Group Criminality
A. Accomplice Liability
1. Mens Rea
Majority rule: accomplice had purpose of aiding the crime
• This is proof of specific intent to commit he crime
Minority Option A: accomplice had knowledge of aiding the crime
Minority Option B: purpose for lesser crimes, but knowledge for greater crimes (Fountain)
Luparello rule: If the 2nd crime is foreseeable consequence of the 1st (intended) crime, then purpose from 1st transfers to the 2nd (e.g. assault to murder). McVay is the extreme version of this. (Note: MPC doesn’t follow Luparello rule)
Example From Gladstone:
Ways to distinguish knowledge and purpose (tricky):
• Knowledge + selling at in inflated price = purpose
Makes up a substantial part of your business
Secretive manner of transacting business
Nexus can show purpose (non-business, Gladstone)
MPC §2.06(3) accomplice if he acts with purpose of promoting or facilitating commission of the offense
• Solicits such other person to commit it
• Aids or agrees or attempts to aid in planning or committing it
• Having a legal duty to prevent the commission, fails to do so
o Encouragement is not included as a form of prohibited act under 2.06 (3) BUT solicitation is a prohibited act for accomplice liability under 2.06 (3)(a)(I)
o Not including encouragement is the minority rule
**If have purpose then only need to have the culpability required for the principle in the offense as to the result***
Hicks v. United States US 1893 p593
• Hicks and principal offender, all standing on horses and conversing, when principal kills victim.
• Hicks testifies he tried to convince principal not to shoot.
• Dispo: no evidence conspired with principal to kill victim.
• Reversed and remanded
State v. Gladstone WA 1970 p595
• Gladstone charged w/ aiding and abetting marijuana sale.
• Gladstone was asked by undercover if he had any pot, said no but other guy might.
• Undercover then bought from the other guy.
• Holding: no nexus of association between principal offender and Gladstone just from G’s knowledge.
• Knowledge of sale insufficient culpability. Also need purpose (which nexus can be evidence of).
State v Judge Tally
• ∆ sent telegram to telegram operator, telling them not to pass on a warning telegram to Ross (man who seduced his sister-in-law) that man were trying to kill him
• Guilty as an accomplice, although he did not confer with murderers head of time.
• Compare w/ Gladstone: Accomplice even though no nexus. Nexus is additional evidence of purpose.
People v. Luparello 4th 1987 p604 (impute accomplice liability from lesser to greater crime)
• wanted to find ex lover. Told his friends/thugs who wanted to do him a favor, and thugs killed a guy unwilling to reveal her location.
• Luparello charged with murder, even though he didn’t want the guy killed.
• Holding: aider and abettor is guilty not just of crime he intended to facilitate, but any additionally foreseeable crimes. ∆ had purpose of facilitating assault, so this culpability is imputed for murder b/c reasonably foreseeable
Criminal Facilitation:
Some states have made it a separate crime to provide assistance for a crime
Other Substantive crimes:
e.g. crime to “knowingly” provide “material support” to terrorist organizations p. 671; Juvenile guns in the Columbine case p. 671
Mens Rea as to Result
Roebuck and MPC 2.06(4): When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice if he acts with the kind of culpability that is sufficient for the result element of that offense.
- Roebuck – Accomplice has culpability of whatever their articular conduct is
Just needs to intend conduct and not the result. Where A intended that P commit a crime that has a result element, A (like P) need have only the culpability, with respect to the result element, that is required by the definition of the offense.
State v. McVay RI 1926 (reckless, so convicted of manslaughter though accomplice liability)
• Boiler explodes on a ship, killing passengers.
• indicted for helping to procure defective ship.
• argues because manslaughter is “without malice” can’t be maliciously planned before the fact.
• Holding: premeditated act may be involved in unintentional homicides.
• “volition of the principals was exercised when they negligently created steam that the boiler couldn’t carry”
• Because McVay consciously encouraged the grossly negligent act of over taxing the boiler, he’s an accomplice
Circumstance Elements
MPC deliberately did not address issue of whether purpose is required for attendant circumstances. Deliberately ambiguous.
Liability of secondary crimes
If A is liable for crime X, committed by P, but P proceeds also commit crime Y, which A did not intend, may A also be liable for Y – even absent a showing that A has the culpability that would be ordinarily be required under the mens rea requirements?
1. MPC – no liability for Y. A may be liable only for those specific crimes that A had the purpose of facilitating or promoting.
2. Minority - Luperello rule – A is liable when Y is the natural and probable consequence or was reasonably foreseeable as the consequence of X
2. Act/Conduct Requirement: Encouragement or Aid
Unlike causation, it is not necessary to establish a but-for relation between the defendant’s action and the criminal conduct thereafter.
