Criminal Law: Conspiracy

T/F Conspiracy under the M.P.C.'s requires a bilateral agreement.

False The M.P.C. requires only a unilateral agreement, whereas the common law requires a bilateral agreement. M.P.C. - 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 which constitutes such crime or an attempt or solicitation to commit such crime; or (b) 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.

X conspires with Y to rob a bank. Y is designated to "do the job" itself. X provides support and assistance before the fact. During the robbery, Y kills a bank teller. In your analysis of whether X be convicted of murder, would it make a difference if X and Y agreed that no guns were to be used, but where Y (without X's knowledge) did use a gun ... and ended up killing someone in the course of the robbery?

It depends. This would be a question of fact for the jury.

For the Overt Act element of conspiracy what is the difference between the M.P.C. and common law?

M.P.C. - the overt act must be alleged and proven (i.e., the overt act alleged cannot simply be the planning of the offense) M.p.C. - 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. At common law, an overt act was any act taken by any of the co-conspirators in furtherance of one or more of the goals of the conspiracy.

Billy Boy entered a successful conspiracy to commit arson. One of the guys who helped in the arson, Cox, went around town complaining that Billy Bob wouldn't pay him for his help. Jimmy, another accomplice in the arson, decided to wack Cox off to shut him up. Can Billy Bob be held criminally responsible for the murder of one of the co-conspirators (Cox) by another (Jimmy) when the murder was committed months after the arson in order to keep the conspiracy a secret?

No A conspiracy to commit arson without more does not naturally and necessarily result in the murder of one co-conspirator by another. In other words, the conspiratorial agreement does not include an agreement to commit murder. Such criminal conduct is not reasonably foreseeable for Billy Bob to be guilty.

Is mere presence or mere knowledge of a plan sufficient to support a conspiracy charge?

No But circumstantial evidence, including the defendant's specific actions, may be used to establish sufficient evidence to find the defendant guilty of conspiracy.

In a conspiracy to manufacture methamphetamine, Thomas Lawrence leased a trailer to one of the defendants for $1000. Lawrence was told that the trailer would be used to cook meth. He received $100 as a down payment for the use of his trailer. He took a number of steps to clean and protect it. However, he eventually got cold feet and backed out of the deal. Nonetheless, he is convicted of conspiracy after a jury trial. Was Lawrence's role sufficient to establish that he was engaged in the conspiracy to make methamphetamine?

No Lawrence's knowledge alone about the conspiracy to cook meth was insufficient evidence to establish that he joined in the conspiracy. While he could be charged with facilitation for providing some assistance to the criminal enterprise by leasing his trailer, there is a difference between supplying goods to a drug cartel and joining the cartel. There still needs to be evidence of the defendant's intent to join the conspiracy.

Suppose that John Johnson, who owns a local pharmacy, sells condoms - lots of condoms, but at their normal retail price - to a known prostitute. Assuming that Johnson knows that she is using most or all of the condoms in her professional calling, is he co-conspirator with her?

No Mere knowledge is insufficient to establish conspiracy.

T/F At common law, the actual agreement followed a unilateral approach.

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T/F The renunciation defense to conspiracy is available under common law only

False At common law, a defendant could not abandon the original conspiracy once the defendant entered into it. Under the M.P.C., 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.

T/F Conspiracy requires general intent to commit the crime.

False Conspiracy requires specific intent to commit the crime as well as the specific intent to agree to commit the crime. Thus, a substantive offense that is a general intent crime cannot serve the basis as a conspiracy.

T/F To convict a co-conspirator of conspiracy, the prosecution must prove that the defendant committed an overt act.

False The prosecution need not prove that the defendant personally did any particular overt act, but instead the prosecution has met its burden if it demonstrates that a conspirator committed an overt act.

Can the crime of manslaughter serve as the basis for a conspiracy conviction?

