A Kings Criminal Lawyer said that, 42 defendants were charged with conspiracy to possess narcotics. Individual defendants were charged with related violent or narcotics crimes allegedly committed in furtherance of the conspiracy. The five above-captioned defendants, after severance for trial, were recently tried on the counts applicable to them. During trial the court received, against all five defendants, evidence of numerous statements that were admissions of co-conspirators made in the course of and in furtherance of a conspiracy.
A Kings Sex Crime Lawyer said that, the People also sought to admit, against all the defendants on trial, a statement allegedly made by defendant after all five defendants had been arrested. Likewise, the People sought to introduce admissions made by the other defendant after all five defendants had been arrested. The defense objected that the alleged conspiracy had ended with the arrests, and that the statements were therefore not made by a conspirator in the course of and in furtherance of the conspiracy.
This court agreed that the contested admissions of defendants did not fall within the category of co-conspirator declarations. Each statement was received only against the declarant. However, New York law does not plainly speak to the issue of when, for these purposes, a conspiracy ends. This opinion will therefore issue to explain the court’s ruling.
The issue in this case is whether defendants out-of-count declarations to the cousins were admissible against all five defendants on trial as declarations made by a conspirator in the course of and in furtherance of a conspiracy of which the five defendants were members.
In New York, much of the law of hearsay has been established by the common law, rather than by statutes. The Court of Appeals has long recognized that statements made by the agent of a party may be introduced against the party as an admission, so long as the agent was acting within the scope of his authority when he spoke. In addition, those who enter into a criminal agreement become one another’s agents. A conspirator’s statements are therefore “binding” on co-conspirators, and admissible against them, if they are made within the scope of the conspirator’s authority to speak for the others. That is, the statements of a conspirator are admissible against his co-conspirators if they are made in the course of and in furtherance of the conspiracy the agency agreement.
This case readily supplies examples of statements that fall within the category of co-conspirator declarations. Scores of cell phone conversations were recorded pursuant to wiretap orders and were admitted without objection against all the defendants on trial. In some, dispatchers advised deliverers like the defendants where customers were waiting. In others, defendants discussed purchasing cocaine. In others, the conspirators addressed the need to retaliate for the theft of a “company” car on March 20, 2009. Indeed, in a dramatic series of calls on that day, the conspirators are heard assembling on 51st Street near the scene of the later shooting and defendant is advised by his fellows about how to use a handgun against the individual who was their target. But all conspiracies come to an end. In this case the police arrested defendants just after the shooting, at about 8:05 p.m. on March 20, 2009. Defendant was arrested soon thereafter. That same night two weeks before the scheduled “takedown” of the conspiracy the police began an emergency “takedown” with dozens of arrests and the execution of a number of search warrants.
That conclusion is consistent with federal law concerning the co-conspirator exception to the hearsay rule. Federal law is essentially the same as New York law as to co-conspirator declarations. As to whether statements made “late” are admissible. The testimony about the statement had been admitted as the declaration of a co-conspirator, and that was error. The original conspiracy “no longer existed” at the late date on which the statement was made, because by then the objectives of the conspiracy “either had failed or had been achieved.” The statement therefore was not made in furtherance of the conspiracy. The government argued that the statement was made in furtherance of “a continuing subsidiary objective” of the conspiracy, in that all conspirators expressly or implicitly agree to conceal facts and avoid conviction. But the Court rejected that expansive view of the scope of conspiracies, and of the co-conspirator exception to the hearsay rule. Eight years later the Court added, in a case addressing when a conspiracy ends for Statute of Limitations purposes.
A subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, allowing such a conspiracy to conceal to be inferred or implied from mere overt acts of concealment would result in a great widening of the scope of conspiracy prosecutions, since it would extend the life of a conspiracy indefinitely. Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators. For every conspiracy is by its very nature secret; a case can hardly be supposed where men concert together for a crime and advertise their purpose to the world. And again, every conspiracy will inevitably be followed by actions taken to cover the conspirators’ traces.
If such a “cover-up” conspiracy comes into being, admissions made in the course of and in furtherance of the new conspiracy can be introduced as agency admissions against the other co-conspirators, including during a trial as to the original conspiracy. The rule is plain: the “conspiracy” as to which an agent’s statements are “binding” on defendants by no means has to be a conspiracy charged in the indictment. Indeed, the modern federal cases apply the rule that there need be no particular relationship between the crimes for which a defendant is being tried, and the conspiracy through which he implicitly authorized an agent to make statements. The admission of an agent’s statements depends on their being within the scope of any agency, not on the intended objects of the agency agreement itself. Any criminal agreement can therefore create an agency relationship such that the agent’s statements are admissible against a co-conspirator at any trial in which they are relevant, even a trial not directly related to the crimes that were the objects of the conspiracy.
In this case, however, this principle is of no help to the People. The People have suggested that a conspiracy to possess drugs implicitly includes an agency agreement to destroy drug and related evidence after the police arrest some of the relevant players. That is not the law. There is no presumption that conspirators in any case make agreements as to how to cover up their crimes if they should be unexpectedly arrested. In the absence of proof of such an agreement, the court cannot simply assume that such an agreement was made.
This opinion concludes with that thought. The statements of defendants were not proved to have been made in the course of and in furtherance of the conspiracy, or any other. But they were of course admitted at trial against the respective declarant, with appropriate limiting instructions. And, as neither statement mentioned any other defendant on trial, there were no Bruton implications.
If you have been charged of conspiracy, you will need the help of a Kings Sex Crime Attorney and Kings Criminal Attorney at Stephen Bilkis and Associates. Call us for free legal advice.