Can conspiracy charges be brought with an undercover cop?

Can Conspiracy Charges Be Brought with an Undercover Cop?

This issue of bringing conspiracy charges when an undercover cop is involved is complicated, with good arguments on both sides. Ultimately, it comes down to how much the undercover cop influenced or instigated the conspiracy.

What is Conspiracy?

Legally, a conspiracy involves two or more people agreeing to commit an illegal act, along with at least one of them taking some action toward that goal. For example, if two people agree to rob a bank and start planning it, that can be charged as a conspiracy even if the robbery never actually happens.

The Undercover Cop Defense

The main defense against conspiracy charges with an undercover cop is that there wasn’t a real “agreement” between two criminals. For example, if the undercover cop is the one who brings up committing a crime and pushes the idea until the target agrees, the target can argue they were unfairly induced into a conspiracy. Basically, it’s entrapment – when the only reason a crime happened is because the police made it happen.

Courts have generally held that people can’t be convicted of conspiring only with an undercover cop. As one federal appeals court put it, “it takes two to tango.” There needs to be evidence of an actual agreement between two real criminals.

But the Lines Can Be Blurry

In reality, undercover operations often fall into an ethical gray area between catching real criminals in the act versus unfairly creating crime. Undercover cops frequently encourage targets to commit crimes they wouldn’t have otherwise. The question becomes – how much encouragement is too much?

For example, what if the undercover cop proposes a vague criminal scheme, but the target jumps on the idea and starts filling in details? That situation could potentially still support conspiracy charges, even if the undercover cop introduced the initial idea.

Other Factors Courts Consider

Courts look at the whole picture to determine if conspiracy charges are fair with an undercover cop. They consider things like:

• How persistent was the undercover cop in pushing the idea?
• Had the target already done similar crimes before?
• Did the target easily agree or take convincing?
• Who provided most of the details and planning?

The more the undercover cop had to work to persuade the target into conspiring, versus the target being ready and willing, the more likely charges can stick.

Using Informants Instead of Undercover Cops

Prosecutors often avoid this defense by relying on confidential informants rather than undercover officers. Informants have less incentive to create crime just to make arrests. So if an informant reports that someone solicited them to commit a crime, it looks less like entrapment by the police. This leads to the target having a weaker defense.

Famous Case – The Newburgh Four

A good example is the case of the “Newburgh Four” – four men convicted of conspiring to bomb synagogues and shoot down military planes in the Bronx in 2010. An FBI informant spent over a year pretending to be an Islamic extremist and pushing the men to agree to the plot. He offered them large sums of money from fake terrorist benefactors to convince them.

The judge rejected the men’s entrapment defense, ruling that while the government’s conduct was “troubling,” the defendants showed a willingness to commit terrorism without excessive inducement. But many legal experts argued the undercover tactics went too far and unfairly manufactured crime.

The Ultimate Question

At the end of the day, the key question courts ask is – minus the undercover cop’s involvement, would this conspiracy still have happened? If the evidence shows the target was already inclined toward this crime or easily persuaded into it, conspiracy charges are more likely to succeed.

But if the undercover cop had to work too hard creating a crime just to arrest someone, judges may see that as unfair and amounting to entrapment. It’s a very fact-specific analysis in each case.