something illegal. In order for it to be chargeable as an offense, it can’t just be the agreement; it has to be the agreement plus an overt act. Something has to be done in furtherance of the illegal agreement or the conspiracy to make it chargeable.
David Benowitz: Legally, you would be charged by a government agency such as the FBI, the DEA, or a local police department. To be charged means that federal agencies believe that there is probable cause that you have illegally agreed to do something with somebody else. It means that you’ve agreed to commit a crime and someone, either you or one of the other people, have done something in furtherance of that, meaning they’ve committed an overt act. Even if you just made the agreement and someone else involved in the conspiracy or someone else you’ve made the agreement with does the overt act, you’re still on the hook for the conspiracy. It’s important to understand that.
David Benowitz: The common scenarios are in big drug conspiracy cases where the government charges a large number of people with conspiracy to distribute narcotics. The other scenarios that are becoming more common are conspiracy cases brought by the federal government to commit health care fraud, mortgage fraud, and other different types of economic crimes. Conspiracy is increasingly being used in the economic crimes context.
David Benowitz: In a drug conspiracy case, the most challenging aspect is that typically there are wiretaps or recorded phone calls between people who are ultimately charged in the conspiracy. It is a challenge to take on those wire taps. They are normally recorded when the people who are talking don’t know they are being recorded, so you’re catching people at unguarded moments.
The challenge is in the interpretation of what is being said because the government will bring in a case agent to say that pretty much anything that is said relates to drugs. Let’s use the example of two people on the phone talking about going to get something to eat. One person says, “What do you want?” The other person says, “I want to go get some tortillas.” The government will say that “tortillas” means that they’re talking about buying a kilo of cocaine. Unfortunately, the government has expanded their definitions of what is being said on recorded communications such that anything that you’re saying can be interpreted to be talking about narcotics.
The other challenge is in white collar economic crime cases when you’re talking about a specific transaction. The specific transaction is going to most likely be delineated in black and white on paper, so you have the challenge of how to explain what that paperwork means in a way that shows the truth, which is that it’s not a conspiracy to do something illegal.
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