§ 22.01    General Principle

 

Generally speaking, a conspiracy is an agreement by two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means.

 

[A]   The Agreement

 

[1]  Common law – At common law, a conspiracy need not be based on an express agreement.  Furthermore, an agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature. [Blumenthal v. United States, 332 U.S. 539, 557–58 (1947)]  Moreover, a "conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense."[Salinas v. United States, 522 U.S. 52, 63 (1997)] It is enough that each person agrees, at a minimum, to commit or facilitate some of the acts leading to the substantive crime.

 

[2]  Model Penal Code – Four types of agreement fall within the definition of conspiracy.  A person is guilty of conspiracy if he agrees to:

 

 

[B]   Overt Act

 

[1]  Common and Statutory Law – A common law conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved. [United States v. Shabani, 513 U.S. 10, 13 (1994)]

 

Today, many statutes require proof of the commission of an overt act in furtherance of the conspiracy.  In jurisdictions requiring an overt act, the act need not constitute an attempt to commit the target offense. Instead, any act (and perhaps an omission), no matter how trivial, is sufficient, if performed in pursuance of the conspiracy. A single overt act by any party to a conspiracy is sufficient basis to prosecute every member of the conspiracy, including those who may have joined in the agreement after the act was committed.  Most states apply the overt-act rule to all crimes.

 

[2]  Model Penal Code – The Code’s requirement of proof of an overt act only applies to cases involving a misdemeanor or a felony of the third degree.  [MPC § 5.03(5)]

 

[C]   "Plurality" Requirement

 

[1]  Common Law – Common law conspiracy requires proof that at least two persons possessed the requisite mens rea of a conspiracy.  For example, no conspiracy conviction is possible if one of the two persons is an undercover agent feigning agreement, or lacks the capacity to form the agreement due to mental illness.

 

[2]  Model Penal Code; Majority Rule – The Model Code departs significantly from the common law by establishing a unilateral approach to conspiracy liability. The Code focuses on the culpability of the defendant whose liability is in issue, rather than on that of the larger conspiratorial group. Specifically, the Code provides, "A person is guilty of conspiracy with another person" if "he agrees with such other person" to commit an offense. The unilateral approach has been adopted in most states.

 

§ 22.02   Mens rea

 

[A]   In General

 

[1]  Common law – Common law conspiracy is a specific-intent offense, requiring that two or more persons: (1) intend to agree; and (2) intend that the object of their agreement be achieved. Absence of either intent renders the defendants’ conduct non-conspiratorial.  However, courts are divided over the interpretation of "intent."  Some require that the parties have the unlawful result as their purpose and others allow conviction for conspiracy based on the parties’ mere knowledge that such result would occur from their conduct.

 

[2]  Model Penal Code – The Code specifically provides that the conspiratorial agreement must be made "with the purpose of promoting or facilitating" the commission of the substantive offense. Thus, in jurisdictions following the Code, a conspiracy does not exist if one is aware of, but fails to share, another person’s criminal purpose.

 

[B]   Corrupt-Motive Doctrine – Some common law jurisdictions apply what has come to be known as the "corrupt motive doctrine." This doctrine states that in addition to the usual mens rea requirements of conspiracy (i.e., intent to agree, and intent to commit the substantive offense), the parties to a conspiracy must also have a corrupt or wrongful motive for their actions.

 

The Model Penal Code does not recognize the corrupt-motive doctrine.

 

§ 22.03   Parties to a Conspiracy

 

[A]  Liability of Parties for Substantive Offenses – Each party to a conspiracy is liable for every offense committed by every other conspirator in furtherance of the unlawful agreement. Thus, an important issue in conspiracy trials may be to determine the precise confines of a conspiratorial enterprise. 

 

[B]  Overt-Act Requirement – The structure of a conspiracy is critical in jurisdictions recognizing an overt-act requirement. In these jurisdictions, an act of one conspirator in furtherance of the agreement renders a prosecution permissible against every other party to the same agreement.

 

[C]  Common Law Analysis

 

[1]  In General – To be regarded as a co-conspirator, a person does not need to know the identity, or even of the existence, of every other member of the conspiracy, nor must he participate in every detail or event of the conspiracy. However, to be a co-conspirator he must have a general awareness of the scope and the objective of the criminal enterprise.

 

[2]  Wheel Conspiracies – A "wheel" conspiracy is characterized by a central figure or group ("the hub") that engages in illegal dealings with other parties ("the spokes") and there exists a shared criminal purpose among all spokes and the hub.  Parallel but separate objectives between similarly situated people do not make a wheel conspiracy (instead this would constitute multiple chain conspiracies).

