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Prosecuting Criminal
Conspiracies
Klein Conspiracy: Conspiracy to Defraud the United States...... 1 By Gretchen C. F. Shappert and Christopher J. Costantini
Drug Conspiracies: The Confrontation Clause and Federal Evidence Rule 801(d)(2)(E)................................. 10 By Jason F. Cunningham
Conspiracy and Firearms—Will Firearm Conspiracy Charges Add Value to Federal Prosecutions?.............................. By Margaret S. Groban and Pamela J. Hicks
A Capital of Conspiracies: Prosecuting Violent-Crime Conspiracies in District of Columbia Superior Court....................... 26 By Seth Adam Meinero
Conspiracy and Internet Technology: Using the Child Exploitation Enterprise Statute to Prosecute Online Child Exploitation....... 37 By Keith Becker and John “Luke” Walker
Intra-Corporate Conspiracies: The Limits to Conspiring With Your Own Corporation......................................... 43 By Stephen Kubiatowski
Conspiracies in Indian Country............................. 45 By R. Trent Shores
Jury Instructions in Conspiracy Cases........................ By Lori A. Hendrickson
The Conundrum of Victims’ Rights in Conspiracy Cases........ 60 By Katharine Manning and Linda A. Seabrook
July
Volume 61 Number 4
United States Department of Justice Executive Office for United States Attorneys Washington, DC 20530 H. Marshall Jarrett Director
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In This Issue
JULY 2013 United States Attorneys’ Bulletin 1
Klein Conspiracy: Conspiracy to
Defraud the United States
Gretchen C. F. Shappert
Assistant Director
Indian, Violent & Cyber Crime Staff
Office of Legal and Victim Programs
Executive Office for United States Attorneys
Christopher J. Costantini
Senior Trial Attorney
Environmental Crimes Section
Environment and Natural Resources Division
I. Background
A. Statute
It is a federal crime “if two or more persons conspire... to defraud the United States, or any agency thereof in any manner or for any purpose.” 18 U.S.C. § 371 (2013). This language is the second clause (or “defraud prong”) of the federal conspiracy statute that creates criminal liability for anyone who conspires “either to commit any offense against the United States, or to defraud the United States... .” Id. (emphasis added).
B. History and overview
Violating the defraud prong of the conspiracy statute is often called a “ Klein Conspiracy” after a seminal decision by the United States Court of Appeals for the Second Circuit. See United States v. Klein , 247 F.2d 908, 921 (2d Cir. 1957) (affirming conviction for conspiracy to defraud in connection with tax evasion for whiskey sales where evidence showed concealment of income, including false statements on tax returns and in interrogatory responses). It can also be referred to as “Interference with Governmental Functions” or “Conspiracy to Defraud the United States.”
The gist of the crime is an agreement to defraud the United States by interfering or obstructing lawful government functions through “deceit, craft or trickery, [and] by means that are dishonest.” United States v. Caldwell , 989 F.2d 1056, 1058 (9th Cir. 1993) (quoting Hammerschmidt v. United States , 265 U.S. 182, 188 (1924)). Violating the defraud prong may also be accomplished by conspiring “to cheat the U.S. government of money or property, or to interfere with its operations.” United States v.Whiteford , 676 F.3d 348, 356 (3d Cir. 2012) (citing United States v. McKee , 506 F.3d 225, 238 (3d Cir. 2007)).
C. Elements
Generally, the Government must prove beyond a reasonable doubt that (1) the defendant entered into an agreement, (2) to obstruct a lawful function of the Government, (3) by deceitful or dishonest means, and (4) committed at least one overt act in furtherance of the conspiracy. United States v. Ballistrea , 101 F.3d 827, 832 (2d Cir. 1996) (citing United States v. Caldwell , 989 F.3d 1056, 1059 (9th Cir. 1993)). As expected, there are some slight variations in the circuits in formulating these elements. See, e.g. , United States v. Spurlock , 2007 WL 129010, at *3 (5th Cir. Jan. 12, 2007); United States v.
JULY 2013 United States Attorneys’ Bulletin 3
C. Level of specificity required
A conspiracy to defraud charge is not unconstitutionally vague when the indictment alleges with particularity “the essential nature of the alleged fraud” and identifies the specific conduct which furthered the conspiracy. United States v. Cueto , 151 F.3d 620, 636 (7th Cir. 1998); United States v. Helmsley , 941 F.2d 71, 90-91 (2d Cir. 1991) (“What is required is only that an indictment charging a defraud clause conspiracy set forth with precision ‘the essential nature of the alleged fraud.’ ”); United States v. Rankin , 870 F.2d 109, 113-14 (3d Cir. 1989) (holding that an indictment alleging that the defendants intended to impair the lawful function of the United States sufficiently charged a conspiracy to defraud the United States). As a practical matter, the statute requires generality given the wide array of proscribed conduct:
The meaning of “conspiracy to defraud” is framed in general terms; it is impossible for Congress to anticipate, identify, and define each and every context in which an agreement to act would qualify as a conspiracy to defraud.
