Conspiracy Outline

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, ...

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