Common Law - Conspiracy
1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. At common law, the crime is complete upon formation of the agreement. No overt act to further conspiracy is required.
c. Many states now require the commission of an overt act in furtherance of the conspiracy.
d. At common law, the rule of merger does not apply
i. Conspiracy is separate and distinct from the substantive crime that is its object
ii. Defendant may be convicted and punished for both conspiracy and the substantive crime. (And conspiracy and attempt)
2. Co-Conspirator Liability
a. Conspiracy vs. Accomplicity
i. Conspiracy requires agreement to participate in the commission of a crime but actual assistance in the crime is not required.
ii. Accomplice liability requires proof of assistance, but an agreement to participate is not required.
b. Pinkerton Co-Conspirator Liability (Majority Rule)
i. A conspirator is responsible for any criminal act committed by a co-conspirator if:
1. The act was committed in furtherance of the conspiracy AND
2. The act was a reasonably foreseeable consequence of the unlawful agreement
3. Elements of Conspiracy
a. Mens Rea
i. Conspiracy is a specific intent crime
ii. Conspiracy is not established unless two or more persons:
1. Intend to agree or to conspire AND
2. Intend to commit the offense which is the object of the conspiracy
iii. People v. Swain, California SC 1996
1. A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice
iv. People v. Lauria, California CoA 1967
1. Under what circumstances does a supplier become part of a conspiracy when he knows his goods or services are to be used by the buyer for a criminal purpose?
2. Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
3. The specific intent of a supplier to further illegal use may be established by:
a. Direct evidence that he intends to participate
b. Knowledge of unlawful use PLUS
i. Stake in the venture (i.e. over charging criminals for same service);
ii. No lawful use exists for the goods or services under the circumstances;
iii. Volume of business is grossly disproportionate to any legitimate demand, or sales for illegal use are a high proportion of the seller’s total business; or
iv. The case involves a “very serious offense” in which knowledge alone may be sufficient (i.e. felony)
v. Attendant circumstances
1. Some courts hold that conspiracy cannot be proven unless the parties have knowledge of the attendant circumstances, even if such knowledge is not required for the underlying crime.
2. Other courts conclude that knowledge of attendant circumstances is not required for a conspiracy conviction, and require the same mens rea for attendant circumstances as the target crime
b. Actus Reus
i. Agreement
1. The gist of a conspiracy is the agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
3. Accomplice and conspiratorial liability are not synonymous
a. Someone can be an accomplice to an offense without conspiring to commit it.
b. Accomplice liability does not require proof of an agreement
ii. Overt act in furtherance of the conspiracy
1. Many states require an overt act
2. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
3. The overt act need not be illegal
4. Unilateral vs. Bilateral Conspiracy
a. Bilateral:
i. Two or more persons must have the requisite mens rea for conspiracy (intent to agree and specific intent to commit unlawful acts)
b. Unilateral:
i. Only the defendant must have had the requisite mens rea
5. Scope of a Conspiracy
a. A conspiracy can exist even though the conspirators “do not know the identity of one another, and even though they are not all aware of the details of the operation.”
b. Defendant must have a general awareness of the “scope and objective” of the enterprise and there must be a “community of interest” among the co-conspirators or reason to know of each other’s existence
i. Community of Interest: Does the success of one conspirator depend in part on the other?
c. Wheel vs. Chain Conspiracies
i. Wheel Conspiracy
1. There is a “hub,” a person who transacts illegal dealing with other persons, who are the “spokes.”
2. The hub views the spokes as part of a broader criminal enterprise, but the spokes view the conspiracy more narrowly.
ii. Chain Conspiracy
1. Involves “successive communication or cooperation” and the various “links” in the chain have a community of interest in that the success of one member’s part depends upon the success of the whole enterprise.
iii. Wheel vs. Chain
1. It is more difficult to infer an agreement among the spokes than among the links of a chain conspiracy, because they are less likely to have a community of interest or reason to know of each other’s existence since one spoke’s success is usually not dependent on the other spokes’ success, but instead on his dealings with the hub.
d. Number of Conspiracies
i. Braverman v. United States, SCOTUS 1942
1. Whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or several conspiracies?
2. Whether the object of the agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.
3. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisions the violation of several statutes rather than one.
