New York Federal Criminal Practice Blog
March 23, 2008

EDNY Judge Holds It is Not a Crime to Conspire to Commit a Legal Act While Mistakenly Believing it to Be Illegal

It's not often that a federal judge quotes a Hollywood movie in its written opinion, but Judge Vitaliano did so to neat effect in United States v. Ali, 06 CR 200 (ENV), 2008 WL 682594 (E.D.N.Y. March 7, 2008), an odd case in which the government attempted to criminalize conduct that was not in fact illegal. 

In a prosecution for conspiracy to evade currency reporting requirements, among other charges, the government sought to introduce at trial certain checks the defendants had intentionally failed to report, mistakenly believing the checks to be subject to reporting requirements.  In effect, the government sought to expand the law of conspiracy to cover acts believed to be illegal which are not in fact illegal. 

Denying the in limine motion, the court pointed out that conspiracy law targets agreements with a criminal objective because such agreements on their own are a threat to social order.  It does not target simply "the naked possibility of 'conspiring to conspire'" (quoting the movie Traffic).  "Where the act contemplated is not criminal, nothing criminal has crystallized, and any perceived threat to social order dissipates.  It matters not that the alleged conspirators mistakenly believe that they are actually agreeing to do something the law forbids."  The court went on:

It is beyond troubling for the Court to contemplate a legal world in which particularly misguided individuals, assuming their actions run afoul of the law when they in fact do not, carve out their own realms of criminal activity beyond the contemplation of even the Congress. In this self-defined regime of hypothetical conspiracy law, the realm of criminalizable conduct would be bound only by the degree to which potential defendants are misinformed, misguided or simply stupid. Although such traits have paved the road for many to run afoul of the law, the bounds of the criminal law are for the Congress alone to determine. 

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