Drug Offenses

Experienced Federal Attorneys Defending Drug Conspiracy Charges 21 U.S.C. 846

Conspiracy charges are frequently prosecuted crimes. The essence of a conspiracy charge is the underlying criminal agreement between two or more people to commit a crime. That said, a conspiracy has three elements: an agreement to commit a crime, intent, and an act to execute that agreement.

The lawyers at Oberheiden, P.C. are former federal prosecutors and experienced criminal defense counsel. If you are facing criminal charges, or if you are accused of being a member of a drug conspiracy, you should give our trusted team a call immediately to discuss your case. The consultation is free and confidential. Find out what former federal prosecutors have to say about your case! Call:  888-680-1745

National Drug Conspiracy Defense Team

David Raben
David Raben

Federal Trial Attorney

Local Counsel

Michael A. Rataj
Michael A. Rataj

Federal Trial Attorney

Local Counsel

Bill Tunkey
Bill Tunkey

Federal Trial Attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Drug Conspiracy Explained

(1) Agreement: One or two people must agree to commit a crime. Although many conspiracies involve an express agreement (i.e. two or more people discuss and agree to rob a bank), it is sufficient for the government to prove what is called an indirect or implicit agreement. Under an indirect agreement, it is clear from the circumstances that all participants were planning to, or, in fact, did execute a crime, even though they may not have stated it explicitly.

Members of a conspiracy do not have to know all the details, but they have to know and agree to, even implicitly, a basic illegal purpose. Further, it is not necessary that members of a conspiracy know the identity of all the other members. In fact, many conspiracies involve people that have never heard of one another and never dealt with one another directly; nonetheless, all members are ultimately connected through other members or the common goal to commit a crime. Importantly, a single, one-time agreement establishes one conspiracy even though there might be several criminal objectives.

Example: If A, B, and C agree to sell drugs each day for the next 10 days, there is only one conspiracy, even though the conspirators have agreed to commit multiple drug sales. If there are multiple agreements, then there are multiple conspiracies, even if each agreement has only a single criminal objective. If A, B, and C agree to sell drugs, but agree only to continue if they get a certain amount of money, and that condition is satisfied, and they thereafter agree to sell more drugs, then there are multiple conspiracies.

(2) Intent. Conspiracy is a specific intent crime. This means that merely approving someone else’s participation in a crime will not lead to a conviction for conspiracy. Instead, the defendant must intend to agree and must intend to commit the offense that is the object of the conspiracy.

An important question that comes up is whether the government must prove that the members of a conspiracy intended the execution of the target crime or whether the government must only prove the intent to enter a conspiracy.  In U.S. v. Feola, 420 U.S. 671 (1975), several defendants agreed to sell fake drugs to prospective purchasers. It was established that the defendants had agreed to take the money violently, should the purchaser notice the fakeness of the drugs. Unknown to the defendants, the buyers were undercover agents; one of the defendants assaulted the buyer without knowing that he was a federal officer. All defendants were charged and convicted of assault on a federal officer and of conspiring to assault a federal agent. The Court held that the federal conspiracy statute only requires the prosecutor to establish intent to engage in forbidden conduct without requiring evidence that the defendant was aware of the circumstance element — here, that the victim was a federal officer.  In the Feola decision, the Court noted that a conspiracy must merely contain “a corrupt motive or motive to do wrong,” which references the corrupt motive doctrine established in People v. Powell in 1875 (63 N.Y 88).

A special intent problem in conspiracy charges occurs when one of the members of the conspiracy provides ordinary goods and services. Can that member be convicted of conspiracy solely because he knows his goods or services are being used for a criminal enterprise? Or must the prosecutor prove that the defendant provided the goods or services with the purpose to advance and support a criminal activity? The majority of courts seems to agree that the knowledge that someone will use the provider’s goods or services to commit a crime is sufficient to impose criminal liability for conspiracy.

(3) Overt Act: The federal conspiracy statute at 18 U.S.C. § 371 requires proof of an overt act. That means that, in general, conspiracies require, in addition to an agreement, that at least one conspirator initiates an overt act in furtherance of the conspiracy before the crime is committed.

However, the U.S. Supreme Court decided in U.S. v. Shabani, 513 U.S. 10 (1994) that 21 U.S.C. § 846, the federal drug conspiracy statute, does not require any overt act because that statute is silent about the need for an overt act. In that decision, the Court concluded that congressional silence concerning an overt act means that Congress intended to criminalize conspiracy simply based on an agreement of two or more individuals to commit a criminal or unlawful act, or a lawful act by unlawful means. The Shabani decision is very important because it establishes that, under federal law, individuals can be charged of a federal drug conspiracy by simply entering an agreement to commit a drug-related offense. That agreement, as we have seen, does not even have to be express.

What Makes Conspiracies Easy for the Government?

