Reply Brief — United States v. Jimenez Recio

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No. 01-1184

ett z . ‘< i

Jn the Supreme Court of the Gnited States

UNITED STATES OF AMERICA, PETITIONER

Uv.

FRANCISCO JIMENEZ RECIO AND

ADRIAN LOPEZ-MEZA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JONATHAN L. MARCUS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a conspiracy ends as a matter of law when

the government frustrates its objective.

(I)

TABLE OF CONTENTS

Opinion below

Jurisdicti

Statement

Summary of argument ....

Argument:

A conspiracy does not terminate when its objectives

have been frustrated or become impossible to

attain

A. The gravamen of a conspiracy is an agreement

to accomplish an illegal objective

B. Aconspiracy may be initiated and persist

regardless of the factual possibility of achieving

its goal

C. Aconspiracy does not terminate merely because

achieving its goals has become impossible ...............

D. The Ninth Circuit’s holding that a conspiracy

terminates if its goal is factually impossible to

achieve creates obstacles to successful law

enforcement and bestows an unwarranted and

arbitrary windfall on conspiracy defendants ...........

Conclusion

TABLE OF AUTHORITIES

Cases:

Beddow v. United States, 70 F.2d 674 (8th Cir.

1934)

Braverman v. United States, 317 U.S. 49 (1942) ..............

Callanan v. United States, 364 U.S. 587 (1961) ...............

Commonwealth v. Hunt, 45 Mass. (4 Met.) 111

(1842)

Craven v. United States, 22 F.2d 605 (1st Cir.

1927), cert. denied, 276 U.S. 627 (1928)

(IIT)

onw wh

8S &

17,18

12, 20

13, 14

Cases—Continued: Page

Drew v. Thaw, 235 U.S. 482 (1914) 19

Grunewald v. United States, 353 U.S. 391 (1957) ............ 8, 20

Hammerschmidt v. United States, 265 U.S. 182

(1924) 15

Hyde v. United States, 225 U.S. 347 (1912) ..........-+-+. 15, 16, 21

lannelli v. United States, 420 U.S. 770 (1975) .........0-0000- 12

Pereira v. United States, 347 U.S. 1 (1954) 14

Pinkerton v. United States, 328 U.S. 640 (1946) .............. 14

Poulterer’s Case, 77 Eng. Rep. 813 (Star Chamber,

1611) 17

Salinas v. United States, 522 U.S. 52 (1997) 8,15

State v. Moretti, 244 A.2d 499 (N.J.), cert. denied,

393 U.S. 952 (1968) 16

Thompson v. State, 17 So. 512 (Ala. 1895) 17

United States v. Aguilar, 515 U.S. 593 (1995) ...........0-000- 16

United States v. Bayer, 331 U.S. 532 (1947) 12,14

United States v. Belardo-Quifiones, 71 F.3d 941

(1st Cir. 1995) 8, 18

United States v. Bloch, 696 F.2d 1213 (9th Cir.

1982) . 23

United States v. Castro, 972 F.2d 1107 (9th Cir.

1992), cert. denied, 507 U.S. 944 (1993) 22

United States v. Cruz, 127 F.3d 791 (9th Cir.

1997), cert. denied, 522 U.S. 1097 (1998) ..... 4, 11, 21-22, 25, 27

United States v. Davis, 226 F.3d 346 (5th Cir.

2000), cert. denied, 531 U.S. 1181 (2001) 23

United States v. Everett, 700 F.2d 900 (3d Cir.

1983) 28

United States v. Felix, 503 U.S. 378 (1992) 12,14

United States v. Feola, 420 U.S. 671 (1975) 15

United States v. Hsu, 155 F.3d 189 (3d Cir. 1998) ........... 18

United States v. Jones, 765 F.2d 996 (11th Cir.

1985) 19

United States v. Kissel, 218 U.S. 601 (1910) 20

Cases—Continued: Page

United States v. Krasn, 614 F.2d 1229 (9th Cir.

1980) 23

United States v. LaBudda, 882 F.2d 244 (7th Cir.

1989) 19

United States v. Rabinowich, 238 U.S. 78 (1915) ..... 13, 15, 19

United States v. Russell, 411 U.S. 423 (1973) ............. 26

United States v. Sarro, 742 F.2d 1286 (11th Cir.

1984) 19

United States v. Seelig, 498 F.2d 109 (5th Cir.

1974) 18-19

United States v. Shabani, 513 U.S. 10 (1994) .............. 12

United States v. Shively, 715 F.2d 260 (7th Cir.

1983), cert. denied, 465 U.S. 1007 (1984) 19

United States v. United States Gypsum Co.,

438 U.S. 422 (1978) 21

United States v. Wallace, 85 F.3d 1063 (2d Cir.

1996) 18

United States v. Zarnes, 33 F.3d 1454 (7th Cir.

1994), cert. denied, 515 U.S. 1126 (1995) 23

Williamson v. United States, 207 U.S. 425

(1908) 16

Statutes and rules:

18 U.S.C. 371 12, 15

21 U.S.C. 841(a)(1) 2

21 U.S.C. 841(b)(1)(A) 2

21 U.S.C. 846 2,12, 19

Fed. R. Crim. P.:

Rule 8 29

Rule 14 29

Miscellaneous:

Developments in the Law, Criminal Conspiracy,

72 Harv. L. Rev. 920 (1959) 14

Model Penal Code § 5.03(7) (1985)

Miscellaneous—Continued:

Wayne R. LaFave & Austin Scott, Jr., Substantive

Criminal Law (1986)

Francis B. Sayre, Criminal Conspiracy, 35 Harv. L

Rev. 393 (1922) ....

Percy Henry Winfield, The History of Conspiracy

and Abuse of Legal Procedure (Harold Dexter

Hazeltine, ed., 1982) (1921)

In the Supreme Court of the Gnited States

No. 01-1184

UNITED STATES OF AMERICA, PETITIONER

Vv.

FRANCISCO v .ENEZ RECIO AND

ADRIAN LOPEZ-MEZA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

UPINION BELOW

The opinion of the court of appeals (Pet. App. la-44a)

is reported at 258 F.3d 1069.

