Transcript

UNITED STATES, Petitioner v. FRANCISCO JIMENEZ RECIO AND ADRINA LOPEZ-MESA.

No. 01-1184

November 12, 2002, Tuesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 a.m.

PROCEEDINGS

(10:04 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 01-1184, United States versus Francisco Jimenez Recio and Mr. Lopez-Mesa.

Mr. Dreeben.

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER

MICHAEL R DREEBEN: Mr. Chief Justice, and may it please the Court.

This Court has made clear that conspiracy is an inchoate offense, the essence of which is the agreement to commit an unlawful act.

CHIEF JUSTICE REHNQUIST: What does the word inchoate mean?

I realize you're getting it from our opinions, but--

Unidentified Justice: [Laughter]

MICHAEL R DREEBEN: Mr. Chief Justice, I believe that it means an uncompleted offense, activities that have not yet progressed to the point of having violated a substantive provision of the criminal law, yet which represent a sufficient step to warrant legal intervention under the doctrine of either attempt or conspiracy.

JUSTICE SCALIA: It's the opposite of a choate offense, I assume, is it not?

Unidentified Justice: [Laughter]

MICHAEL R DREEBEN: Yes, Justice Scalia, except that word seems not to have appeared in this Court's opinions.

[Laughter]

CHIEF JUSTICE REHNQUIST: Or in the dictionary.

Unidentified Justice: [Laughter]

JUSTICE KENNEDY: Well, it is in the dictionary.

I'm getting it in a minute.

It will take me a minute to noodle while I get it out of the dictionary.

But I... I thought that it meant something that's not yet formed.

MICHAEL R DREEBEN: Well, in the case of a conspiracy, Justice Kennedy--

JUSTICE KENNEDY: I thought that's what the word meant.

MICHAEL R DREEBEN: --It... it may... it means that with--

JUSTICE KENNEDY: Incipient I suppose.

MICHAEL R DREEBEN: --with... right.

With reference to the object offense.

So a conspiracy is an agreement to commit an offense.

The offense has not yet been formed.

It has not actually been realized, but the conspirators have agreed to commit the offense.

And the law of conspiracy deems it appropriate for society to intervene at the stage at which the conspirators have entered into that agreement so as to protect society against two things.

JUSTICE O'CONNOR: And taken some act in furtherance of it?

MICHAEL R DREEBEN: Justice O'Connor, under the drug statute, this Court held in United States v. Shabani that there is no requirement of proof of an overt act in order to punish a drug conspiracy.

JUSTICE O'CONNOR: When does the conspiracy terminate, in your view?

MICHAEL R DREEBEN: The conspiracy terminates, Justice O'Connor, either when the conspirators achieve the objective that they have agreed to carry out, or when they have abandoned efforts to do so.

That fundamentally reflects the principle that the essence--

JUSTICE SCALIA: Or when one of them has abandoned efforts.

I mean, if... if one of them leaves the conspiracy, I suppose you have a different conspiracy then, or what?

MICHAEL R DREEBEN: --No, not automatically, Justice Scalia.

JUSTICE SCALIA: Suppose one of them knows that it's no longer possible and he leaves the conspiracy.

MICHAEL R DREEBEN: That individual will... in order to accomplish a withdrawal from the conspiracy has to do more than simply leave it.

The law of withdrawal of a... on withdrawal from a conspiracy requires that the conspirator do some affirmative act to terminate the existence of the conspiracy either by going to law enforcement, or by communicating to his fellow conspirators that he's done with the venture and he's out of it.

But the termination of the participation of one co-conspirator through withdrawal or abandonment or telling law enforcement does not terminate the conspiracy.

The very nature of conspiracy is a group of individuals who have come together to carry out an unlawful act, and in order for the conspiracy to do that, it frequently will grow and enlarge its membership.

Other members may drop out.

But so long as there is a common agreement to commit a definable crime or unlawful act, the conspiracy continues.

CHIEF JUSTICE REHNQUIST: What if all but one drop out?

Does a... does a conspiracy continue as to that one?

MICHAEL R DREEBEN: Well, this Court has never addressed the question, and I could find no cases in the common law that had addressed the question.

Certainly under the common law, you cannot have a unilateral conspiracy, although the Model Penal Code would have allowed that.

There may, however, be policy reasons to hold that once a conspirator has embarked upon his venture, even if all of the other conspirators are arrested and give up the effort, that one lone conspirator who still soldiers on, without knowing that the other conspirators have abandoned it, might properly be held liable for seeking to accomplish the aims of the conspiracy.

JUSTICE SCALIA: It's a conspiracy of one, so to speak, right?

MICHAEL R DREEBEN: If such an animal exists, it would be a conspiracy in which all members but one have abandoned the objective.

In a case like this, however, where what happens is that two members of a multi-member conspiracy are arrested, one of them becomes a Government agent, the other one perhaps does not... and it's not clear that he did abandon the efforts to accomplish the goals of the conspiracy... but there are many others at large who are continuing to carry out the conspiracy, the criminal agreement persists.

And where the Ninth Circuit got off on the wrong foot was by believing that a conspiracy ends when its goals have been defeated.

When the object of the conspiracy has been defeated, the Ninth Circuit thought, the conspiracy is over.

That, however, is contradictory to the fundamental principle of conspiracy law that the essence of the crime is the agreement between the parties to carry out an unlawful act, and to take the--

JUSTICE GINSBURG: Mr. Dreeben, what about--

JUSTICE KENNEDY: --Would you... would you tell me what the conspiracy was that survived the... the claimed end of the conspiracy?

JUSTICE STEVENS: What... what... conspiracy to do what?

MICHAEL R DREEBEN: --Conspiracy to distribute and deliver marijuana and cocaine.

JUSTICE STEVENS: Was it the marijuana and cocaine that had already been seized by the Government, or some other marijuana?

MICHAEL R DREEBEN: As the case comes to this Court, the conspiracy that survived was the conspiracy to distribute that cocaine and marijuana that had been seized.

But what's crucial is that those conspirators who remained liable were entirely unaware that the Government had intervened and frustrated the objective of the conspiracy.

And I think that the hypothetical that makes clear why the Ninth Circuit went wrong is the instance where the Government enters the market in a reverse sting operation and goes into the market as a seller, offering to sell drugs, and a collective of individuals decides to pool their resources and arrange to purchase the drugs that the Government is offering.

