In an unusual passage, Judge King celebrates the scope of federal conspiracy law

February 5

On Tuesday, the Fourth Circuit affirmed the terrorism convictions of three individuals who plotted to attack the U.S. Marine Corps Base in Quantico, Va. In an unusual passage near the end of the opinion, Judge King “exercise[s] a point of personal privilege” and offers commentary about the importance of the government’s case and the role of the federal conspiracy laws:

Before turning to the various sentencing issues presented here, I will exercise a point of personal privilege with respect to the investigation and prosecution of this important case. The trial record reveals that the appellants strove to conceal their nefarious activities from outsiders uncommitted to violent revolution around the world, habitually congregating in secret to discuss their plans and to reinforce, in the manner of zealots, each other’s resolve. That the conspiracy was infiltrated and almost all of its cohorts arrested before they could bring their criminal schemes to fruition should in no way inspire the conclusion that the appellants have been prosecuted for merely harboring ideas, convicted of nothing more than an Orwellian “thoughtcrime.”

To the contrary, the evidence reveals that the appellants are dangerous men who freely and frequently exercised their constitutional right to speak, to be sure, but who also demonstrated a steadfast propensity towards action. Before the appellants’ actions could escalate to visit grievous harm upon the government, other countries, or innocent civilians, the FBI and its associates timely intervened. The laudable efforts of law enforcement and the prosecutors have ensured that, on this occasion at least, we will not be left to second-guess how a terrorist attack could have been prevented.

Absent the long reach of the federal conspiracy statutes, the government would have been forced to pursue the appellants with one hand tied behind its back. No such constraint served to hinder the investigation and prosecution of the appellants, however, and we are reminded once more that the charge of conspiring to commit a federal crime has yet to relinquish its well-earned reputation as—in the words of Learned Hand—the “darling of the modern prosecutor’s nursery.” Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925). Judge Hand’s profound observation is as true now as it was nearly ninety years ago.

Over the course of the modern legal era, the pursuit of federal conspiracy convictions has doubtlessly been a boon to United States Attorneys. And it is eminently fair and reasonable to say that the implementing statutes — particularly those that dispense with the commission of an overt act as an element of the crime — sometimes paint with a broad brush. Cf. Krulewitch v. United States, 336 U.S. 440, 450 (1949) (Jackson, J., concurring) (“[T]he conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.”). But our system of government and law reposes great and solemn trust in federal prosecutors to exercise their discretion as instruments of right and justice, and it is therefore “for prosecutors rather than courts to determine when to use a scatter gun to bring down the defendant.” Id. at 452.

Indeed, the societal utility of conspiracy prosecutions as a weapon against evildoers is manifest not merely in the substantive elements of the offense, but also in the procedural mechanisms enabling its ready proof, even against those only marginally involved. See, e.g., Fed.R.Evid. 801(d)(1)(E) (“A statement … is not hearsay [that] was made by the party’s coconspirator during and in furtherance of the conspiracy.”). A person intending to only be “in for a penny,” with the slightest connection to an established conspiracy, actually risks being “in for a pound.” It is somewhat unique in this case that Boyd, the prosecution’s star witness, was also the ringleader of the conspiracies. This was thus a top-down prosecution of conspiracy offenses, with Boyd and his sons—having departed the dock and ascended the witness stand—implicating others more peripherally involved. That fact matters not, however, in the context of the criminal culpability of these appellants. Put succinctly, the specter of federal criminal liability cannot help but serve as an intense deterrent to those who otherwise would be bent on violence.

We have faithfully applied the well-settled principles of conspiracy law in this case, both in letter and in spirit. In so doing, we have come to the ineluctable conclusion that the government legitimately and appropriately charged the appellants, and the convictions it thereby obtained are without infirmity.

I’m generally not a fan of judges offering this kind of commentary, as I think they should stick to their task of deciding the cases. And of course whether one agrees or disagrees with Judge King will vary widely among readers. Still, I thought the passage was worth pointing out. Feel free to chime in with agreement or rotten tomatoes in the comment thread.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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