Inchoate crimes: conspiracy Flashcards
Elements of a conspiracy
(1) Common law:
A conspiracy requires agreement between two or more people to commit an unlawful act.
The default rule on the MBE is the common-law conspiracy rule.
(2) Modern approach:
There must also be performance of an overt act in furtherance of the conspiracy.
Agreement
An agreement can be explicit or implicit, but simply knowing a crime is going to occur and doing nothing does not turn a bystander into a co-conspirator.
Agreement: Model Penal Code
Only the defendant must agree to commit the unlawful act—i.e., the other people with whom defendant “agrees” can be undercover agents.
In other words, so long as the defendant thinks she is agreeing to commit the unlawful act, she can be convicted of conspiracy.
Unlawful act requirement
If what the conspirators agree to do is not a crime, there is no conspiracy even if they think what they’re doing is wrong.
Thus, if two people think that they have agreed to commit a crime, but what they have agreed to is not actually a crime, there is no conspiracy.
Elements of a conspiracy: overt act
The overt act need not be unlawful so long as it furthers the conspiracy—e.g., the 9/11 hijacker were indicted for joining a health club to prepare for hijackings.
Scope: common law
At common law, each co-conspirator can be convicted both of:
(1) conspiracy; and
(2) all substantive crimes committed by any other conspirator acting in furtherance of the conspiracy.
Chain conspiracy
A chain conspiracy is one in which co-conspirators are engaged in an enterprise consisting of many steps.
Each participant is liable for the substantive crimes of his co-conspirators.
Spoke–hub conspiracy
A spoke–hub conspiracy is one in which many people deal with a central hub.
Participants are not liable for the substantive crimes of their co-conspirators because each spoke is treated as a separate agreement rather than one larger general agreement.
Withdrawal: common law
It is impossible to withdraw from a conspiracy because the crime is completed the moment the agreement.
Withdrawal only precludes conviction for the actual crime.
Even if a defendant cannot withdraw from a conspiracy, however, the defendant can still limit her liability for substantive crimes by informing other conspirators of withdrawal or timely advising legal authorities.
Withdrawal: federal law and Model Penal Code
(1) Prior to the commission of any overt act:
A conspirator can withdraw:
(a) by communicating her intention to withdraw to all other conspirators; or
(b) by informing law enforcement.
(2) After an overt act:
A conspirator can withdraw only by helping to thwart the success of a conspiracy.
Wharton rule
Under the Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime.
Single trial: common law
At common law, a conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial.
That is to say, if all co-conspirators are tried together, there must be more than one conspirator to have a conspiracy.
But if the other conspirators are never tried or apprehended, the prosecution need only prove the existence of a conspiracy.
Foreseeable crimes: Pinkerton rule
Under the “Pinkerton Rule,” every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy, regardless of actual knowledge of its commission.
Circumstantial evidence
The conspiratorial agreement need not be proven through direct evidence,
as long as the circumstantial evidence—taken in the light most favorable to the prosecution—is sufficient to allow a rational jury to find beyond a reasonable doubt that there was a conspiratorial agreement.
