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Conspiracy

Conspiracy

The most common prosecutorial tool used by the government is conspiracy.  The wide ranging impact of conspiracy law has been felt throughout the federal criminal system.  Conspiracy can apply to almost every substantive federal crime, and the penalties for conspiracy are the same as if you were convicted of the actual commission of the crime.  The effect of a conspiracy conviction can have life altering consequences based on nothing more than an agreement to commit a crime.  Conspiracy cases can carry mandatory jail time.  It is critical to get an attorney who understands the complex area of conspiracy law.

The Henry Law Firm PLLC has represented individuals and corporations charged with conspiracies of all kinds.  Our experience trying conspiracy cases in front of a jury and filing appeals attacking conspiracy convictions gives us significantly knowledge in the area of conspiracy law.  Our attorneys have successfully tried cases and saved clients years in prison.  In some cases we have been able to avoid charges altogether or take advantage of other programs that lead to charges being dismissed.

Conspiracy can be defined very simply as an agreement to do something illegal.  In trying to distill what a conspiracy entails, courts have said:

“The essence of the crime of conspiracy … is the agreement to commit one or more unlawful acts.” United States v. Praddy, 725 F.3d 147, 153 (2d Cir.2013) (emphasis in original) (citation omitted); see also Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (“Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.”); United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128 (1940); United States v. Beech–Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.1989) (“The gist of conspiracy is, of course, agreement.”); United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir.1977). Put differently, a conspiracy is the “ ‘combination of minds for an unlawful purpose.’ ” Smith v. United States, ––– U.S. ––––, 133 S.Ct. 714, 719, 184 L.Ed.2d 570 (2013) (quoting *551 United States v. Hirsch, 100 U.S. 33, 34, 25 L.Ed. 539 (1879)).2

Elements

To be convicted of a conspiracy the government must prove certain elements.  For most  conspiracies those elements include:

Conspiracy requires proof of: (1) an agreement among the conspirators to commit an offense; (2) specific intent to achieve the objective of the conspiracy; and (3) usually, an overt act to effect the object of the conspiracy.

United States v. Pinckney, 85 F.3d 4, 8 (2d Cir. 1996)

Agreement

The first element of conspiracy is an agreement.  To be convicted of a conspiracy an agreement must be proven.  To prove an agreement a person does not have to sign a contract, give a specific indication of agreement or reach any exact terms.  As the courts have found:

It is not necessary to prove that the defendant expressly agreed with other conspirators on a course of action; it is enough, rather, to show that the parties had a tacit understanding to carry out the prohibited conduct.

United States v. Ulbricht, 31 F. Supp. 3d 540, 551 (S.D.N.Y. 2014)

Objective of the Conspiracy

The object of the conspiracy, or the criminal objective, must be known in order to be convicted of a conspiracy.  Courts make it clear that a general agreement is insufficient saying:

To be convicted of a conspiracy, a defendant must know what “ ‘kind of criminal conduct was in fact contemplated.’ ” Rosenblatt, 554 F.2d at 38 (quoting United States v. Gallishaw, 428 F.2d 760, 763 n. 1 (2d Cir.1970)). That is, the defendant has to know what the “object” of the conspiracy he joined was. A “general agreement to engage in unspecified criminal conduct is insufficient to identify the essential nature of the conspiratorial plan.” Rosenblatt, 554 F.2d at 39. Indeed, “[t]he government must prove that the defendant agreed to commit a particular offense and not merely a vague agreement to do something wrong.” United States v. Salameh, 152 F.3d 88, 151 (2d Cir.1998) (citation and internal quotation marks omitted) (emphasis in original). That said, “[t]he government need not show that the defendant knew all of the details of the conspiracy, so long as he knew its general nature and extent.” United States v. Huezo, 546 F.3d 174, 180 (2d Cir.2008) (citation and internal quotation marks omitted).

Knowledge

The proof needed to establish the knowledge required to join a conspiracy varies greatly depending on the circumstance.  However, multiple inferences can be made based on a person’s conduct as the Southern District of New York pointed out:

The quantum of proof necessary at trial to sustain a finding of knowledge varies. “A defendant’s knowing and willing participation in a conspiracy may be inferred from, for example, [his] presence at critical stages of the conspiracy that could not be explained by happenstance, … a lack of surprise when discussing the conspiracy with others, … [or] evidence that the defendant participated in conversations directly related to the substance of the conspiracy; possessed items important to the conspiracy; or received or expected to receive a share of the profits from the conspiracy.”

