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August 20, 2024

Yes, you can aid and abet a federal conspiracy in the Fifth Circuit (Part Two)

Rear view of police detective standing and looking at the paper in front of the wall with map, pictures and sticky notes at office

The Fifth Circuit in Cowart and sister Courts of Appeals note that conspiracy is a distinct offense from that of aiding and abetting, and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting. United States v. Peterson, 524 F.2d 167, 174 (4^th Cir.1975) (“Conspiracy” is a separate and distinct offense from that of aiding and abetting, and involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.) United States v. Townes, 512 F.2d 1057, 1058 (6^th Cir. 1975) (Conspiring to commit crime with another and aiding and abetting in its substantive commission were distinct crimes, and Government should not have been forced to choose between deleting the aiding and abetting element of second count of indictment or dropping conspiracy charge under third count.) United States v. Krogstad, 576 F.2d 22 (3^rd Cir. 1978) (Even where it is apparent that if one is guilty of aiding and abetting, that person of necessity must also have been a conspirator, the cases are clear that a jury may acquit on the conspiracy and convict on aiding and abetting.) United States v. Krol, 374 F.2d 776 (7^th Cir. 1976) (Aiding and abetting the commission of a substantive offense is a crime different from a conspiracy to commit the same substantive offense.) Colosacco v. United States, 196 F.2d 165 (10^th Cir. 1952) (Evidence justified conviction for aiding, abetting, counseling, commanding, inducing and procuring another to falsely assume and pretend to another to be an agent of internal revenue bureau and to demand money of such other person in such pretended character, and for conspiring to commit such substantive offense.)

August 2, 2024

Not All Drug Routes Lead to America (Part 4)

by Micah Belden

Brightly Red Colored Semi-Truck Speeding on a Two-Lane Highway with Cars in Background Under a Stunning Sunset in the American Southwest

You must be prepared for the Government continuing to say that all or most drugs coming through Mexico or Central America are bound by the United States. This is an overstatement, and the cartels are always changing up routes and tactics to avoid law enforcement. The Government will present a litany of evidence of Federal and foreign agents, cooperating witnesses and law enforcement experts on decoding alleged drug conversations to tie the drug shipment to the United States. But, if you can create a reasonable doubt that the drugs were just as likely to be bound for Europe or Asia than the United States, you could walk your client home. There is additional doubt that the drugs are to be consumed locally where they are found, but this is not likely enough to overcome the Government testimony by itself.

Look closely for how the testifying conspirators and others were paid. Were they paid in US Dollars or in pesos or other currency? What was the historical destination background of the conspiracy as presented? What can your investigator dig up regarding any relevant flight paths or ports of call related to boats and planes alleged to be used? Even if you don’t end up going to trial, such information can help you negotiate a much better agreement, perhaps even down to a telephone count or a misprision.

July 14, 2024

Not All Drug Routes Lead to America (Part 3)

by Micah Belden

Private jet flies past sun – in blue sky above the clouds

The cocaine in Rojas was a million-dollar deal that was paid in American dollars by the Zetas, a Mexican drug cartel that a codefendant had seen sending drugs in vans towards the United States, and a meeting was held in Matamoros on the border with Texas to smooth things over when a large drug shipment fell through. Id.

There was no evidence in Rojas that the plane had capacity to fly to Europe. Rojas, at 400. One conspirator built the organization in Rojas specifically to import drugs into the United States. Id., at 402. Rojas also involved intercepted calls with coded language used by an air traffic controller, but someone like a controller would have much more inside information about a flight’s destination.

June 28, 2024

Not All Drug Routes Lead To America (Part 2)

by Micah Belden

However, the Mexican cartels who control the overland routes for drug trafficking are routinely sending loads of cocaine and methamphetamine into Europe, several of which large loads have been seized in ports like Amsterdam. This development has grown since the Fifth Circuit Court of Appeals Rojas case and particularly in the last few years. The government must distinguish between drugs that are intended for the United States and those intended for Europe and Asia, where profits per load can be much higher. In an importation case, “[t]he government ha[s] to show that each defendant intended or knew that the ‘conspiracy to import was directed at the United States.’” United States v. Conroy, 589 F.2d 1258, 1270 (5th Cir.1979).

Sherman and Plano Federal Courts are bound to review such cases under the light of Rojas, but Rojas was based on the presentation of a Colombian and Mexico conspiracy that ended in 2009, itself reviewed under the standard of United States v. Martinez, 476 F.3d 961 (D.C. Cir. 2007) (citing DEA testimony that almost all drugs coming through Central America are bound for the United States), a time in which the illegal drug market in Europe was undeveloped. See Rojas v. United States, 812 F.3d 382, 400-401 (5^th Cir. 2016). Codefendants in Rojas testified that they knew the cocaine was specifically going to the United States. Id., at 401. The more profitable European market was not even considered in Rojas, only the significantly less profitable Central American market, there was no testimony that you could potentially make more money in Europe with less law enforcement risk. Id.

