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Sam Heldman


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Monday, November 11, 2002
No. 01-1184 United States v. Recio

I am getting a late start to this week's predictions. Luckily, there is no argument today because it is Veteran's Day. This fact also ensures that today is one of those rare days in the nation's capital when commuting is a breeze, despite even that it is raining heavily. On to the prediction:

I would have to put the case of U.S. v. Recio in the "I can't believe it's a precedent" category. The Ninth Circuit apparently held, in U.S. v. Cruz, 127 F.3d 791 (9th Cir. 1997), that a defendant cannot be guilty to conspiracy to possess and distribute drugs if he joins the conspiracy after the government has seized the drugs in question. A conspiracy exists when two or more people agree to commit a crime. Usually, a person is guilty of conspiracy if there is an agreement and some overt act furthering the conspiracy by that person.

In this case, the government seized a truck of marijuana. The driver of the truck cooperated, calling his contact and saying the truck was ready to be picked up. Recio is the person who eventually showed up and drove the truck away. Recio says, and the Ninth Circuit agreed, that there wasn't enough evidence that he joined the conspiracy before the drugs were seized. While that may or may not be true, I think the Court took this case to correct the error it made when denying cert to the Cruz case.

A conspiracy is not destroyed because, as here, its purpose is impossible. Nor is it destroyed by a mistake of fact ("We agreed to buy cocaine but all we got was powdered sugar."). The reason that conspiracy is a crime is not that the government wants another way to prosecute people for committing crimes, it is that the act of agreeing to commit a crime itself harms society. I do not think the Court will agree that there should be a temporal impossibility exception to formation of a conspiracy, and that it therefore will REVERSE.