Cueto , 151 F.3d at 635. Indeed, courts are reluctant to parse the conspiratorial object too finely. In United States v. Goldberg , 105 F.3d 770 (1st Cir. 1997), for example, defendants argued that to sustain its burden of proof, the Government was required to show that either the coconspirators’ intended to frustrate the IRS or that they intended to conceal some other crime. Id. at 773. This argument was rejected by the First Circuit because “it makes no doctrinal sense. A conspiracy can have multiple objects... and any agreed-upon object can be a purpose of the conspiracy and used to define its character.” Id. at 774 (citations omitted). The court concluded that the coconspirators shared a purpose to interfere with the IRS functions by filing false income tax returns, and that evidence of the conspiracy was supported by testimony that the defendant was a sophisticated businessman who arranged for the creating and filing of false tax documents over several years. Cf. Dennis v. United States , 384 U.S. 855, 863 (1966) (rejecting the argument that defendants’ specific purpose of filing false documents in violation of another statute precluded trial for conspiracy to defraud, noting that the indictment under the broader charge of conspiracy is permissible so long as it “properly reflects the essence of the alleged offense”).
III. Proving a Klein conspiracy
A. Interfering or obstructing a lawful government function
The notion of impeding a government function is quite broad and extends to a wide array of deceptive conduct. The statute places no condition on the method used to defraud the United States, and it reaches any “interference or obstruction of a lawful governmental function ‘by deceit, craft or treachery or at least by means that are dishonest.’ ” United States v. Collins , 78 F. 3d 1021, 1037 (6th Cir. 1996); Harmas , 974 F.2d at 1267. A conspiracy to defraud does not need to cause monetary loss to the United States Government. United States v. Puerto , 730 F.2d 627, 630 (11th Cir. 1984); see also Goldberg , 105 F.3d at 773 (explaining that the “purpose” element of 18 U.S.C. § 371 includes conspiracies to “interfere with government functions,” rather than being limited to conspiracies that aim to “deprive the government of money or property”); United States v. Overholt , 307 F.3d 1231, 1247 (10th Cir. 1993) (finding an 18 U.S.C. § 371 violation when the defendants defrauded “the United States by impeding, impairing, obstructing, and defeating the lawful function of the [EPA] and [DOD]”). It “is well established that the term ‘defraud’ as used in section 371 is ‘interpreted much more broadly than when it is used in the mail and wire fraud statutes.’ ” United States v. Ballistrea , 101 F.3d 827, 831 (2d Cir. 1996) (quoting United States v. Rosengarten , 857 F.2d 76, 78 (2d Cir. 1988)).
The statute encompasses “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of the government,” and “neither the conspiracy’s goal nor the means used to achieve it need to be independently illegal.” Cueto , 151 F.3d at 635 (citing United States v.
4 United States Attorneys’ Bulletin JULY 2013
Jackson , 33 F.3d 866, 870 (7th Cir. 1994)); United States v. Sans , 731 F.2d 1521, 1534 (11th Cir. 1984). If the Government’s evidence demonstrates that the defendant conspired to impair the function of a federal agency, no other form of injury to the Federal Government is required to establish a conspiracy to defraud the Government. See United States v. Dean , 55 F.3d 640, 647 (D.C. Cir. 1995). A Klein conspiracy can apply to any federal agency or district court. See, e.g. , United States v. Mateos , 623 F.3d 1350, 1370-71 (11th Cir. 2010) (Medicare); United States v. Mellen , 393 F.3d 175, 175 (D.C. Cir. 2004) (Department of Education); United States v. Overholt , 307 F.3d 1231, 1247 (10th Cir. 2002) (EPA and DOD); United States v. Haas , 171 F.3d 259, 270 (5th Cir. 1999) (FDA); United States v. Mann , 161 F.3d 840, 853 (5th Cir. 1998) (Federal Home Loan Bank Board); Cueto , 151 F.3d at 636 (FBI); United States v. Ballistrea , 101 F.3d 827, 831 (2d Cir. 1996) (FDA); United States v. Dean , 55 F.3d 640, 667 (D.C. Cir.
- (HUD); United States v. Notch , 939 F.2d 895, 901 (10th Cir. 1991) (IRS); United States v. Rankin , 870 F.2d 109, 113-14 (3d Cir. 1989) (U.S. District Court). It also extends to state government where the state is an agent of the Federal Government or otherwise administers a federal function. United States v. Gjerde , 110 F.3d 595, 601 (8th Cir. 1997); United States v. Barker Steel Co. , 985 F.2d 1123, 1136 (1st Cir. 1993).
B. Mental state
The Government must prove that the conspirators intended to harm the Federal Government, which can be established through circumstantial evidence. United States v. Whiteford , 676 F.3d 348, 359 (3d Cir. 2012) (citing United States v. McKee , 506 F.3d. 225, 238 (3d Cir. 2007)); United States v. Mann , 161 F.3d 840, 850-51 (5th Cir. 1998) (concluding that there was sufficient evidence that conspirators “concealed the true nature of the acquisition scheme from federal banking authorities”); United States v. Adkinson , 158 F.3d 1147, 1153-57 (11th Cir. 1998) (finding insufficient proof that defendants intended to impede the Government); United States v. Licciardi , 30 F.3d 1127, 1131 (9th Cir. 1994) (explaining that it is insufficient to prove only “dishonest means”; specific intent to defraud must be shown and the mental state requirement prevents “ostensibly innocuous conduct” from unwittingly being labeled as criminal); United States v. Rankin , 870 F.2d 109, 113-14 (3d Cir. 1989). To that end, a defendant may use a third party to reach and defraud the Government. See United States v. Tanner , 483 U.S. 107, 132 (1987); Licciardi , 30 F.3d at 1131. Thus, a defendant may be convicted even though “he did not contact agency personnel or submit documents to the agency.” Ballistrea , 101 F.3d at 829. The prosecution is not required to allege or prove that the United States was the intended victim, but must demonstrate that the United States was the ultimate target of the conspiracy under the defraud clause. Harmas , 974 F.2d at 1268 (citing United States v. Falcone , 960 F.2d 988, 990 (11th Cir. 1992) (en banc)).