No The charge of conspiracy to commit manslaughter is not a crime because conspiracy requires specific intent to commit the substantive offense, but manslaughter is a general intent offense. In other words, recklessness is inadequate to establish the specific intent necessary for the underlying offense in the conspiracy charge.

Louis Lauria operated a telephone-answering service which supplied its services to a number of prostitutes. Lauria knew that some of his customers were prostitutes - he used the services of one of them who received 500 calls a month - and he assured them of the utmost confidentiality in message-taking. When three of these prostitutes were arrested, Lauria was indicted along with the three for conspiracy to commit prostitution. 1) Is he guilty of this charge? 2) What if Lauria charged the prostitutes double the fees he charged his other customers?

1) No Although Lauria had knowledge of the conspiracy to commit prostitution, there is no reason to infer his participation in the conspiracy. 2) Because Lauria is gaining financially from the success of the conspiracy, he may be guilty of this charge. He's sharing in the venture's success, enabling prosecutors to argue that he has the intent for his call service to be used for illegal purposes.

What must the defendant do to successfully demonstrate he abandoned the original conspiracy such that he may use the affirmative defense of renunciation under the M.P.C.?

1) that, after conspiring to commit a crime, he thwarted the success of the conspiracy (i.e., he told the police about the plan to commit the crime or attempted to stop the crime from happening); and 2) that he completely and voluntarily had a "change of heart" (a) complete - no plans to go back later to commit the crime (b) voluntarily - he changed his mind at his own will, not bc of some other circumstance out of his control

Under the Pinkerton Doctrine of conspiracy, what must be true of the overt act(s) to hold the defendant culpable for the criminal acts of his co-conspirators?

The Pinkerton Doctrine establishes that co-conspirators are held culpable for the criminal acts of their co-conspirators (1) undertaken in furtherance and (2) within the reasonably foreseeable scope of the conspiracy.

Under conspiracy, what constitutes the actus reus and how is it generally proven?

The actus reus is typically the agreement, and it is generally proven by circumstantial evidence.

What is the Wharton Rule (for purposes of a conviction of conspiracy)?

The rule that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to require necessarily the participation of the 2 persons and only 2 persons. Some examples are adultery, bigamy, duels, incest, etc.

X conspires with Y to rob a bank. Y is designated to "do the job" itself. X provides support and assistance before the fact. During the robbery, Y kills a bank teller. Can X be convicted of murder?

Yes It is foreseeable that someone may be killed during the course of a robbery.

Brian with a group of co-conspirators engaged in armed robbery of a group of men. Brian and the shooting victim wrestled over Brian's gun. After Brian wrestled free of the victim, he fled with his gun. His co-conspirator, Jeffrey, shot the victim about 15 seconds after the appellant had fled. For purposes of co-conspirator liability, can a shooting by one co-conspirator that takes place after another co-conspirator has fled be deemed to be "in furtherance of" the conspiracy?

Yes The shooting ensured that Brian could escape with the money. Moreover, the shooting was a foreseeable consequence of the robbery. In other words, it was foreseeable that bringing guns to a robbery might lead to a shooting.

A organizes a conspiracy to rob banks. B & C are included in the conspiracy, but they never meet before they rob a bank with A. They do, however, know about the existence of each other and their involvement in the plan of robbing banks with A. Under the M.P.C., is B responsible for crimes committed during the course of the bank robbery by C and vice-versa?

Yes Under the M.P.C., if a person guilty of conspiracy, 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.

What are the elements of conspiracy under common law?

1) An agreement 2) Between two or more persons to commit a criminal offense* 3) Specific intent to achieve the conspiracy's goal or objective (the commission of the criminal offense) 4) An overt act in furtherance of the agreement *common law = bilateral agreement (...it's more "common" to be "bi") Note that unilateral agreement (conspirator makes agreement with undercover cop) is sufficient for M.P.C.

What is the justification for not merging a conviction for conspiracy to commit a crime with a conviction for that crime itself?

