Federal Drug Conspiracies

The closest thing to a thought crime that we have in America today is a federal drug conspiracy. A conspiracy, generally, is an agreement to commit a crime. The crime itself (the "substantive offense") does not have to be committed for the conspiracy to be formed. For most offenses, people cannot be convicted of conspiracy unless one of the conspirators (the people agreeing to commit the crime) performs an "overt act" in furtherance of the conspiracy. For example, if Joe and Fred agree to rob a bank then neither has committed a crime. But if Joe then goes and buys two ski masks (or cases the bank, or performs any other act in aid of the conspiracy) then both of them have committed the crime of conspiracy. A conspiracy to commit a drug offense, however, is committed as soon as two people agree to commit the offense. No overt act is required. (U.S. v. Shabani). If Joe and Fred agree to go to Mexico to buy a pound of marijuana and smuggle it across the border, they have committed a crime. It doesn't matter that they had no way to actually buy the marijuana. As it happens, the maximum penalty for most federal conspiracies is five years. 18 USC 371. But the penalty for a conspiracy to commit a controlled substance offense is the same as the penalty for the substantive offense. So a person who is convicted of agreeing to commit a crime is punished as though the crime had actually committed. But wait, there's more! Let's say that Fred tells Joe that he's going to go to Mexico to buy a pound of marijuana and Joe agrees to let Fred store the marijuana in Joe's basement. Fred goes to Mexico, buys ten kilograms of cocaine, is arrested at the border and rats on Joe. They can both be convicted of conspiring to possess ten kilograms of cocaine. Even though Joe had no idea that Fred was going to be handling cocaine (which carries much stiffer penalties than marijuana), they conspired to possess a controlled substance, and the controlled substance happened to be cocaine. How about this: a drug conspiracy exists between Abel, Bert, and Charles. Dave joins the conspiracy, agreeing to provide storage for what he believes to be five pounds of marijuana. Everyone is arrested, and the government learns that while Dave was a part of the conspiracy the other conspirators moved hundreds of kilograms of cocaine and carried guns. Dave may be punished for everything done by his coconspirators that was "reasonably foreseeable" to him -- he can get slammed for hundreds of kilograms of cocaine (a ten-year statutory minimum) and is not eligible for the "safety valve" because someone possessed a gun in the conspiracy. So not only can a person be punished as though he had committed a crime for merely agreeing to commit the crime, but a person merely agreeing to commit one crime can be punished as though he had committed a much more serious crime. So goes the war on drugs.

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