While conspirators must have an agreed upon objective to impede the Government, it need not be the sole or even a major objective of the conspiracy. United States v. Gricco , 277 F.3d 339, 348 (3d Cir. 2002). As in all conspiracy cases, an agreement can be inferred from a “concert of action” and “may exist by tacit agreement; an express or explicit agreement is not required.” Mann , 161 F.3d at 847. See generally Goldberg , 105 F.3d at 774 (“Volumes could be written” on the “subtle problems in discriminating ‘purpose’ from ‘knowledge’ and in separating the objects of a conspiracy from its more remote consequences,” but “where the conspirators have effectively agreed to falsify IRS documents to misstate or misattribute income,... the factfinder may infer a purpose to defraud the government by interfering with IRS functions.”).
IV. Some recent cases
A. United States v. Coplan
Notwithstanding its breadth, or perhaps because of it, the Klein conspiracy has been subject to a number of recent attacks and refinements. The most recent reassessment of Klein is from its originating court, the Second Circuit. United States v. Coplan , 703 F.3d 46 (2d Cir. 2012), involved four partners and
6 United States Attorneys’ Bulletin JULY 2013
goal to maintain sanitized files need not themselves have been unlawful in order to show, as they did, that Shapiro and Nissenbaum were fully aware of the efforts to conceal the tax purposes of these shelters from the IRS.” Id. at 107.
B. United States v. Whiteford
A recent case out of the Third Circuit, United States v. Whiteford , demonstrates both the potential breadth of the Klein conspiracy as a prosecutorial tool, and the evidentiary challenges associated with its elements of proof. United States v. Whiteford , 676 F.3d 348, 351-56 (3d Cir. 2012). Curtis Whiteford and Michael Wheeler were Army Reserve officers deployed to Iraq in 2003 to work for the Coalition Provisional Authority (CPA), which was created by the Coalition Forces as the temporary governing body in Iraq. Whiteford and Wheeler, together with others, were subsequently charged in a 25-count indictment alleging a bid-rigging scheme that involved directing millions of dollars in contracts to companies owned by an American contractor engaged in construction projects in Iraq.
Count One of the indictment charged a scheme and artifice to defraud the United States. Defendants were also charged with related substantive offenses of bribery, honest services wire fraud, interstate transportation of stolen property, and possession and transportation of unregistered firearms. Following their convictions, the defendants conceded that the evidence was sufficient to show a conspiratorial agreement to defraud CPA and that overt acts were committed in furtherance of the conspiracy. However, they argued that there was insufficient evidence to prove their own participation in the conspiracy, undertaken intentionally and with knowledge of the conspiracy’s objectives. The Third Circuit dispensed with this argument, noting that both defendants were convicted of numerous substantive offenses, including bribery and interstate transportation of stolen property. Id. at 357-59. Both defendants also received generous benefits from the contractor co-defendant, outside of the normal procurement process, which included expensive gifts, airline tickets, weapons, and liquor. Id.
Defendants’ also challenged the sufficiency of the evidence proving that the CPA was part of the United States Government. In making this claim, the defendants asserted that any conviction under 18 U.S.C. § 371 requires that the United States be the intended target of the conspiratorial scheme. The Third Circuit responded along two lines of analysis. First, the defendants were charged under both prongs of § 371: the “offenses” prong and the “defraud” prong. Only the “defraud” prong requires that the conspirators intended to harm the Federal Government, which can be established through circumstantial evidence. Id. at 359 (citing United States v. McKee , 506 F.3d. 225, 238 (3d Cir. 2007)) (18 U.S.C. § 371 conspiracy to defraud, holding that there was sufficient proof of defendants’ “advocacy of non-tax- payment to the federal government as well as overt act and omissions... to effectuate those goals”); Rankin , 870 F.2d at 113-14. Having rejected the defendants’ attack on the “defraud” prong of the conspiracy, the Third Circuit held that under the “offenses” prong of § 371, the prosecution is not required to show that the United States was the intended target of the criminal activity. Whiteford , 676 F.3d at 360.
C. United States v. Mubayyid
Where the conspiracy to defraud embraces multiple unlawful objects, a jury may convict based upon evidence that the defendants agreed to any one of those objects. The conviction will be sustained even when proof at trial establishes a conspiratorial scheme similar to, but narrower in breadth and scope, than that charged in the indictment. A case in point is United States v. Mubayyid , 658 F.3d 35 (1st Cir. 2011), a Klein conspiracy, tax fraud, and false statement prosecution stemming from defendants’ involvement with Care International, Inc. (Care), a charitable organization known to support and promote Islamic jihad and fighters known as “mujahideen.”
The three defendants were indicted in 2005 for scheming to conceal material facts from a federal agency, for conspiring to defraud the United States, and for a series of false tax filings and false statement
JULY 2013 United States Attorneys’ Bulletin 7
offenses. The charges arose from the defendants’ affiliation with Care, beginning with Care’s incorporation in 1993 by defendant Muntasser. The stated purpose for Care’s status as a charitable corporation was providing worldwide humanitarian aid. Id. at 40.
