Free Speech Can Lead to a Conspiracy Arrest

Ever say the wrong thing to someone, and feel bad afterwards? Yes, you have. Most guys have asked an overweight woman when her baby’s due. Sure, we have a First Amendment right to free speech, but hurting someone’s feelings is never a good idea. But, what about a little crazy talk among friends? I owned a commercial recording studio for over a decade, and I’ve personally engineered and mastered my fair share of rap albums. Much of the lyrical content of these tracks involve criminal activity that would qualify for a RICO arrest. Is such talk legal? Can the government arrest a bunch of rappers due to the content of their albums? What about non-rappers, can they talk in the same way as rappers and still have their speech protected by the First Amendment? According to the laws of conspiracy, speech involving criminal conduct can cross a line into that gray area known as “conspiracy”. So, what’s the difference between a criminal conspiracy and a constitutionally protected b.s. session between a bunch of wannabe thugs?

Here’s a practice tip: How do you know the government has a weak case? The word “conspiracy” immediately precedes a description of the crime to which they have very little proof. So, let’s say law enforcement thinks you’re dealing drugs. But, they never catch you dealing drugs. They never catch you with drug money. They never catch you in possession of a controlled substance. But, you’ve talked to your friends about all the money drug dealers are making, and the government somehow recorded that conversation. Now, law enforcement simply decides what crime they can’t prove, and adds the term “conspiracy”–then makes an arrest. My question for the day is, can they get a conspiracy conviction? Let’s see this play out in real life.

In Bell v. State, 111 So.3d 199 (Fla. 4th DCA 2013), Bell was convicted of delivery of cocaine, and conspiracy to deliver cocaine (because we’re only addressing conspiracies today, we’ll ignore the issues surrounding Bell’s delivery charge). Here’s what, supposedly, happened on the conspiracy to deliver cocaine. In June of 2009, two brothers were the target of a drug trafficking investigation. The investigation got a boost in September of 2009 when an informant gave the police some solid leads on their investigation of the two brothers. Police then arranged for a “controlled buy”, with one informant posing as a stripper who wanted to resell the drugs at her club. So far, so good, right? Drugs, Cash Money, Strippers. The cops in this case probably used a few rap songs to script this set up.

On September 23rd, the fake stripper arrived to buy from the brothers, and noticed that there was a third guy present. Not only was this third guy present for the drug deal, the money was handed to this third guy–defendant Bell. But, the stripper overpaid Bell by $5, and Bell didn’t have change. A local convenience store couldn’t make change for their transaction, so Bell agreed to give the stripper a $5 credit. Now, how’s that for service? This credit was utilized soon thereafter, as several more buys were set up with the brothers. Bell was never involved in the subsequent transactions, though he was in the parking lot, present, for the later deals. So, Bell was convicted of conspiracy to deliver cocaine. Did the appeals court let this conviction stand? Well, if I’m writing about it, you probably know where this is heading….

The appeals court overturned Bell’s conspiracy to deliver cocaine conviction, reasoning that “there was unquestionably evidence that the defendant assisted and/or participated in the September 23rd drug sale. There was, however, no evidence that the defendant had any knowledge of the drug deal before the informants’ arrival that day…There was some evidence suggesting the defendant was involved with the brothers’ drug deals after September 23rd…the one brother indicating [Bell] told him to call and the defendant was found in the parking lot after the final buy. Such evidence, however, does nothing to establish that, before the September 23rd buy, there was an agreement between the defendant and the brothers to sell or deliver cocaine.” Id at 201. Notice the timing of a conspiracy charge–only evidence of planning before the crime is relevant.

The focus of a conspiracy to deliver controlled substances–be it cocaine, oxycodone, marijuana, whatever–is going to be evidence as to whether or not a defendant set up the deal, or helped set up the deal. The court in Bell cited Mickenberg v. State, as an example of what it takes to prove a conspiracy case. 640 So.2d 1210 (Fla. 2d DCA 1994). Mickenberg was present for numerous drug buys set up by a friend, and he even put the drug money in his friend’s safe–but the court found that there was no evidence to establish Mickenberg was involved in setting up the drug deals that he attended and helped stash the cash. No prior planning, no conspiracy, and Mickenberg’s conviction was thrown out. Technically speaking, Bell and Mickenberg define planning as follows: “Both an agreement and an intention to commit an offense are necessary elements of [conspiracy]”. Quoting Ramirez v. State, 371 So.2d 1063, 1065 (Fla. 3d DCA 1979). So, if you have an agreement, that’s not enough. The state must also prove intention. How do you prove intention? Wouldn’t Mickenberg’s presence at a drug deal indicate intention? Nope. Wouldn’t putting money in the safe after the drug deal prove intention? Nope. The planning must happen before the transaction, that’s how you get a conspiracy. And now, you know the rest of the story.