Conspiracy

In its most basic sense, a conspiracy is simply an agreement between two or more people to commit a crime. However, there are several requirements that must be met in order for a defendant to have actually committed the crime of conspiracy. The first requirement is the men’s rea requirement which actually has two prongs. The first prong is that the defendant must have actually intended to agree to commit a crime. The second prong is that the defendant must have intended to accomplish the objective of the conspiracy when he entered into the agreement. In other words, in order for the men’s rea requirement to be satisfied, the defendant must intend to form an agreement with others to commit a crime and, at the time the defendant made the agreement, he must have intended to do what he would need to do in order to bring about the objective of the conspiracy (ie. the commission of the crime) as well. For example:

Rubin asks Clay if he will work with Rubin to rob the First National Bank of Hollywood. Clay agrees to help Rubin but, in his mind, Clay plans on turning Rubin in to the police before the robbery actually takes place. In this situation, Clay is not guilty of conspiracy because, although he intended to agree with Rubin, he did not intend to accomplish the objective of the conspiracy when he made the agreement.

Please note that, many times, the prosecution will prove the requisite intent by showing that the defendant had a stake in the venture he was planning with his co-conspirators. In other words, the prosecution can prove intent by demonstrating that the defendant was going to benefit, either financially or otherwise, if the object of the conspiracy was successfully carried out. This allowance is, of course necessary, as it would be almost impossible to actually show what was going through the defendant's mind at any given time. Therefore, circumstantial evidence is allowed, and indeed is prevalent, when trying to prove the state of mind of a defendant. See Direct Sales Co. v. United States, 319 U.S. 703 (1943).

There is some debate as to whether or not a defendant can be convicted for conspiracy if he did not know that what he was conspiring to do was illegal. Some jurisdictions do not criminalize a conspiracy unless the defendant knew that the object of the conspiracy was a crime. However, other jurisdictions hold that, since ignorance of the law is generally not a defense to a criminal charge, conspiracy is no exception and a defendant can be guilty of a conspiracy to commit an act even though he did not know that the act was a crime. See People v. McLaughlin, 111 Cal. App. 2d 781 (1952).

As far as the actus reus requirement for conspiracy is concerned, at common law, a conspiracy is completed as soon as an agreement between one or more people is made. See Williams v. United States, 218 F.2d 276 (4th Cir. 1954). However, most jurisdictions today also require that there must have been at least one "overt act" taken in furtherance of the conspiracy by at least one of the conspirators for there to have been a chargeable criminal conspiracy. This overt act need not take place at the time or location of the conspiracy. For example:

Fred and Barney agree to rob the First National Bank of Bedrock. Without more than just an agreement, most jurisdictions today would not hold Fred or Barney liable for conspiracy. However, if Fred drives the getaway car to the bank and parks it outside the bank so that Barney will have a means of escape, both Fred and Barney would immediately be guilty of conspiracy. (Fred's overt act crystallizes the conspiracy and thus makes Barney guilty as well.) Even if the crime is planned for Wednesday night and on Monday, Fred goes out and buys a gun for Barney to use during the robbery, this would be considered an overt act and both parties would immediately be guilty of conspiracy.

It is important to remember that it takes two people to enter into an agreement. If one party does not intend to enter into an agreement, the second party cannot be convicted of a conspiracy. For example:

Darryl is a drug dealer who is about to import a large shipment of heroin from south of the border. Darryl has recently become friends with Doc and he asks Doc if he would like to help him import and distribute the heroin. Doc agrees to help Darryl. What Darryl does not know is that Doc is a federal narcotics agent who has been investigating Darryl. Before Darryl is able to pick up the shipment, Doc has him arrested. In this case, Darryl cannot be charged with conspiracy because Doc never intended to enter into an agreement with him. Since it takes two people to agree on something, and Doc never intended to enter into an agreement, there was no agreement for Darryl to enter into. Darryl cannot therefore be convicted for conspiracy.

If the prosecution can prove conspiracy between two parties, the actions of a third party may be used to prove the third party’s involvement in the conspiracy, even if there is no direct evidence that the third party actually entered into an agreement. For example:

Darryl and Doc are two drug dealers who agree to work together to import a large shipment of heroin from south of the border. If Darryl and Doc use Steve’s car to bring the drugs across the border, Steve can be found to be a co-conspirator. In this case, all the prosecution would have to do to convict Steve is to prove that the car used to transport the drugs across the border belonged to him, and of course, that Steve consented to the use of his car for the activity. See United States v. Knight, 416 F.2d 1181 (9th Cir. 1969).

