- The Washington Times - Tuesday, January 21, 2003

WASHINGTON, Jan. 21 (UPI) — The Supreme Court, in a major victory for prosecutors, ruled Tuesday that a criminal conspiracy does not end simply because its purpose has been frustrated by the government.

The ruling overturns a decision by a federal appeals court.

But its main effect will be to give prosecutors and law enforcement officers more leeway against potential conspiracies, whether their purpose is criminal or spreading terror.

For instance, if government agents — early in an investigation — defeat the object of a conspiracy to blow up a federal building, can prosecutors still charge those who join the conspiracy later, but participate in no other crime?

Tuesday's Supreme Court decision means they can.

The underlying case that brought the decision involves a drug investigation.

In the early morning hours of Nov. 18, 1997, a Nevada police officer stopped a northbound flatbed truck occupied by Manuel Sotelo and Ramiro Arce.

The truck turned out to be carrying 369 pounds of marijuana and nearly 15 pounds of cocaine. Police placed a street value of between $10 million and $12 million.

The men told police they were supposed to drive the truck to Nampa, Idaho, and leave it at a mall, and Arce agreed to cooperate with a police sting.

Once officers had parked the truck at the Nampa mall, Arce called an Arizona pager number.

When a caller returned the page, Arce told him the truck's location and was told the caller would send "a muchacho to come and get the truck."

Three hours later, Francisco Jimenez Recio and Adrian Lopez-Meza drove up to the parked truck.

Recio got out of the car and into the truck, and he and Lopez-Meza drove west on different back roads before police decided to stop them.

A federal grand jury in Idaho indicted the two men for conspiracy to possess with intent to distribute cocaine and marijuana, and with conspiring to possess cocaine and marijuana.

Both men were found guilty on both counts. A federal judge refused motions that the men be acquitted because of lack of evidence.

Eventually, a divided appeals court panel reversed the judge, ruling 2-1 that the government had presented no evidence the two men were involved in a conspiracy before the drugs were seized in Nevada.

The panel majority said the men appeared to have been hired at the last minute, and downplayed evidence that both had pagers when they were arrested.

When the full U.S. Court of Appeals for the Ninth Circuit refused to hear the case, the Justice Department asked for Supreme Court review.

The department pointed to a 1957 Supreme Court precedent that said a conspiracy agreement "determines the duration of the conspiracy."

As long as the agreement lasts, the department said, the conspiracy lasts.

The appeals court ruling "discourages legitimate law enforcement methods that can be of vital importance not only in drug cases, but also in violent crime, terrorism and other contexts in which prosecution of the conspirators and frustration of their goals are both critical objectives."

After hearing argument last November, the Supreme Court Tuesday agreed with the Justice Department.

Writing for a near-unanimous court, Justice Stephen Breyer said the Supreme Court has repeatedly said the that the essence of a conspiracy is 'an agreement to commit an unlawful act.'"

Citing a 1997 precedent, Breyer said that the agreement itself "is a 'distinct evil,' which 'may exist and be punished whether or not the substantive crime ensues.'"

Justice John Paul Stevens dissented, but only in part and only for technical reasons. Stevens said prosecutors should have objected earlier to erroneous jury instructions from the judge.

Tuesday's decision reverses the appeals court. Because the two men's case had other elements not considered by the Supreme Court, the justices sent the case back down for a rehearing.

(01-1184, United States of America vs. Recio and Lopez-Meza.)





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