The Government’s theory at trial was that Muntasser established Care in order to fraudulently obtain tax exempt status, so that contributions being used to fund mujahideen overseas could be deducted from individual tax returns as charitable donations. In furtherance of the scheme to defraud, between 1993 and 2002, each of the three defendants signed and filed at least one IRS Form 990, falsely describing the activities of Care. None of those forms revealed Care’s routine activities in support of jihad, which included hosting pro-jihad speakers and selling books and tapes on the subject of jihad. Each Form 990 filed by the defendants described Care as engaging in just four program services: food distribution, cash assistance to widows and orphans, medical assistance to refugees, and grants to other welfare organizations.
Following the Government’s presentation of evidence at trial, defendants moved pursuant to Rule 29 for a judgment of acquittal on several of the counts, including the conspiracy to defraud the Government, arguing that the evidence was insufficient to prove the charged crimes. The trial judge granted the motion as to obstructing the Internal Revenue Service. The judge also expressed significant reservations about the sufficiency of the evidence as to the conspiracy to defraud the Government. Following the defendants’ case, and in response to their renewed Rule 29 Motion for judgment of acquittal, the district court set aside the jury’s verdict as to all three defendants on Count 2, the conspiracy to defraud the Government, in violation of 18 U.S.C. § 371, and as to two of the defendants on Count 1, the scheme to conceal material facts, in violation of 18 U.S.C. § 1001. Id. at 46.
According to the district court, the conspiracy to defraud charged a single, unitary objective— obtaining Care’s tax-exempt status in 1993 and maintaining it thereafter. Id. at 45. The court concluded that the Government had presented insufficient evidence that Muntasser had conspired with anyone prior to obtaining Care’s tax-exempt status in 1993, that evidence of fraudulent tax filings to maintain Care’s tax-exempt status was insufficient, and, therefore, that the Government failed to establish the requisite conspiracy. Id.
On appeal, the Government argued that the district court erred in its finding of insufficient evidence to support the conspiracy to defraud the Government and that any variance between evidence presented at trial and allegations contained in the indictment did not prejudice the defendants. The Government contended, and the First Circuit agreed, that there was no evidence of a constructive amendment of the superseding indictment. Id. at 49-52.
The court’s analysis is instructive and carefully delineates the difference between a constructive amendment of an indictment and a non-fatal variance between pleadings and proof. The court began its analysis by quoting the purpose of the conspiracy to defraud as alleged in the superseding indictment:
impeding, impairing, interfering, obstructing and defeating through deceit, craft, trickery, and dishonest means the lawful functions of the IRS in the ascertainment, assessment, and determination of whether Care qualified and should be designated as a 501(c)(3) organization in 1993 and should continue to be accorded status as a 501(c)(3) organization thereafter.
Id. at 47.
As noted, the Government argued that the conspiracy to defraud charged a single agreement with two objects: an agreement to obtain and maintain tax-exempt status for Care. The Government acknowledged that there was no evidence presented at trial of a conspiracy to obtain that status and no evidence of any conspiracy to defraud in or about 1993 as alleged in the indictment. The evidence presented at trial proved a narrower conspiracy—a conspiracy to maintain tax-exempt status for Care through fraudulent tax filings. The conspiracy to defraud consisted of alleged acts clearly set forth in the
JULY 2013 United States Attorneys’ Bulletin 9
succeeded each other as authority figures in a small, closely-knit organization. In conclusion, the First Circuit emphasized that the significance of the defendants’ misrepresentations to the IRS, combined with “the single-mindedness of Care’s apparent mission,” established a conspiracy to fraudulently maintain Care’s tax-exempt status. Id. at 60. The court proceeded to reverse the district court’s judgment of acquittal and reinstated the jury’s verdict as to the Klein conspiracy. Id. at 74.
V. Conclusion
The Klein conspiracy is clearly an effective tool that prosecutors should consider when assessing the appropriate criminal charges to address fraudulent conduct. Charging the conspiracy to defraud prong of § 371 provides an alternative means of establishing the conspiracy. It also enables the prosecution to develop a theory of fraudulent conduct which is broader than common law fraud or fraud as defined in the mail and wire fraud statutes.
The Klein conspiracy also affords prosecutors the ability to address a wide array of frauds that ultimately obstruct the Federal Government, regardless of whether there was a financial loss and regardless of whether an individual defendant had direct contact with a federal agency.
However, the conspiracy to defraud prong is not without its limitations and courts have expressed concerns about its scope. See Mubayyid , 658 F.3d at 59 (“We are of course always wary of the dangers associated with a § 371 conspiracy.”) (quoting United States v. Goldberg , 105 F.3d 770, 775 (1st Cir.
- (“[T]he defraud clause of section 371 has a special capacity for abuse because of the vagueness of the concept of interfering with a proper government function.”)). In light of the concerns raised in Coplan , Whiteford , and Mubayyid , prosecutors would be well advised to consider charging both prongs of § 371 when applicable, and to draft the object (or objects) of the conspiracy to defraud with prospective trial evidence clearly in mind.
