A Real Conspiracy to Steal Make-Believe Drugs?

Let's say you have a group of ... oh, six hooligans. Undercover cops "lay the foundation" for said hooligans to rob a drug stash. The hooligans plan their attack, and the cops move in to arrest them before they can execute.

As it turns out, there were no drugs, it was all just a clever ruse to lure in a target.

According to the Fourth Circuit Court of Appeals, the hooligans can go to jail for forming a real conspiracy to steal make-believe drugs. The reason? Factual impossibility is not a defense to the crime of conspiracy.

Here, the six defendants were each indicted on three counts: (1) conspiracy to interfere with interstate commerce by robbery; (2) possession of firearms during a crime of violence; and (3) conspiracy to possess with the intent to distribute five kilograms or more of cocaine. The charges stuck because conspiracy is an inchoate crime of conspiracy that punishes the agreement to commit an unlawful act, not the completion of the act itself.

More notably, in the specific context of conspiracies to distribute cocaine, not even a single overt act in furtherance of the conspiracy is required. Because "special conspiracy-related dangers remain" apart from the danger of attaining the particular objective, impossibility does not terminate conspiracy.

In affirming the defendants' convictions, the appellate court wrote, "In Jimenez Recio, the Supreme Court held that the charge of conspiracy was not defeated where police actions frustrated the conspiracy's specific objective before its completion without the conspirators' knowledge. That holding extends naturally to the present case, where the police had defeated the criminal objective from the beginning, by inventing it."

Related Resources:

• U.S. v. Min (FindLaw's CaseLaw)
• 30 Years for $40 of Interstate Commerce; Fleeing Still a Violent Felony (FindLaw's Fourth Circuit Blog)
• Pro Tip: Don't Plan Your Bribery Scheme in Your Email (FindLaw's Fourth Circuit Blog)