Additionally, the agreement that constitutes a conspiracy does not have to be an express agreement. Rather, if the defendant sees a criminal act going on and assists those who are committing the act, this is considered an implied agreement to take part in the crime and he can be convicted as a co-conspirator even though he never expressly agreed with the other parties to commit the criminal act. For example:

Darryl and Doc are two drug dealers who agree to work together to bring a shipment of heroin across the border. Darryl and Doc drive to the border on the appointed night and begin unloading the drugs from their supplier’s truck into their own van. Steve happens to be driving by and sees what is going on. Wanting to ingratiate himself with Darryl and Doc, Steve hops out of his car and begins helping them to unload the drugs. In this situation, even though Steve has never agreed expressly to be a part of the criminal activity, his act of helping Darryl and Doc constitutes an implied agreement to be a part of the criminal activity and therefore, based on this implied agreement, Steve can be convicted as a co-conspirator. See Bender v. State, 253 A.2d 686 (Del. 1969).

Until now, our discussion has involved the basic elements of the crime of conspiracy where one person has made an agreement to commit a crime with another person. However, certain issues arise when many people are involved in one conspiracy or many crimes are the subject of one agreement. Generally, if there is only one agreement between the parties then there is only one conspiracy regardless of how many crimes the conspirators plan to commit. See Doolin v. State, 650 So.2d 44 (Fla. 1995). For example:

Darryl and Doc agree to bring a shipment of heroin across the border, sell the drugs, and then launder the money through a legitimate shell corporation. In this case, even though Darryl and Doc have agreed to commit three different crimes, they have agreed to commit those crimes under one single agreement. Therefore they can only be convicted of one conspiracy.

The two kinds of conspiracies involving multiple people and multiple transactions are colloquially called the "chain and link" conspiracy and the "wheel and spoke" conspiracy. A chain and link conspiracy is a conspiracy in which there are a series of overlapping transactions which are construed to involve only one overall agreement. The different transactions are considered the links in the overall agreement, which is considered the chain. However, the transactions will only be considered links in a chain if each link knows that the other links are involved in the conspiracy and each link has a vested interest in the success of the overall series of transactions. See United States v. Bruno, 105 F.2d 921 (2nd Cir. 1939). For example:

Robert is a drug kingpin who routinely smuggles large shipments of heroin across the border. Robert agrees to sell his heroin to Downey. Downey agrees to sell the heroin to Junior, and Junior, a street dealer, then sells the heroin to his customers. Robert and Junior never speak to each other. However, despite the fact that Robert and Junior do not have any express agreement or communication, they are links in the chain of one larger conspiracy because they both know that the other is involved and they each understand that their own personal success in this endeavor is dependent on the success of the endeavor as a whole. In other words, although Robert and Junior may not know each other, Junior knows that Downey is getting his drugs from a supplier and Robert knows that Downey is selling his drugs to a dealer. That being the case, each is aware of each other’s participation in the conspiracy. Further, each link in the chain understands that his or her own personal success in this transaction is dependent on the success of the transaction as a whole. In other words, Robert knows that his success depends on Downey being able to buy the drugs from him and then sell them to Junior. Downey understands that his success depends on Robert getting his drugs, selling them to Downey and Downey being able to sell them to Junior. Junior understands that his success likewise depends on Robert being able to obtain the drugs and sell them to Downey and Downey being able to sell them to him. All three links in the chain know about each other and effectively depend on each other’s success for their own. Therefore, each party is a link in an overall single chain.

A "wheel and spoke" conspiracy is where one person or entity, the "wheel" (also sometimes called the "hub" because all the activity revolves around that party), has different conspiratorial agreements with different people who have nothing to do with each other. In this case, the one common person is the wheel and each co-conspirator is a different spoke. See Kotteakos v. United States, 328 U.S. 750 (1946). For example:

Lone Star Motion Picture Association is a production company that produces several major motion pictures every year. In violation of federal anti-trust laws, Lone Star makes agreements with thirty different movie theater companies around the country to artificially inflate movie ticket prices. In this situation, Lone Star is the hub of the wheel. It is the one common entity among all of the agreements. However, each one of the thirty movie theater companies is a spoke. They have nothing to do with each other; yet they all have an agreement with the hub. Therefore, Lone Star has thirty different conspiracies going on here, one with each of the movie theater companies, and if the prosecution wants to convict each of the movie theater companies for conspiracy, the prosecution will have to prove thirty different conspiracies, one for each movie theater company.

Although we will not go into this in any more detail, please note that federal racketeering statutes have been passed by Congress in order to link the different spokes in a wheel and spoke conspiracy. In other words, based on these racketeering statutes called the RICO statutes, assuming that these statutes apply, the prosecution would not have to prove thirty different conspiracies for each of the movie theaters involved with Lone Star. Rather, all that the prosecution would have to do is to prove that Lone Star had a conspiracy with one of the theater companies, and based on that agreement, he could successfully charge all thirty companies. The reason that Congress passed the RICO statutes was to allow federal prosecutors to more easily combat organized crime.