6. Defense of Abandonment
a. Once the conspiracy offense is complete (agreement + overt act), abandonment is not a defense to conspiracy
b. If a person abandons the conspiracy, she can avoid liability for any subsequent crimes committed by her former co-conspirators in furtherance of the conspiracy.
i. Courts usually require that the abandoning party communicate her withdrawal to each co-conspirator
ii. Some courts also require the abandoning party to successfully dissuade others from continuing the conspiracy.
MPC - Conspiracy
1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. Under the MPC, the rule of merger applies
i. The defendant cannot be convicted of both conspiracy and the target crime (or attempt) unless the agreement involved the commission of additional offenses not yet committed (or attempted).
2. Co-Conspirator Liability
a. MPC rejects the Pinkerton Doctrine and only applies accomplice liability
3. Elements of Conspiracy
a. Mens Rea
i. A person is not guilty of conspiracy unless the conspiratorial agreement was made “with the purpose of promoting or facilitating” the commission of the substantive crime.”
ii. Supplier of goods or services for illegal use
1. A conspiracy does not exist if supplier is aware of, but fails to share, another person’s criminal purpose.
iii. Attendant circumstances
1. Knowledge of attendant circumstances is not required for a conspiracy conviction when knowledge of the circumstances is not required for the substantive offense.
b. Actus Reus
i. Agreement
1. Agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
ii. Overt act in furtherance of the conspiracy
1. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
2. Overt act required, except for conspiracy to commit felonies in the first or second degree
4. Unilateral Conspiracy
a. MPC adopts a unilateral theory of conspiracy
b. Focuses inquiry on the culpability of the defendant, rather than on the group which they are alleged to be a part of.
5. Scope of a Conspiracy
a. Who’s part of the conspiracy?
i. If a person guilty of conspiracy … knows that a co-conspirator has conspired with another person to commit the same crime, he is guilty of conspiring with such other person, whether or not he knows their identity.
b. Number of Conspiracies
i. A person with multiple criminal objectives is guilty of one conspiracy if:
1. (Same as common law) The crimes are part of a single agreement, OR
2. Even if there are multiple agreements, the crimes are part of “a single and continuous association for criminal purposes.”
6. Defense of Abandonment
a. Abandonment is an affirmative defense if the conspirator:
i. Completely and voluntarily renounces her criminal purpose AND
ii. Thwarts the success of the conspiracy
1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. At common law, the crime is complete upon formation of the agreement. No overt act to further conspiracy is required.
c. Many states now require the commission of an overt act in furtherance of the conspiracy.
d. At common law, the rule of merger does not apply
i. Conspiracy is separate and distinct from the substantive crime that is its object
ii. Defendant may be convicted and punished for both conspiracy and the substantive crime. (And conspiracy and attempt)
2. Co-Conspirator Liability
a. Conspiracy vs. Accomplicity
i. Conspiracy requires agreement to participate in the commission of a crime but actual assistance in the crime is not required.
ii. Accomplice liability requires proof of assistance, but an agreement to participate is not required.
b. Pinkerton Co-Conspirator Liability (Majority Rule)
i. A conspirator is responsible for any criminal act committed by a co-conspirator if:
1. The act was committed in furtherance of the conspiracy AND
2. The act was a reasonably foreseeable consequence of the unlawful agreement
3. Elements of Conspiracy
a. Mens Rea
i. Conspiracy is a specific intent crime
ii. Conspiracy is not established unless two or more persons:
1. Intend to agree or to conspire AND
2. Intend to commit the offense which is the object of the conspiracy
iii. People v. Swain, California SC 1996
1. A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice
iv. People v. Lauria, California CoA 1967
1. Under what circumstances does a supplier become part of a conspiracy when he knows his goods or services are to be used by the buyer for a criminal purpose?
2. Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
3. The specific intent of a supplier to further illegal use may be established by:
a. Direct evidence that he intends to participate
b. Knowledge of unlawful use PLUS
i. Stake in the venture (i.e. over charging criminals for same service);
ii. No lawful use exists for the goods or services under the circumstances;
iii. Volume of business is grossly disproportionate to any legitimate demand, or sales for illegal use are a high proportion of the seller’s total business; or
iv. The case involves a “very serious offense” in which knowledge alone may be sufficient (i.e. felony)
v. Attendant circumstances
1. Some courts hold that conspiracy cannot be proven unless the parties have knowledge of the attendant circumstances, even if such knowledge is not required for the underlying crime.
