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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 Go to Jail For Using Bitcoin?

Bitcoin and similar “crytpocurrencies” have been around for years, but Bitcoin is getting a lot more attention than usual in 2017, primarily based on the fact that such currencies have risen in value six times over since the start of the year, and $6.6 billion in digital currencies are now traded daily. This growth in digital currencies is having some effect on mitigating the cloud of controversy that has hung over Bitcoin and similar currencies, which is partly due to the mysterious origins of Bitcoin (for years its inventor remained anonymous) and the frequent use of Bitcoin in criminal transactions. But, as digital currency grows in popularity, more individuals and businesses are justifiably interested in learning more while understandably cautious about the legality.

Digital Currency Usage Is Not Inherently Illegal

Individuals and businesses are permitted to use Bitcoin and other similar currencies, although some states such as New York do impose licensing requirements on certain parties. Under New York State’s recently promulgated BitLicense rules, parties engaged in the following activities are required to obtain a BitLicense from the state if they are conducting business in New York or with people who reside in New York:

  • Virtual currency transmission
  • Storing, holding, or maintaining custody or control of virtual currency on behalf of others
  • Buying and selling virtual currency as a customer business
  • Performing exchange services as a customer business
  • Controlling, administering, or issuing a virtual currency

Customers and merchants who merely conduct transactions involving digital currency are not required to obtain a license in New York.

Criminal Liability With Bitcoin

The most common situations in the news involving criminal liability for use of Bitcoin and similar currencies is when the currency is used for illegal purposes. Several high-profile individuals have been convicted of crimes in connection with an online marketplace called Silk Road where illegal transactions involving criminal acts for hire, illegal pornography, and drug trafficking were facilitated by use of Bitcoin.

In one case, an entrepreneur who ran a service facilitating Bitcoin transactions pled guilty and served time in federal prison for facilitating the purchase of illegal drugs on Silk Road using Bitcoin. In another case, the founder of Silk Road was sentenced to life in prison for his role in facilitating illegal transactions using Bitcoin, and his trial included evidence of five potential murder-for-hires that he sought out “to protect his burgeoning creation from informants.”

Bitcoin and similar currencies have also been factors in criminal investigations and prosecutions involving fraudulent securities dealings as well as money laundering. Ultimately, many of the same finance-related crimes that can be committed with traditional currency can also be committed with digital currency, although, perhaps ironically given the attraction many of had to the supposed privacy of digital currency, crimes involving digital currency have become easier for law enforcement to investigate in some cases.

When faced with any questions over potential criminal liability for a proposed transaction or one that has already occurred, parties are highly encouraged to speak with an experienced criminal defense attorney regarding their situation.

Contact a New York White Collar 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, and aggressively pursues appeals on their behalf. To take immediate action to defend your rights in a white collar investigation or prosecution, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

When Do I Have a Right to an Attorney?

As residents of the United States – whether citizens or not – we enjoy the greatest legacy of constitutional rights against government overreach into our personal lives that the world has known, and this legacy is most famously embedded in our constitution’s approach to the rights of people against police and prosecutors. But, in many cases, unless a person is actually aware of what those rights are and how to utilize them, those rights can be wasted. This is especially true with regard to our constitutional right to an attorney. Below we briefly discuss what that means and how you can assert those rights.

Don’t Speak: The Fifth Amendment Right to an Attorney

We often speak of the “right to an attorney” as if it were a single right provided by the constitution, but really there are two distinct but related sources of this right in the constitution. The first is the Fifth Amendment, which states that a person has the right against self-incrimination. What that means is that you cannot be forced to give the government damaging information about yourself that could lead to a conviction.

The federal courts have more fully illustrated what that means by also ruling that a person does not need to provide any information to a government agent questioning him. In addition, the courts have ruled that, when a person tells the police that he wants to speak to an attorney before speaking to police, the police must stop all questioning.