It is highly likely that the Government has no intention and never had any intention of delivering actual drugs.

Therefore, the goal of the conspirators is frustrated at the inception.

They don't know it, but they could never accomplish the object of their conspiracy.

Yet, it's settled in the Ninth Circuit and elsewhere that the conspirators can still be held liable because their agreement to perform an act which, under the facts as they understand them, would be unlawful.

JUSTICE STEVENS: And the difference between an attempt and the conspiracy, in the attempt you need a dangerous probability of success or something along that line, but you don't need that in a conspiracy case.

MICHAEL R DREEBEN: That's correct.

Conspiracy intervenes at an earlier stage, Justice Stevens.

The traditional Federal rule is that in an attempt, you need the intent to perform the illegal act, plus a substantial step towards its completion.

The law of attempt has always required a little bit more activity on the part of the defendant before the Government can intervene and penalize it.

And that's in part because of the need to have some corroborating evidence that the defendant actually did intend to carry out an illegal act and to avoid penalizing something as a thought crime.

JUSTICE GINSBURG: Mr. Dreeben, the first trial in this case described a narrower conspiracy, did it not, than was involved in the second trial?

And would you explain what the difference was in the conspiracy charge initially made, and the conspiracy charge in the second trial?

MICHAEL R DREEBEN: Well, the conspiracy charge, Justice Ginsburg, remained the same in both.

In the... the indictment was not changed.

It was a single indictment that alleged the conspirators formed an agreement at a date unknown to the grand jury, but by November 18th, 1997, to distribute and possess with intent to distribute cocaine and marijuana.

In the original trial, the parties were unaware of the Ninth Circuit's decision in United States versus Cruz, which forms the basis for the legal rule that the Government challenges here.

And it, therefore, proceeded on the... what we believe to be the wholly correct theory that respondents could be held liable for joining that conspiracy on November 19th when they agreed to become couriers to move the drugs further down the road in Idaho.

They did not know that the drugs had actually been seized earlier by the Government and that the Government was watching them.

So the Ninth Circuit's ruling in Cruz meant that what the Government had argued in the first case no longer was sufficient to support conspiracy liability.

JUSTICE KENNEDY: Is... is there a temporal component to your argument?

If the initial defendants had been arrested and detained for a month and then they got around to the sting operation, would it still be a conspiracy, or does it lapse after some reasonable time?

MICHAEL R DREEBEN: It doesn't lapse through a period of time, Justice Kennedy.

What could cause the conspiracy to end is the conspirators' wholly abandoning pursuit of the objectives of the conspiracy.

In other words, if all of the conspirators on the outside... those who were in Arizona on the sending end and those who were on Idaho on the delivery end... had all concluded that something has gone wrong with this shipment, the drugs have disappeared, they could have abandoned the narrowest version of the conspiracy--

JUSTICE KENNEDY: But so long as one of the end delivery people didn't know about it and thought that the drugs were still on the way, he could continue to recruit people and so forth even if the principals had been in jail for a month and the drugs had been seized for a month?

MICHAEL R DREEBEN: --Well, the people who were in jail were the couriers, not the principals.

JUSTICE KENNEDY: Well, let's... let's... all right.

But even those... some couriers had... had been in jail.

MICHAEL R DREEBEN: Correct, because so long as those individuals who are involved in the conspiracy are still trying to accomplish its objective, the conspiracy is still alive.

And as the... as in the case of the Government sting where there's never any drugs in the outset, the conspiracy is impossible as a matter of fact for the conspirators to successfully accomplish.

But if it is accepted that that can be a crime, where there's a Government sting at the outset, then surely the Government's intervention in midstream doesn't automatically terminate the conspiracy as a matter of law, which is what the Ninth Circuit held.

JUSTICE O'CONNOR: Mr.--

--But explain again what you mean now?

If, instead of cocaine, it had been powdered sugar, can there be a conspiracy conviction?

MICHAEL R DREEBEN: Justice O'Connor, it would depend on whether the powdered sugar is supplied by the Government under the representation that it is cocaine, or whether the defendants are actually seeking to move powdered sugar knowing that they are seeking to move powdered sugar.

JUSTICE O'CONNOR: No.

They think they're... they have a load of cocaine and that was their intent, but unbeknownst to them, it's powdered sugar.

MICHAEL R DREEBEN: Liability.

Because the... the question of conspiracy liability is judged by what the actor perceives to be the facts.

JUSTICE KENNEDY: How is that different from an agreement to receive stolen goods and then we find out the... goods are not stolen?

That's... that's not actionable I... I had thought.

MICHAEL R DREEBEN: Well, it is the same, Justice Kennedy, and... and the uniform position in the Federal courts is that it is.

That would be a mistake of fact, and when the conspirators or the person who's attempting to commit a crime has the intent to commit a crime and takes a substantial step for it, the fact that unbeknownst to him some aspect of the universe is such that he can't complete the crime does not defeat the accomplishment of the objective.

JUSTICE SCALIA: Well, if... for a conspiracy conviction, I mean, because the whole... the whole purpose is to prevent people banding together for wicked purposes, but if... if there's no conspiracy involved and he's mistaken in the fact, I assume there's no crime.

MICHAEL R DREEBEN: No.

The... the modern rule, Justice Scalia, is that there is a crime.

In this country, the earliest case that addressed it and the case that all of us are familiar with from law school is People versus Jaffe, a New York Court of Appeals case from 1906.

And that case did, indeed, hold... as Justice Kennedy has described it... that if the person is receiving what he believes to be stolen goods and the goods are not stolen, he is not liable.

But the modern focus on attempt law is on the intent of the actor to commit an illegal act, and the fact that unbeknownst to him there are circumstances that prevent him from accomplishing the completed crime does not defeat his liability for an attempt.

In other words, attempt law and conspiracy law have, to an extent, converged on the policy that the importance of inchoate crimes is to get at dangerous actors.

JUSTICE O'CONNOR: What case would you cite to us for this notion under attempt law?

Is... is there anything from this Court?

MICHAEL R DREEBEN: There... the only thing that there is from this Court, Justice O'Connor, are two opinions that have addressed the obstruction of justice statute, Osborn versus United States and United States versus Aguilar.

In both of those cases, the Court was dealing with a statute that didn't use the word attempt.

It used the word endeavor.

And the Court made quite clear that the impossibility of the defendant accomplishing the objective of his crime doesn't defeat liability.