“Aid”—all you need to show is assistance might have made a difference (e.g. Tally’s telegram)
• Attempt to aid: if actually made no difference, (e.g. telegram never sent)
• common law: no liability
• MPC: liability (focuses on mens rea)
• Can be guilty of attempt if principals don’t successfully carry out crime (e.g. Tally if telegram arrived, but murders didn’t find Ross)
• See MPC 5.01(3) and 2.06
• Can’t be held liable if principal lacks mens rea (under cover cop)
Wilcox v. Jeffrey England 1951 p616 (How minimal can “encouragement” of offense be? Just applauded.)
• Jazz magazine editor promotes and attends the concert of an American saxophonist who didn’t have a work permit in UK. Charged as accomplice to violation of the Aliens Order of 1920.
• Holding: ’s presence wasn’t accidental. He went to “make use” (via enjoyment & getting a story for his magazine). Therefore, he aided and abetted.
State ex. Rel. Attorney General v. Tally, Judge AL 1894 p618
• Victim had seduced Tally’s sister-in-law.
• Skeltons (bros of sister-in-law) follow Ross to nearby town to kill him.
• Tally tells telegraph operator not to deliver a warning telegram to Victim.
• Skelton brothers catch up with Vitcim and kill him.
• Holding: Tally’s actions must have been with the goal of aiding the Skeltons in goal of killing.
• Aid must simply make it easier for principal to accomplish criminal goal. Still counts even if in all probability the crime would’ve been attained without the aid.
State v. Hayes MS 1891 p623 (not accomplice b/c principal didn’t have mens rea)
• was set up to engage in robbery by Hill, who was actually a relative of the target storeowner.
• Hill, not , actually went in the window and brought out stolen bacon.
• Holding: Principal and abettor must have the same purpose – can’t entrap someone.
• Can convict of petit larceny for taking the bacon after it was handed to him.
• **MPC would’ve held Hayes liable (for attempt 5.01(b)
Vaden v. State
• undercover agent had local guide suspected of illegal hunting tours take him hunting—shot 4 off season foxes
• Holding: convicted of illegal hunting, rejected argument that not guilty as an accomplice to the agent
B. Corporate Criminality
Policy
• Arguments against criminal corporate prosecution: We have civil law for that, Corporations aren’t people
• Arguments for criminal corporate: adds stigma, not incorporated into the cost of business, traial will gther more public notice
• Made a difference with Arthur Anderson Accounting and Enron – “Presecutor can bring down corporation even if there is a maverick”
• Because not able to have top official liable, the criminal corporate may have to step in.
o For example, what does it mean to have a collection of contralcts liable?
Liability of the Corporation
1) Respondeat Superior: Corporation may be held criminally liable for acts of any of its agents if agent: (1) commits a crime (2) within the scope of employment (3) w/ intent to benefit corp
2) Collective Knowledge Doctrine: Permits finding of corporate mens rea to be derived from collective knowledge of corporation’s members
3) Corporate Ethos Model: Can convict corp only if it proves that corporate ethos encouraged employees to commit criminal act
4) MPC §2.07:
a) Respondeat superior theory of liability. Corporation may incur liability for minor infractions when legislative purpose to impose liability “plainly appears.” Limited by availability of due diligent defense. Proof that “high managerial agent” having supervisory responsibility over subject matter of offense used due diligence to prevent its commission exonerates corporation. (MPC §2.07(5)).
b) Accountable for failure to discharge specific duties imposed on corps.
c) Corp will incur liability for true crimes only if conduct constituting offense is authorized, commanded, solicited, performed, or recklessly tolerated by board of directors or “high managerial agent.”
US v. Hilton Hotels – Corporation liable for acts of agents in scope of employment, even though acts were contrary to general corporate policy and express instructions to agent.
Commonwealth v. Beneficial Finance – Sufficient if show that corp has placed agent in position where he has enough authority and responsibility to act for corp in handling corp business at time when he committed criminal act. Ds convicted of bribing, even though Ds were neither officers nor director of corp.
Liability of individual
Common Law - Many states make highest-ranking official in corp also responsible for criminal conduct of corp. even when official’s direct participation in violation can’t be found (basically SL)
• Concern that management will turn blind eye (does willfull blindness doctrine help this?)
• Goal is to create a culture of corporate responsibility
MPC - MPC §2.07(6) – only permits this attribution when top official authorized or ratified the act (narrower)
(a) A person is legally accountable for any conduct he performs or causes to be performed in the name of the corporation to the same extent as if it were performed in his own name.
(b) For omissions: any agent of corp having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required as to the same extent as if the duty were imposed by law directly upon him.
US v. Park (“Responsible Relationship Theory”)– To convict CEO, need to show a) has affirmative duty (and omitted it); b) has power (responsible relation to crime done); c) if he’s objectively powerless to do something about it, then can’t convict.
C. Crime of Conspiracy
• Conspiracy doesn’t merge into a completed offense. It’s punishable separately.
• Majority Rule: punishment for conspiracy is some term less than the object crime.
• Minority Rule: Following MPC, approx. 1/3 of states punish conspiracy up to the level authorized for the object crime except for the most serious felonies.
• **Feds have general 5 year sentence for conspiracy, no matter the underlying crime.