2. Other courts conclude that knowledge of attendant circumstances is not required for a conspiracy conviction, and require the same mens rea for attendant circumstances as the target crime
b. Actus Reus
i. Agreement
1. The gist of a conspiracy is the agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
3. Accomplice and conspiratorial liability are not synonymous
a. Someone can be an accomplice to an offense without conspiring to commit it.
b. Accomplice liability does not require proof of an agreement
ii. Overt act in furtherance of the conspiracy
1. Many states require an overt act
2. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
3. The overt act need not be illegal
4. Unilateral vs. Bilateral Conspiracy
a. Bilateral:
i. Two or more persons must have the requisite mens rea for conspiracy (intent to agree and specific intent to commit unlawful acts)
b. Unilateral:
i. Only the defendant must have had the requisite mens rea
5. Scope of a Conspiracy
a. A conspiracy can exist even though the conspirators “do not know the identity of one another, and even though they are not all aware of the details of the operation.”
b. Defendant must have a general awareness of the “scope and objective” of the enterprise and there must be a “community of interest” among the co-conspirators or reason to know of each other’s existence
i. Community of Interest: Does the success of one conspirator depend in part on the other?
c. Wheel vs. Chain Conspiracies
i. Wheel Conspiracy
1. There is a “hub,” a person who transacts illegal dealing with other persons, who are the “spokes.”
2. The hub views the spokes as part of a broader criminal enterprise, but the spokes view the conspiracy more narrowly.
ii. Chain Conspiracy
1. Involves “successive communication or cooperation” and the various “links” in the chain have a community of interest in that the success of one member’s part depends upon the success of the whole enterprise.
iii. Wheel vs. Chain
1. It is more difficult to infer an agreement among the spokes than among the links of a chain conspiracy, because they are less likely to have a community of interest or reason to know of each other’s existence since one spoke’s success is usually not dependent on the other spokes’ success, but instead on his dealings with the hub.
d. Number of Conspiracies
i. Braverman v. United States, SCOTUS 1942
1. Whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or several conspiracies?
2. Whether the object of the agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.
3. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisions the violation of several statutes rather than one.
6. Defense of Abandonment
a. Once the conspiracy offense is complete (agreement + overt act), abandonment is not a defense to conspiracy
b. If a person abandons the conspiracy, she can avoid liability for any subsequent crimes committed by her former co-conspirators in furtherance of the conspiracy.
i. Courts usually require that the abandoning party communicate her withdrawal to each co-conspirator
ii. Some courts also require the abandoning party to successfully dissuade others from continuing the conspiracy.
MPC - Conspiracy
1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. Under the MPC, the rule of merger applies
i. The defendant cannot be convicted of both conspiracy and the target crime (or attempt) unless the agreement involved the commission of additional offenses not yet committed (or attempted).
2. Co-Conspirator Liability
a. MPC rejects the Pinkerton Doctrine and only applies accomplice liability
3. Elements of Conspiracy
a. Mens Rea
i. A person is not guilty of conspiracy unless the conspiratorial agreement was made “with the purpose of promoting or facilitating” the commission of the substantive crime.”
ii. Supplier of goods or services for illegal use
1. A conspiracy does not exist if supplier is aware of, but fails to share, another person’s criminal purpose.
iii. Attendant circumstances
1. Knowledge of attendant circumstances is not required for a conspiracy conviction when knowledge of the circumstances is not required for the substantive offense.
b. Actus Reus
i. Agreement
1. Agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
ii. Overt act in furtherance of the conspiracy
1. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
2. Overt act required, except for conspiracy to commit felonies in the first or second degree
4. Unilateral Conspiracy
a. MPC adopts a unilateral theory of conspiracy
b. Focuses inquiry on the culpability of the defendant, rather than on the group which they are alleged to be a part of.
5. Scope of a Conspiracy
a. Who’s part of the conspiracy?
i. If a person guilty of conspiracy … knows that a co-conspirator has conspired with another person to commit the same crime, he is guilty of conspiring with such other person, whether or not he knows their identity.
b. Number of Conspiracies
i. A person with multiple criminal objectives is guilty of one conspiracy if:
1. (Same as common law) The crimes are part of a single agreement, OR
2. Even if there are multiple agreements, the crimes are part of “a single and continuous association for criminal purposes.”
6. Defense of Abandonment
a. Abandonment is an affirmative defense if the conspirator:
i. Completely and voluntarily renounces her criminal purpose AND
ii. Thwarts the success of the conspiracy
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