A conspiracy generally does not merge with a conviction for the completed offense, which was an object of the conspiracy. There is no merger because the elements of each offense are different. For example, the actus reus of the choate offense (e.g., sale of illegal narcotics) is different from the actus reus of the inchoate conspiracy offense, namely the conspiratorial agreement (e.g., agreement to sell illegal narcotics).

What intent does conspiracy require?

A crime of conspiracy requires 2 separate intents: 1) the intent to agree to commit the specific criminal offense and 2) the intent to commit the criminal offense itself.

Falcone sells a sugary substance called lactose. Lactose can be used to supplement baby formula or as a cutting agent to dilute drugs. Approximately 75 percent of Falcone's sales are to Gordy who, as Falcone knows, uses the lactose to dilute and package illegal drugs. Falcone knows he can charge Gordy a little more than other customers because he isn't likely to complain to the authorities. Thus, over the course of a year, Falcone makes numerous sales of large quantities of lactose to Gordy. Gordy and Falcone are charged with conspiracy to distribute drugs and distribution of drugs. Is Falcone guilty of the conspiracy? a) Yes, because he had the necessary mens rea for conspiracy. b) No, because it is not per se illegal to possess or sell lactose. c) Yes, because he was reckless in selling lactose to a drug dealer. d) No, because he was in an official partnership with Gordy.

Answer A is the best answer because Falcone has committed to the conspiracy when he crossed into having a stake in Gordy's venture, enabling prosecutors to argue that he has the intent for his lactose to be used for illegal purposes. Answer B is wrong because even the sale of a lawful product can create a stake in an illegal venture, although it requires more of a showing of purposefulness. However, there is no requirement that a co-conspirator provide something that is illegal in all settings. Answer C is wrong because the standard, even in these circumstances, is not mere recklessness. The ordinary standard for conspiracy is purposefulness. Even in jurisdictions that reduce the standard, it does not fall lower than knowingly. Answer D is wrong because there is no requirement that co-conspirators be in a formal partnership. By its nature, criminal activity involves clandestine activities. The legal status of the partnership is not important. The focus is instead on the defendant's intent.

Rachel wanted to put out a hit on her archenemy. After talking with the right people, she got in touch with Zack. Rachel offered to pay Zack $25,000 to kill her archenemy. Unfortunately for Rachel, Zack was an undercover cop who promptly arrested her. Rachel was charged with conspiracy to commit first degree murder. In a Model Penal Code jurisdiction, how is the jury most likely to rule? a) The jury will find Rachel guilty because she had the intent of killing her archenemy. b) The jury will find Rachel guilty because she offered to pay Zack to kill her archenemy. c) The jury will find Rachel not guilty because neither Rachel nor Zack had taken a substantial step toward killing the archenemy. d) The jury will find Rachel not guilty because there was no actual agreement.

Answer B is the best answer because a conspiracy exists when the defendant or one of the defendant's co-conspirators must engage an overt act in furtherance of the conspiracy to commit the offense; and the defendant must enter into an agreement to commit the offense, which need not be explicit but may be tacit. At common law, the conspiracy could not exist if one of the co-conspirators was pretending to agree to the conspiracy. The Model Penal Code does not have that restriction and, thus Rachel can be convicted of a conspiracy even though Zack is an undercover cop who never intended to agree to the conspiracy. It should be noted that Rachel would be guilty of solicitation too for seeking someone to kill her archenemy. Answer A is incorrect because Rachel's intention alone to have her archenemy killed is insufficient basis for a conviction for conspiracy. Answer C is incorrect because conspiracy does not require that a substantial step be taken for the conspiracy to have occurred. Instead, for the prosecution to establish a conspiracy the defendant or one of the defendant's co-conspirators must engage an overt act in furtherance of the conspiracy to commit the offense; and the defendant must enter into an agreement to commit the offense, which need not be explicit but may be tacit. Answer D is incorrect because the Model Penal Code allows for a conviction for conspiracy even if one of the parties is pretending to agree to enter the conspiracy.

