The Reach of Federal Conspiracy Laws

Conspiracy is a crime that consists of an agreement between two or more persons to perform an illegal act or to perform a legal act in an illegal way.  Federal law recognizes conspiracy in several different criminal statutes.  The maximum penalties for these statutes range from five years to 20 or more years.  The crime is the unlawful agreement; it is not the accomplishing of the ultimate intended crime.  Moreover, in the federal system the penalties for conspiracy are independent of the penalty for the completed crime.  Thus, as a hypothetical example, there may be a conspiracy to obtain $1 million through a mail fraud but only a completed crime of a mail fraud of $100,000 if that is all that the conspirators obtained.  While convictions for the two crimes would probably run concurrently, the federal sentencing guidelines range for the conspiracy would be much higher and presumably drive the sentence.

Another aspect of conspiracy law is that co-conspirators need not have full knowledge of the criminal acts of others in the conspiracy to be culpable for those acts.  If the commission of an unlawful or criminal act during the course of the conspiracy is reasonably foreseeable, then all members of the conspiracy may be found guilty of that criminal act.  This is accomplice liability.  For instance, let’s assume that four people form a conspiracy to rob a bank.  Person A is to enter the bank and brandish a firearm to subdue everyone in the bank.  Person B is to enter the bank and collect money from the tellers.  Person C is to wait outside and drive the get away car.  Person D is to obtain ski masks for the others to wear to hide their identities.  If Person A kills someone in the bank, then all may be guilty of a homicide.  One theory of prosecution would be that a homicide is reasonably foreseeable under the facts outlined in the above scenario.

Obviously, conspiracy serves as a very important tool for prosecutors.  Its use often facilitates cooperation from persons implicated through the extensive reach of these laws.  Additionally, their imposition can result in severe sentences, often more severe than a sentence for the commission of the intended crime.

U.S. Will Not Charge Police Officer in Eric Garner’s Death

Five years ago, Eric Garner died on Staten Island while being arrested by New York City police.  Mr. Garner suffocated during the arrest.  Video of the encounter appeared to show that a police officer, Daniel Pantaleo, applied an unlawful chokehold on Mr. Garner.  Autopsy results indicated that death occurred due to an asthma attack precipitated by pressure on his neck and chest.  The United States Attorney in Brooklyn, New York, Richard Donoghue, today announced a decision by Attorney General William Barr not to bring civil rights charges against the officer applying the hold.  As a result, no officers have been charged in the death of Mr. Garner.  The Justice Department began investigating the death after a Staten Island state grand jury in 2014 refused to vote an indictment of Pantaleo in the case.

The United States Attorney stated that the government did not believe that it could sustain its burden to prove that Pantaleo in employing the hold around Garner’s neck made a willful decision to apply the chokehold.  Because that element of “willfulness” would be essential to obtaining a conviction, Donoghue announced that the case would not go forward.  He said that investigators had carefully reviewed video replays of the confrontation that led to Mr. Garner’s death.

New York City Police Department regulations prohibit the use of chokeholds to subdue individuals.  Testifying in his own defense before the state grand jury, Pantaleo swore that he did not employ a chokehold.  Instead, the officer testified that he had attempted to utilize an allowable hold to take Mr. Garner to the ground.  It appears that federal authorities credited the officer’s testimony or at least determined that it was credible enough to defeat the “willfulness” element needed for conviction.

The alleged crime committed by Mr. Garner that resulted in his killing was the selling of untaxed cigarettes.  Officer Pantaleo has spent the last five years on desk duty without his shield or weapon.  However, he has continued to accrue pay and pension benefits.   

Opioid Suit against Johnson & Johnson

In a civil case tried before a judge without a jury the State of Oklahoma is suing pharmaceutical giant Johnson & Johnson alleging the company is responsible for the opioid crisis facing residents of Oklahoma.  The suit seeks $17 billion over 30 years to address the effects of the opioid epidemic.  Oklahoma has charged that Johnson & Johnson overstated the benefits of opioid prescriptions and understated the risks involved such as addiction and dependency.  Further, the state alleged that Johnson & Johnson duped physicians into overprescribing opioids to their patients.

The case is significant because it appears to be the first to go to trial attempting to hold pharmaceutical manufacturers liable for the over-prescription and over-use of opioids.  The suit originally included two co-defendant pharmaceutical companies, Purdue and Teva.  However, each of these corporations has reached a settlement with the state.  Purdue settled for $270 million earlier in the year, and Teva settled for $85 million on the eve of trial.  These companies settled the lawsuit without admitting liability, which is common in civil settlements.

There are approximately 2000 cases brought by states and localities against pharmaceutical companies alleging complicity by the companies in the opioid crisis.  There are 1900 consolidated cases pending in federal district court in Ohio.  Trial in the Ohio cases is supposed to begin in October.

The suits against the pharmaceutical companies mimic in some respects the approach taken against cigarette companies in the cigarette litigation.  If the government entities are successful, we can anticipate the possibility of attempted private suits by persons who became addicted to opioids and their survivors.  To date there is no indication of criminal charges being filed against the pharmaceutical companies or their executives.  

Epstein Prosecution

How Federal Prosecutors Are Able to Charge Jeffrey Epstein Years after a Non-Prosecution Agreement

Ten years ago the United States Attorney for the Southern District of Florida signed a non-prosecution agreement with financier Jeffrey Epstein.  The agreement required Epstein to plead to two state charges of solicitation, register as a sex offender, and serve a term of 13 months in county jail.  The sentence was less than appeared as Epstein left on work release for 12 hours six days a week and apparently served his sentence in a private area of the jail.  The agreement effectively ended the investigation in south Florida of Epstein’s trafficking in children for sexual purposes.

