Federal conspiracy lawyer David Benowitz answers questions regarding possible defense strategies, evidence, and constitutional issues in federal conspiracy cases.
David Benowitz: You start by looking at the evidence that the government has; electronic evidence, paper evidence, documentary evidence, any pictures. You’re always trying to figure out who their cooperating witnesses are or if there are any sort of informants. Your client can be very helpful if they have information about this. They may have information about certain people, even if they’ve done nothing wrong, but they may have information about why this person might be saying something about them. You’re looking for all sorts of sources, you’re getting names of witnesses, and you’re going out and talking to them.
From there, you’re gradually building a theory of defense, one of which could be “that’s not me they’re talking about.” I’ve had certain cases where the government just got it wrong. They thought they had my client on 30 phone calls, but it wasn’t my client. They had the wrong person. There is also the theory of, “I was there, but I had no involvement in this. I didn’t know what was going on.” Particularly in business situations, there may be the possibility of the defense that “my lawyer told me that this is okay.” That is called an advice of counsel defense. “My lawyer told me that this was absolutely okay to do. I checked this out. I didn’t know that this is wrong. I didn’t intentionally do anything wrong.” There are all sorts of strategies that are available.
David Benowitz: For example, with electronic evidence the wiretaps or intercepts, it comes down to interpretation of what is being said. A lot of times, depending on your client, there may be a thousand phone calls and your client is on two of them and he’s charged in the conspiracy. You can use the absence of evidence to argue that your client is not guilty of what’s going on here and that maybe other people are, but he’s not.
Also, cooperating witnesses have a built-in incentive to lie. At the end of the case, when the judge instructs the jury, he or she tells the jury what law they are supposed to follow. The judge will typically tell a jury, “The testimony you heard from this cooperating witness is inherently suspect because they have a huge motive to say whatever the government wants them to say.” That is another way to refute the evidence that was presented because it’s been bought and paid for.
Some of the most common ones are in the Fourth Amendment context, which deals with unreasonable search and seizures. The way the government goes about gathering evidence can be problematic in certain cases. For example, in a drug conspiracy case the government may use a GPS tracker on a car to track that car’s movement. That has been the subject of a Supreme Court case that said that you have to get a warrant to do that. That’s typically where the constitutional issues arise. There are also constitutional issues arising in the Fourth Amendment context about whether or not it is legal or appropriate constitutionally to wiretap somebody, listen in on their phone calls, or seize their e-mails. There are a lot of Fourth Amendment issues in conspiracy cases.
David Benowitz: They come into play in formulating a defense because if the government has violated the Constitution when they were gathering evidence, we would be seeking to suppress that evidence. That means we would try to not allow the government to use that evidence against the client in a trial. That is typically how it would come into play.
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