United States v. Ulbricht, 31 F. Supp. 3d 540, 552 (S.D.N.Y. 2014)

Overt Acts

Most conspiracies require an overt act before a conviction can be won.  However, that is not true in drug conspiracies.  The Supreme Court specifically found:

Proof of overt act is not required to establish violation of drug conspiracy statute.
United States v. Shabani, 513 U.S. 10, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994)

Single vs. Multiple Conspiracies

Conspiracies can exist as a single conspiracy or as multiple conspiracies.  A single conspiracy may be characterized:

“[A]cts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) (internal quotation marks and citations omitted). In determining whether a single conspiracy involving many people exists, the question is whether there is a *553 “mutual dependence” among the participants. Geibel, 369 F.3d at 692 (citation omitted); United States v. Williams, 205 F.3d 23, 33 (2d Cir.2000). The Government must show that each alleged member of the conspiracy agreed to participate “ ‘in what he knew to be a collective venture directed towards a common goal.’ ” United States v. Eppolito, 543 F.3d 25, 47 (2d Cir.2008) (quoting United States v. Berger, 224 F.3d 107, 114 (2d Cir.2000)); see also Geibel, 369 F.3d at 692 (explaining that when two participants do not mutually benefit from the other’s participation, a finding of a single conspiracy is less likely).

United States v. Ulbricht, 31 F. Supp. 3d 540, 552-53 (S.D.N.Y. 2014)

However, if a single conspiracy cannot be proven, or multiple conspiracies exist, a person may be entitled to argue a multiple conspiracies defense and obtain an acquittal if the government did not specifically allege every separate conspiracy.

How We Can Help

The Henry Law Firm PLLC has significant experience representing individuals in conspiracy charges in trial and on appeal.  We have successfully defended people charged with drug conspiracies, conspiracies to defraud, murder conspiracies and many others.  We are familiar with how prosecutors charge conspiracy and the defenses needed to obtain a successful outcome.  Call the Henry Law Firm PLLC at 646-820-0224 to learn how our innovation and experience can help you.

Can I Plead the Fifth in a Company Internal Investigation?

You probably already understand that only a state, local, or federal prosecutor can bring criminal charges against you, and that your employer’s attorneys or outside law firm may have the power to discipline you in the form of suspension or termination, but they cannot put you in jail. But what your employer’s lawyers can do is to report information about you – including statements you have made and your work emails and other records – to the government, which can then use that information in any way it pleases, including in preparing civil actions and/or criminal charges against you. Which raises the question of whether it is appropriate for an employee, manager, director, officer, or other individual to raise the protections of the Fifth Amendment in an internal investigation conducted by a business entity.

Why Companies Report Misconduct to the Government

It may seem counterintuitive that your employer would self-report incriminating information relating to its employees’ work on their behalf – as companies are often but not always liable for the acts of employees within the scope of employment – but such is the nature of white collar civil and criminal investigations in recent decades.

More and more, state and federal investigators incentivize companies to self-report wrongdoing by employees. Common ways in which this occurs is that prosecutors and companies will reach a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA), by which the company will avoid prosecution itself by agreeing to undertake other actions, such as paying fines, instituting new procedures, and/or taking actions against individuals in the company perceived to be problematic. This is generally only done when the company makes efforts to self-report, e.g. handing over the findings of an internal investigation.

This of course can be a relatively good outcome for the company, but not for the individuals who are on the receiving end of the company’s internal actions. Furthermore, the government may bring civil and/or criminal proceedings against the individuals based on information provided by the company.

You Are Not Obligated to Incriminate Yourself

The Fifth Amendment protection against self-incrimination applies only to the government and its agents, meaning that it would only make sense for an individual to invoke his or her Fifth Amendment rights when being questioned by an agent of a state, local, or federal government.

That said, you are never obligated to respond to questions from private parties, including your supervisor, HR department, in-house counsel, or an outside law firm conducting an internal investigation. Of course, your employer is, in many cases, not obligated to continue employing if you refuse to participate in an internal investigation related to your conduct at work.

Thus, rather than invoking your Fifth Amendment right in an internal investigation where you have reason to believe negative consequences might flow from what you say, a more appropriate action is to work with an experienced white collar defense attorney who can assess your situation and help you strategize what your best options are in light of your circumstances. Those options might range from simply providing your employer with all information requested to being represented by an attorney during all questioning, and so on, but only a white collar attorney that represents you can provide you with that guidance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

What Does it Mean to Have “Constructive Possession” of a Firearm in New York?