JURISDICTION

The judgment of the court of appeals was entered on

September 27, 2000, and amended on July 31, 2001. A

petition for rehearing was denied on October 30, 2001

(Pet. App. 45a-46a). On January 18, 2002, Justice

O’Connor extended the time within which to file a peti-

tion for a writ of certiorari to and including February

27, 200. A petition for a writ of certiorari was filed on

February 14, 2002, and granted on May 28, 2002. The

jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial, both respondents were con-

victed in the United States District Court for the

District of Idaho of conspiring to possess cocaine

and marijuana with intent to distribute them, in

violation of 21 U.S.C. 841(a)(1) and (b)(1)(A), and 21

U.S.C. 846. Lopez-Meza C.A. %.R. 1-2. Respondent

Recio was sentenced to 126 months’ imprisonment, to

be followed by five years’ supervised release. Recio

C.A. E.R. 7-8. Respondent Lopez-Meza was sentenced

to 132 months’ imprisonment, to be followed by five

years’ supervised release. Lopez-Meza C.A. E.R. 67-68.

The court of appeals reversed respondents’ conspiracy

convictions for insufficient evidence. Pet. App. la-10a.

1. On November 18, 1997, at 1:18 a.m., a Nevada

police officer stopped a northbound flatbed truck occu-

pied by Manuel Sotelo and Ramiro Arce. The police

seized 369 pounds of marijuana and 14.8 pounds of

cocaine. The drugs were worth between $10 and $12

million. Sotelo and Arce claimed ignorance of the drugs

but said they had agreed to drive the truck to Nampa,

Idaho, where they were supposed to leave the truck

parked at the Karcher Mall. Pet. App. 2a, 4a, 19a, 23a.

Arce decided to cooperate, and government agents

set up a sting. The following day the government

transported the truck to Idaho and parked it at the

Karcher Mall.’ Arce called an Arizona pager number.

1 The court of appeals erred when it stated that the original

drivers of the truck were arrested »n the same day as respondents.

See Pet. App. 2a (original driver “arrested earlier that day”). In

fact, the truck was delivered to the Mall, where respondents were

arrested, on November 19, one day after the arrest of Sotelo and

Arce. See Pet. App. 19a (Gould, J., dissenting); 3 Gov’t C.A. Supp.

E.R. 171 (officer’s testimony that truck was placed at Karcher Mall

“{o}n the 19th, around 10:00 in the morning”).

When someone returned the page, Arce mentioned the

truck’s location to the caller, who stated that he would

“call a muchacho to come and get the truck.” Pet: App.

2a, 5a, 19a. About three hours later, respondents drove

into the mall parking lot in a blue car and pulled up to

the truck. Recio got out of the car and into the truck.

Both Recio and Lopez-Meza drove west on different

back roads. The agents ultimately decided to stop the

vehicles, and they arrested Recio and Lopez-Meza. Id.

at 2a, 4a, 19a.

Recio and Lopez-Meza each made false statements to

the agents to explain their actions. Pet. App. 4a. Recio

denied ever having been dropped off at the Karcher

Mall. He said that he had been shopping and that he

ran into a man who offered him $250 to drive the truck

to Recio’s house, where the man would pick it up later.

Recio explained that he decided to take back roads

instead of a much more direct route because “[he] just

like[d] to drive in the country.” Jd. at 22a. Recio was

carrying a pager, a phone card, and a “‘non-owner’

driver’s insurance” policy, which covers the named

insured for operation of a vehicle owned by another. Jd.

at 4a, 5a. Recio had renewed the policy shortly before

the seizure. Jd. at 5a.

When the police stopped Lopez-Meza, they smelled

marijuana in the car. Pet. App. 19a. The police re-

covered two pagers and two phone cards from him. Jd.

at 4a, 5a, 27a. Lopez-Meza told the police that he had

been “out driving around” and that he was going to see

his girlfriend, whose last name and address he could not

recall. Jd. at 26a-27a.

2. On January 16, 1998, a federal grand jury re-

turned a superseding indictment charging Recio and

Lopez-Meza with conspiracy to possess cocaine and

marijuana with intent to distribute them and possession

of cocaine and marijuana with the intent to distribute

them. Pet. App. 69a-70a. They were each found guilty

on both counts. Jd. at 60a. Respondents filed post-trial

motions for judgment of acquittal in which they argued

that their conspiracy convictions were invalid under

United States v. Cruz, 127 F.3d 791 (9th Cir. 1997), cert.

denied, 522 U.S. 1097 (1998). See Pet. App. 59a-68a.

In Cruz, the government prosecuted a conspiracy

charge against Billy Cruz, a drug courier who agreed to

deliver 210.7 grams of methamphetamine after the

original courier, Peter Balajadia, had, unbeknownst to

Cruz, been arrested with the drugs. The Ninth Circuit

held that Cruz was innocent of the charged conspiracy

because he joined it after the government had seized

the drugs, even though Cruz, the seller, and the buyer

were all unaware of the seizure. The Cruz court rea-

soned that “it was factually impossible for Cruz to have

been a member of th[{e] conspiracy because Balajadia

and [his companion] had been arrested and the drugs

seized before he was even invited to join,” 127 F.3d at

795 n.4, and that the seizure had “terminated the con-

spiracy,” id. at 794 n.1.

The district court in this case denied respondents’

motion for judgment of acquittal, holding that there

was sufficient evidence that Recio and Lopez-Meza had

joined the conspiracy before the drugs were seized.

The district court nevertheless decided to grant re-

spondents a new trial on the conspiracy count, because

no Cruz instruction was given, creating a risk that the

jury had found respondents guilty based solely on their

post-seizure actions.” Pet. App. 64a. The jury found

respondents guilty of conspiracy at the second trial.

2 The “istrict court granted Lopez-Meza a new trial on the

possession count as well, Pet. App. 67a, but the government dis-

3. a. A divided panel of the Ninth Circuit reversed.

Pet. App. la-10a. The majority held that the evidence

presented at the second trial was insufficient. Jd. at

10a. Relying on Cruz, the court viewed the question

before it as “whether any rational jury could find,

beyond a reasonable doubt, that [respondents] were

involved in the conspiracy prior to the initial seizure of

the drugs on November 18.” Id. at 3a (emphasis added).

The majority was unable to find any evidence that un-

equivocally demonstrated respondents’ pre-seizure

participation in the conspiracy. For example, the ma-

jority dismissed as irrelevant the evidence that respon-

dents lied to the police officers upon their arrest,

because their false statements “provide[] no basis for

concluding that [respondents] were involved in the

conspiracy beforehand.” Jd. at 4a; see also ibid.

(“Nothing [respondents] said or did * * * directly

links them to the pre-seizure conspiracy.”). The ma-

jority also found respondents’ possession of pagers

irrelevant to the timing of their involvement, reasoning

that

one would expect whoever recruited them to have

outfitted them with the standard equipment used in

the trade. Indeed, in light of the strange turn of

events this drug shipment had taken, the main

conspirators would want to stay in especially close

communication with their drivers.