Finally, the Klein conspiracy—like all conspiracy statutes—enables prosecutors to develop and present the full panoply of evidence of an intended fraud. In other words, it provides a means for prosecutors to “tell the story” of criminal conduct in such a way that juries can decide the truth of the matter.❖
ABOUT THE AUTHORS
❏ Gretchen C. F. Shappert is the Executive Office for United States Attorneys Assistant Director for the Indian, Violent and Cyber Crime Staff. Ms. Shappert served as the United States Attorney for the Western District of North Carolina from 2004 to 2009. She was also an Assistant United States Attorney from 1990 to 2004 and specialized in violent crime and outlaw motorcycle gang prosecutions.✠
❏ Christopher J. Costantini is a Senior Trial Attorney in the Environmental Crimes Section. Before coming to the Department of Justice, Mr. Costantini served as a state environmental crimes prosecutor in Ohio and Pennsylvania.✠
10 United States Attorneys’ Bulletin JULY 2013
Drug Conspiracies: The
Confrontation Clause and Federal
Evidence Rule 801(d)(2)(E)
Jason F. Cunningham
OCDETF/Narcotics Coordinator
Office of Legal and Victim Programs
Executive Office for United States Attorneys
I. Introduction
Combating illegal drug manufacturing and trafficking networks is a core priority for the Department of Justice. The Department of Justice utilizes the Organized Crime Drug Enforcement Task Force (OCDETF) to focus on large-scale drug trafficking organizations, but every Assistant United States Attorney (AUSA) who prosecutes narcotics cases within the criminal sections of their United States Attorney’s office (USAO) contributes to this important effort. Most AUSAs start their careers as federal prosecutors in the general crimes units of their USAOs. While in the trenches, narcotics cases can form a large part of the line AUSAs’ caseloads.
Regardless of the type of controlled substance or size of the drug trafficking organization, at the most basic level a drug trafficking organization is merely a conspiracy on a larger scale. Federal prosecutors utilize 21 U.S.C. § 846 to prosecute conspiracies for drug trafficking offenses. According to the Executive Office for United States Attorneys, USAOs charged § 846 in 5,658 cases in FY 2012. These cases represent 40 percent of the 13,998 narcotics cases filed in FY 2012. Why indict a federal drug conspiracy? AUSAs have great flexibility in proving a conspiracy case. For example, the evidence presented at trial defines the conspiracy, not the dates in the indictment. The elements required to establish a violation of § 846 vary slightly depending on the circuit, but in general the Government must prove that: (1) two or more persons, directly or indirectly, reached an agreement to violate the controlled substances act; (2) those persons knew of the unlawful purpose of the agreement; (3) the defendant joined in the agreement willfully; and (4) the conspiracy involved a certain type and quantity of controlled substance. See United States v. Turner , 319 F.3d 716, 721-23 (5th Cir. 2003); United States v. Gamez- Gonzalez , 319 F.3d 695, 700 (5th Cir. 2003); United States v. Dumes , 313 F.3d 372, 382 (7th Cir. 2002). If one overt act in furtherance of the conspiracy occurred in your district, you can indict a conspiracy operating anywhere in the country. 18 U.S.C. § 3237(a) (2013); United States v. Santiago , 83 F.3d 20, 25 (1st Cir. 1996).
Federal prosecutors may employ Federal Rule of Evidence 801(d)(2)(E) to prove up a violation of § 846 through the use of statements by coconspirators who do not testify at trial. This allows a prosecutor to “tell the story” of a criminal conspiracy through witnesses who describe exactly what the coconspirators said in furtherance of the criminal enterprise. Although commonly referred to as the coconspirator exception to the hearsay rule, the Federal Rules of Evidence do not consider this hearsay. See F ED. R. EVID. 801(d). Consequently, every federal prosecutor who works narcotics cases must have a basic understanding of Federal Evidence Rule 801(d)(2)(E).
On its face, the Confrontation Clause of the Sixth Amendment of the United States Constitution appears to provide a barrier to the use of Rule 801(d)(2)(E) in this manner. The Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the
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1990). A statement does not actually have to successfully further the conspiracy, but need only promote it. United States v. Weaver , 507 F.3d 178, 182 (3d Cir. 2007). The Government cannot admit coconspirator statements after the conspiracy has concluded. Bruton v. United States , 391 U.S. 123, 124, 135-36 (1968) (an admission of a nontestifying defendant made after an arrest violated the defendant’s Confrontation Clause rights); Krulewitch v. United States , 336 U.S. 440, 444 (1949) (denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved).
A pretrial hearing to determine admissibility is not required in all cases. See United States v. Rivera-Donate , 682 F.3d 120, 131 (1st Cir. 2012); United States v. Johnson , 535 F.3d 892, 897 (8th Cir. 2008); United States v. Ruiz , 987 F.2d 243, 246 (5th Cir. 1993); United States v. Blevins , 960 F.2d 1252, 1256 (4th Cir. 1992). The First Circuit requires a district court faced with a challenge to the admission of a coconspirator’s statement to provisionally admit the statement and then wait until the end of the trial to determine admissibility. United States v. Vazquez-Botet , 532 F.3d 37, 65 (1st Cir. 2008); United States v. Colon-Diaz , 521 F.3d 29, 35 (1st Cir. 2008).