In Osborn, it was an individual who was attempting to bribe a juror.

Unbeknownst to him, the intermediary, who he was using to pay the bribe, was working with the FBI.

And of course, the bribe was not going to be paid.

The juror was not going to be corrupted.

And yet, the Court held that an endeavor to commit the crime is punishable.

JUSTICE GINSBURG: Does the Model... Model Penal Code take a position on this?

MICHAEL R DREEBEN: Yes.

The Model Penal Code goes very far in the direction of the intent-based focus of attempt law and conspiracy law.

In the Model Penal Code, there is no defense for impossibility of any kind, fact or law.

What the Model Penal Code does, however, is allow, in certain extreme cases that it wasn't able to craft a principle for, a power to a judge to either reduce the grade of a crime or to dismiss it.

And the Model Penal Code was thinking about hypotheticals which have not come up in any cases that... that anyone has actually found, such as where an individual believes that he can kill through incantations and voodoo and sets about to do so.

Under an orthodox, doctrinaire approach to principles of attempt law, that individual has the intent to kill, and has carried out a substantial step.

Many commentators have said that should not occasion liability because it's inherently impossible that the actor will achieve his goal and in reality that person is probably not a dangerous individual who warrants punishment.

CHIEF JUSTICE REHNQUIST: Well, what... what's the difference between being inherently impossible and the other kinds of impossibility?

MICHAEL R DREEBEN: Only a matter of degree, Mr. Chief Justice, and for that reason, the Model Penal Code rejected a legal rule that would carve out inherent impossibility and said that it's really something that should go to whether a judge should reduce the grade of a crime or dismiss it.

Our position is that that sort of--

JUSTICE SCALIA: Okay... or dismiss it.

They... they just leave it up to the judge?

It's a crime or not depending upon... is there any other instance where the Model Penal Code does this sort of thing?

MICHAEL R DREEBEN: --I don't know if there are any other instances where the Model Penal Code does it, but our position is that the sounder approach is to--

JUSTICE SCALIA: Extraordinary.

MICHAEL R DREEBEN: --leave those cases in the hands of prosecutorial discretion and the common sense of juries.

The fact is that there really are no hypotheticals in real cases that resemble the killer by incantation.

JUSTICE SCALIA: What did the Ninth Circuit rely on in United States versus Cruz?

If... if the law is as uniform as you say it is, what... what did they rely on?

They must have relied on something.

MICHAEL R DREEBEN: The Ninth Circuit, I believe, made a... a linguistic mistake.

There are an abundance of cases that say that a conspiracy ends when its goal is either accomplished or defeated, and those cases, read in context, mean that if the conspirators actually abandon their efforts to complete the crime, or all of them are arrested and they're in custody and they're really not in a position to go forward anymore, the conspiracy ends at that point.

And frequently that sort of a determination is made for purposes of the admission of co-conspirator statements under 801(d)(2)(E).

You want to know whether the conspiracy is alive so you can determine whether to admit post-arrest statements by one conspirator against another conspirator.

And in those cases, it makes perfect sense to say that the conspiracy ended when all of the co-conspirators are arrested and have given up.

The Ninth Circuit took that language... the language referring to the defeat of the object of the conspiracy... and took it literally, and the effect was to create a defense of factual impossibility.

And the court actually used those words.

It was factually impossible for the conspirators to complete their crime.

Therefore, the conspiracy was over as a matter of law.

JUSTICE BREYER: Is it the case... four conspirators, A, B, C, D.

A is arrested, out on bail.

A makes a few statements which are overheard.

Can you admit that hearsay against B, C, D, who are later found?

MICHAEL R DREEBEN: It all depends, Justice Breyer, on whether--

JUSTICE BREYER: I thought they couldn't.

MICHAEL R DREEBEN: --on whether he's still attempting to achieve the goal of the conspiracy.

There are a... a number--

JUSTICE BREYER: You say, would... in that... normally... normally a person who's arrested, that ends the conspiracy as to that person, doesn't it, at least normally?

MICHAEL R DREEBEN: --Well, not... not necessarily, Justice Breyer.

In this case, for example, one of the two arrested couriers, Sotelo, reportedly told Arce, the other arrested co-conspirator, that they should both tell a lie to the authorities and then try to escape.

I mean, that--

JUSTICE BREYER: No, I'm not thinking of that.

I'm thinking it is an... there... there is no reason to think... all we know about him is he's arrested and he happens to mention something to a neighbor that has nothing to do... who has nothing to do with the conspiracy.

This statement is not made in furtherance of any conspiracy.

MICHAEL R DREEBEN: --Correct.

JUSTICE BREYER: It's simply made after A is arrested.

As far as we know, A has nothing further to do with it.

MICHAEL R DREEBEN: That's correct.

So long as the statement isn't made in furtherance--

JUSTICE BREYER: But... that shows... in other words, that shows what?

That shows that although the conspiracy in your view continues... B, C, D... but A has withdrawn?

Is that what it shows?

MICHAEL R DREEBEN: --No.

What it may show is that the statement wasn't made in furtherance of the conspiracy.

If he's simply talking to his neighbor, it may not be doing anything to carry out the aims of the conspiracy.

If, on the other hand--

JUSTICE BREYER: Inadmissible, in other words, even if A has never been arrested?

MICHAEL R DREEBEN: --Right.

The statement to be admitted as a statement of a co-conspirator must be both during the course of and in furtherance of the conspiracy.

So to continue your hypothetical, if you suppose that A comes out, and then tries to communicate through intermediaries that he knows where the drugs are and that people should take efforts to secrete them before the authorities seize them, then that statement could be admitted as a co-conspirator's declaration.

JUSTICE GINSBURG: Mr. Dreeben, could we just clarify this particular case?

Why the... the date of the 18th when the two people involved... the proof as to them goes only from the next day on?

And why the... their conspiracy starts the day that the drugs are seized.

Right?

MICHAEL R DREEBEN: Correct.

JUSTICE GINSBURG: Although the larger conspiracy that they're part of began presumably much before that.

MICHAEL R DREEBEN: Actually, I... I think the... the way the case comes to this Court, the involvement of the two couriers begins on November 19th, the day after the drugs are seized, when they're recruited.

JUSTICE GINSBURG: Yes, but they're charged with a conspiracy dating from the 18th.

Is that right?

MICHAEL R DREEBEN: That's right.

That's right.