MPC 5.03(1): Conspiracy: if with the purpose of promoting or facilitating the commission of a crime he agrees that one or more of them will engage in conduct.
• 5.03(5) Overt act: Can’t be convicted unless a conspirator has committed an overt act (other than felony in first or second degree)
BUT CANT STILL BE CONSPIRACY under the MPC EVEN IF ONE OF THE ACTORS IS “feigning” or is ACQUITTED
Requirements (minimal):
• 2 or more people make an agreement to commit a crime, then any of conspirators makes an overt act towards the commission of that crime (but can be minimal).
• Can be as minimal as non-verbal agreement right before crime is committed (e.g. nods among group before commit assault)
Abandonment:
A conspiracy is considered abandoned when none of the conspirators is engaged in any action to further the object of the conspiracy.
• If a conspirator wants out – for federal courts need, “affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators”. United States v. Gypsum.
• For MPC §5.03(7)(3) – can either inform co-conspirators or police.
• Only complete defense if actor succeeds in preventing commission of the criminal objectives.
1. Act Requirement – Agreement
The actus reus of the crime of conspiracy is the agreement itself.
• At common law, the requisite conduct was just the act of agreeing. Many jurisdictions have added an overt act requirement.
• Issue: found through circumstantial evidence, so common plan or just acting in same way coincidentally? (e.g. mob mentalilty?)
Griffin v State (intent and communication can be inferred)
• ∆ got in fight w/ police officer who came to the scene of car accident, several other bystanders joined, until police shot ∆
• ∆ claims that he had no knoldget that someone ould assist him, needs common purpose!, did not know intent of the other parties
• Holding: aggravated assault and conspiracy b/c don’t need direct but only need circumstantial evidence of conspiracy; you can infer intent from circumstances even without communication
• Circumstantial evidence: concert of action—2+ people pursuing same object is sufficient to send to jury on issue of common intent and object pursuant to a common plan
US v Garcia
• Gang member started verbal fight with other gang, but no proof he was involved in physical fight
• Holding: overturned conviction of conspiracy to commit aggravated assault
• Nature of acts need to logically imply coordination and planning—here he would be guilty by association
2. Mens rea
MPC requires purpose for both conspiracy and accomplice liability (2.06(3) and 5.03(1)).
People v. Lauria CA 1967 (can also apply for accomplice) p. 713
• Answering service used by prostitutes. Undercover poses as a prostitute who wants to use his answering service. Lauria knew some of his clients were prostitutes.
• Issue: is knowledge by furnisher of goods / services that he is enabling criminal behavior = conspiracy?
• Holding: Overturned indictment: Needs knowledge + purpose.
• For Lauria, had knowledge, but problem of inferring purpose since no direct participation (like accomplice w/ businesses). Must look at sale and surrounding circumstances:
• The purveyor has a stake in the venture OR
• No legitimate use for the goods / service exists OR
• Volume of demand disproportionate for a legitimate use.
• Need the surrounding circumstances because want innocent business people to continue to act
• For misdemeanors may need intent. For felonies – knowledge might be enough. (minority rule)
Add’l Notes: Where there is no direct evidence of intent/purpose, it may be inferred from knowledge if:
o the purveyor of legal goods/services for illegal use has acquired a stake in the venture.
Regina v. Thomas - who rented room to a prostitute at a grossly inflated rent was held to have intent.
o no legitimate use of the goods or services exists.
People v. McLaughlin - D who provided horse racing info. by wire held to have intent for bookmaking conspiracy
o volume of business with buyer is grossly disproportionate to any legitimate demand.
Direct Sales - providing narcotics to rural physician in quantities 300 times what could have legitimate use for, shows intent for conspiracy.
4. Procedural Consequences of a Conspiracy Charge
Procedural Issues
• Multiple Charges
o Conspiracy charges frequently brought in addition to substantive crimes; barred by MPC (§1.07(1)(b))
o Complex conspiracies may involve multiple smaller conspiracies.
• Venue
o Difficult reconciling proper forum with defendant’s Sixth Amendment rights; see §5.03(4).
• Joinder
o Mass conspiracy trials impute guilt by association to those defendants who may have the least to do with the criminal enterprise (Alvarez)
• Hearsay
o ‘Co-conspirator Exception’ to hearsay rule allows blameshifting statements made in the course of a conspiracy, and in furtherance of it, to be admitted against any alleged conspirator without cross-examination
Rationale for exception based on idea of agency; a person who has authorized another to speak or act to some joint end will be held responsible for what is said or done
Krulewitch v. US: Statements against a co-conspirator not made in furtherance of the crime may not be admitted into evidence. Conversation took place after criminal act was completed and was too far removed to have been made in furtherance of conspiracy.
o Admissibility requires determination of conspiracy, but evidence frequently used to establish its own admissibility.
• Evidence
o Vague evidentiary burden regarding agreement; J. Jackson objects to overuse of conspiracy charges in Krulewitch v. US.