Sonny and his girlfriend, Cher, illegally sell prescription painkillers. Unbeknownst to Sonny, Cher gets the painkillers by forging a physician's signature on prescription pads and filling the different prescriptions at different pharmacies. When Sonny and Cher are apprehended, Sonny is charged with conspiracy to sell drugs, forgery, and the illegal purchase of prescription drugs. Sonny contests the charges. Sonny is a) guilty of conspiracy and the unlawful purchase of prescription drugs. b) guilty of conspiracy, the unlawful purchase of prescription drugs, and forgery. c) guilty as an accomplice to all of Cher's crimes. d) not guilty of any of the crimes because Cher did not tell him about the forgeries.

Answer B is the best answer because regardless of whether a conspirator knows of his co-conspirator's crimes, the conspirator is guilty if the crimes were during the course of and in furtherance of the conspiracy. Here, Sonny and Cher would not have been able to acquire the drugs to engage in their illegal sales unless Cher had obtained the drugs. It is reasonably foreseeable and a natural consequence of the conspiracy that Cher would use any means, legal or illegal, to obtain the painkillers. Answer A is wrong because it does not hold Sonny responsible for the forgeries. Pursuant to the Pinkerton rule, Sonny is responsible for the crime committed by his co-conspirator. Answer C is wrong because it provides the wrong rationale. Specifically, Sonny is not responsible because he is an accomplice. He does not have the actus reus or mens rea for accomplice liability. Answer D is wrong because regardless of whether a conspirator knows of his co-conspirator's crimes, the conspirator is guilty if the crimes were during the course of and in furtherance of the conspiracy.

Alexander, Polly, and Quentin have conspired to rob a bank. As they are driving to the robbery, Polly gets cold feet. She tells Alexander and Quentin to drop her off on their way to the bank because she changed her mind about the robbery. After they drop her off, Alexander and Quentin proceed to rob the bank. However, they are foiled in their attempt when the police happen upon the robbery and stop it. Alexander, Polly, and Quentin are charged with conspiracy to rob the bank and attempted robbery. Polly claims she withdrew from the conspiracy so she is not guilty of any crimes. Assuming Polly voluntarily and completely withdrew from the conspiracy, which of the following is true? a) Under the Model Penal Code, Polly is not guilty of any crime because she withdrew from the conspiracy. b) Under the common law approach, Polly is not guilty of any crime because she withdrew from the conspiracy. c) Under the Model Penal Code, Polly is only guilty of conspiracy, but not guilty of the attempted robbery. d) Under both the Model Penal Code and common law, Polly is guilty of conspiracy and attempted robbery.

Answer C is the best answer because by withdrawing from the conspiracy, Polly could limit her co-conspirator liability for the attempted robbery, but she is still guilty of the conspiracy because she did not attempt to stop the bank robbery. It was coincidental that the police thwarted it. Answer A is wrong because even assuming that Polly voluntarily and completely withdrew from the conspiracy, she would still be guilty of the conspiracy to rob the bank because she did nothing to thwart the conspiracy. All she did was drop out of it. At a minimum, Polly is still guilty of conspiracy even pursuant to the Model Penal Code. Answer B is wrong because the common law was stricter in its standard. Even if a defendant withdrew from a conspiracy, she would still be guilty of the original crime of the conspiracy. Answer D is wrong because Polly did enough to withdraw from the conspiracy and terminate co-conspirator liability. However, she did not do enough to escape liability altogether.

Karl and Donald have arranged to deliver cocaine to Laura. Karl drives the car as Donald directs him to the delivery point. As they approach the drop-off point, Karl senses that Laura has arranged to rip off the cocaine and leave Karl and Donald with nothing. Karl backs up quickly to get away. As he does, he accidentally hits Molly, a little old lady who had the misfortune of crossing the road at that moment. Molly dies. Under the common law approach, what crimes is Donald guilty of? a) Murder only. b) Only conspiracy to murder and conspiracy to distribute cocaine. c) Attempted distribution of cocaine, conspiracy to distribute cocaine, and murder. d) Accomplice liability, attempted distribution of cocaine, and conspiracy to distribute cocaine.