III. Confrontation Clause and Rule 801(d)(2)(E)
A. Historical interplay between the Confrontation Clause and Rule 801(d)(2)(E)
The Confrontation Clause of the Sixth Amendment states, “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him... .” U.S. CONST. amend. IV. Defense counsel have argued that the admission of out-of-court coconspirator statements by nontestifying co-defendants violates the Confrontation Clause of the Sixth Amendment enunciated in Bruton v. United States , 391 U.S. 123 (1968). See United States v. Singh , 494 F.3d 653, 658-59 (8th Cir 2007). The Supreme Court held in Bruton that the admission of an incriminating statement by a nontestifying co-defendant at a joint trial violates the defendant’s rights under the Confrontation Clause. Bruton , 391 U.S. at 137. In Bruton , a postal inspector, during the course of questioning both defendants in a St. Louis jail, obtained a confession from one defendant that both defendants had committed the armed robbery. Id. at 124. The confession in Bruton clearly occurred after the commission of the crime. See id. In Singh , the Eighth Circuit concluded that the Supreme Court’s ruling in Bruton does not preclude the admission of otherwise admissible statements by a coconspirator under Rule 801(d)(2)(E) because statements made by a coconspirator in furtherance of the conspiracy do not happen after the fact, as in Bruton. Singh , 494 F.3d at 658. Prosecutors need to clarify that the Court in Bruton prohibited the admission of a nontestifying co-defendant’s co-implicating confession. Subsequent case law has made clear that a prosecutor can avoid Bruton problems by redacting the statement to remove references to the defendant. See Richardson v. Marsh , 481 U.S. 200, 208-11 (1987); United States v. Lighty , 616 F.3d 321, 350 (4th Cir. 2010).
Moreover, the “Confrontation Clause does not require a showing of unavailability as a condition to admission of the out-of-court statements of a nontestifying [unindicted] co-conspirator.” United States v. Inadi , 475 U.S. 387, 387 (1986). In Inadi , the Government sought to admit recorded statements made to and by an unindicted coconspirator in a methamphetamine conspiracy. Id. at 390. At the district court’s request, the Government subpoenaed the witness, but he did not show for trial. Id. The Supreme Court reversed the Third Circuit, which had ruled that the Confrontation Clause established an independent requirement that the Government as a condition to admission of any out-of-court statements must show the declarant’s unavailability. Id. The Court reasoned that the unavailability rule did not apply to “co- conspirator statements. Because they are made while the conspiracy is in progress, such statements provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court.” Id. at 395.
JULY 2013 United States Attorneys’ Bulletin 13
The Supreme Court in Bourjaily specifically rejected the argument that the Confrontation Clause bars all coconspirator statements under Rule 801(d)(2)(E). Bourjaily , 483 U.S. at 182 (“A literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as ‘unintended and too extreme.’ ” (quoting Ohio v. Roberts , 448 U.S. 56, 63 (1980))). In evaluating the coconspirator case law and relying in part on Ohio v. Roberts , the Bourjaily court upheld the Sixth Circuit’s finding that the admission of a coconspirator’s statement did not violate the petitioner’s rights under the Confrontation Clause of the Sixth Amendment. Bourjaily , 483 U.S. at 182. In Roberts , the Supreme Court formulated a reliability test to determine whether the Government could admit such statements under the Confrontation Clause. Roberts , 448 U.S. at 66. The Court found that once a trial court established that a statement fell within Rule 801(d)(2)(E), the trial court did not have to put the coconspirator statement through the Confrontation Clause reliability test. Id. Echoing the Inadi decision, Chief Justice Rehnquist wrote the Bourjaily majority opinion,
We think that these cases demonstrate that co-conspirators’ statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).
Bourjaily , 483 U.S. at 183-84.
In short, the Supreme Court had concluded that the Rule 801(d)(2)(E) test provided the necessary guarantees of trustworthiness of the statement. In 2004, the Supreme Court decided Crawford v. Washington and potentially opened up a small window where the Confrontation Clause may prohibit the admission of coconspirator statements otherwise admissible under Rule 801(d)(2)(E).
B. Crawford v. Washington
The Supreme Court arguably abrogated Roberts in Crawford v. Washington , 541 U.S. 36 (2004). The Court barred the admissibility of testimonial out-of-court witness statements under the Confrontation Clause unless the witnesses are unavailable and the defendants had a prior opportunity to cross-examine them, regardless of whether such statements are deemed reliable by the court. Id. at 68. In Crawford , the Government introduced recorded statements made by the defendant’s wife in a police station after receiving the Miranda warning. Id. at 38-39. The state trial court admitted these statements under the Roberts reliability test. Id. at 41. The Supreme Court found that admitting the defendant’s wife’s statements violated the defendant’s Sixth Amendment rights. Writing for the majority, Justice Scalia wrote:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law.... Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
Id. at 68. Crawford cited to the petitioner’s brief for examples of inadmissible testimonial statements, but it concluded this reference with a vague reasonable expectation phrase:
Various formulations of this core class of “testimonial” statements exist: “ex parte in- court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar
JULY 2013 United States Attorneys’ Bulletin 15
nontestimonial because they were made unwittingly); United States v. Saget , 377 F.3d 223, 228 (2d Cir.
- (“ Crawford at least suggests that the determinative factor in determining whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be used at a trial.”); cf. United States v. Singh , 494 F.3d 653, 658 (8th Cir. 2007) (holding that coconspirator statements are generally nontestimonial and therefore do not violate the Confrontation Clause as interpreted by the Supreme Court in Crawford ).