 

In Kotteakos v. United States, 328 U.S. 750 (1946), a broker obtained fraudulent loans from the government for thirty-one people.  All were tried under a theory of "wheel" conspiracy.  However, evidence at trial demonstrated that the loan recipients were part of eight or more independent groups, none of which had any connection with any other group except that each used the same broker.  Absent a single shared objective, the parties constituted eight or more chain conspiracies and not a single wheel conspiracy.

 

[3]  Chain Conspiracies – Chain conspiracies ordinarily involve a criminal enterprise that cannot thrive unless each link successfully performs its part in the arrangement.  In Blumenthal v. United States, 332 U.S. 539 (1947), the owner of a liquor wholesale agency distributed whiskey through two men, Weiss and Goldsmith, who arranged with Feigenbaum and Blumenthal to sell the whiskey to local tavern owners at a price in violation of the law.  The Supreme Court held that the prosecutor’s charge of a single conspiracy was proper, finding that each salesman "by reason of [his] knowledge of the plan’s general scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey."

 

An opposite conclusion was reached in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938).  Peoni sold a small quantity of counterfeit money to Regno, who in turn sold the money to Dorsey, who passed the money in commerce to innocent persons.  No common interest was found between Peoni and Dorsey, and thus the court concluded that there existed two independent conspiracies, one between Peoni and Regno and another between Regno and Dorsey.

 

[D]  Model Penal Code – In addition to §5.03(1), which sets forth a unilateral approach to conspiracy, §5.03(2) provides that if a person "knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime."

 

The Model Penal Code provides that a person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are:

 

 

§ 22.04   Relationship to Target Offense

 

[A]   General rule

 

[1]  Common Law and Non-Model Penal Code Statutes – At common law, a conspiracy to commit a felony or a misdemeanor was a misdemeanor.  Under modern statutory law, the seriousness of the crime of conspiracy varies.  Some states continue to treat all conspiracies, regardless of the seriousness of their objectives, as misdemeanors. More often, however, the sanction for conspiracy corresponds to the contemplated crime so that conspiracy to commit a felony is graded as a felony, and conspiracy to commit a misdemeanor is a misdemeanor. In most states, a conspiracy to commit a felony is punished less severely than the target offense.

 

[2]  Model Penal Code – As with other inchoate offenses, the Model Penal Code sanctions a conspiracy to commit any crime other than a felony of the first degree at the same level as the target offense.  [MPC § 5.05(1)]  If a conspiracy has multiple objectives, e.g., to rape and to steal, the conspiracy is graded on the basis of the most serious target offense.

 

[B]   Punishment When the Target Offense is Committed

 

[1]  Common Law – Unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy. [Callanan v. United States, 364 U.S. 587, 593–94 (1961)] 

 

[2]  Model Penal Code – The Code merges a conspiracy with the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted.[MPC§ 1.07(1)(b)]

 

§ 22.05   Defenses

 

[A]  Impossibility

 

[1]  Common Law – The majority, but not universal, rule is that neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy.

 

[2]  Model Penal Code – The Model Penal Code does not recognize a defense of factual or hybrid legal impossibility in conspiracy cases. [MPC § 5.03(1)]

 

[B]  Abandonment

 

[1]  Common Law – The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions, once an overt act is committed in furtherance of a criminal objective. However, if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former co-conspirators if he communicated his withdrawal to each co-conspirator.

 

[2]  Model Penal Code – The Model Code’s abandonment defense to the crime of conspiracy is more onerous than that of the common law as it requires the conspirator to not only renounce his criminal purpose but to also thwart the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of his criminal intent.

 

[C]  Wharton’s Rule – An agreement by two persons to commit an offense that by definition requires the voluntary concerted criminal participation of two persons – e.g., adultery, bigamy, incest, receipt of a bribe – cannot be prosecuted as a conspiracy.  Wharton’s Rule does not apply if more than the minimum number of persons necessary to commit an offense agree to commit the crime or if the two persons involved in the conspiracy are not the two people involved in committing the substantive offense.

 

The Model Penal Code does not recognize Wharton’s Rule.

 

[D]   Legislative-Exemption Rule

 

[1]  Common Law – A person may not be convicted of conspiracy to violate an offense if his conviction would frustrate a legislative purpose to exempt him from prosecution for the substantive crime.

 

[2]  Model Penal Code – Unless the legislature otherwise provides, a person may not be prosecuted for conspiracy to commit a crime under the Model Code if he would not be guilty of the consummated substantive offense: (1) under the law defining the crime; or (2) as an accomplice in its commission. A person is not guilty as an accomplice in the commission of an offense if he was the victim of the prohibited conduct, or if his conduct was "inevitably incident to its commission." [MPC § 2.06(6)(a)–(b)]