One of my favorite podcasts is Conspiracyland by Yahoo News. There are now three seasons of Conspiracyland. Season 1 delved into the conspiracy theory surrounding the unsolved murder of Seth Rich, a democratic staff member in DC. Season 2 investigated the conspiracy theory surrounding the death of Lori Klausutis, a member of then Congressman Joe Scarborough’s staff. Season 3 involved an actual conspiracy, the murder of Jamal Khashoggi at the hands of Saudi security personnel. Each episode is expertly done, but they beg the question: what exactly is a conspiracy? More importantly, how is a conspiracy different from a conspiracy theory?
I have been investigating conspiracies, and defending conspiracy charges, for more than 35 years. Indictments alleging conspiracy always begin with a conspiracy “theory”, a theory, hopefully based upon fact, that a group of individuals has come together for the purpose of orchestrating a crime. Many times, these theories move quickly into the realm of fact as members of the conspiracy confess and provide details to the actual conspiracy. Other times, the theory is only ever a theory and dies in the minds of investigators and prosecutors because of a lack of evidence.
Evidence is the difference between a conspiracy theory and a conspiracy. Conspiracy theories are based upon suppositions and belief. Books have been written about the psychology behind conspiracy theories, but basically, they fill a void for the person who latches onto them. The world is a complicated place, and in an effort to make sense of the world, some people are drawn to conspiracies that explain disconnected and unrelated events as being part of some sinister plan.
Beginning in the 1990s, we began hearing about the “Clinton List” or “Clinton Body Count”—a rather long list of people associated with Bill and Hillary Clinton who ended up dead under strange or mysterious circumstances. The list includes most famously Vince Foster, the Deputy White House Counsel who was found dead in Fort Marcy Park outside Washington, DC. Foster died of a single gunshot to the head, and five investigations into his death determined that it was a suicide. Notwithstanding the officially determined cause of death, many people believe that he was secretly killed by the Clintons for some as of yet determined reason. Furthermore, it is but one in a number of deaths, and the pattern itself proves the sinister nature of the Clintons.
However, the facts surrounding Foster’s death are not mysterious and though tragic, there is nothing about the death or Foster’s job that would indicate any nefarious motives. When one examines the facts behind the alleged victims on the Clinton List, it quickly becomes apparent that there is nothing mysterious or unusual about most of the deaths, and the connection of these deceased people to the Clintons is frequently attenuated or non-existent. Nevertheless, the belief in the list exists and is fueled by “belief” as opposed to fact. Belief, however, is not fact. No matter how fervently it is believed, it does not become fact simply because someone believes it. Facts can only be determined from the evidence.
There is a large and growing number of conspiracy theories being perpetuated on the internet, with the QAnon conspiracy theory being one of the most mystifying. The conspiracy theories are intended to undermine confidence in our government, and, in many cases they do.
But this is a criminal law article, and government prosecutors and investigators are not immune from conspiracy theories and may see conspiracies where none exist. Even worse, the government may even, either intentionally or unintentionally, “create” a conspiracy that does not exist and prosecute innocent people for being co-conspirators.
The Investigation of a Conspiracy
Intelligent prosecutors will examine seemingly random events to determine if there is a pattern to those events. A ship may dock at a port, and a couple days later, local drugs dealers have more product to sell. Does this mean that the drugs came from the same source (the ship) and were all distributed by an organization? The answer, based upon these facts is: we don’t know. There could be a conspiracy, but there are other possibilities. Drugs could have come in by truck that arrived in the city at about the same time as the ship. There could have been multiple ships. The drugs could have come from multiple sources. Street level dealers may have gotten drugs from multiple sources, and the sources could be unrelated to each other. More investigation is needed to determine whether a conspiracy exists.
A conspiracy is an agreement between two or more people to commit a crime. The essence of the conspiracy is the agreement. Investigators, however, cannot look for agreements. The agreements are never in writing, and more intelligent co-conspirators do not talk freely about their partnerships. Therefore, the government starts by looking at the crimes that occur and then looks for patterns within those crimes. Based upon those patterns, they develop theories. The investigation of a conspiracy almost always begins with a theory as to what happened, or a “conspiracy theory”.