Generally speaking, courts have found that statements to other conspirators, undercover agents, confidential informants, acquaintances, and within business records are admissible under Rule 801(d)(2)(E) and nontestimonial under Crawford. United States v. Patterson , 2013 WL 1365720, at * (10th Cir. Apr. 5, 2013) (citing Crawford for the proposition that statements made between coconspirators in furtherance of a conspiracy are “nontestimonial and present no Sixth Amendment problem”); United States v. Lee , 374 F.3d 637, 644 (8th Cir. 2004) (finding that casual statements to acquaintances, statements to a coconspirator, and business records are not testimonial); United States v. Reyes , 362 F.3d 536, 540-41 (8th Cir. 2004) (finding statements made by a coconspirator to undercover agents nontestimonial and admissible); cf. United States v. Cromer , 389 F.3d 662 (6th Cir. 2004) (holding that statements made by a confidential informant constituted testimonial statements). In brief, Crawford did not overrule Bourjaily within the context of nontestimonial statements, but it did create a Cromer situation where the Sixth Circuit referred to publications by two law professors to determine the definition of a testimonial statement under the Confrontation Clause. The language of Crawford and the objective belief of a reasonable person test indicate that the Government may face difficulty in admitting into evidence coconspirator statements made to law enforcement officers not working in an undercover capacity.
V. Law enforcement interrogations
A. Background
In Crawford , Justice Scalia specifically identified “police interrogations” as testimonial evidence barred by the Confrontation Clause. Law enforcement has interaction with citizens outside of the police station every day. In the federal context, agencies such as the Border Patrol, United States Park Police, and the United States Marshals have constant interaction with citizens on the border, in federal parks, and around federal property, to name just a few situations. OCDETF cases also involve local task-force officers and uniformed state highway patrols who interdict narcotic shipments. The United States Postal Investigative Service conducts controlled deliveries with uniformed delivery persons who may elicit statements. The Supreme Court has found that, within the province of the Fourth Amendment, mere police questioning and asking for an identification, even when officers have no basis for suspecting a particular individual, does not constitute a seizure. Florida v. Bostick , 501 U.S. 429, 434, 437 (1991) (confirming prior case law that established that “no seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage—so long as the officers do not convey a message that compliance with their requests is required”); I.N.S. v. Delgado , 466 U.S. 210, 216 (1984). However, in these situations, does every conversation with a uniformed law enforcement officer constitute a police interrogation under Crawford?
In Davis v. Washington , 547 U.S. 813 (2006), the Supreme Court addressed two fact patterns that call into question what constitute a police interrogation within the context of Crawford and the Sixth Amendment. In Davis , the Court did not strictly define police interrogations within the Confrontation Clause context, but it did set some parameters. Justice Scalia writing for the majority wrote,
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the
16 United States Attorneys’ Bulletin JULY 2013
circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822.
Applying this standard, the Davis Court evaluated two sets of statements. The first set of statements occurred in response to questioning by a 911 phone operator during an ongoing emergency. Id. at 817-18. The Supreme Court held that responses to a 911 operator technically met the definition of police interrogation, but did not constitute testimonial statements within the province of the Confrontation Clause because they described an ongoing emergency rather than events which happened in the past. Id. at 827.
The Court also evaluated statements made in the companion case, Hammon v. Indiana , where the state introduced testimony from a responding officer who interviewed the victim of a battery at her house the night of the incident but who later failed to show up for trial. In contrast to Davis , the Court found that the statements in Hammon resulted from interrogation proceedings similar to those in Crawford and prohibited their admission as testimonial statements. Id. at 829-30. The Davis Court focused on the fact that the Hammon witness answered questions in an isolated setting and responded to questions about past events. Id. at 827-28. Therefore, the Court found that the Hammon statements mirrored Crawford as “an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” Id. at 830. Although the statements examined in this case do not fall under Rule 801(d)(2)(E), Davis implicates the admissibility of coconspirator statements made to law enforcement within the context of this rule because it addresses when a declarant would “objectively foresee that his statement might be used in the investigation or prosecution of a crime.” United States v. Summers , 414 F.3d 1287, 1302 (10th Cir. 2005). The timing of the witness statements is a critical element in the analysis. The statements in Hammon occurred after the crime, whereas in Davis the statements occurred during the incident in question. By finding the statements in Hammon testimonial, the Court also found that police interrogations, within the context of Crawford , may include those outside of the formal setting of a police station.
B. United States v. Baines
A case from the District of New Mexico demonstrates that Crawford left the door open for an intrepid defense counsel and an adventurous trial court to interpret testimonial coconspirator statements made to law enforcement and prohibit the admission of those statements even though the evidence indicated the statements were made in furtherance of the conspiracy.
In United States v. Baines , 486 F. Supp. 2d 1288, 1300 (D.N.M. 2007), the district court barred the admission of coconspirator statements under Crawford , despite finding them admissible under Rule 801(d)(2)(E). In Baines , the defendants, traveling in separate cars with Pennsylvania license plates but in a caravan formation, stopped at a routine Border Patrol checkpoint on Interstate 25 in Dona Ana County, New Mexico. Dona Ana County is located in the south-central part of New Mexico and borders both Texas and Mexico. Interstate 25 runs north/south between the United States and Mexico. Border Patrol Agent Jose Meza questioned the occupants of the first car, Fuller and Campbell, regarding their citizenship and travel plans. Fuller responded that they were traveling from the Grand Canyon to Pennsylvania, which the agent found odd because of the checkpoint’s location south of the Grand Canyon and on a north/south highway. Agent Meza received permission to search the trunk of the car and smelled marijuana, but did not locate any narcotics. During the initial search, Agent Meza noticed a minivan with Pennsylvania plates behind Fuller’s vehicle. Agent Meza asked Fuller about the second car and Fuller responded that they were traveling together and said, “yes, we’re friends.” Id. at 1291. After sending the first car to a secondary inspection point, Agent Meza spoke with the passengers of the minivan, Johnson and defendant Baines. Agent Meza inquired into their citizenship and asked if they were traveling with
18 United States Attorneys’ Bulletin JULY 2013
at 1296. The Sutherland court also found that “[e]ven if... statements made to law enforcement fall within the limits of Rule 801(d)(2)(E), the Court still would find them to be inadmissible under Crawford v. Washington , since such statements are testimonial... .” Sutherland , 2008 WL 4858322, at *4. In a footnote, the court distinguished United States v. Singh , 494 F.3d 653 (8th Cir. 2007), and other Eighth Circuit cases by noting that those holdings do not control because they address coconspirator statements “to other conspirators, confidential informants, or undercover officers... .” Id. at *4 n.1. Notably, the district court in Sutherland did not need to decide admissibility of the statements under Crawford , but did so regardless. Although this case has no precedential authority, it still illustrates a possible gap in the law where a district court may prohibit the admission of statements made to law enforcement even though they were made in furtherance of the conspiracy. The Court here did not make any distinction between “during and after the traffic stop” and thus left that question open.