If you or a loved one has been charged with a crime, call Micah Belden at 903-744-4252 now.

June 1, 2024

Not All Drug Routes Lead to America (Part 1)

by Micah Belden

Ship1-300x200 The Sherman and Plano Federal Courts are full of extradition cases from Latin America regarding drug smuggling. These individuals have often never set foot into the United States, so how can they be prosecuted here. Like the previous blog on airplane jurisdiction, the United States Congress has passed laws to make their global land jurisdiction as broad as possible. U.S.C. 959(c) states:

(a) Manufacture or distribution for purpose of unlawful importation

“It shall be unlawful for any person to manufacture or distribute a controlled substance in schedule I or II or flunitrazepam or a listed chemical intending, knowing, or having reasonable cause to believe that such substance or chemical will be unlawfully imported into the United States or into waters within a distance of 12 miles of the coast of the United States.”

May 8, 2024

Drugs on a Plane: Sherman Plano Federal Court International Jurisdiction (Part Three)

by Micah Belden

UKbust-300x200 In Morrison v. National Australia Bank, 561 U.S. 247 (2010), the Supreme Court applied the presumption against extraterritoriality to securities fraud statutes. Again in Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (2013), the Supreme Court applied the presumption and held the plaintiff lacked extraterritorial jurisdiction under the Alien Tort Statute. In 2016, however, in RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090 (2016), the Court held the Racketeer Influenced and Corrupt Organizations Act (RICO) could apply extraterritorially. But the Court severely limited the application of RICO to foreign conduct that violates “a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially.” Still, the Court held RICO’s private right of action does not overcome the presumption. Thus, the Supreme Court has revived the presumption against extraterritoriality and reinforced a high burden to overtake the canon to apply a law extraterritorially.

Under 959(c)(2) cases, a member of a drug conspiracy who are actually on board the aircraft have had their convictions upheld. See United States v. Epskamp F.3d 154 (2^nd. Cir. 2016) (conspirators on board aircraft with cocaine on runway); United States v. Knowles, 197 F. Supp. 3d 143 (D.D.C. 2016), later affirmed by United States v. Thompson 921 F.3d 263 (D.C. Cir. 2019) (pilot and primary trafficker arrested in Haiti when US-registered aircraft was detained); United States v. Bodye, 172 F. Supp.3d 15 (D.C. Cir. 2016) (conspirators actually flew cocaine on US-registered planes); United States v. Lawrence, 727 F.3d 386 (5^th Cir. 2019) (United States citizen defendants personally transported drugs on commercial airplanes from South America to United Kingdom); United States v. Rojas, 812 F.3d 382 (5^th Cir. 2016) (one defendant piloted plane with 600 kilograms of cocaine).

March 8, 2024

Drugs on a Plane: Sherman Plano Federal Court International Jurisdiction (Part Two)

by Micah Belden

AirplaneAisle-300x200 However, there is a “longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255, (2010) “The presumption against extraterritoriality is only a presumption; it is overcome by clearly expressed Congressional intent for a statute to apply extraterritorially.” Weiss v. Nat’l Westminster Bank PLC, 768 F.3d 202, 211 (2d Cir. 2014); United States v. Vilar, 729 F.3d 62, 72 (2d Cir. 2013) (recognizing that presumption against extraterritoriality applies to criminal, as well as civil, statutes but that “it is beyond doubt that, as a general proposition, Congress has the authority to enforce its laws beyond the territorial boundaries of the United States” (internal quotations omitted)). Because the presumption is only “a canon of statutory interpretation,” Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013), whether Congress evinces an intent for the law to apply extraterritorially is likewise a question of statutory interpretation. See, e.g., United States v. MacAllister, 160 F.3d 1304, 1307 (11th Cir. 1998) (“Whether Congress has intended extraterritorial application is a question of statutory interpretation.”); United States v. Thomas, 893 F.2d 1066, 1068 (9th Cir. 1990) (“Whether 18 U.S.C. § 2251(a) applies to Thomas’ extraterritorial acts is, therefore, a question of statutory interpretation.”).

February 8, 2024

Drugs on a Plane: Sherman Plano Federal Court International Jurisdiction (Part One)

by Micah Belden

Airplane-300x202 I was having a few flashbacks to civil procedure class in a recent Federal extradition case recently. In law school, we had to learn the International Shoe standard of “minimum contacts which do not disturb traditional notions of fair play and substantial justice” according to International Shoe, whereby a state in America obtains jurisdiction over a citizen of another American state. Like trial lawyers, the United States wants its jurisdiction to spread far and wide. It is a principal of Admiralty law that the United States has jurisdiction oceanwide. Congress has also passed several laws to extend Federal criminal law jurisdiction as broadly as possible around the world.

This jurisdiction extends to people onboard international air flights. 21 U.S.C. 959(c) states:

Possession, manufacture, or distribution by person on board aircraft