JUSTICE GINSBURG: Although they don't enter the picture until the 19th.

MICHAEL R DREEBEN: As the case comes to this Court, that's right.

When... when the case was charged, the parties weren't focusing on Cruz and the case was just charged in the way conspiracies normally are ; namely, the grand jury alleges that the conspiracy came into existence by a particular date when it could be certain that it did come into existence.

It may have come into existence earlier, and the grand jury's charge says from a date uncertain, but at least by November 18, there was a conspiracy in place and the following four individuals were... are to be charged as co-conspirators, plus others unknown to the grand jury.

Now, in light of the way the facts actually panned out at... at the trial, and given the holdings of the Ninth Circuit that the Government failed to prove pre-seizure involvement on the part of the respondent couriers, the indictment might have more accurately been written to say that on November 18th, at least, a conspiracy was formed, and by November 19th the respondents joined it.

The--

JUSTICE KENNEDY: Could the Government have charged a separate, second conspiracy if it had chosen to do so?

MICHAEL R DREEBEN: --I don't think so, Justice Kennedy, because the crucial aspect of a conspiracy and a defining, limiting principle is the scope of the nature of the agreement.

Courts have worked out a multi-factor test to determine whether you have one agreement or two agreements.

And it focuses not on literal identity of membership or complete chronological co-existence of the participation of each conspirator, but whether there's a common agreement which each is seeking to advance forward in his own way and whether the excess of one is dependent on the efforts of the others.

Now, in this case, construed most narrowly, the indictment alleges a conspiracy to move drugs, staring in Phoenix, Arizona, through Las Vegas, and all the way up to Idaho and then perhaps beyond that.

That is the conspiracy in which respondents were involved as substitute couriers brought in to move the truck from the Karcher Mall in Idaho to its ultimate destination.

That's the same conspiracy that existed at the outset.

The original couriers, had they not been arrested, would have completed the trip.

So what you have is one common agreement in which all participants are working to achieve the same goal, and there is only a switch of two members, the two couriers, midstream--

JUSTICE GINSBURG: But you were going back to... I think you hadn't completed your answer to why it's okay that even though the proof as to these two defendants starts on the 19th, not on the 18th, it's okay to have the indictment say they were participants from the 18th.

MICHAEL R DREEBEN: --Justice Ginsburg, if you read the indictment as alleging that they were involved on the 18th and we didn't show that they were involved until the 19th... and as the case comes to this Court, that's what we showed... you have a variance between the allegations of the indictment and the proof at trial.

And the settled law on variances is that it is no defense for a defendant if the proof varies from the conspiracy charged in the indictment so long as the conspiracy that's proved up is within the scope of the indictment, a lesser included conspiracy, so to speak, and the defendants suffer no prejudice from the variation.

Now, in this case, everyone knew from the outset that the centerpiece of the Government's proof against respondents was going to be the observation of them driving up after the call was placed to the Arizona supplier of the drugs and getting into the truck and driving the truck away down the highway in Idaho, following which they were stopped and gave completely unbelievable stories about what they were doing driving around with a truck filled with drugs.

There was no prejudice to the defendants in defending against a conspiracy that was proved up based on the events of the 18th because those events were always going to be at the heart of the Government's proof that they were liable.

So absent a showing of prejudice, the variance between the allegations of the indictment and the proof at trial does not warrant any relief.

JUSTICE SOUTER: But your... your principal argument is not in response to variance.

It's simply that on the 19th they became... excuse me... they became part of a conspiracy that had begun at least by the 18th.

MICHAEL R DREEBEN: That's correct.

JUSTICE SOUTER: That's... that's the essence of your position.

MICHAEL R DREEBEN: That's... the essence of our argument is that... and the Ninth Circuit in ruling that the evidence was insufficient did not rely on principles of variance or principles of multiple conspiracies or any other fact-based, record-based analysis that would show that the Government didn't prove the conspiracy alleged in the indictment.

What the Ninth Circuit relied on was its holding in Cruz which is that a conspiracy ends when the Government intervenes and renders its completion impossible.

And the Ninth Circuit, therefore, reasoned that respondents could not have joined the conspiracy alleged in the indictment because that conspiracy was, as a factual matter, over.

Accordingly, the only way on the Ninth Circuit's view that the Government could win this case is if the Government showed that respondents joined the conspiracy before the seizure of the drugs, or if they were involved in a broader conspiracy that involved other drugs.

Only under those two assumptions did the Ninth Circuit think that the Government could prevail.

And the Ninth Circuit held that the evidence was not sufficient to prove either of those other conspiratorial activities.

It never questioned that the evidence was overwhelming to prove a conspiracy to participate in the distribution of drugs on November 19th, when respondents showed up and got in the truck.

And because the Ninth Circuit was wrong in its holding that a conspiracy terminates when it becomes factually impossible of accomplishment, the rest of its analysis also crumbles.

I'd like to save the remainder of my time for rebuttal.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Dreeben.

Mr. Shurtliff, we'll hear from you.

ORAL ARGUMENT OF M. KARL SHURTLIFF ON BEHALF OF THE RESPONDENTS

M KARL SHURTLIFF: Mr. Chief Justice, may it please the Court, counsel.

Mr. Sullivan and I expect that we were not invited here to argue our view that the case below was decided on the sufficiency of the evidence question.

However, having said that, we would not wish to have it taken that we abandon that argument.

Mr. Chief Justice, a number of the questions posed seemed to go to the heart of what this case is about.

Justice Stevens asked, what was the conspiracy that survived?

The Government argues at length in the brief and here today that... notwithstanding the charge in the indictment and the trial of this case below... that by November 18th, 1997, Mr. Recio and Mr. Lopez-Mesa could be charged with the crime.

The fact of the matter is, is that the indictment framed what this case was about by November 18th.

CHIEF JUSTICE REHNQUIST: Well, Mr. Shurtliff, the only question presented in the petition for certiorari is whether a conspiracy ends as a matter of law when the Government frustrates its objective.

Now is... is... are what you're about to say going to deal with that question?

M KARL SHURTLIFF: It is, Mr. Chief Justice, because that's the argument that the Government makes that we should not sustain the Ninth Circuit decision in this case as framed by Judge Browning who formulated the decision.

CHIEF JUSTICE REHNQUIST: Well, but the Government formulated the question here.

M KARL SHURTLIFF: I... I understand that, Mr. Chief Justice, and... and we do speak to that.

