What does "unindicted co-conspirator" mean?
March 12, 2011 9:24 AM   Subscribe

Peter King keeps saying CAIR is an "unindicted co-conspirator" in a terrorism trial. What does that mean?

In his hearings on Islamic radicalization in the U.S., Rep. Peter King has repeatedly brought up the fact that CAIR (the Council on American-Islamic Relations) was named an "unindicted co-conspirator" in a trial involving people send money to Hamas. What does that mean in this case?

Does that mean they wanted to indict but didn't have the evidence? Does it serve a technical purpose? I've read online that sometimes people are named unindicted co-conspirators if they are immune from prosecution (Pres. Nixon during Watergate) or have been offered a plea deal. Neither of those things seems to be the case here.

At the time that it happened, the New York Times seemed to think that it had something to do with prosecutors being able to "introduce statements made by any individual or organization named as an unindicted co-conspirator without such statements being dismissed as hearsay." Is this the primary reason to do so? That seems a little fishy -- like an attempt to get around evidentiary rules. But IANAL.
posted by thehandsomecamel to Law & Government (8 answers total) 1 user marked this as a favorite
If they are actual co-conspirators but remain unindicted it likely means there are evidentiary concerns. If they are not actual co-conspirators then its just rhetoric to try to disparage the organization. Most likely they are tangentially attached to the actual conspirators and it is a bit of both.
posted by bitdamaged at 9:44 AM on March 12, 2011

Best answer: A conspiracy requires two or more people agreeing to commit a crime. But the prosecution doesn't have to indict every conspirator. It's usually done in cases where they convince one conspirator to roll over on the others with a plea deal or immunity, but it can also be a pure exercise of prosecutorial discretion. Saying that someone is an unindicted co-conspirator simply means they were alleged (or even proven) to be part of the conspiracy in another conspirator's indictment or trial.

It's not an attempt to get around evidentiary rules. It is one of the rules, specifically Federal Rule of Evidence 801(d)(E): "A statement is not hearsay if the statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."

Further, "The contents of the statement shall be considered but are not alone sufficient to establish the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered." So something more than the statements are necessary to actually demonstrate the existence of the conspiracy.

Most states have similar rules.
posted by jedicus at 9:51 AM on March 12, 2011 [2 favorites]

Response by poster: Interesting. So, jedicus, what happens if the person being tried is convicted of the crime but the conspiracy is never proved? Does the unindicted co-conspirator just have to live with that label for the rest of his days? Can his name be officially exonerated somehow?
posted by thehandsomecamel at 10:03 AM on March 12, 2011

Best answer: Some more context on this and the history of this designation of CAIR here and here.
posted by nanojath at 10:17 AM on March 12, 2011

What do you mean by "convicted of the crime but the conspiracy is never proved?" Conspiracy is a separate crime all on its own, so do you mean "convicted of the underlying crime but acquitted of the conspiracy charge?"

I don't know the answer to that. Maybe they could sue people for defamation if they didn't use the term "alleged" as in "alleged unindicted co-conspirator" or somesuch.
posted by jedicus at 10:20 AM on March 12, 2011

Response by poster: Hmm. Well, it looks like you can take it up to an appeals court if you feel you shouldn't have been named publicly. (Not that that keeps people from saying things about you, but still.) Thanks, nanojath!

From one of the articles linked above:

The federal government said the organizations were included on the list in order to produce evidence at the trial, but the district court and a federal appeals court later ruled that it had been a mistake to make the list public.

As the appeals court summed up last year, "The court held that the Government did not argue or establish any legitimate government interest that warranted publicly identifying [one of the organizations] and 245 other individuals and entities as unindicted co-conspirators or joint venturers, and that the Government had less injurious means than those employed...."

However, federal Judge Jorge A. Solis denied CAIR's request that its name be publicly striken
[sic] from the list. He said that the government "has produced ample evidence" to establish the association of CAIR and other organizations with entities such as the Holy Land Foundation, the Islamic Association for Palestine and with the Hamas militant group. Solis acknowledged CAIR's claim that evidence produced by the government "largely predates" the official designation of these groups as terror organizations but he said the "evidence is nonetheless sufficient to show the association of these entities with HLF, IAP, and Hamas."

The appeals court, in a ruling involving another Muslim organization on the list, criticized Solis for this statement, saying it "went beyond what was relevant to any hypothetical evidentiary issue and may have obfuscated the underlying Fifth Amendment issue."

posted by thehandsomecamel at 2:19 PM on March 12, 2011

I don't know the answer to that. Maybe they could sue people for defamation if they didn't use the term "alleged" as in "alleged unindicted co-conspirator" or somesuch.

A problem with suing for defamation, of course, is that there's a different burden of proof in civil cases than in criminal. Even if the proof against the unindicted co-conspirator was not enough to convince the jury of guilt beyond a reasonable doubt, it may be enough that a jury would find by a preponderance of evidence that the person was a co-conspirator, and thus that the allegedly defamatory statement was true.
posted by jayder at 4:55 PM on March 12, 2011

Seriously: is this what "dogwhistle" means, a deliberately provocative phrase?
posted by wenestvedt at 8:40 AM on March 14, 2011

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