United States v. Jimenez Recio,
537 U.S. 270 (2003)

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No. 01-1184. Argued November 12, 2002-Decided January 21, 2003

Ninth Circuit precedent states that a conspiracy terminates when "'there is affirmative evidence of ... defeat of the object of the conspiracy.''' United States v. Cruz, 127 F.3d 791, 795 (emphasis added). Here, police stopped a truck carrying illegal drugs, seized the drugs, and, with the help of the truck's drivers, set up a sting. The drivers paged a contact who said he would call someone to get the truck. Respondents Jimenez Recio and Lopez-Meza appeared in a car, and the former drove away in the truck, the latter in the car. After a jury convicted them of conspiring to possess and to distribute unlawful drugs, the judge ordered a new trial because, under Cruz, the jury could not convict respondents unless it believed they had joined the conspiracy before the police seized the drugs, and it had not been so instructed. The new jury convicted respondents, who appealed. The Ninth Circuit reversed, holding that the evidence presented at the second trial was insufficient to show that respondents had joined the conspiracy before the drug seizure.

Held: A conspiracy does not automatically terminate simply because the Government has defeated its object. Thus, the Ninth Circuit is incorrect in its view that a conspiracy ends through "defeat" when the Government intervenes, making the conspiracy's goals impossible to achieve, even if the conspirators do not know that the Government has intervened and are totally unaware that the conspiracy is bound to fail. First, the Ninth Circuit's rule is inconsistent with basic conspiracy law. The agreement to commit an unlawful act is "a distinct evil," which "may exist and be punished whether or not the substantive crime ensues." Salinas v. United States, 522 U. S. 52, 65. The conspiracy poses a "threat to the public" over and above the threat of the substantive crime's commission-both because the "[c]ombination in crime makes more likely the commission of [other] crimes" and because it "decreases the probability that the individuals involved will depart from their path of criminality." E. g., Callanan v. United States, 364 U. S. 587, 593-594. Where police have frustrated a conspiracy's specific objective but conspirators (unaware of that fact) have neither abandoned the conspiracy nor withdrawn, these special conspiracy-related dangers remain, as does the conspiracy's essence-the agreement to commit the


crime. Second, this Court's view is that of almost all courts and commentators but for the Ninth Circuit. No other Federal Court of Appeals has adopted the Ninth Circuit's rule, and three have explicitly rejected it. The Cruz majority argued that the traditional rule threatened "endless" potential liability. But the majority's example illustrating that point-a sting in which police instructed an arrested conspirator to call all of his acquaintances to come and help him, with the Government obtaining convictions of those who did so-draws its persuasive force from the fact that it bears certain resemblances to entrapment, which the law independently forbids. At the same time, the Cruz rule would reach well beyond arguable police misbehavior, potentially threatening the use of properly run law enforcement sting operations. See Lewis v. United States, 385 U. S. 206,208-209. Ninth Circuit precedent, whereby the language" 'the defendant ... defeated its purpose'" in United States v. Krasn, 614 F.2d 1229, 1236, was changed to "a conspiracy is presumed to continue until there is ... defeat of the [conspiracy's purpose]" in United States v. Bloch, 696 F.2d 1213, 1215 (emphasis added), may help to explain the Cruz rule's origin. But, since the Ninth Circuit's earlier cases nowhere give any reason for the critical language change, they cannot help to justify it. Pp.274-277.

258 F.3d 1069, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 278.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, James A. Feldman, and Jonathan L. Marcus.

M. Karl Shurtliff argued the cause for respondents and filed a brief for respondent Jimenez Recio. Thomas A. Sullivan filed a brief for respondent Lopez-Meza. *

* Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Joel H. Thornton, John P. Tuskey, and Shannon D. Woodruff filed a brief for the American Center for Law and Justice et al. as amici curiae urging reversal.

Full Text of Opinion

Primary Holding

If a conspiracy's goal becomes impossible to achieve, it cannot be considered to end automatically.


When police found and seized a large group of controlled substances in a truck, they set up a sting operation. The drivers of the truck drove it to a place where they paged Recio and another person to pick up the vehicle and the drugs. The two men were arrested when they arrived and convicted of conspiracy to possess and distribute illegal drugs. A new trial was held after the judge decided that the jury instructions had been erroneous because they did not tell the jury that Recio could not be convicted of conspiracy unless it found that he had joined the conspiracy before the police stopped the truck. However, Recio was convicted again under the corrected jury instructions.



  • Stephen G. Breyer (Author)
  • William Hubbs Rehnquist
  • Sandra Day O'Connor
  • Antonin Scalia
  • Anthony M. Kennedy
  • David H. Souter
  • Clarence Thomas
  • Ruth Bader Ginsburg

Some courts, such as the Ninth Circuit, take the view that intervention by the police automatically ends a conspiracy because it defeats it, even when the conspirators do not know that law enforcement has prevented the conspiracy from succeeding. The crime of conspiracy consists of making an agreement to commit an unlawful act and taking an overt act in furtherance of that objective. It may be punished even if the ultimate crime for which the conspiracy is designed does not happen. Otherwise, the use of a police sting operation would almost always result in erasing any criminal liability for a defendant charged with conspiracy. The conspiracy itself, not just the underlying act, is a social ill that should be punished.

Concurrence/Dissent In Part

  • John Paul Stevens (Author)

Case Commentary

The end of a conspiracy comes only when the criminal purpose has been achieved or when the agreement among the conspirators has dissolved.

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