Id. at 5a. The panel majority concluded that the evi-

dence suggested that respondents “were simply drivers

hired at the last minute.” Jd. at 5a-6a.

missed that count before the second trial. See id. at 10a .. Recio,

who was driving the drug-laden truck, did not file « motion for

judgment of acquittal on the possession count. Jd. at 6. n.1.

The panel majority rejected the government’s con-

tention that respondents had participated in other goals

of the conspiracy involving other drug shipments, even

if they became involved in the November 18 shipment

only after the government had seized the drugs. The

court reasoned that “the limited role [respondents]

played in the November 18 shipment alone is insuffi-

cient to charge them with complicity for any prior

loads.” Pet. App. 6a. The majority observed that “(t]he

strongest evidence” of respondents’ involvement in a

broader conspiracy was Recio’s multiple receipts for

expired non-owner insurance policies, from which it

could be inferred that Recio “regularly drove drug

trucks for the conspiracy.” Jd. at 7a. But the majority

“remain[ed] unpersuaded,” because the “insurance can

also be accounted for by alternative explanations,”

including the possibility that Recio worked as a driver

for legitimate businesses. Jbid. The majority was also

unpersuaded by the evidence indicating that Lopez-

Meza lived at Nu Acres, the delivery point for the

drugs, and the evidence of his links to his uncle Jose

Meza, who was implicated in the conspiracy and lived at

Nu Acres also. The majority reasoned that Lopez-

Meza’s “presence [at Nu Acres] and familial ties to Jose

Meza just as readily support the theory that he was

simply a convenient substitute recruited at the last

minute.” Jd. at 8a.

b. Judge Gould dissented. He stated his disagree-

ment with the court’s prior holding in Cruz:

[F Jor the reasons stated by Judge Hall in dissent in

Cruz, I believe Cruz totally inconsistent with long

established and appropriate principles of the law of

conspiracy. Though we are now bound by Cruz, and

the district court was correct to apply it, I believe

that it is an ill-advised precedent that our court

should overrule en banc at the earliest opportunity.

Pet. App. 21a n.2. Nonetheless, applying Cruz’s rule

that a defendant cannot join a conspiracy after the sei-

zure of the drugs in question, Judge Gould concluded

that there was “unmistakably more than sufficient

evidence in the second trial” linking defendants to a

conspiracy before police officers seized the drugs on

November 18, 1997. Jd. at 18a; see id. at 20a-28a.

Judge Gould also concluded that the government pre-

sented sufficient evidence of respondents’ involvement

in a larger conspiracy involving more loads than the one

seized on November 18, based on their “possession and

use of sophisticated drug-trafficking communication

devices” and “the quantity, quality and value of the

drugs seized.” Jd. at 34a; sec id. at 29a-34a.

ce. The court of appeals denied the government’s

petition for rehearing en banc. Pet. App. 45a-46a.

Judge O’Scannlain, joined by eight other active circuit

judges, dissented from that decision. Jd. at 46a-58a.

Judge Hall, a senior judge who authored the dissenting

opinion in Cruz, stated that she also “agree[d]” with

Judge O’Scannlain’s dissent. Jd. at 58a. Judge

O’Scannilain traced the court’s mistake to its decision in

Cruz:

By failing to rehear United States v. Recio, 258 F.3d

1069 (Sih Cir. 2001), en banc, we let stand the aber-

ration wrought by Cruz now compounded by Recio.

In so doing, we erect serious impediments to legiti-

mate law enforcement efforts to combat drug traf-

ficking by mandating the exclusion of relevant,

probative, and, indeed, overwhelming evidence of

guilt. We also perpetuate conflict with our sister

circuits and, in my view, ignore black letter prin-

ciples of conspiracy law set out for us by the U.S.

Supreme Court.

Id. at 46a. Judge O’Scannlain explained that, “[iJn hold-

ing that a conspiracy endures only as long as its ulti-

mate goal remains objectively achievable, Cruz imports

a defense of factual impossibility into the law of con-

spiracy in direct conflict with the long-standing, black

letter principle that impossibility is not a defense to a

conspiracy charge.” Jd. at 5la.

Judge O’Scannlain stated (Pet. App. 5la-52a) that the

court of appeals’ recognition of factual impossibility as a

defense to conspiracy conflicts with decisions of this

Court, including Salinas v. United States, 522 U.S.

52 (1997), in which the Court had explained that “(a]

person * * * may be liable for conspiracy even though

he was incapable of committing the substantive

offense[,]” because “the conspiracy is a distinct evil,

dangerous to the public, and so punishable in itself.” Jd.

at 64,65. He also st. d that the rule of Cruz and this

case conflicts with decisions of other courts of appeals,

including the First Circuit’s decision in United States v.

Belardo-Quinones, 71 F.3d 941, 944 (1995). See Pet.

App. 52a. In Judge O’Scannlain’s view, “the para-~

doxical effect of Cruz and Recio is to exclude evidence

of guilt following successful and entirely legitimate

intervention by law enforcement agents.” Jd. at 50a.

Applying the “fundamental principle” that the duration

of a conspiracy is determined by “‘the scope of the

conspiratorial agreement’ itself,” id. at 57a (quoting

Grunewald v. United States, 353 U.S. 391, 397 (1957)),

Judge O’Scannlain found that respondents were clearly

guilty of the charged conspiracy, because the

agreement to transport the drugs, to which they were

parties, survived the government’s seizing the drugs.

Ibid.

SUMMARY OF ARGUMENT

The court of appeals’ decision contravenes funda-

mental and well-settled principles of the criminal law.

Decisions of this Court have firmly established that the

gravamen of a conspiracy charge is the agreement to

commit an illegal act; the crime does not require the

actual commission of the offense. One reason that such

an agreement poses a threat to society is that the com-

bination of actors makes it more likely that the con-

spirators will have the means and persistence to attain

their illegal goals and avoid detection. A conspiratorial

agreement also poses risks, however, that go beyond

the likelihood that the particular goals of the conspiracy

will be achieved. The mere existence of groupings

designed to achieve criminal ends threatens the com-

munity’s safety, and conspirators are more likely to

turn their attention to further and often more extreme

illegal ends beyond those that initially motivated them.

Because of those distinct threats posed by the criminal

agreement alone, the crime of conspiracy focuses on the

agreement.

In light of the settled principle that the gravamen of

a conspiracy is the agreement, the success or failure of

the conspiracy in achieving its criminal goal is of no

consequence to the conspirators’ criminal liability. A

conspiracy may be formed to pursue a criminal goal

that, unbeknownst to the conspirators, could not have

been achieved. Similarly, facts that make an existing

conspiracy’s goals unlikely or impossible to achieve

have no relevance to the conspirators’ criminal liability.

