Broad police powers in conspiracy cases contested

At issue in a case to be heard Tuesday is whether conspiracy law applies when federal authorities intercept a drug shipment but then let it go forward in a sting operation.

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Federal prosecutors and law enforcement officials say the same undercover tactics are necessary to arrest and prosecute international terrorists before they are able to actually carry out their plans. They say that the decision in the drug-trafficking case will have an impact on terror cases as well.

At issue is a September 2000 federal appeals court that reversed the convictions of Francisco Jimenez Recio and Adrian Lopez-Meza. Both men arrived at an Idaho shopping mall to drive away a truck carrying $10 million worth of cocaine and marijuana.

The two went to the mall after the truck's driver – who had earlier been arrested and agreed to cooperate with federal agents – followed his initial instructions and gave a person unknown to him the truck's location.

The voice on the other end of the phone line said that he would "call a muchacho to come and get the truck." Three hours later Mr. Recio and Mr. Lopez-Meza showed up. They were arrested and later convicted in a drug-trafficking conspiracy.

But the convictions were overturned because the appeals court found that the drug trafficking conspiracy had effectively ended a day earlier when federal agents arrested the first driver and took temporary possession of the truck.

The court ruled that there was not sufficient proof that Recio and Lopez-Meza were anything other than last-minute, low-level recruits in the drug trafficking operation. What the Supreme Court must decide is whether the appeals court properly applied conspiracy law to the case.

The appeals court reasoned that the government's intervention made it impossible for the drug trafficking conspiracy to be successfully carried out, thus ending the conspiracy. Anyone who took action related to the truck full of drugs may be guilty of a drug conspiracy, but not the original one, the court ruled.

Thomas Sullivan, Lopez-Meza's lawyer, says the appeals court got it right: "Each defendant was recruited after, and as a result of, the government intervention, which was a separate agreement, a separate conspiracy."

Federal prosecutors take a different view. "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 conspiracy," according to a brief prepared by Solicitor General Theodore Olson.

Government lawyers say the key to conspiracy cases is the agreement to carry out illegal acts, not the possibility of success or failure of those illegal acts. "The scope and duration of a conspiracy are determined by the scope and duration of the agreement, not by the likelihood or possibility that the conspiracy will be successful," Mr. Olson writes.

He adds, "The rule adopted in this case would seriously compromise 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."

In a friend of the court brief, Jay Sekulow of the American Center for Law and Justice says the appeals court ruling must be overturned because of the war on terrorism. "It is more important than ever that the legislative and executive branches have the tools needed to stop and prosecute conspirators who would seek to attack Americans," he says.

"Terrorism, like the war on drugs, requires covert operations that are vital to frustrating and preventing the actual crime," he says.

A decision in the case, US v. Recio, is expected by late June.