And for my next trick, a disappearing conspiracy.

Judge Learned Hand called conspiracy “the darling of the modern prosecutor’s nursery.” All it generally takes to prove conspiracy is an agreement between two or more people to commit an illegal act. Sometimes the law requires that one party to the conspiracy perform an “overt act” in furtherance of the conspiracy. Whether the planned crime is actually committed or not is not an element of proving conspiracy.

An important article by Michael Brick in yesterday’s New York Times describes how the Kings County D.A.’s office has aggressively used conspiracy charges as a tactic to clean up the drug trade in tough Brooklyn neighborhoods like East New York. Since 2002, hundreds of alleged dealers, as well as workers such as lookouts and even addicts, have been indicted on conspiracy charges and held on bails of up to $1 million. Some face sentences of life in prison.

But what about convictions? As Brick reports, out of more than 500 arrests, not a single defendant has been convicted of first-degree conspiracy. Instead, there have been dismissals, acquittals, and pleas to lesser charges. Judges criticized the prosecution’s tactics; defense lawyers have protested that prosecutors are using the conspiracy charges as a pretext for withholding evidence; and juries have rejected the conspiracy charges. Stunningly, the article states that “prosecutors have argued that their evidence involves secret negotiations and must be withheld.”

In my experience, prosecutors simply do not withhold this sort of evidence if they really have it. Drug conspiracy charges are, in my opinion, among the most difficult to defend against. Usually prosecutors have informants, turncoat defendants, undercover agents, wiretaps, surveillance photos, piles of guns and knives, mountains of powder, scales, seized cars, and even trophy photos taken by the targets themselves. I have yet to meet a prosecutor who is shy about sharing solid evidence against my client. Prosecutors in Brooklyn may be concerned about their choice of using conspiracy indictments in their effort to clean up the drug trade. However, it sounds to me like these prosecutors are making excuses for flat-out badly investigated cases. You don’t get wholesale dismissals and acquittals – in essence, a disappearing conspiracy – from thin air. You get them when there is something seriously wrong with the evidence. CR

March mortgage fraud madness.

On Monday, federal prosecutors in California announced indictments of 19 people for fraud and conspiracy in connection with a phony mortgage bailout and rescue plan. Federal prosecutors claim that sales agents for the ring contacted homeowners through mailings, offering financial assistance to those near foreclosure. Agents steered them into a plan that called for owners to put an “investor” on the home’s title. The homeowner then paid “rent” to the investor in an amount smaller than the original mortgage payment. In reality, the government claims, the investor was an associate or family member of the ringleaders or someone recruited via the Internet. The confusing documentation gave the investor the right to replace the homeowner on the title. Finally, the equity was stripped from the home through a new mortgage. Prosecutors say more indictments are likely as they continue their investigation into brokers, loan officers, and banks that did business with the indicted individuals.

This new spate of indictments, involving mortgage deals in some 22 states, signals how serious the DOJ is about prosecuting the fallout from the subprime mortgage meltdown. Sharon Ormsby, chief of the FBI’s fraud section, says that in the wake of the credit crisis, straw buyers are out and foreclosure scams are in. It certainly seems to me as if the field of potential charges and individuals facing serious criminal exposure will dwarf the opening brackets of the seasonal basketball classic currently in progress. CR

Ben, Ben, he’s our man . . .

Yesterday Melvyn Weiss, the legendary founding member of Milberg Weiss, agreed to plead guilty to a criminal conspiracy to pay a share of legal fees to plaintiffs in his firm's shareholder suits. Such payments are considered illegal kickbacks because they might induce plaintiffs to accept a deal that may not be best for their fellow plaintiffs. Under the deal, Weiss faces 18 to 33 months in federal prison. His lawyer, Benjamin Brafman of Brafman & Associates, released a statement saying that he is “hopeful and confident that the Court will recognize Mel Weiss to be one of the true legal giants of his generation and a consummate humanitarian whose contributions to the Bar and the world community have been nothing short of spectacular.”

The prosecution’s case against Weiss must be ironclad and insurmountable. Ben Brafman is one of the toughest and most talented criminal trial lawyers in the country. I should know – I used to be his partner. If he is signing off on this plea deal, nobody could get Mel off the rap. If Ben can't do it , nobody can! CR