Answer C is the best answer. Donald conspired with Karl. There need not be an express agreement to form a conspiracy. Here there was concerted action that demonstrates a conspiracy. Donald had the purpose to distribute cocaine and thus a conspiracy to do so. Donald is also guilty of attempted distribution of cocaine as he and Karl have taken a significant acts toward delivering it. And Donald is liable under felony murder for the death of Molly. Answer A is wrong because it does not state that Donald is also guilty of conspiracy. Answer B is wrong because it does not recognize that Donald has accomplice liability for the attempted distribution of cocaine and liability under felony murder for the death of Molly. Answer D is wrong because it holds that Donald is guilty of accomplice liability. Accomplice liability is not a separate crime, but instead is a theory by which a defendant can be found guilty of a substantive crime.

Rachel wanted to put out a hit on her archenemy. After talking with the right people, she got in touch with Zack. Rachel offered to pay Zack $25,000 to kill her archenemy. Unfortunately for Rachel, Zack was an undercover cop who promptly arrested her. Rachel was charged with conspiracy to commit first degree murder. In a common law jurisdiction, how is the jury most likely to rule? a) The jury will find Rachel guilty because she had the intent of killing her archenemy. b) The jury will find Rachel guilty because she offered to pay Zack to kill her archenemy. c) The jury will find Rachel not guilty because neither Rachel nor Zack had taken a substantial step toward killing the archenemy. d) The jury will find Rachel not guilty because there was no actual agreement.

Answer D is best answer because common law does not allow for a conviction for conspiracy if one of the parties is pretending to agree to enter the conspiracy. Here, Zack is an undercover cop who never intended to enter into the agreement to kill the archenemy. The Model Penal Code does not have this restriction and, thus Rachel could be convicted of a conspiracy even though Zack is an undercover cop who never intended to agree to the conspiracy in such a jurisdiction. Moreover, it should be noted that Rachel could be guilty of solicitation for seeking someone to kill her archenemy. Answer A is incorrect because Rachel's intention alone to have her archenemy killed is insufficient basis for a conviction for conspiracy. A conspiracy exists when the defendant or one of the defendant's co-conspirators engage an overt act in furtherance of the conspiracy to commit the offense; and the defendant must enter into an agreement to commit the offense, which need not be explicit, but may be tacit. Answer B is incorrect because at common law, a conspiracy could not exist if one of the co-conspirators was pretending to agree to the conspiracy. Here, Zack is an undercover cop who never intended to enter into the agreement to kill the archenemy. The Model Penal Code does not have this restriction and, thus Rachel could be convicted of a conspiracy even though Zack is an undercover cop who never intended to agree to the conspiracy in such a jurisdiction. Moreover, it should be noted that Rachel could be guilty of solicitation for seeking someone to kill her archenemy. Answer C is incorrect because conspiracy does not require that a substantial step be taken for the conspiracy to have occurred. Instead, for the prosecution to establish a conspiracy the defendant or one of the defendant's co-conspirators must engage an overt act in furtherance of the conspiracy to commit the offense; and the defendant must enter into an agreement to commit the offense, which need not be explicit but may be tacit.

Joshua illegally smuggles aliens across the border. His partner, Maria, gives Joshua the names of aliens who are willing to pay to be brought across the border. They share the fee paid by the aliens. Maria has recently come to Joshua with the names of more potential customers. Joshua checks the weather report to see when the moon will be new because it is easier to smuggle people without any moonlight. Maria and Joshua are arrested before either one of them can do anything else. Are Maria and Joshua guilty of conspiracy? a) No, because they have not actually started to transport the aliens. b) No, because they have not taken a substantial step toward transporting them. c) No, because it was not illegal for Joshua to check the weather reports. d) Yes, because they both agreed to smuggle the aliens and there was a least one overt act in furtherance of that conspiracy.