Although we often hear about a lack of gun control in the U.S., federal agents arrest around 7,000 individuals for firearms violations every year, and many more arrests are made at the state level. While the Second Amendment and current federal regulations do allow for legal ownership of a wide variety of firearms, you can face stiff criminal penalties if arrested for possession of an illegal weapon. Furthermore, felony convicts and others who have had their gun ownership rights revoked also face arrest, which are among the most common type of federal firearms. States and localities such as New York do go further than federal law in regulating firearms, requiring permits for pistol ownership and outlawing assault rifles. But what does it mean to have possession of a firearm in New York? Under the concept of “constructive possession,” defendants in firearms crime cases face legal challenges in asserting their criminal defense in New York.

Possession and Constructive Possession Defined

First off, it should be understood that possession is not the same as ownership. If you are holding a firearm, you are possessing it, regardless of whether someone loaned it to you even for a brief moment, you are transferring it to someone else, or you simply found it.

Constructive possession takes the concept of possession a step further. It says that a person can be considered to have possessed a firearm – and thus run afoul of any relevant firearm laws – even if the firearm was not literally in their possession. Specifically, New York courts have held that: a defendant has property in his or her constructive possession when that defendant:

  • exercises a level of control over the area in which the property is found, OR
  • exercises control over the person from whom the property is seized, AND
  • this control was sufficient to give the defendant the ability to use or dispose of the property

New York legal authorities have also said that two people can both have constructive possession over contraband when: “they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found.”

Defending Against Constructive Possession Charges

Taking the above definition, this means that prosecutors can bring charges for illegal possession of a firearm when the defendant is not literally possessing the firearm on his body or in his personal belongings, but where a gun is simply found on a person over whom he has control (e.g. a spouse, a child, a subordinate, etc.) or in property he possesses, such as a shared home, vehicle, or business.

That said, it is important to remember that prosecutors must prove every element of a firearms charge beyond a reasonable doubt, and an experienced criminal defense attorney can cast doubt and present contrary arguments against the prosecutor’s allegations.

Such defenses can take any number of specific forms, but might include questioning whether a defendant did in fact have control over the person or the property on which the firearm was found or whether the defendant was even aware of the presence of the firearm. Talk to an experienced criminal defense attorney about the best defense in your particular circumstance.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

Are There Legal Defenses to Extortion/Blackmail?

Extortion and blackmail crimes both involve threats made against another person to do violence to that person or their property – which can include publicizing facts about that person to damage his or her reputation – for the purpose of extracting money or other property from the person. Under both state and federal law, an extortion conviction is a felony that can mean many years in prison, fines, as well as a ruined personal and professional reputation. But sometimes people are investigated and/or charged with extortion based on exaggerations or statements taken out of context. If you are under investigation for extortion, it is important to obtain experienced legal counsel to present your best defenses to the potential charges.

Lack of Evidence to Support an Extortion Charge

Extortion statutes may vary across states and at the federal level, but in general they require that the defendant have knowingly made a threat to damage the person, property, or reputation of a victim with the purpose of obtaining money or other property from the victim.

When a disagreement between parties gets out of control, an extortion or blackmail allegation may arise based on what has actually just heated negotiations and discussions which should not be taken literally or which were not based on an actual intent to threaten another person. Your defense attorney can assess all of the available evidence for relevance and strength and cast doubt on the prosecutor’s allegations in this regard, as the prosecutor is required to prove your intent beyond a reasonable doubt.

Lack of Admissible Evidence

Even where evidence may support elements of an extortion or blackmail charge, that evidence can only be used against you where it is admissible based on being legally obtained by police and other government agents.

If evidence was obtained through illegal means – including custodial interrogations that did not include Miranda warnings, detainments not supported by reasonable suspicion, questionings that did not honor your right to counsel, searches not conducted via a warrant or a warrant exception – your attorney can successfully argue that such evidence should not presented to a jury and that charges should be dismissed.

Attempted Extortion or Conspiracy to Commit Extortion

When no money or property was actually obtained in response to an alleged extortion threat, prosecutors may still try to bring charges based on an attempt to extort or even a conspiracy (agreement) to commit conspiracy. In such cases, your attorney can argue that you did not have the requisite intent for either an attempt or conspiracy and/or that no significant steps were actually taken in furtherance of committing extortion.

Other Defenses to Extortion

Other defenses that your attorney may raise to an extortion charge could include:

  • You performed illegal acts under duress
  • You were voluntarily or involuntarily intoxicated at the time, negating the mental intent
  • You otherwise lacked the mental capacity to commit extortion

Speak to an experienced defense attorney at the first sign of an extortion investigation to begin mounting your best defense to all potential charges.

Contact a New York Extortion Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

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