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No.93-981. Argued October 3, 1994-Decided November 1,1994

Respondent Shabani was convicted of conspiracy to distribute cocaine in violation of 21 U. S. C. § 846 after the District Court refused to instruct the jury that proof of an overt act in furtherance of a narcotics conspiracy is required for conviction under § 846. The Court of Appeals reversed, holding that, under its precedent, the Government must prove at trial that a defendant has committed such an overt act.

Held: In order to establish a violation of § 846, the Government need not prove the commission of any overt acts in furtherance of the conspiracy. The statute's plain language does not require an overt act, and such a requirement has not been inferred from congressional silence in other conspiracy statutes, see, e. g., Nash v. United States, 229 U. S. 373. Thus, absent contrary indications, it is presumed that Congress intended to adopt the common law definition of conspiracy, which "does not make the doing of any act other than the act of conspiring a condition of liability," id., at 378. Moreover, since the general conspiracy statute and the conspiracy provision of the Organized Crime Control Act of 1970 both require an overt act, it appears that Congress' choice in § 846 was quite deliberate. United States v. Felix, 503 U. S. 378, distinguished. While Shabani correctly asserts that the law does not punish criminal thoughts, in a criminal conspiracy the criminal agreement itself is the actus reus. The rule of lenity cannot be invoked here, since the statute is not ambiguous. Pp. 13-17.

993 F.2d 1419, reversed.

O'CONNOR, J., delivered the opinion for a unanimous Court.

Richard H. Seamon argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, and Joseph Douglas Wilson.

Dennis P. Riordan argued the cause for respondent.

With him on the brief were Alan M. Caplan and Marc J. Zilversmit.


JUSTICE O'CONNOR delivered the opinion of the Court. This case asks us to consider whether 21 U. S. C. § 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We conclude that it does not.


According to the grand jury indictment, Reshat Shabani participated in a narcotics distribution scheme in Anchorage, Alaska, with his girlfriend, her family, and other associates. Shabani was allegedly the supplier of drugs, which he arranged to be smuggled from California. In an undercover operation, federal agents purchased cocaine from distributors involved in the conspiracy.

Shabani was charged with conspiracy to distribute cocaine in violation of 21 U. S. C. § 846. He moved to dismiss the indictment because it did not allege the commission of an overt act in furtherance of the conspiracy, which act, he argued, was an essential element of the offense. The United States District Court for the District of Alaska, Hon. H. Russel Holland, denied the motion, and the case proceeded to trial. At the close of evidence, Shabani again raised the issue and asked the court to instruct the jury that proof of an overt act was required for conviction. The District Court noted that Circuit precedent did not require the allegation of an overt act in the indictment but did require proof of such an act at trial in order to state a violation of § 846. Recognizing that such a result was "totally illogical," App. 29, and contrary to the language of the statute, Judge Holland rejected Shabani's proposed jury instruction, id., at 36. The jury returned a guilty verdict, and the court sentenced Shabani to 160 months' imprisonment.

The United States Court of Appeals for the Ninth Circuit reversed. 993 F.2d 1419 (1993). The court acknowledged an inconsistency between its cases holding that an indictment under § 846 need not allege an overt act and those re-

Full Text of Opinion


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