• Punishment
• Most jurisdictions fix penalties somewhere below that provided for the object crime.
Krulewitch v. United States US 1949 p664 (e.g. of conspiracy charge used just for hearsay rules)
• ’s charged with conspiracy to use interstate transport to facilitate prostitution.
• Government said the conspiracy was “ongoing” in order to admit otherwise inadmissible evidence—tried to argue that conspiracy could continue indefinitely offense was done (conspiracy to avoid prosecution).
• Holding: SCOTUS reversed conspiracy charge so gov’t didn’t expand scope of conspiracy.
• Conspiracy is predominantly mental and consists of meeting of the minds and intent.
• At the fringe, conspiracy will convict those who can’t even be convicted for aiding and abetting.
• ! There can be no conspiracy charge when the prosecution the substantive offense is adequate and the conspiracy charge is chiefly for procedural purposes.
5. Vicarious Liability for Crimes Committed by Co-Conspirators: the Pinkerton Rule
• Pinkerton Rule (Minority)
o Defeendent may be charge with substantive crimes committed by co-conspirators provided that the crimes were foreseeable outcomes of the conspiracy
This minority rule similar to lesser crime theory in accomplice laibiity (Luperollo)
Rule in place in all federal and some state prosectutions
o Pinkerton v. US: Court upheld conspiracy conviction for substantive crimes committed by friend while defendant was in jail. Under accomplice liability theory he would not be liable (no act strongly corroborative of criminal purpose)
• MPC preculsed Pinkerton rule by requiring specific inten for conspiracy liability. Says different parties in a conspiracy can have different scopes of liability.
Pinkerton v. United States US 1946 p677 ()
• ’s are brothers who live close to each other. Charged with tax evasion and conspiracy.
• Issue: Can ’s be found guilty of the substantive offenses that they didn’t personally commit if they were found to be parties to a conspiracy at the time of the offense?
• Holding: Expanded theory: if a substantive crime of a co-conspirator was in furtherance of conspiracy, then the ∆ can be held liable for the co-conspirator’s crime.
• Limitations: 1) must be in furtherance of conspiracy 2) must be reasonably foreseeable
• ’s were involved in a continuous conspiracy. The lesser didn’t try to withdraw from it.
• The criminal intent to do the substantive act is established by the formation of the conspiracy.
• Dissent: No evidence that counseled or had knowledge of the particular acts or offenses. Their conspiracy is being extended to make the general “partners in crime” creates broad vicarious criminal liability.
United States v. Alvarez 11th Cir. 1985 p685
• Undercover ATF agents were at motel, trying to arrange cocaine deal.
• When raid happens, shootout starts, and some ATF agents are killed / wounded.
• Two ’s who didn’t take part in shootout were charged with 2nd degree murder through Pinkerton liability. They argued murder wasn’t reasonably foreseeable consequence of drug sale conspiracy.
• But due to large quantity of drugs, probability that someone would be armed reasonable for jury to find murder was foreseeable.
• ! Pinkerton liability is extended for reasonably foreseeable but originally unintended substantive crimes.
4. Scope of Conspiracy
Why scope matters--the bigger conspiracy the more affected by:
1. Procedural consequences:
• Venue (could be where any of co-conspirators are located)
• Joinder (almost always join co-conspirators, who can make you look worse by assoc)
• Hearsay (admitted as evidence): 1) co-conspirator can testify at ∆s trial about what a third conspirator said (but can’t cross-examine third conspirator since not there)
2. Substantive liability—(Pinkerton) majority of state but not MPC
Metaphors for Scope:
1. Wheels (8 conspiracies): Brown was center and Kotteakos was one of eight spokes. The eight spokes would have to be joined (e.g. all contribute to one payment) to be 1 conspiracy
2. Chains (1 conspiracy): smuggler ---- middlemen NY Retails
LA and TX Retails
Unilateral vs. Bilateral
Bilateral—all conspirators have same set of objectives
Unilateral—different conspirators have different objectives, so no agreement (e.g. undercover cop)
Kotteakos v. US
• 32 ∆s indicted with conspiracy—fraudulent insurance application
• Holding: SCOTUS reversed conviction of general conspiracy. Error was charge of one conspiracy when actually Brown was the center of many, separate conspiracies.
