#11429 - Conspiracy - Criminal

CONSPIRACY

1. agreement with somebody else to commit a crime

2. Policy

   1. Crime more likely to succeed with more people, resources

   2. Culture of crime: once you start getting in with other people, it’s harder to extract yourself from that activity in general. Abandonment difficult.

   3. Group has accountability: when you agree to it you’re more likely to go through with it

   4. Agreements are inherently dangerous

   5. Harder to control consequences when there is a group committing the crime

3. How long a conspiracy lasts

   1. Why?

      1. SoL

      2. Evidence

   2. Basic rule: until objectives have been achieved

      1. Post-crime distribution of proceeds is part of ongoing conspiracy

         1. United States v. Franklin (2005) – pg 669: splitting up cash and giving advice not to get caught was considered during the course and in furtherance of the conspiracy

      2. Attempts to cover-up: not part of conspiracy

      3. Point at which objective ecomes impossible: doesn’t stop the conspiracy for those still going along because they still have MR

         1. Just like attempt, where we don’t really care that ultimate objective is impossible

      4. Abandonment?

         1. Strict: must thwart success of conspiracy (minority)

            1. Ticking time bomb approach

            2. Helps government get info from coconspirators in prison

            3. But makes people less likely to abandon

         2. Majority: must actively tell coconspirators you’re out

         3. MPC 5.03(7): lying dormant – if everybody agrees but no one does any overt act = passively abandoned

         4. Abandonment gets you out of trouble for future crimes that result from the agreement, but not from crimes that occur between agreement and your abandonment

            1. Does not get you off the hook for original agreement

               1. Only renunciation does: repudiate criminal purpose + substantial effort to prevent crime from happening (some states) + MPC requires success in preventing crime

                  1. MPC § 5.03 (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose

4. Sentencing

   1. CL: conspiracy punished separately from planned crime

   2. Federal system

      1. 5 extra years, regardless of the crime

   3. MPC

      1. If you conspire to commit 2 offenses, and you’re only convicted of 1, you can still be convicted of conspiracy to commit other one

      2. But no double counting

         1. Could backfire: decreasing jury exposure to conspiracy evidence & avoiding double counting may make legislature jack up mandatory minimums for minor crimes

      3. Policy

         1. Krulewitch v. United states (1949) – pg 664 [Justice Jackson]

            1. Unfairness to D: allows statements otherwise considered hearsay (someone else’s statemet that is not brought in to court as witness) on the thought that statements of your agent are statements rom you

            2. Bootstrapping – before these things come in, you have to show D is part of conspiracy.But you can look at statement itself as evidence that D is part of conspiracy

            3. Problem of joinder: all minors and leaders are in same room; tainted; looks more guilty

            4. Statute of limitations – must wait until conspiracy is finished before SoL starts running

               1. New rule: doing things to keep from getting caught is not furtherance of the conspiracy

            5. Venue: usually D tried under jury of peers, but here you can be tried wherever ay one of the overt acts took place

            6. Breadth and harshness: (no longer fed law) but in some states (CA) conspiracy to commit some misdemeanors is considered a felony (tomato throwing at public official)

            7. Sometimes object of conspiracy is not really a criminal offense, yet conspiracy to commit is turned into criminal offense

            8. Vagueness of definition of agreement

            9. Brings in people on the fringe of the system

      4. Renunciation usually does get you out of liability for original agreement

5. Pinkerton rule: a co-conspirator is liable for all the substantive offenses committed by other co conspirators in furtherance of the conspiracy (ie. Reasonably forseeable). PERIOD.

   1. CA FOLLOWS THE PINKERTON DOCTRINE

   2. Nevada: can’t use Pinkerton for specific intent offenses like burglary and kidgnapping

   3. Who follows the rule? Feds & majority of states

   4. Who doesn’t? MPC, and minority of states

      1. Or limited (e.g., major role, specific intent crimes, etc)

   5. Issues:

      1. New member’s liability for old stuff?

         1. Not for crimes but what they’ve done/said can be used aginst you in your trial for conspiracy to corroborate the agreement

         2. Cannot be used against you for Pinkerton liability (not retroactive)

      2. How far should the rule extend?

         1. Causation; free agency

         2. What exactly is foreseeable

6. Pinkerton v. United States (1946) – pg 677: Brothers. Walter commits substantive offenses while Daniel was in jail. No evidence to show Daniels participated in direct commission.

