A Lone Wolf Conspirator?

by Andrew C. McCarthy

The criminal complaint filed by the State of New York against Jose Pimental (aka Muhammad Yusuf) is strange.

As Mark pointed out earlier, Mayor Bloomberg has already pronounced Pimentel a “lone wolf” terrorist. But the complaint charges Pimentel with two counts of conspiracy — specifically, “conspiracy as a crime of terrorism” (which the complaint alternatively and confusingly refers to as conspiracy “in the second degree” and “in the fourth degree”), and conspiracy to commit arson and criminal mischief. By definition, a lone wolf does not conspire; he acts alone, which distinguishes him from a conspirator. A conspiracy, by definition, is an agreement to commit a criminal act, “a meeting of the minds,” which means one mind won’t do.

Reviewing the complaint, it appears that virtually all of the planning for terrorist attacks involved Pimentel and a confidential informant. It is a well-known principle of conspiracy law that one cannot conspire with a government informant or undercover agent. As a matter of law, these government agents do not actually agree to the criminal objective — to the contrary, they exist to enable the authorities to collect the evidence necessary to stop the criminal objective (e.g., bombing or arson) and convict the real malefactor(s) at trial.

The complaint contains a fleeting reference to an unidentified neighbor who is said to have helped Pimentel try (unsuccessfully) to drill holes in the pipes that were to be turned into pipe-bombs. But the complaint does not indicate that the neighbor was knowingly participating in bomb construction — for all we know, he was just being neighborly by helping Pimentel with what ostensibly was some kind of construction project. The complaint does not set forth anything approaching probable cause that the neighbor is a coconspirator. That’s a matter of no small consequence in a case where the only other seeming “conspirator” in the complaint is the government informant — who, again, does not qualify as a conspirator.

If I were representing Pimentel, I would move to dismiss the two conspiracy charges — and in so doing, I’d explain to the court that Mayor Bloomberg is the star defense witness. Between his assurances that Pimentel acted alone and the dearth of conspiracy proof in the complaint, I’d be interested to know what the prosecutors’ theory is.

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