Tuesday, February 22, 2011

It Takes Two to Tango: Conspiring With a Government Informant

U.S. v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

In this case, Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense.  She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed.

The 5th Circuit dismissed a conspiracy charge in the indictment because the government failed to introduce sufficient evidence to establish that the Appellant entered into a conspiracy with anyone other than a government informant. While it takes at least two people to form a conspiracy, an agreement must exist among co-conspirators who actually intend to carry out the agreed upon criminal plan. A defendant cannot be criminally liable for conspiring solely with an undercover government agent or a government informant, therefore, evidence of any agreement Delgado had with the government informant cannot support a conspiracy conviction.