Accordingly, a long line of precedent over the past 120

years has made clear that factual impossibility—

whether it arises before or after a conspiracy is

formed—is not a defense to criminal liability for con-

spiracy.

It follows from those principles that the court of

appeals erred in the underlying premise of its decision

in Cruz and in this case—that a conspiracy terminates

when, unbeknownst to its participants, its goals are

frustrated. The scope and duration of a conspiracy are

determined by the scope and duration of the agree-

ment, not by the likelihood or possibility that the con-

spiracy wiil be successful. So long as the agreement

persists, the conspiracy persists. The actions that

traditionally have been held presumptively to termi-

nate a conspiracy—the success of the conspiracy in

achieving its goals or the abandonment of those goals

by the conspirators—are significant precisely because

those actions can be expected to terminate the efforts

of the conspirators to achieve their criminal goals. But

so long as the conspirators continue to attempt to

achieve their goals—as the conspirators undoubtedly

did here after the drugs were first seized—the con-

spiracy itself continues. |

The Ninth Circuit’s holding that a conspiracy neces-

sarily terminates when its goal has been frustrated

would give those in respondents’ position a windfall

defense to conspiracy charges, based on facts of which

they were not aware and that are entirely unrelated to

their culpability for joining together to achieve a

criminal end. The court of appeals did not attempt to

reconcile its novel rule with the settled principles of

conspiracy law, but instead stated, as the sole justifi-

cation, that the court had doubts about possible entrap-

ment of defendants by government agents mounting

sting operations. The courts, however, do not have the

authority to expand the entrapment defense to exoner-

ate defendants where the traditional requirements of

that defense—government inducement and lack of

predisposition—are missing.

The rule adopted in this case would seriously com-

promise the effective investigation and prosecution of

conspiracies, not only in drug cases, but in terrorism

and other criminal contexts in which law enforcement

officials must both foil the success of the conspiratorial

endeavor and bring those who are genuinely culpable to

justice. The Ninth Circuit’s rule would make it more

difficult for law enforcement to engage in wholly legiti-

mate “sting” operations such as the one in this case.

And it would needlessly complicate the prosecution of

conspiracies, by requiring cases involving an agreement

to achieve a single criminal end to be treated as a series

of separate conspiracies, depending on the entirely

arbitrary factors of when the government acted to foil

the conspiracy’s objectives and the extent of proof that

a given defendant had agreed to achieve the conspirato-

rial goals before or after any such government action.

ARGUMENT

A CONSPIRACY DOES NOT TERMINATE WHEN

ITS OBJECTIVES HAVE BEEN FRUSTRATED OR

BECOME IMPOSSIBLE TO ATTAIN

In United States v. Cruz, 127 F.3d 791 (9th Cir. 1997),

cert. denied, 522 U.S. 1097 (1998), and in this case, the

court of appeals held that a conspiracy automatically

ends when law enforcement intervenes and frustrates

the conspiracy’s objective. Applying that rule, the

court of appeals reversed respondents’ conspiracy con-

victions despite overwhelming evidence of their agree-

ment to transport 369 pounds of marijuana and 14.8

pounds of cocaine and their commission of acts in fur-

therance of that agreement. The rule of law announced

in Cruz and applied here is inconsistent with black-

letter principles of conspiracy law—in particular, the

fundamental principle that the gravamen of a con-

spiracy is the agreement and that the possibility or

likelihood of a conspiracy’s achieving its objectives has

no bearing on the criminal liability of the conspirators.

A. The Gravamen Of A Conspiracy Is An Agreement To

Accomplish An Illegal Objective

This Court has frequently explained that “the ‘es-

sence’ of a conspiracy offense ‘is in the agreement or

confederation to commit a crime.’” United States v.

Feliz, 503 U.S. 378, 389-390 (1992) (quoting United

States v. Bayer, 331 U.S. 532, 542 (1947)). “(T]he

criminal agreement itself is the actus reus.” United

States v. Shabani, 513 U.S. 10, 16 (1994). See Jannelli

v. United States, 420 U.S. 770, 777 (1975) (“Conspiracy

is an inchoate offense, the essence of which is an agree-

ment to commit an unlawful act.”); Braverman v.

United States, 317 U.S. 49, 53 (1942) (“The gist of the

crime of conspiracy * * * is the agreement or con-

federation of the conspirators to commit one or more

unlawful acts.”). That principle is fully applicable to

conspiracy charges under the primary federal con-

spiracy statute, 18 U.S.C. 371, where an overt act in

addition to the agreement must be shown, as this Court

made clear in cases such as Braverman. It is equally

apt in prosecutions under 21 U.S.C. 846, where no overt

act need be shown and the agreement alone is sufficient

to establish liability. See United States v. Shabani, 513

U.S. 10 (1994).

The rationale for penalizing the agreement—even if

the substantive offenses that the conspirators intend to

accomplish do not transpire—is that “collective criminal

agreement—partnership in crime—presents a greater

potential threat to the public than individual delicts.”

Callanan v. United States, 364 U.S. 587, 593 (1961). In

part, the threat to society posed by a conspiracy con-

cerns the increased risks that the conspirators, by

banding together, will be successful in attaining their

goals and avoiding punishment. A criminal agreement

“both increases the likelihood that the criminal object

will be successfully attained and decreases the pro-

bability that the individuals involved will depart from

their path of criminality.” Jbid. A conspiracy “is

characterized by secrecy, rendering it difficult of de-

tection, requiring more time for its discovery, and

adding to the importance of punishing it when dis-

covered.” United States v. Rabinowich, 238 U.S. 78, 88

(1915).

In addition, however, a conspiracy poses a social

threat that goes beyond the likelihood or possibility

that the conspiracy’s particular objectives will succeed

or be punished. “(T]he danger which a conspiracy gen-

erates is not confined to the substantive offense which

is the immediate aim of the enterprise.” Callanan, 364

U.S. at 594; see Rabinowich, 238 U.S. at 88 (threat

posed by agreement “sometimes quite outweigh{s], in

injury to the public, the mere commission of the con-

templated crime”). That is because “[g]roup association

for criminal purposes often * * * makes possible the

attainment of ends more complex than those which one

criminal could accomplish,” and “(cjombination in crime

makes :sore likely the commission of crimes unrelated

to the original purpose for which the group was

formed.” Callanan, 364 U.S. at 593-594. As one com-

mentary has noted, “[tJhe existence of a grouping for

criminal purposes provides a continuing focal point for

further crimes either related or unrelated to those

immediately envisaged” and “the uneasiness produced

by the consciousness that such groupings exist is in

itself an important antisocial effect.” Developments in

the Law, Criminal Conspiracy, 72 Harv. L. Rev. 920,

924-925 (1959).

