The Quasi-9/11 Case Nobody Knows About

United 93 opens today, and I have all kinds of angst about it, which, near as I can tell, is mostly recounted in Manohla Dargis's deft review in today's New York Times. One point not made in the review, but which I also think bears mentioning, is that it seems entirely possible, if not likely, that New Yorkers (e.g., me) will experience the movie quite differently from how it's experienced by others. I don't know if it'll be in any particular direction, but different. I think I'll go see it, but not because I want to -- sometimes, I think, there are movies that simply need to be seen, of which Schindler's List and Hotel Rwanda strike me as two well-known, if perhaps controversial, examples.

But the deeper issues arising from the movie give me good cover for blogging about an Eleventh Circuit decision from last Friday that seems to have evaded the notice of the blogosphere -- United States v. Arbane. What makes this a valid, if odd, segue is that Arbane claims to have smuggled in at least two of the 9/11 hijackers from South America (even though the federal criminal case is "only" about a conspiracy to import cocaine).

That's only a segue, though. What's substantively fascinating about the case is the extent to which Judge Wilson, dissenting, appears to have an... umm... unusual view of federal conspiracy law.

Specifically, Judge Wilson's dissent suggests that, in a conspiracy-to-import case, the government need not prove that two co-conspirators agreed to import drugs.  He suggests that only the defendant should have to have agreed to import drugs, and that the government needn't prove anything about the co-conspirator (which, in this case, would have been difficult, since the main co-conspirator was a government informant, and the only remaining conspirator didn't know anything, except that the drugs might be leaving Ecuador, but not that they were going anywhere specific, like, oh, I don't know, the United States).

I'm not exaggerating. To quote Judge Wilson:

Judge Barkett’s opinion seems to read a new essential element into the offense of conspiracy-to-import: knowledge on the part of an unindicted co-conspirator as to the intended destination of the drugs. Such a reading places an enhanced burden on the government that is not supported by our precedent, which speaks in terms of the defendant’s knowledge, not the knowledge of an unindicted co-conspirator such as Lopez-Posada. . . .

   Evidence of an unindicted co-conspirator’s particular knowledge as to the object of the alleged conspiracy (here the importation of drugs into the United States) is certainly relevant to establishing the existence of a conspiratorial agreement, but it is the agreement–not the unindicted co-conspirator’s particular knowledge–that is the essential element to be proved. Because a conspiratorial agreement can be established by circumstantial evidence, one can conceive of numerous plausible scenarios in which the existence of a conspiracy to import drugs into the United States can be inferred without any specific showing as to an unindicted coconspirator’s knowledge of its object.

I have two big problems here, not even counting the fact that Judge Wilson doesn't provide any examples of these "numerous plausible scenarios."

First, if the drugs are being imported somewhere else, how does the United States have jurisdiction? That is, isn't an essential element of a conspiracy to import drugs (presumably into the United States) some agreement to import drugs into the United States? That is, regardless of where the drugs were going, there wasn't an agreement between two people to do anything specific with respect to the United States...
 

Second: If so, how can you have an agreement with just one person?  I didn't pass the New York bar by much, to be sure, but I knew at least that an agreement is a meeting of the minds, and, as Judge Barkett notes for the majority:

[I]t is impossible to have an agreement absent knowledge by both parties as to what it is they have agreed to accomplish. There exists no scenario where a person will have agreed to a conspiracy without knowledge of the essential nature of the conspiracy – the very definition of an “agreement” is a meeting of the minds, and there can be no meeting of the minds if only one mind contains knowledge of the object of the agreement.

Maybe I'm missing something here -- I'm certainly not a crim. expert, especially in this company, but this just smelled wrong from the outset. Indeed, Arbane's apparent evildoer-ness notwithstanding, there's only so far the law can bend over before it ends up on its back.

At least it was only a dissent.