The following is excerpted from an interview with DC federal conspiracy lawyer David Benowitz. He answers questions about the investigation and prosecution of federal conspiracy charges.
David Benowitz: Conspiracy cases are typically heard in federal court. That has been my experience and that’s the experience of most criminal defense lawyers. Big conspiracy cases, such as drug conspiracy or economic crime conspiracy cases, are typically prosecuted in federal court. That is primarily because federal agencies typically devote more money to this, particularly in the electronic interception wiretapping arena. A lot of times alleged conspiracies can cross between different states, so it’s easier for federal agencies to prosecute them.
David Benowitz: The prosecutor primarily needs to prove two things. They need to prove that there was an agreement between two or more people to do something illegal and that one of the people committed an overt act. The act itself does not have to be illegal. In other words, if two people conspired to rob a bank, that’s an agreement to do something illegal. If one of the people goes out and, for example, purchases a car legally, but it’s going to be used as a getaway car for bank robbery, the purchase of the car is not illegal but it is an overt act, so it can be used to prove the conspiracy.
David Benowitz: Typically in conspiracy cases, the government will use electronic evidence like wiretaps, phone taps, or something called a pen register with a trace, which essentially traces the way a phone is used. The government use cellphone tower data to try to show where people were when they were using their phone. More and more we see government agencies using the data from a phone. For example, if someone is using their phone and takes a picture with it, the government has a way to show where the phone was when the picture was taken.
The other thing that the government typically uses are informants. They have people who may have been arrested on a similar type of charge or unrelated charge and they keep them out of jail in exchange for using them to build their cases by providing information.
Finally, the government uses cooperating witnesses. People who have been charged, for example in a conspiracy case, will make a deal with the government and then they essentially flip. They start working for the government, they provide information for the government, and they testify against the other people who are charged.
There is a whole host of agencies that investigate conspiracy matters; the FBI, the DEA, various inspector generals’ offices for various agencies, Homeland Security, the Environmental Protection Agency, and the FDA. There is a whole host of agencies that do this.
Typically there are case agents or investigative agents that are involved. They do a lot of the background work to start and they’ll bring a case to a government agency or to a prosecutor. The prosecutor takes the case into court and helps get a judge to sign a search warrant to get more information on the case. Then there are the people who are charged and their attorneys.
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