At common law, conspiracy is a misdemeanor. However, modern statutes differ as to what punishments are warranted by a conviction for conspiracy. Some jurisdictions impose penalties that are related to, but less than, the penalties warranted for the target crime. However, the Model Penal Code calls for the same punishment as is required for the most serious crime the parties agree to commit.

Further, at common law, if a conspiracy is followed by the completion of the crime, the charge of conspiracy merged into the completed crime. What this means is that the defendant can only be charged for the completed crime and not for the conspiracy. For example:

O.J. and Al conspire to murder Nicole. If they actually do kill Nicole, the conspiracy to commit the murder will merge into the completed crime. In other words, at common law, O.J. and Al can only be charged with the murder itself and not with the conspiracy to commit murder because the conspiracy is swallowed up, so to speak, by the completed crime.

The merger of conspiracy into the completed crime has been abandoned by modern rules. Keep in mind that in this respect, conspiracy differs from the other inchoate crimes of solicitation and attempt. As discussed in the other sections, solicitation and attempt "merge" with the completed crimes. Conspiracy, however, does not merge with the completed crime. Therefore, defendants who conspire to commit a crime and who then actually commit the crime can be convicted of both the conspiracy and the completed crime.

As we mentioned before, a conspiracy, by definition, requires at least two people. Therefore, if one of the parties did not actually enter into an agreement, both "conspirators" must be acquitted because there could not have been an agreement without the agreement and consent of both parties. This is known as the "plurality" requirement for conspiracy. The typical example, as we discussed earlier, is if a person conspires with an undercover police officer to commit a crime. In that case, because the officer did not intend to enter into an agreement with the defendant, there was no "agreement" for the defendant to enter into and so the defendant must be acquitted. Additionally, if a defendant is tried with a number of other defendants for conspiracy and all of the other defendants are acquitted, then the defendant must be acquitted as well because, again, by definition, he could not have entered into a conspiracy unless someone else entered into it with him. However, he can be convicted so long as at least one other co-defendant is convicted because, as long as there is one other possibly guilty co-conspirator, an agreement remains possible. See Eyman v. Deutsch, 373 P. 2d 716 (Ariz. 1962).

In other words, if a defendant is tried with twenty other people for conspiracy and those twenty people are acquitted, the defendant also must be acquitted. However, if nineteen of the twenty are acquitted, then the defendant and the last remaining co-defendant can still be convicted, because an agreement still remains possible.

Further, the defendant can be convicted of conspiracy even if his co-conspirators are never caught and tried. As long as the prosecution can prove that there was an agreement between the defendant and the other party, the conviction will stand. For example:

O.J. and Al conspire to murder Nicole. Before they can actually carry out the crime, Al is caught but O.J. escapes and law enforcement cannot find him. If Al is tried for the conspiracy to commit murder, he can be convicted as a co-conspirator, even if O.J. is never caught and tried, as long as the prosecution can prove that Al made an agreement with O.J. to commit the crime.

There is a split of authority in situations where several co-conspirators are tried for conspiracy and the charges against all of the co-conspirators except for one are dismissed. Certain jurisdictions consider the dismissal of charges as tantamount to acquittals and so the charges against the remaining defendant must be dismissed. However, other jurisdictions do not equate dismissals with acquittals and hold that the one remaining defendant can be tried and convicted for conspiracy anyway. See Regle v. State, 264 A.2d 119 (Md. 1970).

The Model Penal Code has taken a much more stringent line on conspiracy by adopting a "unilateral" approach to conspiracy. According to the Model Penal Code’s unilateral approach, a conviction for conspiracy does not require an agreement between at least two people. Rather, a defendant can be convicted of conspiring to commit a crime as long as he himself agreed to take part in the crime. In other words, at common law, if a defendant agrees to commit a crime with an undercover police officer or with a co-conspirator who is eventually acquitted or with a co-conspirator against whom the charges are eventually dismissed, the defendant could not be convicted because, in each of these cases, there was no plurality in the agreement. Essentially, the defendant had agreed with nobody and so he himself could not be convicted of making an agreement. According to the Model Penal Code, however, the defendant can be convicted in each of these cases because it is not necessary to have another guilty person to agree with. As long as the defendant himself agreed to commit a crime, he can be convicted.

As far as defenses to conspiracies are concerned, the fact that it was impossible to successfully complete the target crime is not a defense. In other words, if the defendant is tried for conspiracy to commit a crime, he cannot avoid a conviction simply because it was impossible to commit the crime he was trying to commit.