The... the question was posed, What conspiracy survives, and I'm suggesting that no conspiracy survived, and that the answer is, is that the Government framed the case as they would have it and that the issues that the Government talks about here today and in their brief at length as to when the... these two late-comers to the conspiracy enter... came into it... obscures that notion.

Your Honor... or Mr. Chief Justice, the... the question posited in the... in the petition for certiorari, with all due respect, I don't think has been really argued here much today by the Government.

The... the question is correctly whether a conspiracy ends as a matter of law when the Government frustrates its objective.

That is taken from the formulation of former Chief Judge Browning in this case below that he... all they said was... in describing the case here and referring back to Cruz... in Cruz we ruled that a defendant could not be charged with conspiracy to distribute illegal drugs when the defendant was brought into the drug scheme only after the law enforcement authorities had already intervened and defendant's involvement was prompted by that intervention.

The Ninth Circuit didn't say that this was an impossibility case, that it was impossible for the conspiracy to continue as to other people.

What the Ninth Circuit said in that case was in these circumstances... in these limited circumstances, in Cruz and in Recio... that given the Government intervention in the objective of the conspiracy, given the Government intervention and the invitation after that to join the conspiracy by Recio and Lopez, that they couldn't join the conspiracy.

It was a new--

JUSTICE SCALIA: Why would impossibility caused by the Government be any different from impossibility caused by somebody else?

You... you want to reframe... you... you think that we could answer this question no, but still find for your clients because this is not just impossibility simpliciter, this is impossibility produced by the Government.

M KARL SHURTLIFF: --I think, Mr. Justice Scalia, that you could answer the question no and still find for our clients because this is not the case.

This is not why they were... the Ninth Circuit reversed their convictions.

The--

JUSTICE SCALIA: There wasn't impossibility at all?

M KARL SHURTLIFF: --There wasn't impossibility.

JUSTICE SCALIA: What was it?

M KARL SHURTLIFF: It was termination.

They added... typically and historically--

JUSTICE SCALIA: Well, why was it terminated?

It was terminated... people didn't write notes to each other saying, you know, Let's call off the conspiracy.

It was terminated, the Ninth Circuit found, because its object was no longer possible.

I thought that's why they found it had terminated.

M KARL SHURTLIFF: --The object, Mr. Justice Scalia, was... was frustrated by the Government intervention.

The--

JUSTICE GINSBURG: But the Government's position is there's only two ways a conspiracy can end.

One we know is not this case.

They didn't succeed.

The other, the Government says, is that the conspirators have to abandon it, not that it becomes... there's an impediment to its completion, but abandonment by one person, if she withdraws from the conspiracy and tells the police, for example, or tells the co-conspirators.

But an impediment... another impediment... doesn't stop the conspiracy from persisting.

And the Ninth Circuit I thought pretty clearly said, Yes, it does, and that... wasn't there rather sharp disagreement among the Ninth Circuit judges over this?

They didn't treat it as a question of sufficiency of the evidence.

M KARL SHURTLIFF: --Indeed, Justice Ginsburg, there was sharp disagreement.

Justice... Judge O'Scannlain and eight other members of the court dissented from the... not granting the rehearing en banc.

However, what... the point I seek to make, not very well, apparently... is... is that what the court below did not say was that it was impossible to have a conspiracy, but that they added to abandonment and accomplishment a new ability to frustrate or end the conspiracy.

That is Government... and... and narrowly.

Government intervention that frustrates its objective and that Government intervention invited the new participants into it.

And Justice Ginsburg, you... you inquired as to what... or, Justice O'Connor, as to the... as to the... what the Model Penal Code might say about that.

And I would suggest that in that regard, Wharton, in describing that, said... suggests that the Model Penal court... Code suggests the position that if the conduct is, quote, +"/.

+" so inherently unlikely to result or culminate in the commission of a crime that no public danger is presented warranting defendant's punishment as a conspirator.

And I think that's what the Ninth Circuit was saying in this case, that if we look at this historical purposes of conspiracy... and the Government has well traversed that in its briefs and its reply brief... that the gist, the gravamen of a conspiracy is the combination that... to agree to do something.

Mr. Justice Kennedy, you inquired whether to do something that's not illegal is... can be a conspiracy, and I suggest that that... that's part of what brings us here is the confusion as to when you can and cannot and ought not have a conspiracy.

JUSTICE O'CONNOR: Well--

JUSTICE SCALIA: --But there... there is a public danger presented by people who band together to rob a bank even when there is no money in the bank.

It's utterly impossible.

Right?

That... that's quite different from the... the unquestionable fact that there's no public danger presented by people who band together to curse somebody with... with a voodoo doll.

You can say, well, you know, That's a harmless conspiracy, but a conspiracy to rob a bank is not harmless.

These are bad people, and if they don't do this bank, they may do another bank.

Now, you acknowledge that that is a conspiracy even though there... a criminal conspiracy even though there's no money in the bank.

Right?

M KARL SHURTLIFF: Indeed, Justice Scalia.

JUSTICE SCALIA: But you say it does... it is not a criminal conspiracy if the reason there is no money in... in the bank is that the Government has removed the money from the bank knowing that there's going to be a... a break-in?

M KARL SHURTLIFF: There would be no conspiracy if the Government had intervened in that conspiracy early on and the involvement of the participants charged was only as a result of that involvement.

JUSTICE SCALIA: So if the Government took the money out of the bank, that would be different than if there was just no money there from the outset.

M KARL SHURTLIFF: I'd think not, Mr. Justice Scalia.

I think the... the question would be what the... what the participants who were engaged to participate in... in the robbing of the bank thought.

JUSTICE SCALIA: They... well, in both cases they thought there was money in the bank.

In one case, they were wrong because there was never money in the bank.

It was a blood bank.

Okay?

Unidentified Justice: [Laughter]

M KARL SHURTLIFF: And--

JUSTICE SCALIA: In the second case, there was no money in the bank because the Government, anticipating a... a robbery, had removed it.

And you say that there's something different about the second case.

M KARL SHURTLIFF: --I... I don't think there's anything different, Justice Scalia--

JUSTICE SCALIA: Okay.

I don't think so either.

JUSTICE BREYER: Then what is your reason?

I'm just trying to get... A, B, C, and D form a conspiracy to deprive a person of civil rights, to rob a bank, to commit an act of terrorism, whatever.