   1. Held: an overt act of one partner may be the act of ALL without any new agreement specifically directed to that act.

      1. In furtherance of common objective

      2. Criminal intent to do the act is established by the formation of the conspiracy

      3. Overt act = essential ingredient of the crime of conspiracy

7. Differences with A&A and F-M

   1. Pinkerton:

      1. Need agreement

      2. Don’t need to engage in any other acts yourself

      3. On the hook for all reas foreseeable crimes (i.e. crimes in furtherance of agreement)

   2. Aiding & Abetting:

      1. No need for agreement or even communication

      2. Need to actually aid in some way (or MPC: attempt to aid)

      3. Only on hook for crimes you have requisite MR for (purpose toward conduct, statutory MR toward result, etc.)

   3. Felony Murder:

      1. No need for agreement

      2. Need to intentionally commit or intentionally A&A a felony

      3. On hook for all killings in furtherance of/during course of felony (if not enumerated might be limited to inherently dangerous, etc.)

8. Actus-Reus

   1. Is agreement enough?

      1. CL: yes

      2. Feds & others: depends on statute

      3. MPC: need overt act unless it’s a serious crime

         1. MPC § 5.03. Criminal Conspiracy. (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

   2. What counts as an agreement?

      1. No need for explicit agreement

      2. Interstate Circuit v. United States (1939) – pg 688: antitrust conviction. Movie theaters that dominate the market send out agreements to all movie distributors conditioning their business on the distirbutors agreement to not distribute to theaters charging less than 25 cents.

         1. Held: tacit agreement reached through parallel action contemplating need for cooperation is enough.

            1. can infer agreement from parallel actions, suggesting need for cooperation, etc.

               1. agreement was addressed to all (each knew the others had received it)

               2. strong motive = active competition. Without substantially unanimous action with respect to the restrictions, there was risk of substantial loss, but that with total agreement there was prospect of increased profits

               3. far reaching changes to traditional business model – one single distributor not likely to agree to such sweeping change without believing all others would as well

      3. Knowledge not always enough

         1. People v. Lauria (1967) pg 685: call girl answering service. Lauria knew some of his customers were prostitutes.

            1. Held: knowledge plus intent is necessary. Intent can be inferred from knowledge when

               1. D has acquired a stake in the venture (special interest);

               2. no legitimate use for the goods or services exists (aggregated nature of crime);

               3. volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller’s total business (aggregated nature of crime)

            2. But an inerence of intent drawn from knowledge does not appropriately apply to less serious crimes, such as misdemeanors

   3. In drug deals?

      1. Common refrain: “Drugs and guns go together.” (Alvarez)

9. Mens Rea

   1. MPC 5.03(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
      (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or

      1. agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

   1. People v. Powell (1875) – pg 702: a conspiracy must be animated by a corrupt motive or an intention to engage in conduct known to be wrongful.

      1. Rejected in England, most states, and MPC

10. Attendant Circumstances

    1. MPC: same MR as for accomplice liability.

       1. If it seems totally unfair to charge him while he did not purposely give a gun to a felon, then there’s a really good defense under the MPC.

          1. But some Jxns would still find guilty

11. Scope of conspiracy

    1. Scope of agreement

       1. State v. Bridges (New Jersey) (1993) – pg 679: 16th birthday party confrontation. Boys leave and show back up with guns with intent to hold off crowd while their friend beats up another boy. But onlookers try to flee and Bing and Rolle fire into crowd.

          1. Held: Can be liable for conspiracy when act is outside the scope of original plan, as long as the result is foreseeable.

             1. Legislative intent: they chose to address the special dangers inherent in group activity, and therefore intended to include the crime of conspiracy as a distinctive basis for vicarious criminal liability

       2. Roll of co-conspirators

          1. United...