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UNITED STATES, PETITIONER v. FRANCISCO
JIMENEZ RECIO and ADRIAN LOPEZ-MEZA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 21, 3003]
Justice Breyer delivered the opinion of the Court.
We here consider the validity of a Ninth Circuit rule that a conspiracy ends automatically when the object of the conspiracy becomes impossible to achievewhen, for example, the Government frustrates a drug conspiracys objective by seizing the drugs that its members have agreed to distribute. In our view, conspiracy law does not contain any such automatic termination rule.
I
In United States v. Cruz, 127 F.3d 791, 795 (CA9 1997), the Ninth Circuit, following the language of an earlier case, United States v. Castro, 972 F.2d 1107, 1112 (CA9 1992), wrote that a conspiracy terminates when
In this case the lower courts applied the Cruz rule to similar facts: On November 18, 1997, police stopped a truck in Nevada. They found, and seized, a large stash of illegal drugs. With the help of the trucks two drivers, they set up a sting. The Government took the truck to the drivers destination, a mall in Idaho. The drivers paged a contact and described the trucks location. The contact said that he would call someone to get the truck. And three hours later, the two defendants, Francisco Jimenez Recio and Adrian Lopez-Meza, appeared in a car. Jimenez Recio drove away in the truck; Lopez-Meza drove the car away in a similar direction. Police stopped both vehicles and arrested both men.
A federal grand jury indicted Jimenez Recio, Lopez-Meza, and the two original truck drivers, charging them with having conspired, together and with others, to possess and to distribute unlawful drugs. A jury convicted all four. But the trial judge then decided that the jury instructions had been erroneous in respect to Jimenez Recio and Lopez-Meza. The judge noted that the Ninth Circuit, in Cruz, had held that the Government could not prosecute drug conspiracy defendants unless they had joined the conspiracy before the Government seized the drugs. See Cruz, supra, at 795796. That holding, as applied here, meant that the jury could not convict Jimenez Recio and Lopez-Meza unless the jury believed they had joined the conspiracy before the Nevada police stopped the truck and seized the drugs. The judge ordered a new trial where the jury would be instructed to that effect. The new jury convicted the two men once again.
Jimenez Recio and Lopez-Meza appealed. They pointed out that, given Cruz, the jury had to find that they had joined the conspiracy before the Nevada stop, and they claimed that the evidence was insufficient at both trials to warrant any such jury finding. The Ninth Circuit panel, by a vote of 2 to 1, agreed. All three panel members accepted Cruz as binding law. Two members concluded that the evidence presented at the second trial was not sufficient to show that the defendants had joined the conspiracy before the Nevada drug seizure. One of the two wrote that the evidence at the first trial was not sufficient either, a circumstance she believed independently warranted reversal. The third member, dissenting, believed that the evidence at both trials adequately demonstrated preseizure membership. He added that he, like the other panel members, was bound by Cruz, but he wrote that in his view Cruz was totally inconsistent with long established and appropriate principles of the law of conspiracy, and he urged the Circuit to overrule it en banc at the earliest opportunity. 258 F.3d 1069, 1079, n. 2 (opinion of Gould, J.).
The Government sought certiorari. It noted that the Ninth Circuits holding in this case was premised upon the legal rule enunciated in Cruz. And it asked us to decide the rules validity, i.e., to decide whether a conspiracy ends as a matter of law when the government frustrates its objective. Pet. for Cert. I. We agreed to consider that question.