Conspiracies offer prosecutors enormous advantages in trying criminal cases.  Conspiracy punishes individuals who agree to commit a crime. With that, conspiracy becomes a criminal offense long before the conspirators carry out their agreement. Unlike other crimes, conspiracy is punishable even if the target crime remains unfinished. Conspiracy is a powerful and popular weapon for prosecutors because it allows the government to take advantage of the evidentiary rules to obtain convictions.

First, each co-conspirator is deemed to have authorized other members of the conspiracy to act and speak on their behalf. That means that any statements that co-conspirators make in furtherance of the conspiracy can be admitted later at trial to prove the defendant entered into a conspiracy. The dilemma is enormous. In Bourjalily v. U.S. 483 U.S. 171 (1987), the U.S. Supreme Court decided that the use of the co-conspirators hearsay exception is a question of evidence to be decided by a judge under the federal rules of evidence. That said, a hearsay statement by a co-conspirator is admissible if the prosecutor, using both non-hearsay evidence and hearsay evidence, first proves by a preponderance of the evidence that a conspiracy exists. The jury may then use the hearsay evidence to decide whether a conspiracy existed. If the judge concludes that the prosecutor has not proven the existence of a conspiracy, the jury will be instructed to disregard the evidence.

Second, prosecutors may try all co-conspirators in a single trial. Doing so is far more efficient than having to select a new jury and have a new trial for each defendant. That also means that the government may prosecute in any district within the United States as long as any member of the conspiracy committed any act in furtherance of the conspiracy in that state, even if that act did not constitute a crime. This is an important exception to the constitutional protection contained in the Sixth Amendment, which provides that an accused has the right to trial “by impartial jury of the state and district where in the crime shall have been committed.”

Third, the law allows prosecutors to use indirect evidence to prove the existence of a conspiracy. Permitting proof of an agreement by circumstantial evidence is delicate because it challenges the due process protection to which each criminal defendant is entitled. Statutes require that one member of the conspiracy commit an overt act in furtherance of the conspiracy for the crime to be committed. See, e.g., 18 U.S.C § 371. If a statute is silent on the requirement of an overt act, as 21 U.S.C. § 846 (the federal drug conspiracy statute) is, no overt act element is required. That means that indirect evidence of an agreement may lead to a conviction of federal drug conspiracy charges.

Fourth, under the U.S. Supreme Court decision in Pinkerton v. U.S. 328 U.S. 640 (1946), each co-conspirator is liable for any reasonably foreseeable crime committed by a co-conspirator in furtherance of the conspiracy. In other words, the prosecutor does not have to prove that the defendant intended to add or otherwise facilitate or encourage the commission of the crime. The prosecutor only has to prove that a crime was foreseeable.  Under this Pinkerton rule, each conspirator is vicariously liable by entering into an agreement and authorizes every member of the conspiracy to act as agent to commit a crime.

Similarly, the prosecutor does not have to prove that the defendant knew or was reckless that his co-conspirator might commit specific crimes in furtherance of the conspiracy. Again, the prosecutor only needs to prove that the crimes were reasonably foreseeable, that is that the defendant should have expected or anticipated the commission of the crime. For example, in U.S. v. Alvarez 755 F.2d 830 (11th Cir. 1985), the Court affirmed the conviction of several drug conspirators for the death of a federal undercover agent when a proposed drug sale turned into a gunfight in which the defendants were not personally involved or present. The court held that although the death was not planned or intended, it was reasonably foreseeable that drug sale deals may involve other violent crimes, such as murder. In this case, the court concluded that the defendants must have been aware of the likelihood of violence or the use of firearms.

What Defenses Exist Against Conspiracy Charges?

In some instances, persons charged with conspiracy may be able to defeat the charges by raising a specific affirmative defense recognized by federal conspiracy law.  If the defendant can show that he renounced the conspiracy or withdrew from it, or that the conspiracy was impossible, he or she will be found not guilty.

Renunciation. Under most laws, defendants are afforded the defense of renunciation. The affirmative defense of renunciation requires that the defendants must have hindered the success of the conspiracy and that abandonment must be complete and voluntary. One example of successful renunciation is to inform law enforcement prior to the commission of a crime as long as the renunciation is not too late, and the success and completion of the crime can be avoided. Simply abandoning because a defendant realizes that he will get caught otherwise is not enough.

Withdrawal. A second defense is if a co-conspirator tells the other members of the conspiracy that he will withdraw and cease and desist from the conspiracy. This notice to all co-conspirators, to no longer intend to take part in the criminal plan in time for the other conspirators to also abandon the conspiracy, allows the avoidance of criminal sanctions for all future crimes but never for past crimes. Withdrawal from a conspiracy cannot undo already committed crimes. Federal courts explicitly permit the defense of withdrawal as long as the defendant takes affirmative acts inconsistent with the conspiracy’s goal and effectively takes reasonably steps to effectively communicate his abandonment to his co-conspirators U.S. v. U.S. Gypsum Co., 438 U.S. 422, 464-465 (1978).