• Confuses single, common purpose with numerous parallel purposes
US v. Bruno
• 86 indicted on narcotics conspiracy
• Holding: one conspiracy b/c chain of buyers, middlemen and sellers—can’t divide up into separate conspiracies, b/c all links of the chain needed for scheme to work
• But see US v Borelli: held that narcotics chains of sales are insufficient to infer agreement to cooperate in entire long chain
US v McDermott
• ∆ convicted of insider trading b/c his porn star girlfriend was secretly passing information to another lover
• Holding: not part of a conspiracy b/c he did not agree (or want) to pass on information to third party, it wasn’t the foreseeable consequences of any agreement with gf, didn’t fit into any broader scope of conspiracy agreement with gf
A. Accomplice Liability
1. Mens Rea
Majority rule: accomplice had purpose of aiding the crime
• This is proof of specific intent to commit he crime
Minority Option A: accomplice had knowledge of aiding the crime
Minority Option B: purpose for lesser crimes, but knowledge for greater crimes (Fountain)
Luparello rule: If the 2nd crime is foreseeable consequence of the 1st (intended) crime, then purpose from 1st transfers to the 2nd (e.g. assault to murder). McVay is the extreme version of this. (Note: MPC doesn’t follow Luparello rule)
Example From Gladstone:
Ways to distinguish knowledge and purpose (tricky):
• Knowledge + selling at in inflated price = purpose
Makes up a substantial part of your business
Secretive manner of transacting business
Nexus can show purpose (non-business, Gladstone)
MPC §2.06(3) accomplice if he acts with purpose of promoting or facilitating commission of the offense
• Solicits such other person to commit it
• Aids or agrees or attempts to aid in planning or committing it
• Having a legal duty to prevent the commission, fails to do so
o Encouragement is not included as a form of prohibited act under 2.06 (3) BUT solicitation is a prohibited act for accomplice liability under 2.06 (3)(a)(I)
o Not including encouragement is the minority rule
**If have purpose then only need to have the culpability required for the principle in the offense as to the result***
Hicks v. United States US 1893 p593
• Hicks and principal offender, all standing on horses and conversing, when principal kills victim.
• Hicks testifies he tried to convince principal not to shoot.
• Dispo: no evidence conspired with principal to kill victim.
• Reversed and remanded
State v. Gladstone WA 1970 p595
• Gladstone charged w/ aiding and abetting marijuana sale.
• Gladstone was asked by undercover if he had any pot, said no but other guy might.
• Undercover then bought from the other guy.
• Holding: no nexus of association between principal offender and Gladstone just from G’s knowledge.
• Knowledge of sale insufficient culpability. Also need purpose (which nexus can be evidence of).
State v Judge Tally
• ∆ sent telegram to telegram operator, telling them not to pass on a warning telegram to Ross (man who seduced his sister-in-law) that man were trying to kill him
• Guilty as an accomplice, although he did not confer with murderers head of time.
• Compare w/ Gladstone: Accomplice even though no nexus. Nexus is additional evidence of purpose.
People v. Luparello 4th 1987 p604 (impute accomplice liability from lesser to greater crime)
• wanted to find ex lover. Told his friends/thugs who wanted to do him a favor, and thugs killed a guy unwilling to reveal her location.
• Luparello charged with murder, even though he didn’t want the guy killed.
• Holding: aider and abettor is guilty not just of crime he intended to facilitate, but any additionally foreseeable crimes. ∆ had purpose of facilitating assault, so this culpability is imputed for murder b/c reasonably foreseeable
Criminal Facilitation:
Some states have made it a separate crime to provide assistance for a crime
Other Substantive crimes:
e.g. crime to “knowingly” provide “material support” to terrorist organizations p. 671; Juvenile guns in the Columbine case p. 671
Mens Rea as to Result
Roebuck and MPC 2.06(4): When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice if he acts with the kind of culpability that is sufficient for the result element of that offense.
- Roebuck – Accomplice has culpability of whatever their articular conduct is
Just needs to intend conduct and not the result. Where A intended that P commit a crime that has a result element, A (like P) need have only the culpability, with respect to the result element, that is required by the definition of the offense.
State v. McVay RI 1926 (reckless, so convicted of manslaughter though accomplice liability)
• Boiler explodes on a ship, killing passengers.
• indicted for helping to procure defective ship.
• argues because manslaughter is “without malice” can’t be maliciously planned before the fact.
• Holding: premeditated act may be involved in unintentional homicides.
• “volition of the principals was exercised when they negligently created steam that the boiler couldn’t carry”
• Because McVay consciously encouraged the grossly negligent act of over taxing the boiler, he’s an accomplice
Circumstance Elements
MPC deliberately did not address issue of whether purpose is required for attendant circumstances. Deliberately ambiguous.
Liability of secondary crimes
If A is liable for crime X, committed by P, but P proceeds also commit crime Y, which A did not intend, may A also be liable for Y – even absent a showing that A has the culpability that would be ordinarily be required under the mens rea requirements?
1. MPC – no liability for Y. A may be liable only for those specific crimes that A had the purpose of facilitating or promoting.
2. Minority - Luperello rule – A is liable when Y is the natural and probable consequence or was reasonably foreseeable as the consequence of X
2. Act/Conduct Requirement: Encouragement or Aid
Unlike causation, it is not necessary to establish a but-for relation between the defendant’s action and the criminal conduct thereafter.
