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Common Conspiracy Or Big-Time Entrapment?

Image by DemonDeLuxe (Dominique Toussaint) licensed under Creative Commons Attribution ShareAlike 3.0.In Washington on Wednesday, 19 of the 22 defendants named in the FCPA mega-bust pleaded not guilty. The remaining three defendants are in custody and expected to appear in court soon. Here’s a report from Reuters

The defendants face charges of violating the Foreign Corrupt Practices Act and conspiracy to violate the FCPA and launder money.

During the hearing, the government said the defendants were part of a single conspiracy to win arms contracts by bribing someone they thought was the defense minister of an African country.

The single-conspiracy theory should streamline the government’s case. Prosecutors can argue to the judge that all the defendants should be tried together (even if he doesn’t agree, there aren’t likely to be 22 separate trials). Then the government can tell the jury one story and cast each defendant in a role in that story. And when some defendants cop pleas and cooperate with the government — which will happen — their evidence will be relevant to all other alleged co-conspirators.

As we said right after news of the mega-bust broke, the DOJ’s stage management was stunning. It rounded up all but one defendant on the same day at the Las Vegas Shot Show. Now we learn that before the arrests, the Justice Department had stitched the defendants together in an alleged grand conspiracy. That probably couldn’t have happened without lots of help from the DOJ’s inside man, known in the mega-bust indictments as “Individual 1″ and identified since then as Richard T. Bistrong. He was charged last month in a separate case with conspiracy to violate the FCPA.

But will the single-conspiracy approach set up the entrapment defense? Reuters quoted two defense attorneys as saying “they believed their clients barely knew each other beyond perhaps an occasional handshake when their paths happened to cross in the industry.” That suggests some defendants might argue they were a group of strangers recruited into an illegal conspiracy promoted and run entirely by the feds and their mole.

Reuters said the prosecutor’s statement that the defendants were part of a single conspiracy “clearly surprised U.S. District Judge Richard Leon and many of the defense lawyers, who raised questions about consolidating the cases into one.” During the hearing’s afternoon session, the judge “made it clear there were limits to case consolidation. ‘I’m not going to try a case, no judge can try a case with 22 defendants,’ Leon said.”

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1 Comment

  1. I think it might be incorrect to suggest that a grand conspiracy will somehow trigger an entrapment defense, and I don’t see the defense lawyers even hinting at that in their quotes in the article. The fact that it was a big conspiracy, run entirely by the government and its mole, has nothing to do with the entrapment defense in this case. Entrapment defenses will depend instead on the predisposition of the defendants to commit the crime charged. The federal courts use the "subjective" rule for entrapment, which focuses on the defendant’s predisposition and not on the government’s conduct. It does not matter if the "conspiracy" itself was really a huge sting operation – each conspirator can still be guilty of conspiring with the government agent(s). Entrapment always has a sting operation as its origin, but most sting operations – even grandiose ones – do not run afoul of the rules for entrapment or provide the basis for the defense.

    On the other hand, an "overdone" conspiracy charge can create problems for the prosecution if the connections between the defendants become too attenuated. By this I mean so attenuated that they could not possibly have known they were part of a conspiracy to commit a crime, but rather thought it was just a deal with one person. Regarding conspiracies, courts have upheld them where the members of the conspiracy did not know how big the conspiracy was or who all the other members were (in fact, most criminal conspiracies keep all the members on a "need to know" basis so they can’t rat out all the others if they bail out on the plot). On the other hand, courts have refused to entertain conspiracy charges where there was really one criminal making dirty deals with lots of criminal clients. Each person might be guilty of a conspiracy regarding the single transaction in which they participated, but not the transactions of others, unless it was reasonably apparent that their transaction was merely part of a larger scheme.

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