Criminal 3/26

Conspiracy

Both an inchoate crime of preparation as well as a crime of complicity. It is the crime of agreeing with another person to commit a crime in the future, effecting a “partnership in crime,” although the object crime does not actually have to happen.

There does not have to be a substantial step (unlike attempt)

There doesn’t have to be any act of assistance in order to further the crime (unlike accomplice liability).

The agreement is enough, although some jurisdictions require an “overt act” in furtherance of the conspiracy.

What may not be enough for an attempt (Rizzo) may still be enough for a conspiracy. The agreement alone is enough. No need for substantial step or dangerous proximity.

Conspiracy is its own charge, in addition to the object crime (if it does end up happening).

The prosecutor’s reasons to love a conspiracy charge

1. the case can be prosecuted almost anywhere

2. the prosecution benefits by a “guilt by association” dynamic and the possibility of “cross prosecution” when proof implicates more than one defendant.

3. Statements by co-conspirators are admissible as an exception to hearsay. Words as proof of the agreement are admissible/non-hearsay when they prove the conspiratorial agreement itself. Also the prosecution often uses cooperating co-conspirator testimony.

4. Under Pinkerton (not in all states), one can be prosecuted for the instant crimes of other co-conspirators so long as they are in furtherance of the

No need to show proof the of the conversation. can proveit just by their choreographed conduct. If the way they act together could not be explained but-for an agreement

More on the Prosecution’s Advantage in Conspiracy Cases

1. Conspiracy cases/trials can involve many defendants and attorneys in same case, unless there is a successful motion to sever.

2. Conspiracy trials can often last for many months.

3. Conspiracy trials are often extremely complex and confusing to a jury.

4. Judge’s instructions to a jury to “disregard evidence” that is only admissible against some defendants and not others are hard for a jury to follow.

5. In sentencing, the judge can take into account conspiratorial behavior of others for which the defendant was not actually convicted (so long as the total doesn’t exceed the sentencing guidelines re the crimes of actual conviction).

The overt act requirement (found in most modern conspiracy statutes)

The reason for the overt act requirement is to assure that the conspiracy is “at work,” that it isn’t merely a crime in “the minds” of the defendants.

Overt acts generally can be equivocal, merely preparatory, sometimes nothing more than a short phone conversation. Although the states of OH and ME require “substantial” overt acts as an element of conspiracy.

People v. Lauria (CA 1967).

The mens rea of conspiracy is the intent to further the criminal activity and that can be proven by

1. the defendant’s knowledge, OR

2. his assistance of the activity (even with otherwise lawful services),

3. AND some “special interest in the activity.” In other words, some “stake in the venture.”

In Lauria, there was no evidence of an inflated price (or a reduced price) for his prostitute customers, or a disproportionate volume of business with those same customers. Knowledge without some stake in the criminal venture will not prove intent to further the criminal activity.

Most states and the MPC require proof of purpose, even when the object crime of the alleged conspiracy is serious.

Pinkerton v US (1946)

SCOTUS affirms his convictions on the substantive offenses on the basis of conspiracy being a continuing crime, that Daniel never withdrew from the conspiracy, and that as partners in crime, co-conspirators act for each other. No additional agreement need be proven so long as the deft made the original pact with his co-conspirator.

The Pinkerton Doctrine continues in federal conspiracy law and in some states (a number of states reject Pinkerton, as does the MPC), and basically confers vicarious liability on any co-conspirator for the substantive crimes committed by all other co-conspirators, even if the deft has no knowledge of the substantive crime being committed. No accomplice-like assistance or shared mental state re the substantive offense need be proved.

Kotteakos v. US (1946)

SCOTUS holds that the judge’s instruction was erroneous by charging the case as one single conspiracy, i.e., assuming a “wheel” conspiracy when the facts indicated at worst many small conspiracies, but no single conspiracy. A “wheel” conspiracy must have a “hub” (Brown) but it also must have a “rim”- a “common purpose” to further the conspiracy-not just “similar” purposes.

US v. Bruno (2nd Cir. 1939).

The court upheld the conviction, under a theory that each participant knew that all other participants were necessary links in a scheme of narcotics distribution, and so actual privity was not required. The “chain conspiracy.”

Conscious parallelism/tacit conspiracy

where people act in ways that could not have been by coincidence. that’s enough to prove a conspiratorial agreement happened, even though you have no audio or video of the conversation. two or more people act in a choreographed way that could not have been by chance.

2 Limits on Pinkerton Liability

1. the substantive offense must be in furtherance of the conspiratorial object AND

2. it must be reasonably foreseeable.