The theory, however, should only be a framework for investigators. In order for the conspiracy theory to become valid, investigators must collect evidence that supports the theory. If they find evidence that is inconsistent with the conspiracy theory, they should discard the theory in total. If they cannot find sufficient evidence to prove a conspiracy, it will always remain simply a conspiracy theory. While this might be good enough for a Fox News commentator, it does not work in a court of law.
The government does have powerful tools at its disposal to prove conspiracies. In addition to normal investigative techniques, it can wiretap electronic communications. It can use a grand jury subpoena to collect financial and other records. Most importantly, it can buy evidence from sources or co-conspirators. What do I mean by buy? It can make cash payments to witnesses if it wants, but it can also offer a lot more than money. It can offer criminal immunity from prosecution, or it can reduce a criminal’s sentence if the government deems the information to be of sufficient importance.
The danger in the misuse of these investigative techniques is that it can cause an unscrupulous criminal to make up evidence to please the government. If investigators are looking into a conspiracy and suspect Person A of being involved, an unscrupulous drug dealer may be tempted to lie and give government investigators what he thinks they want in order to avoid a lengthy prison sentence. If the government places pressure on four or five witnesses, the case begins to look insurmountable. Even innocent people sometimes plead guilty in the face of apparently overwhelming odds.
It is possible for prosecutors to obtain convictions for a conspiracy that does not exist.
Defending Conspiracy Charges
An experienced defense counsel understands the difference between a conspiracy and a conspiracy theory. In court, the conspiracy must be proven by legally admissible evidence. Therefore, witnesses may only testify to what they have seen or experienced. They cannot talk about what they have “heard on the street” or been told by other people because such testimony is hearsay. There are exceptions to the hearsay rule (including co-conspirators statements made during the course of and in furtherance of a conspiracy), but the exceptions are limited, and a skilled trial attorney can keep a lot of this type of testimony from reaching the jury.
Also, if witnesses have been corrupted by agreements with the government, the finder of fact (either the jury or the judge) needs to know of this corruption. If a drug dealer originally told the government that he did not know the defendant but changed his story after the government offered him a substantial sentence reduction, the finder of fact needs to be made aware of this fact. It is rare that the government agrees to a specific sentence and sentencing for the witness will always be delayed until after the trial of all other charged co-defendants; however, an experienced trial attorney will know how to bring these facts to the attention of the finder of fact.
It is also important to note that not everything that looks like a conspiracy is, in fact, a conspiracy. In a Ponzi scheme, there is a fraudster or a small group of fraudsters who sell investments with extraordinary rates of return. The initial investors are always paid what was promised (unless they keep their investment invested in the scheme, which they normally do). These initial investors then play a key role in bringing other investors into the scheme. In fact, they will frequently invite friends and family members to investment meetings and encourage them to invest in the Ponzi scheme. They will repeat false claims, attend meetings with the fraudsters and continue receiving disproportionate returns on their investment.
Are these initial investors co-conspirators? The answer is “no”. They were not aware of the criminal scheme and lacked the intent to conspire. There was no “agreement” with respect to illegal activity. The same might be said of two drug dealers selling heroin at the same location. They may be guilty of narcotics distribution, but they are not guilty of “conspiring” with each other since they were each operating their own businesses independently.
International organized criminal conspiracies can be exceedingly complex organizations that are frequently run like intelligence operations. In fact, some of these organizations are either run by or employ former intelligence officials. They may use “cut-outs” to take the fall for the real criminals. It is rare that any lower-level person who is arrested will have any valuable information about the organization or how it is run. The government likes to use these individuals to move up the chain of command but finding people who can and will cooperate becomes more difficult as the government moves up the chain of command.
Hire an Experienced Conspiracy Defense Lawyer
Do not let conspiracy theories become actual conspiracy charges. If you are suspected of or charged with being a member of a conspiracy, you need an experienced conspiracy defense lawyer. We can help. Contact us immediately.
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Mr. Dennis Boyle is an accomplished white-collar criminal defense and complex civil litigation attorney who practices throughout the United States and internationally.