Note that this right does not depend on the police arresting you or “reading you your rights,” and instead a person can invoke this right anytime the police are questioning him. If the police keep questioning, then they are in violation of the law and any statements provided will be inadmissible at trial.

“The Assistance of Counsel”: The Sixth Amendment Right to an Attorney

In addition to the right to a lawyer that attaches to every person’s right against self-incrimination, the Sixth Amendment of the Constitution also guarantees every person “the Assistance of Counsel for his defense” at trial. As with the Fifth Amendment, the federal courts have ruled that this constitutional guarantee means that a defendant not only has a right to an attorney at a criminal trial but also has a right to an attorney during pre-trial proceedings, starting from the time that formal proceedings are brought against the defendant, such as through an indictment.

What this means is that any statement obtained from a defendant by government agents without his attorney present is inadmissible. But, putting this together with the Fifth Amendment rights, what every person should understand is that they always have a right to an attorney when approached by government agents – regardless of whether they have been read their rights, arrested, or formally charged – and speaking to police or other agents without an attorney can result in self-incrimination.

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.  

In What Circumstances Can a Drug Conviction Be Appealed?

Whether you have been convicted in state or federal court for a drug crime, you already know that serious consequences to your liberty and future can follow, including a long prison sentence, steep fines, and lasting damage to your personal and professional reputation. Which makes appealing your drug conviction a hugely important step to consider. Not all convictions involve circumstances providing grounds for appeal, but below are a few common grounds for appealing a drug crime conviction. Consult with an experienced drug crime appeals attorney to learn more about grounds for appeal in your situation, and do not delay as appeals are often extremely time-sensitive.

Improper Police Action in Detaining or Arresting You

The police must have reasonable suspicion that you have violated the law to stop and detain you, whether on the street or in your car. If they did not, and evidence leading to your conviction was collected as a result, you may have grounds to appeal. In addition, police must have probable cause that you committed a crime before arresting you, and failure to do so can be grounds for appeal.

Failure to Provide You With an Attorney

If the police obtained statements from you leading to your conviction while in custodial interrogation (e.g. where you were detained) prior to reading you your Miranda rights, such statements may be thrown out on appeal. In addition, if you asked for a lawyer but did not receive one, or if the police questioned you without a lawyer after you were indicted, you may have grounds to appeal.

Improper Admission or Denial of Evidence

Convictions in drug crimes are often based on the nature of the evidence admitted against you, either in witness statements or physical or documentary evidence. If a judge improperly allowed the admission of evidence against you in violation of procedural rules or your constitutional rights (such as where the police violate your Fourth Amendment rights with an illegal search), this can be grounds for appeal. Likewise, an improper  failure to allow the admission of evidence that would have helped exculpate you may also be grounds for appeal.

Issues with Your Criminal Jury

A number of grounds for appeal can arise with regard to the jury that handed down your conviction. If prosecutors used improper jury selection techniques – such as selecting jurors based on race – this can be grounds for appeal. Also, if jurors engaged in misconduct by failing to follow the judge’s orders, this can also be grounds for appeal.

A Lack of Sufficient Evidence Against You

While a jury makes the determination of guilt against you, the question of your guilt should not even go to the jury if the prosecutors had not presented evidence such that it would be reasonable for a jury to find that you were guilty beyond a reasonable doubt. An appeals attorney can examine your trial record to determine whether this is the case.

Improper Judge Instructions

If the judge improperly instructed the jurors with regard to how they should analyze the facts presented at your trial in the light of the legal structures, this can be grounds for appeal.

Failure of Your Counsel at Trial

Unfortunately, many attorneys are incompetent or at least fail to provide adequate counsel at trial. If this was the case, you may have grounds for appeal.

Improper Sentence

When a judge hands down a sentence after a conviction that is not supported by the facts or the law, you can appeal the sentence.

Contact a New York Federal Drug Crime Appeals 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 and aggressively pursues appeals on their behalf. To take immediate action to appeal your drug crime conviction, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

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