BROAD POLICE POWERS IN CONSPIRACY CASES CONTESTED

The Supreme Court Hears A Narcotics Case That May Hinder The War On Terrorism.

WASHINGTON - An Idaho drug-conspiracy case may greatly complicate the war
on terrorism if the US Supreme Court affirms a federal appeals court ruling.

At issue in a case to be heard Tuesday is whether conspiracy law applies
when federal authorities intercept a drug shipment but then let it go
forward in a sting operation.

Federal prosecutors and law enforcement officials say the same undercover
tactics are necessary to arrest and prosecute international terrorists
before they are able to actually carry out their plans. They say that the
decision in the drug-trafficking case will have an impact on terror cases
as well.

At issue is a September 2000 federal appeals court that reversed the
convictions of Francisco Jimenez Recio and Adrian Lopez-Meza. Both men
arrived at an Idaho shopping mall to drive away a truck carrying $10
million worth of cocaine and marijuana.

The two went to the mall after the truck's driver - who had earlier been
arrested and agreed to cooperate with federal agents - followed his initial
instructions and gave a person unknown to him the truck's location.

The voice on the other end of the phone line said that he would "call a
muchacho to come and get the truck." Three hours later Mr. Recio and Mr.
Lopez-Meza showed up. They were arrested and later convicted in a
drug-trafficking conspiracy.

But the convictions were overturned because the appeals court found that
the drug trafficking conspiracy had effectively ended a day earlier when
federal agents arrested the first driver and took temporary possession of
the truck.

The court ruled that there was not sufficient proof that Recio and
Lopez-Meza were anything other than last-minute, low-level recruits in the
drug trafficking operation. What the Supreme Court must decide is whether
the appeals court properly applied conspiracy law to the case.

The appeals court reasoned that the government's intervention made it
impossible for the drug trafficking conspiracy to be successfully carried
out, thus ending the conspiracy. Anyone who took action related to the
truck full of drugs may be guilty of a drug conspiracy, but not the
original one, the court ruled.

Thomas Sullivan, Lopez-Meza's lawyer, says the appeals court got it right:
"Each defendant was recruited after, and as a result of, the government
intervention, which was a separate agreement, a separate conspiracy."

Federal prosecutors take a different view. "A long line of precedent over
the past 120 years has made clear that factual impossibility - whether it
arises before or after a conspiracy is formed - is not a defense to
criminal liability for conspiracy," according to a brief prepared by
Solicitor General Theodore Olson.

Government lawyers say the key to conspiracy cases is the agreement to
carry out illegal acts, not the possibility of success or failure of those
illegal acts. "The scope and duration of a conspiracy are determined by the
scope and duration of the agreement, not by the likelihood or possibility
that the conspiracy will be successful," Mr. Olson writes.

He adds, "The rule adopted in this case would seriously compromise the
effective investigation and prosecution of conspiracies, not only in drug
cases, but in terrorism and other criminal contexts in which law-
enforcement officials must both foil the success of the conspiratorial
endeavor and bring those who are genuinely culpable to justice."

In a friend of the court brief, Jay Sekulow of the American Center for Law
and Justice says the appeals court ruling must be overturned because of the
war on terrorism. "It is more important than ever that the legislative and
executive branches have the tools needed to stop and prosecute conspirators
who would seek to attack Americans," he says.

"Terrorism, like the war on drugs, requires covert operations that are
vital to frustrating and preventing the actual crime," he says.

A decision in the case, US v. Recio, is expected by late June.