For those reasons, the proposition that the essence of

a conspiracy is the agreement—not the actual criminal

conduct committed by the conspirators—is not subject

to doubt. This Court has often relied on that principle,

in particular in its repeated holdings that a conspiracy

is distinct—and may be punished and prosecuted

separately—from the substantive crime that is its

object. In Felix, for example, the Court held that “the

conspiracy charge against [the defendant] was an

offense distinct from any [substantive] crime for which

he had been previously prosecuted, and the Double

Jeopardy Clause did not bar his prosecution on that

charge.” 503 U.S. at 391-392. The Court has repeated

that holding in a variety of other contexts. See Calla-

nan, 364 U.S. at 593 (“The distinctiveness between a

substantive offense and a conspiracy to commit is a

postulate of our law.”); Pereira v. United States, 347

U.S. 1, 11 (1954); United States v. Bayer, 331 U.S. 532,

542 (1947); Pinkerton v. United States, 328 U.S. 640,

643 (1946).

B. A Conspiracy May Be Initiated And Persist Regardless

Of The Factual Possibility Of Achieving Its Goal

1. Because the gist of a conspiracy is the agreement,

and because such an agreement poses threats to society

distinct from the specific crime contemplated by the

conspirators, criminal liability for conspiracy has never

depended on the successful commission of the con-

spirators’ intended offenses. “It is elementary that a

conspiracy may exist and be punished whether or not

the substantive crime ensues, for the conspiracy is a

distinct evil, dangerous to the public, and so punishable

in itself.” Salinas, 522 U.S. at 65. The agreement to

violate the law is “an event of sufficient threat to social

order to permit the imposition of criminal sanctions for

the agreement alone, * * * regardless of whether the

crime agreed upon actually is committed.” United

States v. Feola, 420 U.S. 671, 694 (1975). See Rabino-

wich, 238 U.S. at 86 (“The conspiracy, however fully

formed, may fail of its object, however earnestly pur-

sued; the contemplated crime may never be consum-

mated; yet the conspiracy is none the less punishable.”).

Similarly, because “the illegal agreement * * *

constitutes the crime,” Hyde v. United States, 225 U.S.

347, 365 (1912), the possibility or impossibility of the

conspirators’ actually achieving their ends is of no

relevance to their criminal liability for conspiracy. See

Wayne LaFave & Austin W. Scott, Jr., Substantive

Criminal Law § 6.5, at 85 (1986) (LaFave & Scott)

(“Impossibility of success is not a defense, as criminal

combinations are dangerous apart from the danger of

attaining the particular objective.”). It is true that “{a]

conspirator must intend to further an endeavor which,

if completed, would satisfy all of the elements of a

substantive criminal offense.” Salinas, 522 U.S. at 65.5

But so long as the goal is the commission of a criminal

offense, liability for conspiracy does not depend on the

conspirators having adopted a likely—or even a

° Some particular conspiracy statutes are directed at agree-

ments whose goal may not involve the commission of a separately

defined criminal offense. See, e.g., 18 U.S.C. 371 (conspiracy to

defraud the United States); Hammerschmidt v. United States, 265

U.S. 182, 188 (1924). Absent such a prohibition in the statute, how-

ever, the object of the crime of conspiracy must be an illegal act.

possible—means to achieve their objective. As a lead-

ing treatise summarizes, “the conspiracy cases have

usually gone the simple route of holding that impossi-

bility of any kind is not a defense.” LaFave & Scott

§ 6.5, at 92.*

2. Factual impossibility has never been recognized

as a defense to conspiracy charges. The crime of con-

spiracy can be traced at least to an English statute

enacted in 1285 to prohibit false prosecutions. See

Percy Henry Winfield, The History of Conspiracy and

* The courts’ flat rejection of impossibility as a defense to

conspiracy charges contrasts with their generally more complex

treatments of impossibility, and of various types of impossibility,

as defenses to attempt charges. The difference is accounted for by

the fact that attempt offenses focus on the risks of the completed

crime and require a “dangerous proximity to success,” while “the

essence of the conspiracy is being combined for an unlawful

purpose—and if an overt act is required, it does not matter how

remote the act may be from accomplishing the purpose.” Hyde v.

United States, 225 U.S. 347, 388 (1912) (Holmes, J., dissenting); see

State v. Moretti, 244 A.2d 499, 502 (N.J.) (“[A] conspiracy charge

focuses primarily on the Intent of the defendants, while in an

attempt case the primary inquiry centers on the defendants’ Con-

duct tending toward the commission of the substantive crime.”),

cert. denied, 393 U.S. 952 (1968). Nonetheless, even in the area of

attempt, this Court has “expressed reservations about the con-

tinuing validity of the doctrine of ‘impossibility,’ with all its

subtleties.” United States v. Aguilar, 515 U.S. 598, 605 (1995)

(brackets and internal quotation marks omitted). As a leading

treatise puts it, “[t]he modern and better view is that impossibility

is not a defense [to attempt charges] when the defendant’s actual

intent (not limited by the true facts unknown to him) was to do an

act or bring about a result proscribed by law.” LaFave & Scott

§ 6.3, at 39. It follows a fortiori that impossibility of that sort is not

a defense to conspiracy charges. Cf. Williamson v. United States,

207 U.S. 425, 446-447 (1908) (defendant could be convicted of con-

spiring unsuccessfully to suborn perjury, although attempted sub-

ornation of perjury was not a crime).

Abuse of Legal Procedure 22-28 (Harold Dexter

Hazeltine, ed., 1982) (1921). In 1611, in the Poulterers’

Case, 77 Eng. Rep. 818, 813-814 (Star Chamber), the

court held that a conspiracy was punishable even if its

object crime remained unexecuted. In this country, the

crime had achieved its modern definition by 1842. See,

e.g., Commonwealth v. Hunt, 45 Mass. (4 Met.) 111, 128

(1842) (Shaw, C.J.) (“[A] conspiracy [involves] a com-

bination of two or more persons, by some concerted

action, to accomplish some criminal or unlawful pur-

pose, or to accomplish some purpose, not in itself

criminal or unlawful, by criminal or unlawful means.”).

See generally Francis B. Sayre, Criminal Conspiracy,

35 Harv. L. Rev. 398, 395-401 (1922).

By the late nineteenth century, American courts be-

gan to address the question whether a conspiracy can

be charged if its object has been frustrated. One of the -

earliest cases is Thompson v. State, 17 So. 512 (Ala.

