Pubdate: Tue, 12 Nov 2002
Source: Christian Science Monitor (US)
Copyright: 2002 The Christian Science Publishing Society
Contact:  http://www.csmonitor.com/
Details: http://www.mapinc.org/media/83
Author: Warren Richey

BROAD POLICE POWERS IN CONSPIRACY CASES CONTESTED

The Supreme Court Hears A Narcotics Case That May Hinder The War On Terrorism.

WASHINGTON - An Idaho drug-conspiracy case may greatly complicate the war 
on terrorism if the US Supreme Court affirms a federal appeals court ruling.

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.

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.
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