“Aid”—all you need to show is assistance might have made a difference (e.g. Tally’s telegram)
• Attempt to aid: if actually made no difference, (e.g. telegram never sent)
• common law: no liability
• MPC: liability (focuses on mens rea)
• Can be guilty of attempt if principals don’t successfully carry out crime (e.g. Tally if telegram arrived, but murders didn’t find Ross)
• See MPC 5.01(3) and 2.06
• Can’t be held liable if principal lacks mens rea (under cover cop)
Wilcox v. Jeffrey England 1951 p616 (How minimal can “encouragement” of offense be? Just applauded.)
• Jazz magazine editor promotes and attends the concert of an American saxophonist who didn’t have a work permit in UK. Charged as accomplice to violation of the Aliens Order of 1920.
• Holding: ’s presence wasn’t accidental. He went to “make use” (via enjoyment & getting a story for his magazine). Therefore, he aided and abetted.
State ex. Rel. Attorney General v. Tally, Judge AL 1894 p618
• Victim had seduced Tally’s sister-in-law.
• Skeltons (bros of sister-in-law) follow Ross to nearby town to kill him.
• Tally tells telegraph operator not to deliver a warning telegram to Victim.
• Skelton brothers catch up with Vitcim and kill him.
• Holding: Tally’s actions must have been with the goal of aiding the Skeltons in goal of killing.
• Aid must simply make it easier for principal to accomplish criminal goal. Still counts even if in all probability the crime would’ve been attained without the aid.
State v. Hayes MS 1891 p623 (not accomplice b/c principal didn’t have mens rea)
• was set up to engage in robbery by Hill, who was actually a relative of the target storeowner.
• Hill, not , actually went in the window and brought out stolen bacon.
• Holding: Principal and abettor must have the same purpose – can’t entrap someone.
• Can convict of petit larceny for taking the bacon after it was handed to him.
• **MPC would’ve held Hayes liable (for attempt 5.01(b)
Vaden v. State
• undercover agent had local guide suspected of illegal hunting tours take him hunting—shot 4 off season foxes
• Holding: convicted of illegal hunting, rejected argument that not guilty as an accomplice to the agent
B. Corporate Criminality
Policy
• Arguments against criminal corporate prosecution: We have civil law for that, Corporations aren’t people
• Arguments for criminal corporate: adds stigma, not incorporated into the cost of business, traial will gther more public notice
• Made a difference with Arthur Anderson Accounting and Enron – “Presecutor can bring down corporation even if there is a maverick”
• Because not able to have top official liable, the criminal corporate may have to step in.
o For example, what does it mean to have a collection of contralcts liable?
Liability of the Corporation
1) Respondeat Superior: Corporation may be held criminally liable for acts of any of its agents if agent: (1) commits a crime (2) within the scope of employment (3) w/ intent to benefit corp
2) Collective Knowledge Doctrine: Permits finding of corporate mens rea to be derived from collective knowledge of corporation’s members
3) Corporate Ethos Model: Can convict corp only if it proves that corporate ethos encouraged employees to commit criminal act
4) MPC §2.07:
a) Respondeat superior theory of liability. Corporation may incur liability for minor infractions when legislative purpose to impose liability “plainly appears.” Limited by availability of due diligent defense. Proof that “high managerial agent” having supervisory responsibility over subject matter of offense used due diligence to prevent its commission exonerates corporation. (MPC §2.07(5)).
b) Accountable for failure to discharge specific duties imposed on corps.
c) Corp will incur liability for true crimes only if conduct constituting offense is authorized, commanded, solicited, performed, or recklessly tolerated by board of directors or “high managerial agent.”
US v. Hilton Hotels – Corporation liable for acts of agents in scope of employment, even though acts were contrary to general corporate policy and express instructions to agent.
Commonwealth v. Beneficial Finance – Sufficient if show that corp has placed agent in position where he has enough authority and responsibility to act for corp in handling corp business at time when he committed criminal act. Ds convicted of bribing, even though Ds were neither officers nor director of corp.
Liability of individual
Common Law - Many states make highest-ranking official in corp also responsible for criminal conduct of corp. even when official’s direct participation in violation can’t be found (basically SL)
• Concern that management will turn blind eye (does willfull blindness doctrine help this?)
• Goal is to create a culture of corporate responsibility
MPC - MPC §2.07(6) – only permits this attribution when top official authorized or ratified the act (narrower)
(a) A person is legally accountable for any conduct he performs or causes to be performed in the name of the corporation to the same extent as if it were performed in his own name.
(b) For omissions: any agent of corp having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required as to the same extent as if the duty were imposed by law directly upon him.
US v. Park (“Responsible Relationship Theory”)– To convict CEO, need to show a) has affirmative duty (and omitted it); b) has power (responsible relation to crime done); c) if he’s objectively powerless to do something about it, then can’t convict.
C. Crime of Conspiracy
• Conspiracy doesn’t merge into a completed offense. It’s punishable separately.
• Majority Rule: punishment for conspiracy is some term less than the object crime.
• Minority Rule: Following MPC, approx. 1/3 of states punish conspiracy up to the level authorized for the object crime except for the most serious felonies.
• **Feds have general 5 year sentence for conspiracy, no matter the underlying crime.