1895), in which the convictions of participants in a con-

spiracy to commit robbery were affirmed, notwith-

standing that the intended victim of the conspiracy

had learned of the plan, thus making it impossible to

achieve. The court explained that “(t]he agreement is

the gist of the offense,” and that the offense is not

“purged because subsequent events may render the

consummation of the agreement impossible.” Jd. at 515.

Courts adopted the same principle in federal cases. In

Beddow v. United States, 70 F.2d 674 (8th Cir. 1934),

the defendants were convicted of conspiracy to forge

endorsements on government bonds. They objected

that the forged endorsements would not have been

accepted because they were witnessed only by a notary

public, not by one of the officials designated by law to

witness such endorsements. As the court summarized,

the defendants contended “that the conspiracy as

alleged in the indictment and shown by the evidence

could never have been successful, and, since it could not

have been successful, it was not criminal.” Jd. at 676.

The court rejected that argument as “without merit,”

because “(nJeither the success nor the failure of

criminal conspiracies is determinative of the guilt or

innocence of the conspirators.” Jbid.

In Beddow, the circumstance that was bound to frus-

trate the conspirators’ objective apparently was an

integral part of the means that the conspirators chose

to carry out the conspiracy from the beginning. But the

much more common situation arises where, as in

Thompson and in this case, the circumstance that frus-

trates the conspiracy arose, unbeknownst to the

conspirators, after the conspiracy was formed. For

example, in Craven v. United States, 22 F.2d 605, 609

(1st Cir. 1927), the court affirmed that defendants could

be convicted for conspiracy to import liquor, “even if

* * * in effecting the conspiracy the conspirators had

been imposed upon by the substitution of liquor of

domestic origin.”

Later federal cases have consistently applied the

same principle, until the decision in this case. See, e.g.,

Belardo-Quinones, 71 F.3d at 944 (“{A] culpable con-

spiracy may exist even though, because of the misap-

prehension of the conspirators as to certain facts, the

substantive crime which is the object of the conspiracy

may be impossible to commit.”); United States v.

Wallace, 85 F.3d 1063, 1068 (2d Cir. 1996) (“That the

conspiracy cannot actually be realized because of facts

unknown to the conspirators is irrelevant.”); United

States v. Hsu, 155 F.3d 189, 203 (3d Cir. 1998) (“[W]e

are persuaded by the views of our sister circuits, that

the impossibility of achieving the goal of a conspiracy is

irrelevant to the crime itself.”); United States v. Seelig,

498 F.2d 109, 113 (5th Cir. 1974) (“The fact that a

government informant was to effect the actual distri-

bution of the drug does not extirpate [defendants’]

liability for conspiring [under 21 U.S.C. 846].”); United

States v. LaBudda, 882 F.2d 244, 248 (7th Cir. 1989)

(“([DJex idants can be found guilty of criminal con-

spiracy « ~~ *’.ough the object of their conspiracy is

unattainable irom the very beginning.”); United States

v. Shively, 715 F.2d 260, 266-267 (7th Cir. 1983) (rea-

soning that it is “enough if the defendants intend to

defraud a federally insured bank, even though, unbe-

knownst to them, the bank has lost its insurance”), cert.

denied, 465 U.S. 1007 (1984); United States v. Jones, 765

F.2d 996, 1002 (11th Cir. 1985) (stating that “sheer

impossibility is no defense” to charge under 21 U.S.C.

846); United States v. Sarro, 742 F.2d 1286, 1297 (11th

Cir. 1984) (“[T]he government did not have to prove

that the [goods] were actualiy stolen; it was enough for

the government to show that the conspirators con-

spired [to receive goods] which they believed were

stolen.”).°

° This Court has considered—and rejected—“impossibility”

defenses to conspiracy charges in related contexts, in which a

defendant who could not have been convicted of committing the

substantive offense that was the conspiracy’s object asserted that

he also could not have been held liable for conspiring with others

who could have committed that substantive offense. See Rabino-

wich, 238 U.S. at 86 (defendant who had not declared bankruptcy

may be convicted for conspiring to conceal property from bank-

ruptcy trustee, even though substantive offense may be committed

only by one who has declared bankruptcy); Drew v. Thaw, 235 U.S.

432 (1914) (defendant could be convicted of conspiring to escape

from insane asylum under New York law, although escaping from

insane asylum is not a crime). As-the Court explained in Rabino-

wich, “[a] person may be guilty of conspiring, although incapable of

committing the objective offense.” Rabinowich, 238 U.S. at 86.

Cc. A Conspiracy Does Not Terminate Merely Because

Achieving Its Goals Has Become Impossible

1. Under the long-settled principles recited above,

the likelihood that a conspiracy will be able to achieve

its goals has nothing to do with the existence or

continuation of criminal liability for participating in the

conspiracy. Because the essence of a conspiracy is the

agreement, “the precise nature and extent of the con-

spiracy must be determined by reference to the agree-

ment which embraces and defines its objects,” Braver-

man, 317 U.S. at 53, not by reference to the factual

circumstances that render the conspiracy’s success

more or less likely—or even render its success impossi-

ble. It is the conspiratorial agreement that “determines

* * * the duration of the conspiracy.” Grunewald, 353

U.S. at 397. The conspiracy endures while the agree-

ment endures—regardless of whether the conspirators’

beliefs about the possibility of success are mistaken.

In this case, for example, there was no doubt that the

agreement was ongoing when respondents joined it.

Respondents’ fulfillment of their assignment to pick up

the drugs demonstrated that the conspiracy was still

actively seeking to achieve its objectives at least until

respondents were arrested. And that remains true

even though the truckload of drugs, unbeknownst to

many of the conspirators, had been seized and co-

conspirator Arce had agreed to cooperate in capturing

the remaining conspirators. Those remaining con-

spirators, unaware of the government’s discovery of

their plot, continued to pursue their agreement to

possess and distribute the drugs. Accordingly, in light

of the conspirators’ continuing efforts to realize the

conspiracy’s purposes, the conspiracy clearly did not

terminate with the seizure of the drugs.