II
In Cruz, the Ninth Circuit held that a conspiracy continues
Two basic considerations convince us that this is the proper view of the law. First, the Ninth Circuits rule is inconsistent with our own understanding of basic conspiracy law. The Court has repeatedly said that the essence of a conspiracy is an agreement to commit an unlawful act. Iannelli v. United States, 420 U.S. 770, 777 (1975); see United States v. Shabani, 513 U.S. 10, 16 (1994); Braverman v. United States, 317 U.S. 49, 53 (1942). That agreement is a distinct evil, which may exist and be punished whether or not the substantive crime ensues. Salinas v. United States, 522 U.S. 52, 65 (1997). The conspiracy poses a threat to the public over and above the threat of the commission of the relevant substantive crimeboth because the [c]ombination in crime makes more likely the commission of [other] crimes and because it decreases the probability that the individuals involved will depart from their path of criminality. Callanan v. United States, 364 U.S. 587, 593594 (1961); see also United States v. Rabinowich, 238 U.S. 78, 88 (1915) (conspiracy sometimes quite outweigh[s], in injury to the public, the mere commission of the contemplated crime). Where police have frustrated a conspiracys specific objective but conspirators (unaware of that fact) have neither abandoned the conspiracy nor withdrawn, these special conspiracy-related dangers remain. Cf. 2 W. LaFave & A. Scott, Substantive Criminal Law §6.5, p. 85 (1986) ([i]mpossibility does not terminate conspiracy because criminal combinations are dangerous apart from the danger of attaining the particular objective). So too remains the essence of the conspiracythe agreement to commit the crime. That being so, the Governments defeat of the conspiracys objective will not necessarily and automatically terminate the conspiracy.
Second, the view we endorse today is the view of almost all courts and commentators but for the Ninth Circuit. No other Federal Court of Appeals has adopted the Ninth Circuits rule. Three have explicitly rejected it. In United States v. Wallace, 85 F.3d 1063, 1068 (CA2 1996), for example, the court said that the fact that a conspiracy cannot actually be realized because of facts unknown to the conspirators is irrelevant. See also United States v. Belardo-Quiñones, 71 F.3d 941, 944 (CA1 1995) (conspiracy exists even if, unbeknownst to conspirators, crime is impossible to commit); United States v. LaBudda, 882 F.2d 244, 248 (CA7 1989) (defendants can be found guilty of conspiracy even if conspiracys object is unattainable from the very beginning). One treatise, after surveying lower court conspiracy decisions, has concluded that [i]mpossibility of success is not a defense. 2 LaFave & Scott, Substantive Criminal Law §6.5, at 85; see also id., §6.5(b), at 9093. And the American Law Institutes Model Penal Code §5.03, p. 384 (1985), would find that a conspiracy terminates when the crime or crimes that are its object are committed or when the relevant agreement is abandoned. It would not find impossibility a basis for termination.
The Cruz majority argued that the more traditional termination rule threatened endless potential liability. To illustrate the point, the majority posited a sting in which police instructed an arrested conspirator to go through the telephone directory [and] call all of his acquaintances to come and help him, with the Government obtaining convictions of those who did so. 127 F.3d, at 795, n. 3. The problem with this example, however, is that, even though it is not necessarily an example of entrapment itself, it draws its persuasive force from the fact that it bears certain resemblances to entrapment. The law independently forbids convictions that rest upon entrapment. See Jacobson v. United States, 503 U.S. 540, 548549 (1992); Sorrells v. United States, 287 U.S. 435, 442445 (1932). And the example fails to explain why a different branch of the law, conspiracy law, should be modified to forbid entrapment-like behavior that falls outside the bounds of current entrapment law. Cf. United States v. Russell, 411 U.S. 423, 435 (1973) (defense of entrapment not intended to give the federal judiciary veto over disapproved law enforcement practices). At the same time, the Cruz rule would reach well beyond arguable police misbehavior, potentially threatening the use of properly run law enforcement sting operations. See Lewis v. United States, 385 U.S. 206, 208209 (1966) (Government may use decoys and conceal agents identity); see also M. Lyman, Criminal Investigation 484485 (2d ed. 1999) (explaining the importance of undercover operations in enforcing drug laws).
In tracing the origins of the statement of conspiracy law upon which the Cruz panel relied, we have found a 1982 Ninth Circuit case, United States v. Bloch, 696 F.2d 1213, in which the court, referring to an earlier case, United States v. Krasn, 614 F.2d 1229 (CA9 1980), changed the language of the traditional conspiracy termination rule. Krasn said that a conspiracy is
III
We conclude that the Ninth Circuits conspiracy-termination law holding set forth in Cruz is erroneous in the manner discussed. We reverse the present judgment insofar as it relies upon that holding. Because Jimenez Recio and Lopez-Meza have raised other arguments not here considered, we remand the case, specifying that the Court of Appeals may consider those arguments, if they were properly raised.
The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.