They do it on January 1.

On March... in March, a Government agent infiltrates.

Now it'll fail.

In April three more people join.

All right?

Now, why should the law not be those three people are just as guilty as anybody else?

M KARL SHURTLIFF: --Mr. Justice Breyer, they can be, and they ought to be depending on the facts of the case, and that's why the--

JUSTICE BREYER: The facts of the case are just what I said.

Now what?

M KARL SHURTLIFF: --I think... I think they're guilt... they... I think they... they're in on the conspiracy.

JUSTICE BREYER: You think they're guilty.

Okay.

M KARL SHURTLIFF: They're guilty of the conspiracy.

JUSTICE BREYER: They're guilty and they joined after--

M KARL SHURTLIFF: Whether they're guilty or not is another question.

JUSTICE BREYER: --No, no.

I'm... all the facts are just as I say.

So, they're guilty, and now what they did is, after all, join it after the infiltration of the Government agent made it absolutely certain there would be no success.

All right.

Now, how is that different than the facts before us?

M KARL SHURTLIFF: Because the facts before us are that these two individuals joined at the behest of the Government, and that they were charged and tried for activity before the date of November 18th, 1997.

They were... the... the Government's focus on this case was narrow.

They weren't charged.

And one of the questions--

JUSTICE BREYER: Now... now I take... you say, number one, you take my hypothetical and say, but the Government... what did the Government do that was different from the hypothetical?

The Government--

M KARL SHURTLIFF: --Intervened.

JUSTICE BREYER: --Intervened.

Yes, I got that.

M KARL SHURTLIFF: Frustrated.

JUSTICE BREYER: They joined it.

M KARL SHURTLIFF: They frustrated the objective of the conspiracy--

JUSTICE BREYER: That's true in my hypothetical too.

Now what?

M KARL SHURTLIFF: --And then they encouraged the participation by their intervention of the--

JUSTICE BREYER: Oh, they led.

I see.

The Government led my three extra people to join.

M KARL SHURTLIFF: --Indeed.

JUSTICE BREYER: So you're saying it's like an entrapment.

M KARL SHURTLIFF: It's... it's similar to, but different--

JUSTICE BREYER: No, no.

It's not quite as strong as an entrapment.

So what you're argument is, is that where the Government has joined, thereby frustrating the objective, and in addition brings about the circumstances through which the later membership, A, B... of my three extra people take place, that's close enough to entrapment, plus the fact that the conspiracy can't exceed... can't succeed.

Put those two things together and you have grounds for not convicting.

M KARL SHURTLIFF: --And you have--

JUSTICE BREYER: Is that the argument?

M KARL SHURTLIFF: --And you have this case, Mr. Justice Breyer.

JUSTICE BREYER: And all right, and you have this case.

But... so it's like a... a mix.

It's like an impossibility [/] entrapment mix.

That's the argument.

M KARL SHURTLIFF: Well, I... I'm not--

JUSTICE BREYER: I'm not ridiculing the argument.

I'm trying to understand it.

It's a... it's an interesting argument.

JUSTICE SCALIA: Is that what the Ninth Circuit said?

That... this argument you're making... is that the basis on which the Ninth Circuit held that this... this conviction couldn't stand?

I thought it was just simply, you know, whether they were enticed in or not.

The mere fact that... the mere fact that it was no longer possible to execute the... the conspiracy was enough.

M KARL SHURTLIFF: --Mr. Justice... or Justice Scalia, I... I don't think that they got to the notion of entrapment or enticement, and... and that's... I think that... and so I can't say that... that that's part of the predicate for how they got where they got... went in this case.

I think they focused on the Government intervention and the Government involvement without calling it the typical terms of entrapment--

JUSTICE KENNEDY: It relied on Cruz, and in Cruz it said it extends... the court said it extends conspiracy liability beyond reasonable limits to say that it continues when the product can no longer be delivered and all that remains is for a new recruit to be added.

But there is no reason given for that in... in Cruz.

There must be some legal doctrine that it rests upon.

Impossibility or entrapment are the... are the two categories that we know.

M KARL SHURTLIFF: --I--

JUSTICE KENNEDY: This is something else.

I--

M KARL SHURTLIFF: --Mr. Justice Kennedy, I think... I think the question was similarly asked to... to the Government, and I... I would probably agree with their answer.

I think they relied on Castro, a predecessor case from the Ninth Circuit, and then they relied on another case.

I think what happened... I don't know... was is that... like many of us, the more you study the area of conspiracy, I think the more confused you get.

And I think that's what Justice Jackson was talking about, and I would urge that we consider what he said because I think they... they blended in and it's different... it's hard to dichotomize between impossibility and termination and multiple--

JUSTICE KENNEDY: --Well, I don't... I don't know what's confusing about having people with a criminal intent who... who join a conspiracy with the intent to violate the law being called conspirators.

That's not... it doesn't sound like rocket science to me.

M KARL SHURTLIFF: --But, Mr. Justice Kennedy, the... the... in Cruz, he was invited to join the conspiracy after... only after... the Government was sitting there with the drugs and he was a late recruit to the process.

He wasn't an early conspirator.

In this case, these persons were invited to join only after the Government had fully intervened.

They could have stopped it then.

The only activity was to get new recruits.

And what the Ninth Circuit said in both cases... they didn't say they couldn't be charged with a new conspiracy.

They could have been charged with it.

Indeed, they left that open in both Cruz and here.

They could have been charged in a new conspiracy for the activities that they engaged in.

JUSTICE KENNEDY: Well, you think that this defendant... these defendants could have been charged in a new conspiracy?

It seems that... that undercuts your argument.

I thought the whole purpose of this argument was to have some reasonable confines on how long a conspiracy can exist after everybody knows it's not going to go forward.

And now you say there was a second conspiracy that could have been charged?

M KARL SHURTLIFF: I think they could have been charged with a second conspiracy starting on the 19th.

They weren't charged.

I... I--

JUSTICE GINSBURG: Mr. Dreeben said that was a variance whether it was the... they joined on the 18th or the 19th.

The question is what did they join, and why should it make a difference?

M KARL SHURTLIFF: --It should--

JUSTICE GINSBURG: If these defendants didn't know there had been any seizure, why should it... why should their guilt turn on that factor?

As far as they're concerned, this is a truck that has gotten by the Government's surveillance.