There is a split in authority as to whether or not withdrawal is a viable defense. The general rule is that a defendant’s withdrawal from a conspiracy is not a defense. Therefore, he can be convicted of the conspiracy even if he has withdrawn from it. See United States v. Read, 658 F.2d 1225 (7th Cir. 1981). However, the Model Penal Code allows a defendant to avoid a conviction if he can prove that he completely and voluntarily withdrew from the conspiracy and prevented the success of the conspiracy from being achieved. For example:

O.J. and Al conspire to kill Nicole. On the morning that the murder is supposed to take place, O.J. changes his mind and tells Al that he no longer thinks that killing Nicole is the right thing to do. According to the general rule, O.J. can be convicted of the conspiracy even though he has withdrawn. However, according to the model penal code, O.J. can avoid a conviction if he completely and voluntarily withdraws from the conspiracy and he successfully prevents the murder from taking place. Note that if he tries but fails to prevent the murder, even under the Model Penal Code, he would still be guilty of conspiracy.

Because co-conspirators have all agreed to participate in the commission of a crime, each co-conspirator is liable for any other crime committed by any other co-conspirator if the crime was committed in furtherance of the conspiracy and the crime was a reasonably foreseeable result of the conspiracy. See Pinkerton v. United States, 328 U.S. 640 (1946). For example:

Fred is a security guard who works at the First National Bank of Bedrock. Fred suggests to his friend Barney that the bank has some cracks in its security and might be a good target for a robbery. Fred and Barney then conspire to rob the bank. The plan calls for Barney to enter the bank through the front door, hold up one of the bank tellers and then quietly slip out the back door that Fred would open for him. Upon leaving the bank, Fred’s car is to be waiting for Barney and Barney will take the car and drive to a hideout. Unfortunately, things do not go according to the plan. As Barney is entering the bank, he is confronted by a different security guard. Rather than turn around and leave the bank, Barney kills the guard and proceeds with the robbery. He then proceeds to rape one of the bank’s customers at gunpoint while the teller is placing money into the duffle bag that Barney has given her to fill up. Finally, after Barney runs out of the bank, Fred's car will not start and so he steals a car and drives to his hideout. In this situation, because Fred has conspired with Barney to rob the bank, he can be convicted of any crime Barney committed that was in furtherance of the conspiracy and was a foreseeable result of the conspiracy. Looking at the 3 "additional" crimes committed by Barney, Fred can be convicted for the murder of the security guard and the car theft because those were in furtherance of the conspiracy and were foreseeable. However, Fred will most likely not be convicted for the rape because it was neither in furtherance of the conspiracy, nor was it a foreseeable result of the conspiracy to rob the bank.

As we said before, at common law, withdrawal is not a defense to a charge of conspiracy. However, if the defendant does effectively withdraw, though he is still guilty of the crime of conspiracy, he cannot be convicted for the other crimes committed by the co-conspirators in furtherance of the conspiracy. See Loser v. Superior Court, 78 Cal. App. 2d 30 (1947). In the above example, if Fred successfully withdraws before Barney robs the bank, Fred will still be guilty of conspiracy, but will not be liable for Barney's murder, rape and car theft. Having said that, there are certain requirements that must be met in order for the withdrawal to be legally effective and thus to protect the defendant from liability for other crimes committed by his co-conspirators.

First, the defendant must communicate his withdrawal to all the other co-conspirators.

Second, the withdrawal must be timely. That is to say, the withdrawal must occur in time for the other co-conspirators to withdraw as well. If the defendant’s withdrawal happens so close to the commission of the crime that the other co-conspirators do not have the opportunity to withdraw as well, the withdrawal will not be considered timely.

Third, although most jurisdictions do not require this, a few jurisdictions require the defendant to successfully stop the commission of the target crime in order for his withdrawal to be complete.

Finally, since a defendant can be convicted for all crimes committed by his co-conspirators that are committed in furtherance of the conspiracy, it is important to determine when a conspiracy actually ends. The general rule is that a conspiracy is over once all the objectives of the agreement have been successfully accomplished. See People v. Lewis, 222 Cal. App. 2d 136 (1963). For example:

Fred and Barney enter into an agreement to rob the First National Bank of Bedrock, launder the money through some legitimate shell corporations and then split the proceeds of the robbery equally. In this case, Fred and Barney’s conspiracy has three different objectives. The first is to rob the bank, the second is to launder the money, and the third is to split the proceeds evenly. Therefore, the conspiracy will not be concluded until the money is split equally and, until the money is split evenly, Fred and Barney can be convicted of any crime that the other one commits in furtherance of any of the three goals of the conspiracy. Once the conspiracy is over, neither Fred nor Barney can be convicted of anything the other person does afterwards. So, for example, if, after the money is split, Fred takes his share and buys a large quantity of heroin with it that he then turns around and sells it to addicts on the street, Barney cannot be convicted as co-conspirator because these crimes have been committed after the conspiracy has already concluded.