MPC 5.03(1): Conspiracy: if with the purpose of promoting or facilitating the commission of a crime he agrees that one or more of them will engage in conduct.
• 5.03(5) Overt act: Can’t be convicted unless a conspirator has committed an overt act (other than felony in first or second degree)
BUT CANT STILL BE CONSPIRACY under the MPC EVEN IF ONE OF THE ACTORS IS “feigning” or is ACQUITTED
Requirements (minimal):
• 2 or more people make an agreement to commit a crime, then any of conspirators makes an overt act towards the commission of that crime (but can be minimal).
• Can be as minimal as non-verbal agreement right before crime is committed (e.g. nods among group before commit assault)
Abandonment:
A conspiracy is considered abandoned when none of the conspirators is engaged in any action to further the object of the conspiracy.
• If a conspirator wants out – for federal courts need, “affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators”. United States v. Gypsum.
• For MPC §5.03(7)(3) – can either inform co-conspirators or police.
• Only complete defense if actor succeeds in preventing commission of the criminal objectives.
1. Act Requirement – Agreement
The actus reus of the crime of conspiracy is the agreement itself.
• At common law, the requisite conduct was just the act of agreeing. Many jurisdictions have added an overt act requirement.
• Issue: found through circumstantial evidence, so common plan or just acting in same way coincidentally? (e.g. mob mentalilty?)
Griffin v State (intent and communication can be inferred)
• ∆ got in fight w/ police officer who came to the scene of car accident, several other bystanders joined, until police shot ∆
• ∆ claims that he had no knoldget that someone ould assist him, needs common purpose!, did not know intent of the other parties
• Holding: aggravated assault and conspiracy b/c don’t need direct but only need circumstantial evidence of conspiracy; you can infer intent from circumstances even without communication
• Circumstantial evidence: concert of action—2+ people pursuing same object is sufficient to send to jury on issue of common intent and object pursuant to a common plan
US v Garcia
• Gang member started verbal fight with other gang, but no proof he was involved in physical fight
• Holding: overturned conviction of conspiracy to commit aggravated assault
• Nature of acts need to logically imply coordination and planning—here he would be guilty by association
2. Mens rea
MPC requires purpose for both conspiracy and accomplice liability (2.06(3) and 5.03(1)).
People v. Lauria CA 1967 (can also apply for accomplice) p. 713
• Answering service used by prostitutes. Undercover poses as a prostitute who wants to use his answering service. Lauria knew some of his clients were prostitutes.
• Issue: is knowledge by furnisher of goods / services that he is enabling criminal behavior = conspiracy?
• Holding: Overturned indictment: Needs knowledge + purpose.
• For Lauria, had knowledge, but problem of inferring purpose since no direct participation (like accomplice w/ businesses). Must look at sale and surrounding circumstances:
• The purveyor has a stake in the venture OR
• No legitimate use for the goods / service exists OR
• Volume of demand disproportionate for a legitimate use.
• Need the surrounding circumstances because want innocent business people to continue to act
• For misdemeanors may need intent. For felonies – knowledge might be enough. (minority rule)
Add’l Notes: Where there is no direct evidence of intent/purpose, it may be inferred from knowledge if:
o the purveyor of legal goods/services for illegal use has acquired a stake in the venture.
Regina v. Thomas - who rented room to a prostitute at a grossly inflated rent was held to have intent.
o no legitimate use of the goods or services exists.
People v. McLaughlin - D who provided horse racing info. by wire held to have intent for bookmaking conspiracy
o volume of business with buyer is grossly disproportionate to any legitimate demand.
Direct Sales - providing narcotics to rural physician in quantities 300 times what could have legitimate use for, shows intent for conspiracy.
4. Procedural Consequences of a Conspiracy Charge
Procedural Issues
• Multiple Charges
o Conspiracy charges frequently brought in addition to substantive crimes; barred by MPC (§1.07(1)(b))
o Complex conspiracies may involve multiple smaller conspiracies.
• Venue
o Difficult reconciling proper forum with defendant’s Sixth Amendment rights; see §5.03(4).
• Joinder
o Mass conspiracy trials impute guilt by association to those defendants who may have the least to do with the criminal enterprise (Alvarez)
• Hearsay
o ‘Co-conspirator Exception’ to hearsay rule allows blameshifting statements made in the course of a conspiracy, and in furtherance of it, to be admitted against any alleged conspirator without cross-examination
Rationale for exception based on idea of agency; a person who has authorized another to speak or act to some joint end will be held responsible for what is said or done
Krulewitch v. US: Statements against a co-conspirator not made in furtherance of the crime may not be admitted into evidence. Conversation took place after criminal act was completed and was too far removed to have been made in furtherance of conspiracy.
o Admissibility requires determination of conspiracy, but evidence frequently used to establish its own admissibility.
• Evidence
o Vague evidentiary burden regarding agreement; J. Jackson objects to overuse of conspiracy charges in Krulewitch v. US.
