In recent months, the Second Circuit has frequently opined on issues related to the sufficiency of evidence for proving a defendant had the requisite knowledge of a conspiracy. This series of blog posts aims to synthesize these recent holdings, and outline considerations for defense attorneys who represent individuals charged with conspiracies.

For background on the Second Circuit’s Mackey decision, please see Part I of this series.

While courts may be inclined to view Mackey’s holding as fairly confined to the unique facts and novel legal theory at issue, defendants should challenge this inclination. As detailed below, this ruling provides ammunition for defendants charged with conspiracies to confront the government’s proof. It is particularly so where the government’s proof—or the absence of it—lends itself to multiple, common-sense inferences, and therefore, per Mackey, is insufficient to support a jury verdict and should therefore be subject to a motion under Federal Rule of Criminal Procedure 29, either after trial or even at the conclusion of the government’s case. (The latter dismissal is not appealable as it is the equivalent of an acquittal).

Discussion

At first blush, the Circuit’s decision to reverse Mackey’s conviction based on the insufficiency of the evidence may look like nothing more than a purposeful punt on the controversial topics the case presented related to the First Amendment. Intent aside, however, the opinion presents the rare instance in which the Circuit was willing to set aside a jury verdict due to the government’s failure of proof. In light of the frequency with which the government charges conspiracies—and the potential breadth of conduct conspiracies can cover—the Mackey decision articulates a possible pathway to challenge the government’s evidence, particularly where that evidence is found on the Internet, and/or relies largely on inferences to be drawn from the defendant’s conduct and circumstantial evidence.

As the Circuit in Mackey observed, conspiracies are usually secretive in nature. Typically, the government will rely largely on physical evidence (drugs, guns, money), records of communications (call logs, text messages), witness accounts, and other testimony to tie together a narrative from which a jury can conclude that the defendant knowingly agreed to participate in an unlawful conspiracy. Due to the secrecy, the government will not usually have evidence about what was said in interactions between the defendant and co-conspirators, or what was said on calls or in-person conversations among co-conspirators. (Except, perhaps, through the memory of cooperating witnesses, informants, or undercover officers.) But there will always be gaps in the government’s direct evidence. As a result, the government frequently relies on inferences drawn from circumstantial evidence and the jurors’ common sense to fill those gaps. Indeed, the secretive nature of criminal conspiracies is what makes them difficult to prove in some cases. Prosecutors frequently argue to the jury that it needs to recognize that this type of crime would never be committed in the open.

Except when, as in Mackey, the offense is on the Internet for all to see. In Mackey, the Circuit told the government that it did not have enough evidence for the jury to rely on those inferences. The jurors could not use their common sense to overcome this shortfall of evidence. This conclusion seems to have largely stemmed from two aspects of the case that may be replicated in other contexts: (1) the evidence, including the substantive communications between co-conspirators, all took place on the Internet, which the Court appears to have viewed as a factor against guilt; and (2) there was no evidence on which a jury could decide between the government’s theory of the case and an alternate theory in which Mackey acted independent from the conspiracy and therefore was not guilty.

A closer review of these factors is warranted given the rarity of the reversal here.

First, the nature of the evidence in this case caused the Circuit to more heavily scrutinize the government’s evidence. To explain its standard of review, the Circuit said that it did not owe the government’s evidence or the jury’s verdict the usual deference because the conspiracy took place over the Internet, and the government had full access to the scope and content of the conspirators’ conduct. Therefore, when all of the facts are knowable to the government, and therefore the jury, Mackey teaches that the government’s circumstantial evidence, and reliance on common-sense inferences, must be heavily scrutinized.

In light of that high level of scrutiny, the Circuit concluded that the government’s evidence about Mackey’s knowledge was legally insufficient. Absent evidence that Mackey participated directly in the War Room group’s discussion about the text-to-vote memes, the government had to rely on circumstantial evidence that Mackey was aware of the group’s plan and knowingly went along with it. There were inherent limits to this circumstantial evidence because the parties admitted that Mackey did not speak off-line to any co-conspirators. The government also did not offer evidence that Mackey had communicated with co-conspirators in other ways; for example, there does not appear to have been evidence about communications over secret, ephemeral messaging services, like Signal. The government will have to do more to prove its conspiracy charge when the communications are public, known to all on the Internet. In an era of increasing use of social media and chat rooms, more and more we may see conspiracy plotted in plain sight, and this factor will weigh against guilt.

Second, the circumstantial evidence the government did offer in this case was equally explained by conspiratorial conduct and conduct independent from the conspiracy. The circumstantial evidence offered by the government included: (1) the fact that the memes Mackey posted were similar in substance to those discussed in the War Room group; (2) the fact that Mackey used different memes, on a different subject, posted to the War Room a day or so before the text-to-vote memes were discussed; and (3) Mackey retweeted a similar meme from an account that, at least at a later date, was also a member of the War Room group. Additional relevant evidence included: that the text-to-vote memes were available on other public websites, and that the War Room group was sufficiently busy that a short thread about text-to-vote memes might very well have been missed by a busy “shitposter” like Mackey.

All of this evidence, the Circuit explained, might possibly indicate Mackey viewed the War Room discussion and decided to post the text-to-vote memes. But it just as possibly might indicate that Mackey independently decided to post the memes. That everyone on the Internet is talking about something makes it harder to prove that the defendant was talking about it as part of a conspiracy. Without additional evidence from which the jury could decide that Mackey knowingly agreed to the conspiracy, the case was doomed. It would be easier to prove if only one other person were talking about the subject of the crime.

Interestingly, the choice between two alternative theories discussed by the Circuit appears to raise a question classically left to the jury. One might think that a jury is best positioned to determine whether evidence that Mackey downloaded memes about drafting women to war from the War Room group, and posted them, evinces that Mackey also viewed the War Room’s discussion about the text-to-vote memes. The Circuit, though, concluded this evidence was too meager for the jury to assess without speculation. The jury would need to make a guess that the defendant was involved, and this is not enough.

It seems the Circuit was concerned about the difference between common sense and similarly-justified inferences, and speculation. Speculation is not based on fact, and requires the jury to choose between two alternative possibilities, both based in fact, and neither possibility made more possible by additional evidence or facts. Common sense, or other inferences that can be properly drawn by a jury, are not speculative; when faced with two competing alternative possibilities, some evidence offered by the government must support the jury’s application of common sense or other inferences to find in favor of the government.

How much evidence, then, must the government offer for the jury to make this choice, and what does that evidence look like? That is still not clear from Mackey. It seems likely that off-line evidence that Mackey interacted with co-conspirators may have helped. Drawing analogies to drug conspiracy cases, like Anderson, the government in other cases might also attempt to show that the defendant could not have had access to the illegal material (drugs or otherwise) without the trust of a co-conspirator. But where the evidence is available on the Internet, defendants should hold the government to the standard the Mackey Court held it to; a jury should not be permitted to conclude, based on speculation and thin evidence that lends itself to multiple plausible interpretations, that the defendant knowingly agreed to the conspiracy and acted in furtherance of that agreement.

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The Circuit’s opinion in Mackey may have evaded the First Amendment fray (and a venue/turf-battle), but the standards to which it holds the government’s proof at trial deserve careful consideration and application in future prosecutions. At bottom, a jury may make inferences and rely on their common sense to find that a defendant had knowledge of, and partook in, a conspiracy—but those inferences must be based on sufficient evidence that does not equally suggest an alternative, independent and non-conspiratorial grounds for the defendant’s conduct. Defense counsel should look for opportunities to cite Mackey in dubious conspiracy cases.