That does not mean that a conspiracy continues

indefinitely. This Court has held that, so long as the

conspirators “continue * * * efforts in pursuance of

the plan[,] the conspiracy continues up to the time of

abandonment or success.” United States v. Kissel, 218

U.S. 601, 608 (1910); see Model Penal Cede § 5.03(7), at

384 (1985). Either abandonment or success will termi-

nate the conspiracy, since in either event the con-

spirators will cease their endeavors collectively to

violate the law in the particular way contemplated by

the agreement. But the occurrence of events that,

unbeknownst to the conspirators, render the con-

spiracy’s success unlikely or impossible does not termi-

nate a conspiracy, because such events do not terminate

the conspirators’ “continue({d] * * * efforts in pursu[it]

of the plan.”® Kissel, 218 U.S. at 608. ‘

2. The Ninth Circuit’s holding in this case was based

on the novel proposition, articulated in Cruz, that a

conspiracy terminates not only when it succeeds or is

abandoned, but that a conspiracy also terminates with

the “defeat of the object of the conspiracy.” Cruz, 127

6 With respect to a particular defendant, liability for partici-

pation in a conspiracy may terminate before the conspiracy itself

has terminated. A conspirator retains the ability “to withdraw

from the execution of the offense or to avert a continuing criminal-

ity.” Hyde, 225 U.S. at 369. To do so requires the conspirator to

take “affirmative action * * * to disavow or defeat the purpose”

of the censpiracy. Jbid. As this Court has explained, “[a)ffirmative

acts inconsistent with the object of the conspiracy and communi-

cated in a manner reasonably calculated to reach co-conspirators

have generally been regarded as sufficient to establish withdrawal

or abandonment.” United States v. United States Gypsum Co., 438

U.S. 422, 464-465 (1978). The occurrence of events that, unbe-

knownst to the conspirators, make it factually impossible for the

conspiracy to achieve its goals has never been recognized as suffi-

cient to constitute withdrawal or abandonment.

F.3d at 795 (quoting United States v. Castro, 972 F.2d

1107, 1112 (9th Cir. 1992), cert. denied, 507 U.S. 944

(1993)). See id. at 795 & n.4 (“(TJhe conspiracy * * *

had been terminated by the government’s seizure of the

methamphetamine before Cruz became involved. * * *

[I]t was factually impossible for Cruz to have been a

member of [the] conspiracy because [other members]

had been arrested and the drugs seized before he was

even invited to join.”). In the court’s view, the objects

of the conspiracies in this case and in Cruz were de-

feated when the drugs in each case were seized. Be-

cause in the court’s view the conspiracies terminated at

that time, individuals, such as respondents, who were

not shown to have joined the conspiracies before the

seizures could not be held criminally liable for their

participation.

Neither in this case nor in Cruz did the court of

appeals make any effort to reconcile its holding that a

conspiracy terminates when its object is defeated with

the long-settled rejection of impossibility as a defense

to conspiracy. Instead, the court in Cruz simply quoted

its own prior decision in Castro for the proposition that

the “defeat of the object of the conspiracy” terminates a

conspiracy. That reliance was misplaced. The court in

Castro did employ the phrase “defeat of the object of

the conspiracy.” See id. at 1112. But it applied that

nhrase correctly toe refer not to the occurrence of events

rendering achievement of the conspiracy’s goals impos-

sible, but to the occurrence of events that led the con-

spirators to abandon their efforts to achieve the con-

spiracy’s end. See 972 F.2d at 1112 (“the object of the

conspiracy was not defeated until the final seizure of

cocaine and the arrest of the coconspirators”) (emphasis

added). The seizure of the cocaine, together with the

arrest of all of the conspirators, was likely to terminate

the conspirators’ agreement to distribute cocaine, at

least absent evidence that the agreement continued.

Cf., e.g., United States v. Davis, 226 F.3d 346, 353 (5th

Cir. 2000) (“Where there is evidence that conspirators

managed to continue conducting the business of the

conspiracy after arrest, the mere fact of arrest does not

prevent the government from relying on that evidence”

to show that concpiracy continued.), cert. denied, 531

U.S. 1181 (2001); United States v. Zarnes, 33 F.3d 1454,

1468 (7th Cir. 1994) (“The arrest or incarceration of a

conspirator may constitute a withdrawal for a

conspirator, but it does not as a matter of law.”), cert.

denied, 515 U.S. 1126 (1995) (citation omitted).

Castro itself cited United States v. Bloch, 696 F.2d

1213, 1215 (9th Cir. 1982), for the proposition that de-

feat of the object of the conspiracy terminates a con-

spiracy, and Bloch, in turn, cited United States v.

Krasn, 614 F.2d 1229, 1236 (9th Cir. 1980). Krasn,

however, stated a quite different, and correct, principle:

that a jury was correctly instructed on withdrawal from

a conspiracy when it was instructed that liability for

membership in a conspiracy “is presumed to continue

unless there is affirmative evidence that the defendant

abandoned, withdrew from, or disavowed the con-

spiracy or defeated its purpose.” 614 F.2d at 1229.

Krasn was generally correct that a defendant’s liability

for a conspiracy terminates when a “defendant * * *

defeat(s] its purpose.” See note 6, supra. The court in

Cruz and in this case erred in adopting the quite

different principle that a conspiracy terminates when

its goal becomes impossible to achieve, even if the

defendant, far from defeating the conspiracy’s purpose,

is actively attempting to achieve it.

D. The Ninth Circuit’s Holding That A Conspiracy Termi-

nates If Its Goal Is Factually Impossible To Achieve

Creates Obstacles To Successful Law Enforcement

And Bestows An Unwarranted And Arbitrary Windfall

On Conspiracy Defendants

The Ninth Circuit’s rule that a conspiracy terminates

when, unknown to the conspirators, their objective has

become impossible to achieve would undermine the

effective administration of justice and create arbitrary

obstacles to the use of perfectly legitimate law enforce-

ment methods. As Judge O’Scannlain demonstrated in

his dissent from the denial of rehearing en banc (Pet.

App. 49a-50a), the Cruz/Recio rule requires courts and

juries to conduct an exacting review of the evidence to

determine whether the defendant’s participation in an

agreement to distribute drugs predated or postdated

the government’s seizure of the drugs. Not only does

that deterinination needlessly complicate the litigation

of conspiracy cases, it has nothing to do with the

defendant’s culpability. It thus creates an arbitrary

windfall for defendants lucky enough to have the con-

spiracy’s objectives foiled before they can be shown to

have joined in the venture. —s

1. This case presents an example of the arbitrariness

injected into the law of conspiracy by the court of ap-

peals’ ruling. Respondents undoubtedly agreed to

participate in the distribution of drugs. The court of

appeals not only accepted that premise, but found that

the evidence was sufficient to support it. For example,

the court accepted that respondents’ false statements

at the time of arrest “point{] * * * to knowledge that

they were invoived in illicit activity at that time. | Pet.