• Punishment
• Most jurisdictions fix penalties somewhere below that provided for the object crime.
Krulewitch v. United States US 1949 p664 (e.g. of conspiracy charge used just for hearsay rules)
• ’s charged with conspiracy to use interstate transport to facilitate prostitution.
• Government said the conspiracy was “ongoing” in order to admit otherwise inadmissible evidence—tried to argue that conspiracy could continue indefinitely offense was done (conspiracy to avoid prosecution).
• Holding: SCOTUS reversed conspiracy charge so gov’t didn’t expand scope of conspiracy.
• Conspiracy is predominantly mental and consists of meeting of the minds and intent.
• At the fringe, conspiracy will convict those who can’t even be convicted for aiding and abetting.
• ! There can be no conspiracy charge when the prosecution the substantive offense is adequate and the conspiracy charge is chiefly for procedural purposes.
5. Vicarious Liability for Crimes Committed by Co-Conspirators: the Pinkerton Rule
• Pinkerton Rule (Minority)
o Defeendent may be charge with substantive crimes committed by co-conspirators provided that the crimes were foreseeable outcomes of the conspiracy
This minority rule similar to lesser crime theory in accomplice laibiity (Luperollo)
Rule in place in all federal and some state prosectutions
o Pinkerton v. US: Court upheld conspiracy conviction for substantive crimes committed by friend while defendant was in jail. Under accomplice liability theory he would not be liable (no act strongly corroborative of criminal purpose)
• MPC preculsed Pinkerton rule by requiring specific inten for conspiracy liability. Says different parties in a conspiracy can have different scopes of liability.
Pinkerton v. United States US 1946 p677 ()
• ’s are brothers who live close to each other. Charged with tax evasion and conspiracy.
• Issue: Can ’s be found guilty of the substantive offenses that they didn’t personally commit if they were found to be parties to a conspiracy at the time of the offense?
• Holding: Expanded theory: if a substantive crime of a co-conspirator was in furtherance of conspiracy, then the ∆ can be held liable for the co-conspirator’s crime.
• Limitations: 1) must be in furtherance of conspiracy 2) must be reasonably foreseeable
• ’s were involved in a continuous conspiracy. The lesser didn’t try to withdraw from it.
• The criminal intent to do the substantive act is established by the formation of the conspiracy.
• Dissent: No evidence that counseled or had knowledge of the particular acts or offenses. Their conspiracy is being extended to make the general “partners in crime” creates broad vicarious criminal liability.
United States v. Alvarez 11th Cir. 1985 p685
• Undercover ATF agents were at motel, trying to arrange cocaine deal.
• When raid happens, shootout starts, and some ATF agents are killed / wounded.
• Two ’s who didn’t take part in shootout were charged with 2nd degree murder through Pinkerton liability. They argued murder wasn’t reasonably foreseeable consequence of drug sale conspiracy.
• But due to large quantity of drugs, probability that someone would be armed reasonable for jury to find murder was foreseeable.
• ! Pinkerton liability is extended for reasonably foreseeable but originally unintended substantive crimes.
4. Scope of Conspiracy
Why scope matters--the bigger conspiracy the more affected by:
1. Procedural consequences:
• Venue (could be where any of co-conspirators are located)
• Joinder (almost always join co-conspirators, who can make you look worse by assoc)
• Hearsay (admitted as evidence): 1) co-conspirator can testify at ∆s trial about what a third conspirator said (but can’t cross-examine third conspirator since not there)
2. Substantive liability—(Pinkerton) majority of state but not MPC
Metaphors for Scope:
1. Wheels (8 conspiracies): Brown was center and Kotteakos was one of eight spokes. The eight spokes would have to be joined (e.g. all contribute to one payment) to be 1 conspiracy
2. Chains (1 conspiracy): smuggler ---- middlemen NY Retails
LA and TX Retails
Unilateral vs. Bilateral
Bilateral—all conspirators have same set of objectives
Unilateral—different conspirators have different objectives, so no agreement (e.g. undercover cop)
Kotteakos v. US
• 32 ∆s indicted with conspiracy—fraudulent insurance application
• Holding: SCOTUS reversed conviction of general conspiracy. Error was charge of one conspiracy when actually Brown was the center of many, separate conspiracies.
• Confuses single, common purpose with numerous parallel purposes
US v. Bruno
• 86 indicted on narcotics conspiracy
• Holding: one conspiracy b/c chain of buyers, middlemen and sellers—can’t divide up into separate conspiracies, b/c all links of the chain needed for scheme to work
• But see US v Borelli: held that narcotics chains of sales are insufficient to infer agreement to cooperate in entire long chain
US v McDermott
• ∆ convicted of insider trading b/c his porn star girlfriend was secretly passing information to another lover
• Holding: not part of a conspiracy b/c he did not agree (or want) to pass on information to third party, it wasn’t the foreseeable consequences of any agreement with gf, didn’t fit into any broader scope of conspiracy agreement with gf
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