M KARL SHURTLIFF: --Justice Ginsburg, the... the question of variance is another one of those little things that pop up and confuse some of us.

But the issue in this case, there was no variance because the Government said, we indict you for activity by November 18th, 1997.

The prosecutor stood before the jury in his opening and his closing.

The instructions all went to the issue, We will show that these persons were engaged in this activity for either a single load... the load at issue... or that they were members of a larger conspiracy before November 18th, 1997.

CHIEF JUSTICE REHNQUIST: But that's not--

M KARL SHURTLIFF: That's not variance.

CHIEF JUSTICE REHNQUIST: --that's... that's not part of the question before this Court.

The question before this Court is whether a conspiracy ends as a matter of law when the Government frustrates its objective.

And whether there might be some other grounds that the Ninth Circuit might have decided it on, that is not before us.

M KARL SHURTLIFF: And as to that issue, Mr. Chief Justice, as we said it in our briefs and I said it in my brief specifically, I believe, that the policy that's come down through the... through the... conspiracy is not that old... that there is no good reason why the answer to that question ought not be yes, that a... that a... it is terminated as absolutely as if the conspiracy were abandoned or if it were accomplished because there is no good... there is no chance of it being successful.

There's no chance of the unified activity creating the dangers that we speak of and... when we're... when we're trying to combat conspiracy.

JUSTICE SCALIA: And that... and that would follow... that would also be true if the project was impossible from the outset.

Right?

That... I mean, that's what I don't understand.

You... you say if... if they enter in a... into a conspiracy to rob a bank in which there is no money, that can be prosecuted.

Right?

M KARL SHURTLIFF: It has been, Mr.--

JUSTICE SCALIA: Well, I know it has been, you say.

But it can... but it can be.

M KARL SHURTLIFF: --Surely.

Surely.

JUSTICE SCALIA: Well, why doesn't that violate your principle?

You say there's no harm done there either.

There is just as... just as much no concrete harm that could have been done there except the harm of wicked people banding together, which is what... what the crime of conspiracy is directed against.

Why should it make any different... difference whether the impossibility exists from the outset, or whether... whether it... it occurs later in the scheme.

What... why does that make any difference?

M KARL SHURTLIFF: I think it probably should not make much difference--

JUSTICE SCALIA: No, I don't think so.

M KARL SHURTLIFF: --in a lot of cases, but I think each case is fact-specific, Mr. Justice Scalia.

And I think in this case you have to look at what was charged, what was tried, and what the conspiracy was about.

And--

JUSTICE STEVENS: May I ask?

Are the... are the instructions to the jury in the papers before us?

M KARL SHURTLIFF: --I'm not real... I'm not... I'm not really sure, Mr. Justice Stevens.

JUSTICE STEVENS: Yes.

M KARL SHURTLIFF: The... the... we didn't do an excerpt for the record.

I think it's in the petition for certiorari.

JUSTICE STEVENS: The instructions are in the petition?

M KARL SHURTLIFF: Some of them are referred to.

I don't know that we've listed... I don't think all of the instructions are in the record here.

The... the instruction as to the conspiracy.

And that's how it was charged that it... that they had to belong before or after... before and not after.

The--

JUSTICE GINSBURG: It says that the conspiracy began on or about that date, but then it says the defendants became member.

It doesn't say the date the defendants became member.

CHIEF JUSTICE REHNQUIST: Why don't you proceed with your argument?

M KARL SHURTLIFF: --Thank... thank you.

The issues here raise difficult questions.

The whole area of conspiracy raises difficult questions of interpretation and... and law.

I suggest, and we suggest that the decision below is not as far-reaching as it might otherwise appear, that Justice Browning formulated a result in this case that's much narrower than what we're about.

But on the other hand, having said that, and being here, the question is whether the Government intervention in these circumstances, in these extant circumstances, ought end the opportunity and the ability to join a conspiracy.

We simply urge that frustration of the purpose of the... by the Government... invitation to join by the Government in these circumstances is no less or is no more in keeping with the termination of the conspiracy than would be had they... some of the people abandoned the conspiracy or had it been accomplished.

The Government argues that the answer to this question, if we answered it in the affirmative, would raise havoc with our ability to prosecute these kinds of cases.

We would suggest that that's not the instance here.

Here in... here and in Cruz, as near as we can tell, Cruz has been cited once ; this case not at all.

It's not a set of circumstances that are likely to reoccur often or with great--

JUSTICE GINSBURG: Suppose in this... suppose in this case the truck had been apprehended in Arizona, and neither of the participants at that point cooperated with the police except to tell the police that their instructions were to drive the truck to a certain place.

Then without any Government intervention in calling Recio and his buddy... Recio and... and his co-defendant show up without any Government intervention.

So we have the Government seizure, just as you do in this case, but the scenario plays out just as it was arranged without any Government intervention.

In that case, would you say that the... that the conspiracy continued and these people are properly prosecuted?

M KARL SHURTLIFF: --Yes.

JUSTICE GINSBURG: May I ask--

M KARL SHURTLIFF: But that's not what happened here.

The... the... they were intercepted--

JUSTICE GINSBURG: --You're making it turn on the Government having a part in bringing in the latecomers.

M KARL SHURTLIFF: --And... and I... I retreat again to the... what they were charged with and what the indictment was and what they... that we will prove that they were involved by November 18th, 1997.

We will prove that.

That's what this case is about.

That's what they kept saying and they argued that throughout.

Now, here they want to suggest that... that by going to the 19th, it provokes no prejudice on the part of the defendants.

That's not the case they were charged with.

That's not the case that was tried below.

And so, in your hypothetical, Justice Ginsburg, I think yes, but there was no involvement and... and depending on how they were charged.

And I--

JUSTICE O'CONNOR: Counsel, it... it looks like the instruction to the jury said that a defendant may only be found guilty of the conspiracy charged in the indictment if he joined the conspiracy at a time when it was possible to achieve the objective of that conspiracy.

Was that the instruction given them?

M KARL SHURTLIFF: --It was, Justice O'Connor.

JUSTICE STEVENS: So that means the jury must have found that... that there was evidence sufficient to say they joined before the impossibility occurred.

M KARL SHURTLIFF: Indeed.

JUSTICE STEVENS: Did the Government object to that instruction, do you know?

M KARL SHURTLIFF: No.

The Government supported that, Mr. Justice Stevens.

JUSTICE KENNEDY: What should happen if the trial judge faithfully followed Cruz?