VI. What’s next?
Moving forward, the question remains whether AUSAs can introduce under Crawford out-of- court coconspirator statements made to uniformed law enforcement during and in furtherance of a drug conspiracy. For example, can an AUSA introduce “concealment statements” where a coconspirator lies to law enforcement to promote the conspiracy? By not defining testimonial in Crawford , the courts of appeals have adopted a reasonable person test that appears to have left open a small window where, within the context of a police encounter, a court may find the admission of those statements barred by the Confrontation Clause. Perhaps Baines and Sutherland represent outliers. Prosecutors should continue to argue that statements made in furtherance of the conspiracy are by nature nontestimonial under Crawford. The bulk of the case law supports this argument, and the underlining reasoning articulated by the Supreme Court in Inadi , that these “statements provide evidence of the conspiracy’s context that cannot be replicated,” still holds true. Additionally, using Davis , prosecutors could argue that the coconspirator statements made to law enforcement occurred in an emergency setting. Either way, USAOs on the southwest border that prosecute large numbers of drug conspiracy cases and who plan on using statements from Border Patrol traffic stops should take seriously the development of Crawford ’s progeny and the impact it may have on their future cases. Federal conspiracy cases that involve state and local uniformed law enforcement may also feel an unsettling impact delivered by courts that use a similar analysis to Baines and Sutherland .❖
ABOUT THE AUTHOR
❏ Jason F. Cunningham currently serves as the OCDETF/Narcotics Coordinator within the Office of Legal and Victim Programs at the Executive Office for United States Attorneys. He has served in this capacity since May 2012 and has worked with the Executive Office for United States Attorneys since
- He previously served as a Special Assistant United States Attorney within the United States Attorney’s Office in the District of Columbia from 2011 to 2012 and detailed to the White House in 2010.✠
JULY 2013 United States Attorneys’ Bulletin 19
Conspiracy and Firearms—Will
Firearm Conspiracy Charges Add
Value to Federal Prosecutions?
Margaret S. Groban
Assistant United States Attorney
District of Maine
Detailed to Office of Legal and Victim Programs
Executive Office for United States Attorneys
Pamela J. Hicks
Acting Deputy Chief
Asset Forfeiture & Money Laundering Section
Criminal Division
Firearm prosecutions typically rely on possession or use of a firearm by a single defendant. Title 18, § 922(g) and (n) is used to prosecute felons in possession and other individuals who possess firearms based on the defendant’s status as a prohibited person. See 18 U.S.C. § 922(g), (n) (2013). However, conspiracy statutes may prove to be a valuable tool in prosecuting defendants who either possess firearms or act in concert with others who either possess or use firearms in the commission of offenses. This article focuses on two such conspiracy tools— the federal firearm conspiracy statute and the Klein conspiracy.
I. The firearms conspiracy statute—18 U.S.C. § 924(o)
What do pirates on the high seas, convenience store robbers in Hampton, Virginia, members of an Outlaw Motorcycle Club operating with a chapter in Dayton, Ohio, and drug stash-house thieves in Miami, Florida, all have in common? All of these defendants were successfully prosecuted under 18 U.S.C. § 924(o) (among other offenses) for conspiracy to violate 18 U.S.C. § 924(c). While most prosecutors consider conspiracy charges and substantive § 924(c) charges, conspiracy to violate § 924(c) may well prove to be a valuable tool to combat a variety of charges where firearm use is integral to the criminal conduct.
What is § 924(o)? Section 924(o) reads: A person who conspires to commit an offense under [18 U.S.C. § 924(c)] shall be imprisoned for not more than 20 years, fined under this title, or both; and if the firearm is a machinegun or destructive device, or is equipped with a firearm silencer or muffler, shall be imprisoned for any term of years or life.
18 U.S.C. § 924(o) (2013).
This statute was passed as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110102, 108 Stat. 1796 (1994). As its plain language indicates, it prohibits conspiracy to violate § 924(c), which in turn prohibits a person from either “use[ing] or carr[ying]” a firearm during and in relation to a crime of violence or a drug trafficking crime or the possession of a firearm in furtherance of a crime of violence or a drug trafficking offense. 18 U.S.C. § 924(c)(1)(A) (2013). At a minimum, § 924(c) requires imposition of a mandatory consecutive sentence of 5 years, which increases to 7 years if the firearm is brandished, or 10 years if the firearm is discharged. Id. These