Now, the United States Attorney for the Southern District of New York has indicted Epstein for essentially the same conduct covered by the Southern District of Florida non-prosecution agreement.  How is that possible?  Was the agreement defective?  Was Epstein’s legal team duped?

Criminal prosecution in the United States is divided among sovereigns.  Each state is a sovereign and may prosecute crimes over which its courts have jurisdiction.  Likewise, the federal government is a sovereign and may prosecute cases over which federal courts exercise jurisdiction.  The federal courts are divided into 93 separate districts.  The Southern Districts of Florida and New York comprise two of these districts.  The United States Attorney in each district is the chief federal law enforcement official for the district, having been appointed by the President and confirmed by the Senate.  

As the chief law enforcement officer of a district the United States Attorney may enter into agreements binding his or her district.  Any such agreement does not bind the United States Attorneys in other districts.  In fact, the typical agreement into which a United States Attorney’s Office enters specifies that the agreement is with that office.  Thus, the agreement that Epstein signed with the Southern District of Florida bound that office and no other district.  (When the United States Attorney for the Northern District of Georgia reviewed the agreement, that office determined that it bound the Southern District of Florida.)  Thus, when the investigation in New York uncovered evidence that the Southern District of New York also had jurisdiction over a potential case, there was not impediment to the United States Attorney for the Southern District of New York charging Epstein.

Finally, one should note how rare it is for a United States Attorney’s Office to bring a criminal case after another United States Attorney has investigated and signed a non-prosecution agreement.  In my experience of more than 30 years of federal criminal practice I have never seen it happen.

President Trump May Have Been Saved Twice by DOJ Guideline

In the aftermath of the testimony from Special Counsel Robert Mueller before Congressional committees this week, we can view the Russian investigation and the hush money investigation in the Southern District of New York from a bit of a distance.  In each case the President appears to have benefited from a Department of Justice guideline that prevents the indictment of a president while that person is in office.  It appears that in each investigation there may have been sufficient evidence to obtain an indictment of someone who was not currently serving as President of the United States.

As a starting point, the guideline in question is a policy determination of the Department of Justice that applies only to that department.  It is not dictated by the United States Constitution, which is silent regarding presidential immunity from prosecution.  It is not dictated by federal law as Congress has not attempted to prevent the charging of a sitting president with a criminal violation.  Finally, the Supreme Court has not decided any case involving the charging of a president with a crime although it has ruled that a civil action against a sitting president may proceed while that person remains in office.  The guideline does not bind any state and local prosecutors.  The policy was established by DOJ’s Office of Legal Counsel.  It did so at the request of the Attorney General.  Initially, the policy came into being in the 1970’s during the Watergate investigation.  It was reviewed and affirmed in the 1990’s during the Whitewater series of investigations.  We do not know whether the Attorney General sought review of the guideline during the Russian investigation.  

In the Southern District of New York, the President’s personal attorney Michael Cohen pleaded guilty to charges involving election fraud for paying hush money to two women with whom Trump allegedly had sexual encounters.  In filings to the federal court prosecutors referenced an unidentified co-conspirator at whose direction Cohen acted.  The description and circumstances leave no doubt that Trump was the co-conspirator.  It seems very possible that the President would have been charged in this case absent the DOJ guideline preventing it.

The Russia report chronicles instances of potential obstruction of justice by Trump.  It makes clear that no decision on Trump’s culpability appears because the guideline prevented charging the President.  While this case seems less clear than the New York case, there is in the Russia report substantial evidence of obstruction.  Moreover, further analysis did not occur because the DOJ guideline made such further investigation and review pointless.

Finally, it is interesting to note that there does not appear to be any prohibition against charging a President with a crime after he or she has left office if the statute of limitations has not expired.  This raises an interesting question of whether the statute of limitations would be tolled by the fact that the president was not indicted while in office because of a DOJ guideline stating that such charging could not take place.

Physician Convicted of Anti-Kickback Violations

Dialecti Voudouris, a hematologist associated with Lenox Hill Hospital and the New York City Health and Hospitals Corporation, pleaded guilty in federal court in Manhattan to violation of the federal Anti-Kickback Statute.  The conviction resulted from a scheme by Insys Therapeutics, Inc., to pay kickbacks to doctors for prescribing the company’s fentanyl spay to cancer patients.  Voudouris was one of five physicians charged in a 2018 indictment.

Fentanyl spay is an addictive synthetic opiate drug that relieves acute pain in cancer patients that are already taking opiates for pain relief.  The patient takes the drug by spaying it under the tongue.  Indications for the drug are sudden onset of pain, which is relieved by administering the spay.

The government alleged that the pharmaceutical company paid Dr. Voudouris by naming her as paid speaker for its continuing medical education programs.  Through this sham arrangement, the government alleged that the company was able to funnel more than $100,000 to the physician in return for her prescribing the drug.  Apparently, the speaking presentations were non-existent, and the payment was really for writing scripts for the drug and not providing presentations.

The Social Security Act makes illegal the receiving or giving any remuneration for the referral of among other items listed patients and services in relation to a federal healthcare program.  The maximum penalty for violation of the statute is 10 years’ incarceration.