Impossibility. Although legal and factual impossibilities rarely occur, a defendant cannot be convicted of conspiracy if the parties agree to commit an act that they believe is a crime, when in fact it is not a crime to commit the planned act. When there is no law prohibiting conduct, a conspiracy cannot exist despite the members’ willingness to break the law. Prosecutors are prevented from using conspiracy laws to punish the conduct of an individual whose participation in the target offense is logically required, but whose behavior is not made criminal by that offense. For example in Gebardi v. U.S., 287 U.S. 112 1932, the U.S. Supreme Court held that a woman could not be convicted of conspiracy to violate a statute that prohibits the transportation of a woman across state lines for purposes of prostitution. The agreement of the female to violate this statute, although necessary for conviction of the transporting individual, was not intended by the legislator to constitute a crime. Contact Oberheiden, P.C. online today.

Why Do Clients Trust Oberheiden, P.C.?

Over the years, Oberheiden, P.C. has built a stellar reputation as a trusted resource for business and individuals targeted by federal investigations. Following are a few reasons of the reasons why our clients trust us so much.

1. Experience

Federal practice differs greatly from state practice. Our attorneys enjoy decades of federal experience, so we can help you navigate the federal regulations maze – and head off federal investigations before they even happen. If a federal investigation is already underway, however, we have the ability to decisively intervene to minimize or even entirely eliminate the negative consequences.

2. Our Government Insights

Several of our lawyers joined us after distinguished careers as federal prosecutors for the U.S. Department of Justice. Their experience endows them with unique insights into how the federal authorities approach prosecutions, and it allows them to accurately predict the government’s next move. As a result, we have the ability to view your case from the opposing party’s point of view, and to use that understanding to build a case strategy that is tailor-made for the unique aspects of your case.

3. Our Results

We understand full well that ultimately, results are all that matters. With that in mind, we are gratified that so many of our clients have enjoyed outcomes of no civil or criminal liability after retaining us to represent them. We also take pride in our ability to resolve our clients’ cases with minimal time and expense.

4. Our Teamwork

The federal government is not afraid to “gang up” on subjects of federal investigations by assigning various investigators, federal agents, and prosecutors to their cases. In response, you need a cohesive team of your own. At Oberheiden, P.C., we place a high priority on our attorneys’ ability to work seamlessly as a single unit with one goal in mind – to get you the best possible outcome for your case.

5. Our Commitment

We are well aware of the multitude of risks inherent in federal investigations and prosecutions – millions of dollars in fines, loss of eligibility for government programs, bad publicity, diversion of corporate resources, and even prison time. We approach every case with the same urgency that we would exercise if it were our lives that were being targeted by the government.

5 Reasons to Choose Oberheiden P.C. for Your Federal Drug Case

1. We Have a Proven Track Record of Successfully Defending Innocent People Who Have Been Falsely Accused of Drug Crimes.

If you have been falsely accused of a federal drug crime, you must still defend yourself in order to avoid a conviction. We have a proven track record of successfully defending the falsely accused, and in the majority of cases we have secured dismissals prior to trial.  

2. We Help Our Clients Secure Bond and Stay Out of Jail.

In federal drug crime cases, securing bond can be a critical early step to protect your freedom and mitigate your risk of life-changing consequences. Our federal defense attorneys have an exceptional record of securing bond for our clients.

3. We Rely on Centuries of Federal Experience to Effectively Assert Our Clients’ Legal Rights.

When you choose Oberheiden P.C., your defense team will include career federal defense lawyers, former federal prosecutors, and former agents with the DEA and other federal agencies. This means that you will have centuries of relevant, high-level experience on your side.

4. We have the Legal Knowledge, Negotiation Skills, and Trial Savvy to Protect Our Clients’ Freedom.

In federal drug crime cases, the risk of long-term incarceration is very real. Federal drug crimes can carry anywhere from several years to multiple decades of imprisonment. At Oberheiden P.C., we have the knowledge, skill, and commitment required to protect your freedom.

5. Our Past Clients Recommend Us with Five-Star Reviews.

One of the top reasons why clients choose Oberheiden P.C. is our extensive record of five-star reviews. When your freedom is on the line, you need to know that your defense team has what it takes to protect you. See for yourself why our past clients recommend us without reservation.

Have You Been Accused of Drug Conspiracy 21 U.S.C. 846 ? Our Reputable Firm Can Help

The lawyers of the Oberheiden, P.C. are former federal prosecutors and experienced criminal defense lawyers that handle nothing but federal criminal cases, such as:

  • Federal Conspiracy Cases
  • Federal Drug Cases
  • Federal Drug Conspiracy Charges
  • International and Cross-Border Drug Trafficking
  • Conspiracy to Commit Healthcare Fraud
  • Conspiracy to Commit Medicare Fraud

Contact our established team today to discuss your case. Let our experienced defense attorneys help you!

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