Answer D is the best answer because both defendants had all the necessary elements for the crime of conspiracy, including the simple overt act of checking the weather report. Answer A is wrong because it is not required that the conspiracy progress to the point where the conspirators are actually transporting aliens. An overt act can be any step after there has been an agreement to commit a crime. Answer B is wrong because substantial step is the standard for an attempt. For an overt act, any act to further the conspiracy would qualify. Answer C is wrong because it is not required that the overt act be illegal in itself. It can be a totally lawful act and still qualify as an overt act.

Manuel asks Franco to help him burn down city hall. Franco thinks Manuel is kidding and answers flippantly, "sure." A police officer, who overhears the conversation, immediately arrests both of them and charges them with conspiracy to commit arson. Is Franco guilty of conspiracy? a) Yes, because he agreed to burn down city hall. b) Yes, because he was on notice that Manuel wanted to burn down city hall. c) No, because it only takes one person to burn down city hall. d) No, because Franco was just kidding when he answered, "sure."

Answer D is the best answer because if Franco was just kidding when he responded to Manuel, then he did not intend to join any conspiracy to burn down city hall. Answer A is wrong because even if Franco said "sure," and Manuel understood that to be an agreement, if Franco did not have the intent to join the conspiracy or have Manuel burn down city hall, he is not guilty of conspiracy. Answer B is wrong because the standard for conspiracy is not negligence or recklessness or even knowing conduct. In most jurisdiction, the defendant must act purposely. Answer C is wrong because it does not matter if the co-conspirator is needed or does anything to help the conspiracy. A conspiracy charge criminalizes the unlawful agreement itself.

T/F A conviction for conspiracy to commit a crime does not merge with a conviction for that crime itself for purposes of sentencing.

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T/F A defendant cannot be convicted of a conspiracy charge based on the inadmissible hearsay statement of a co-conspirator.

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T/F Co-conspirators are held culpable for the criminal acts of their co-conspirators undertaken in furtherance and within the reasonably foreseeable scope of the conspiracy.

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T/F Conspiracy is often harder to prove than attempt because of the need to prove a substantial step.

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T/F Mens reas for a conspiracy offense simply requires the intent to agree with another to commit the criminal act.

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T/F The Wharton rule occurs when an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy because the crime's nature necessarily requires the participation of the two persons.

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T/F The actus reus of a conspiracy is the agreement among conspirators, which can be established based on circumstantial evidence.

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T/F The overt act is part of the actus reus of the conspiratorial offense.

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T/F The prosecution need prove that each defendant personally did a particular overt act in furtherance of the criminal conspiracy.

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T/F The Wharton Rule applies only when there are 2 co-conspirators.

True Once a third co-conspirator is added Wharton's Rule is no longer applicable. "The presence of a third conspirator to a crime requiring only two participants for its commission, however, transforms the conspiratorial agreement into an offense distinct from any agreement implicit in the target crime."

T/F Planning or mere presence does not constitute an overt act to establish a conspiracy.

True Planning or mere presence may be sufficient for the actus reus of conspiracy (the agreement), but not the overt act.

T/F Under conspiracy, an overt act is not required to be a criminal act.

True The overt act is committed by one of the conspirators in furtherance of the conspiracy and its criminality may be implied. Ex. Co-conspirator checks the weather to see if it is ideal for smuggling conditions. Ex. Co-conspirator purchases clown masks to use during bank robbery.

In a minority jurisdiction, under what circumstance would merger apply to a conviction for conspiracy and a conviction for the completed offense, which was an object of the conspiracy?

When the conspiratorial agreement included the agreement to commit the completed offense (e.g., robbery), and the defendants were found guilty of the completed offense (robbery), the convictions for conspiracy and the completed offense (robbery) could not both stand as the offenses have merged.