App. 4a. The court also accepted that respondents pos-

session of pagers was incriminating when it noted that

“one would expect whoever recruited them to have

outfitted them with the standard equipment used in the

trade” and that “the main conspirators would want

to stay in especially close communication with their

drivers.” Jd. at 5a. See id. at 5a-6a (accepting that the

evidence suggest[ed] “that [respondents] were simply

drivers hired at the last minute”). Despite the presence

of overwhelming evidence of respondents’ guilt—

including their arrest with the truck containing more

than $10 million of drugs—the court of appeals nonethe-

less held that respondents could not be convicted of

conspiracy to distribute drugs. Traditional principles of

conspiracy law would have assessed respondents’ guilt

by asking whether they entered into a criminal agree-

ment. The court of appeals’ rule, by contrast, precludes

respondents’ guilt based on a fact—i.e., the time of

seizure of the truck—of which they were unaware, over

which they had no control, and that had nothing to do

with their agreement. Under the court of appeals’ rule,

if respondents had agreed to join the conspiracy before

1:18 a.m. on November 18, they could be found guilty; if

they had agreed to do so after that time, they could not.

2. The Cruz court justified its application of factual

impossibility not by reference to the defendant’s cul-

pability under traditional conspiracy law, but by ex-

pressing concern that “liability for the original con-

spiracy on the basis posited by the government could be

endless.” 127 F.3d at 795. The court speculated that

“{iJt is not difficult to picture [the conspirator who had

been arrested with drugs] sitting in the Honolulu

Airport Police Station with a copy of the * * * tele-

phone directory in hand, following the detectives’

instructions to call all of his acquaintances * * * to

come to Honolulu to help him.” Jd. at 795 n.3.

That concern provides no reason to doubt that a de-

fendant may be guilty of conspiracy even when the

crime may in fact, though unbeknownst to him, be

impossible to accomplish. Rather, it expresses mis-

givings about law enforcement techniques involving

“sting” operations. While courts may consider law en-

forcement techniques under the entrapment defense,

this Court has squarely rejected expanding the entrap-

ment defense to exonerate defendants in cases where

the traditional requirements of that defense—

government inducement and lack of predisposition—are

missing. As the Court explained in United States v.

Russell, 411 U.S. 423, 435 (1973),

the defense of entrapment * * * was not intended

to give the federal judiciary a ‘chancellor’s foot veto

over law enforcement practices of which it did not

approve. The execution of the federal laws under

our Constitution is confided primarily to the Execu-

tive Branch of the Government, subject to appli-

cable constitutional and statutory limitations and to

judicially fashioned rules to enforce those limita-

tions.

The court of appeals exercised precisely the kind of

“veto” that Russell prohibits in this case and in Cruz,

by exonerating those guilty of the crime of conspiracy

in order to place limits on certain law enforcement

techniques. To make matters worse, the court of

appeals altered the law of conspiracy not to protect

against the actual law enforcement techniques used in

Cruz and in this case, but in order to protect against the

possible, and entirely hypothetical, wholesale use of

those techniques in other circumstances In which, in the

court’s view, they would not have been justified.

3. Although the court of appeals in this case did not

address the possibility that respondents may be liable

for a post-seizure conspiracy, the Ninth Circuit in Cruz

suggested that the defendant there, though innocent of

the charged conspiracy, “at most, * * * may have

been a member of a new conspiracy” formed after

the seizure. 127 F.3d at 795 n.4. In his dissent from

the denial of rehearing en banc in this case, Judge

O’Scannlain doubted that any liability for a post-seizure

conspiracy would be possible under the logic of Cruz; if

the government’s seizure of the drugs terminated the

original conspiracy, the government’s seizure would

also appear to have precluded the formation of a new

conspiracy to distribute the same drugs. Pet. App. 53a-

56a (opinion of O’Scannlain, J.).

If, as Judge O’Scannlain feared, the Cruz/Recio rule

precludes all conspiracy liability for defendants in re-

spondents’ position, the rule would have most serious

consequences. It would discourage investigators from

engaging in operations that ferret out criminal opera-

tions and that prevent conspiracies from achieving their

objectives for fear that such action will compromise the

government’s ability to prosecute all of the guilty

participants. In the analogous context of rejecting a

claim that impossibility is a defense to an attempt

charge under Section 846, the Third Circuit has ex-

plained:

Allowing the [impossibility] defense [under Section

846] would also gut law enforcement efforts to infil-

trate drug supply chains. The government goes

undercover not only as purchaser, as in the instant

case, but as seller, or as middleman. * * * Given

the horrendous difficulties confronted by law en-

forcement authorities in dealing effectively with the

burdgeoning drug traffic, it is difficult to assume

that Congress intended to deprive them of

flexibility adequate to counter effectively such

criminal activity.

United States v. Everett, 700 F.2d 900, 907-908 n.16

(1983) (internal quotation marks and citations omitted).

The vital need for undercover government efforts both

to apprehend conspirators and to prevent their planned

offenses from actually occurring extends far beyond

drug cases; similar legitimate law enforcement tactics

may be crucial in violent crime, terrorism, and other

contexts.

Even if the Cruz/Recio rule would permit those in

respondents’ position to be held liable for a post-seizure

conspiracy, it would nonetheless cause unnecessary

complications *n the framing of indictments. A prosecu-

tor in a case like this would have to decide whether

the evidence supported charging a single conspiracy

spanning the pre- and post-seizure periods. Charging a

single conspiracy would be in the interest of logic and

judicial economy, but it would require the prosecutor to

determine whether, for each defendant, the evidence

would ultimately be held sufficient to support a con-

clusion of pre-seizure participation in the conspiracy. A

mistaken determination by the prosecutor on that point

would risk the result obtained in Cruz and this case:

acquittal for at least some defendants. If the prose-

cutor instead chose to charge multiple conspiracies, one

ending with the seizure and the second beginning

thereafter, other complications would arise. Such

charges may elicit double jeopardy and multiplicity

challenges by the defendants who participated both

before and after the government frustrated the

“original” conspiracy’s objective. The charges may also

elicit challenges to the joinder in a single indictment of

the pre- and post-seizure conspirators, see Fed. R.

Crim. P. 8, and to the conduct of a joint trial involving

all defendants, see Fed. R. Crim. P. 14.

4. The Cruz/Recio regime thus threatens to entangle

conspiracy prosecutions in complex challenges to the

indictment, to the admissibility and sufficiency of evi-

dence, and to jury instructions. All of those conse-

quences arise from the Cruz-imposed centrality of the

seizure date to the proof of the relevant conspiracy —a

fact that is unrelated to the defendants’ culpability

under traditional conspiracy law. In cases where those

challenges are successful, as they were here and in

Cruz, guilty defendants may escape conviction and

punishment. The court of appeals’ innovation in con-

spiracy law should be rejected.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.