Charged Over a Group Chat: Texts as Conspiracy Evidence.

Yes, a group chat could trigger a conspiracy charge without proof of conspiracy. While prosecutors must prove conspiracy beyond a reasonable doubt to secure a conviction at trial, they are only required to meet the lesser “probable cause” standard in order to secure an indictment. So, the appearance of conspiracy may prove enough to trigger formal charges. Interestingly, to secure a conspiracy conviction, prosecutors do not need to prove that their defendant actually committed any underlying offense. It is the agreement itself that creates criminal liability. As the U.S. Department of Justice’s “Justice Manual” states: “The agreement itself is what constitutes the offense; overt acts in furtherance of the conspiracy are not essential elements of the offense and need not be pleaded or proven in a Sherman Act case. The ultimate success of the venture is immaterial as long as the agreement is in fact formed.” As a result, federal prosecutors could pursue a drug conspiracy conviction even in cases where they have not recovered any drugs from their defendant’s possession. Prosecutors may use the content of your group chat (and any other communications) as circumstantial evidence to establish the necessary elements of a conspiracy charge. They might use your texts to support a claim that you:

• Entered into an agreement to commit a crime
• Had the requisite intent to commit a crime
• Worked in coordination with others to commit a crime
• Worked in coordination with others to avoid detection
• Committed an overt act in furtherance of a crime (if the federal statute charged requires proof of an overt act) While prosecutors may be able to charge conspiracy based on the evidence contained in a group chat (or any other communications), they must prove each of these elements beyond a reasonable doubt at trial before they can secure a conviction.

Which conspiracy rule controls whether the chat shows an agreement?

The applicable conspiracy law depends on whether the allegations are state or federal in nature. For example, under Texas state law, Texas Penal Code § 15.02, prosecutors must prove:

• The defendant agreed with one or more persons that they or one or more of them would engage in conduct that would constitute the felony, with intent that the felony be committed;
• The defendant had the intent that the felony be committed; and,
• One or more of the defendants performed an overt act to carry out the agreed-upon felony.

As a result, the prosecution must show that the evidence contained in the chat is admissible and sufficiently provides evidence of the requisite intent, agreement, and overt act. Federal law establishes separate conspiracy offenses as well. Two of the most-charged conspiracy laws are:

• 18 U.S.C. § 371: This statute establishes conspiracy offenses involving agreements to commit a federal crime, either against the United States or in order to defraud the United States. To secure a conviction under § 371, federal prosecutors must prove (i) an agreement; (ii) a criminal objective; (iii) the requisite criminal intent; and, (iv) at least one overt act in pursuit of the conspiracy. Importantly, under the federal conspiracy statute, this overt act does not have to be criminal in itself.
• 21 U.S.C. § 846: This statute establishes conspiracy offenses involving agreement to commit federal drug offenses. Unlike 18 U.S.C. § 371, this statute does not require an overt act. To secure a conviction under § 846, federal prosecutors must prove (i) an agreement; (ii) a criminal objective; and, (iii) the requisite criminal intent. At Spodek Law Group, our attorneys represent individuals in conspiracy cases, including those involving allegations based on communications, documents, or other electronic evidence.

How does the prosecution authenticate and contextualize a group-chat message?

Federal prosecutors will rely on the timestamps in your texts (and any other messages) to reconstruct the alleged coordination in a drug conspiracy, and to challenge any alibis you may have. But texts lack tone, facial expressions, and any other contextual signals. This makes interpreting them quite difficult. As a result, you may be able to challenge the context and substance of messages that prosecutors present as evidence. Additionally, if federal prosecutors rely on screenshots, they are subject to challenges as well. Screenshots can be edited, cropped, and re-ordered in ways that obscure context and alter the apparent meaning of messages. Screenshots can also be presented without the accompanying metadata that would provide evidence of the original context. The prosecution must also authenticate each message contained in a group chat, establishing not only that the message is genuine, but also that it was sent by the particular defendant in question.

Attribution can be challenging. A phone might be shared, borrowed, or hacked, it might be left unattended, or someone else may have been using the defendant’s account. While circumstantial evidence can strengthen the prosecution’s attribution claim, it must be sufficient to satisfy the requisite burden of proof.

When may investigators obtain group-chat content, and what can the defense challenge?

The Fourth Amendment requires warrants to identify “the place to be searched, and the persons or things to be seized” particularly.

As a result, defense attorneys can challenge the validity of search warrants based on a range of factors. There may be doubts regarding:

• Probable cause, including whether there are actual reasonable grounds to believe a crime has been committed or that evidence will be found in a particular location
• Scope, including whether the warrant’s description of the items to be searched and seized is “particular” or is overly broad
• Consent, including whether the warranting of the search was based on coerced consent or whether the consent was limited in scope
• Extraction methodology, including whether the warranting officers exceeded the scope of the warrant during the search In the context of a conspiracy investigation, federal authorities may seek information from a provider such as Meta Platforms, Google, or Microsoft, as well as from other businesses and entities that maintain records in electronic format. At this point, the Stored Communications Act (SCA) is the primary source of federal law. Under the SCA, communication records are divided into content and non-content records, including “customer account and service information” and “The provider shall disclose to a governmental entity the-(A) name; (B) address; (C) local and long distance telephone connection records, or records of session times and durations; (D) length of service (including start date) and types of service utilized; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service.” and a different legal process is required for obtaining content records than for obtaining non-content records. Providers may also disclose the contents of a user’s communication when there is “to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency” and an “emergency involving that danger.” But the fact that there is an emergency does not necessarily mean that the provider is permitted to disclose a user’s communication records.

What can drug quantity, withdrawal, and digital-evidence challenges change after charges are filed?

When drug quantity is at issue, there are several important factors to consider. First, federal sentencing for a drug conspiracy often involves calculating the total amount of drugs that have been involved in the conspiracy. Under these rules, any drug quantity that was reasonably foreseeable is often attributed to all defendants. Second, there are different types of drugs subject to different sentencing provisions, and these provisions are based on quantity. So, under the federal methamphetamine statute, 500 grams or more of a mixture containing methamphetamine triggers a 10-year mandatory minimum, while 499 grams of such a mixture falls within the 5-year mandatory-minimum tier. With regard to withdrawing from a conspiracy, it is important to know that mere cessation generally is not sufficient. Instead, to demonstrate that one has legally withdrawn from a conspiracy, one usually has to satisfy several elements. The U.S. Department of Justice states that “mere cessation of the active assistance of the unlawful enterprise is insufficient to constitute withdrawal; rather,... the withdrawer must affirmatively announce his withdrawal to his co-conspirators or perform an act that clearly demonstrates his intent to sever all relations with the conspiracy...”).

Although, even if you successfully withdraw from a federal conspiracy, it would only establish a defense to subsequent acts in furtherance of that conspiracy. Withdrawal does not erase your exposure for the federal criminal offense of conspiracy, nor does it protect you from charges for any other crimes for which you may be at risk. With regard to digital evidence, if your evidence was extracted in violation of the Fourth Amendment, if authentication of the evidence fails, if extraction methodology was fundamentally flawed, or if there are any other reasons that the evidence is improperly presented to a jury, then suppression of the evidence may be an available option. As a result, the prosecution would be prohibited from relying on the unlawfully obtained digital evidence in the case, and it may be forced to drop the case entirely.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.