And under Cruz, the jury should not have found him liable, but we say that Cruz is wrong.

Does it still have to go back for a new trial?

Because the... on page 76a of the appendix, the instructions seem to say that... one of two things.

You can only find him guilty of the conspiracy if he joined it prior to 1:18 a.m. on November 18th.

On the other hand, if you find there's a larger conspiracy, you can find him guilty, but that larger conspiracy must be to distribute other drugs than those that were seized.

So I... I suppose the proof doesn't support either of those conspiracies.

M KARL SHURTLIFF: And... and that, Mr. Justice Kennedy, is what the Ninth Circuit said, that it doesn't support either the single load--

JUSTICE KENNEDY: What happens if we think this instruction was wrong?

Under the evidence, the defendants should have been convicted, and that Cruz is wrong.

Do we still have to send it back?

M KARL SHURTLIFF: --I think, Mr. Justice Kennedy, you send it back to the Ninth Circuit for a determination whether, but for a decision that Cruz is incorrectly applied in the facts in this case, would the decision below remain the same.

And I suggest, with all due respect to the Government's position in this case, that the... that it could be concluded that notwithstanding the application of Cruz in the Ninth Circuit below, that the decision of the Ninth Circuit could by... almost by redacting it, eliminating the references to Cruz... come to the same conclusion.

The evidence was just simply insufficient to sustain the conviction for either the single load or the multi-load before November 18th.

JUSTICE KENNEDY: Of course--

--Assuming Cruz is right.

JUSTICE SCALIA: Assuming Cruz is right.

JUSTICE KENNEDY: I'm assuming Cruz is wrong, and then it would seem to me the evidence is fully sufficient to convict if Cruz is wrong because it doesn't make any difference if they joined it before or after 1:18 a.m. on the 18th.

JUSTICE STEVENS: Can I ask another question?

Is there... is it conceivable that the jury found that the evidence after the impossibility was sufficient to sustain the verdict?

Because they weren't asked to find that.

I mean, I don't... as I understand Mr. Dreeben's argument, there was plenty of evidence later on, that they joined the... they joined an ongoing conspiracy, but the charge didn't ask them to find that, as I... maybe Mr. Dreeben will comment on it in his rebuttal.

I--

M KARL SHURTLIFF: I... I think that's entirely correct, Justice Stevens.

The... the jury wasn't asked to find that, and the... and the Government was very careful in the way they tried this case.

We will show you that by, and the whole case was by.

In the Ninth Circuit, the issue was whether by that date the indictment and the... and the trial.

The... if... if Cruz is... if Cruz is wrong, the question would still be whether these persons entered into a conspiracy.

JUSTICE SOUTER: --And had you raised that further question in the Ninth Circuit?

In other words, did you go to the Ninth Circuit and say, Apply Cruz, period, or did you go to the Ninth Circuit with other reasons?

M KARL SHURTLIFF: Mr. Justice... or Justice Souter, we... we went to the Ninth Circuit with... with other reasons because the court--

JUSTICE SOUTER: Okay.

M KARL SHURTLIFF: --in the instructions that we've read did apply Cruz, and everybody was satisfied--

JUSTICE SOUTER: I just wanted to know whether... I just wanted to know whether you had raised anything beyond a Cruz point, and the answer is yes, okay.

M KARL SHURTLIFF: --The sufficiency of the evidence, ineffective... there were several issues raised and... and decided.

The Government suggests that if we allow this decision to stand, that it would cause irreparable injury and damage to the ability of the Government to prosecute crime, to catch people who are miscreants, and that it would make inordinately difficult the choices of the prosecutor in determining what and how to charge.

We would suggest simply that that's the obligation of the prosecutors now.

Cruz doesn't add any burdens to the prosecutorial responsibility.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Shurtliff.

Mr. Dreeben, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER

MICHAEL R DREEBEN: Mr. Chief Justice, and may it please the Court.

To address the jury instruction issue first, the jury in this case was instructed in accordance with the requirements of Cruz, and therefore, the jury was asked to find whether there was evidence of respondents' involvement in the conspiracy before the seizure of the drugs or, alternatively, whether they were involved in a broader conspiracy, not limited to the drugs that were seized.

At pages 6 through 8 of our reply brief at the petition stage, we addressed the consequences of what happens if this Court should conclude that the Cruz legal rule is incorrect.

And in essence, our position is that any rational jury that found guilt under the Cruz instructions also would have found that respondents were involved in a conspiracy to distribute the very drugs that they drove to the Karcher Mall to pick up.

That was the centerpiece of the Government's evidence, that respondents were involved in a conspiracy, and the fact that the jury may have found that respondents were involved in a longer conspiracy, or in other conspiracies wouldn't detract from the rationality of its necessarily concluding that the respondents were also involved in this conspiracy.

Even if this Court didn't agree with that rationale or chose not to reach it, it's important to note that the effect of the Ninth Circuit's holding is to find insufficient evidence to prove the crime charged in the indictment.

That doesn't leave the Government with the option of pursuing a new trial on correct instructions with the Cruz findings purged from them.

It would mean that respondents have permanent immunity from the crime that's charged in the indictment.

If this Court were to conclude that Cruz is wrong, and either this Court or the Ninth Circuit also concluded that the jury instructions somehow prejudiced the defendants, the remedy would be a new trial.

It is also important, I believe, to note that the... the principle that the Ninth Circuit has adopted would go contrary to what this Court has noted about the evolution of conspiracies.

In a case called Blumenthal versus United States, which we did not cite in our briefs, but it appears at 332 U.S. 539, the Court noted that conspiracies involving elaborate arrangements generally are not born full-grown.

Rather, they mature by successive stages which are necessary to bring in the essential parties.

And in this case, two essential parties were brought in not at the inception of the conspiracy, but after events that the conspirators were aware of required that new couriers were brought in.

They were not aware that the Government had seized the drugs, but they knew that they needed new couriers.

They brought them in.

Under the principles of Blumenthal, that's all one conspiracy.

Respondents' counsel has mentioned the Model Penal Code provisions.

The Model Penal Code at section 5.01 addresses the question of impossibility under attempt law and concludes that the defense should not be recognized and at section 5.03 does the same for conspiracy.

Finally... thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Dreeben.

The case is submitted.

(Whereupon, at 11:04 a.m., the case in the above-entitled matter was submitted.)