Text Message Conspiracy.

Text messages can serve as either direct or circumstantial evidence in a federal conspiracy case. As a result, prosecutors often leverage text messages to support their allegations of an illegal agreement. However, when a text message is innocent, prosecutors must establish context before they can characterize its meaning. When prosecutors attempt to frame an innocent text message in a negative light, it is up to them to convince the jury that the text message means what they claim it means.

Direct evidence is evidence that proves a disputed fact directly, without requiring the jury to draw any inferences. Examples of direct evidence in a federal criminal case may include testimony from an eyewitness, surveillance video, or relevant documents. While direct evidence can prove a defendant’s guilt in some cases, it is not always possible to find direct evidence. In many federal criminal cases, the government will rely on circumstantial evidence.

Circumstantial evidence does not directly prove a fact. Instead, it provides information about surrounding circumstances that supports an inference that a certain fact is true. In criminal law, circumstantial evidence is used to show that a defendant’s conduct was illegal, or to suggest that a defendant acted with illegal intent.

Due to the high burden of proof required in federal criminal cases, federal investigators and prosecutors must prove a defendant’s participation through a variety of means. Proving that a defendant exchanged text messages with other individuals is not enough to prove conspiracy. Instead, investigators must establish that the messages are authentic and provide context before establishing that the defendant knowingly entered into an agreement to commit the criminal offense. When relying on circumstantial evidence to prove an alleged agreement, prosecutors must be able to show that an agreement existed based on the specific statute charged and the surrounding circumstances. While text messages may play a role in criminal conspiracy cases, they do not, in and of themselves, establish proof of a federal offense.

Which Federal Conspiracy Elements Must the Messages Help Prove?

The elements that federal prosecutors must prove in order to secure a federal conspiracy conviction depend on the specific statute involved. Contrary to popular belief, there is no “four-part test” for federal conspiracy charges, many federal statutes impose additional elements, and others impose fewer.

Despite the fact that there is no single federal conspiracy statute, 18 U.S.C. § 371 is frequently cited. This broad statute imposes the penalties of conspiracy when it is committed:

• With the intent to defraud the United States, or any agency thereof, or
• In any other case, to commit any offense against the laws of the United States, or to defraud the United States or any agency thereof.

While this is one of many conspiracy statutes, prosecutors and defense attorneys often view Section 371 as the “prototypical” federal conspiracy statute. As a result, it is frequently used as a yardstick to help federal judges, defense lawyers, prosecutors, and the federal judiciary understand the federal government’s burdens of proof in more-complex federal conspiracy cases.

Under 18 U.S.C. § 371, the federal government must establish proof of the following elements:

1. The Formation of an Agreement. The federal government must prove that two or more people came together and agreed to commit an offense in order to execute a federal conspiracy charge. While text messages can serve as proof of the formation of an agreement, this is not always the case. Text messages are often circumstantial evidence at best, and they often rely on inferences that may not be legitimate when a defense lawyer raises challenging questions.

2. Knowing and Voluntary Participation. Along with the formation of an agreement, federal prosecutors must prove that you (or the defendant whose liability is being scrutinized) knowingly and voluntarily participated in the agreement. While you may have knowingly and voluntarily participated in some behavior, this does not mean that you knowingly and voluntarily participated in an illegal conspiracy.

3. An Overt Act. Finally, the federal government must establish proof that at least one member of the conspiracy took an overt act in order to further the illicit purpose of the agreement. While this can be difficult for the government to prove, it also means that prosecutors must connect all of the evidence (including any evidence from text messages) to show the overt act in question.

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How are these messages authenticated, contextualized, and presented to a jury?

Along with reviewing text messages themselves, investigators may review communications in conjunction with telephone logs, credit card statements, email records, social media, and other communications. The messages will be read in conjunction with the other communications, and, together, investigators will attempt to establish an understanding of the defendant’s relationship with his or her co-conspirators.

Federal prosecutors may be able to introduce statements made by co-conspirators into evidence. The federal rules of evidence generally exclude hearsay statements, and statements made by co-conspirators in the course of their alleged conspiratorial activities will generally fall under the hearsay rule. However, statements made by co-conspirators are often excluded from hearsay under Rule 801(d)(2)(E), allowing them to be used as evidence in federal criminal proceedings. This is most often the case in the following scenario:

• The communication was made in furtherance of the conspiracy. While a federal prosecutor may be able to secure a conviction for federal conspiracy using the co-conspirator hearsay exception, they will still have to establish compliance with all applicable hearsay requirements before getting statements made by co-conspirators to a jury.

Federal investigators and prosecutors will also seek to rely on evidence of the deletion of communications. While deleting communications does not, in and of itself, establish liability for federal conspiracy, the deletion can establish evidence destruction and obstruction of justice. If an individual deletes communications during a federal criminal investigation, this can potentially lead to exposure under the following statutes:

• 18 U.S.C. § 1519, which prohibits destruction of records in federal investigations,
• 18 U.S.C. § 1512, which prohibits witness tampering, and,
• 18 U.S.C. § 1503, which prohibits influencing or injuring federal jurors and obstructing the due administration of justice.

The federal government must also be able to establish the statutory elements of any charged obstruction offense.

Federal prosecutors may also seek to use messages that have been intercepted in real-time by federal investigators. Along with the admissibility requirements discussed above, wiretaps generally must be obtained pursuant to a valid order from a judge, subject to statutory exceptions, and all other requirements under applicable law (i.e., Title III of the Omnibus Crime Control and Safe Streets Act) must be met for the federal government to introduce intercepted communications into evidence.

What Can Defeat This Charge, and How Does the Statute Set the Stakes?

A conspiracy case may weaken in a variety of different circumstances. While some cases will only be weakened when prosecutors cannot establish proof of knowing and voluntary participation in an alleged illegal agreement, other cases will fail entirely when prosecutors cannot establish proof of the agreement itself.

Our materials (pages 11-14) describe several examples of federal conspiracy charges that have been either dismissed or reduced. Along with these examples, our materials describe several examples of federal conspiracy charges that were thrown out entirely by the court because the government was unable to prove the defendant acted knowingly or intentionally in order to further the interests of the alleged conspiracy.

Our materials also discuss various scenarios involving the dismissal of federal conspiracy charges. While there is no universal deadline or specific procedure that governs when a federal conspiracy case will be dismissed or reduced, our materials identify several scenarios in which the defendant is able to convince the court that the government’s case is insufficient to justify a trial.

Additionally, our materials discuss various factors involved in the federal government’s charging of federal conspiracies. This discussion is important because, generally speaking, charging a conspiracy and proving a conspiracy at trial are two entirely different processes with different standards of proof.

Ultimately, at this stage of the legal process, the government will attempt to argue that there was sufficient evidence to establish probable cause that the defendant entered into an illegal conspiracy. The federal prosecutors will attempt to convince a grand jury that there is probable cause to believe that the defendant committed the alleged offense. However, this is only the first step toward securing a conviction. Before a judge or jury finds a defendant guilty, the federal government will have to prove the defendant’s guilt to a much higher standard, beyond a reasonable doubt.

Calling About Someone You Love

Most first calls to a defense firm come from a family member rather than the person under investigation. If that is you, Spodek Law Group answers its phone at any hour, and families retain the firm on a relative's behalf every week. Reach it at 888 348 8028.