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Chapter 1 – 1.07 Conspiracy



1.07 Conspiracy














                Conspiracy means concert in criminal purpose. It is the combin­ing of two or more persons to accomplish either an unlawful purpose or a lawful purpose by unlawful means. Conspiracy is a separate criminal offense, and it is a felony or misdemeanor depending upon the nature of the target crime. Conspiracy lies even though the tar­get crime, or the crime conspired for, is not committed.


                The elements to support the charge of conspiracy include:


                1.             That the individuals charged knew the unlawful purpose of their agreement;

                2.             That each individual intended to associate himself with the promotion of that unlawful purpose;

                3.             That each made clear his intent to promote the unlawful purpose;

                4.             That each was accepted by the other co-conspirators as a participant in the conspiracy.


                Most modern statutes require that some overt act is required be­fore conspiracy may be charged. The act may be accomplished by only one member of the conspiracy, but the co-conspirators are lia­ble for that act. Unlike attempts, the acts sufficient to charge con­spiracy may fall into the category of mere preparation. By overt act, the law requires that the act be observable even though it may be merely preparatory in nature.

                Any of the conspirators may withdraw from the criminal plot prior to the commission of any overt act that converts the plan into a crime. The issue here is whether the accused brought home to his co-conspirators the fact of his withdrawal from the conspiracy.

                By the very nature of the offense itself, conspiracy requires two or more conspirators in addition to the participation of an undercover officer or agent of the Police. One cannot be held to have conspired with himself tocommit a crime. It is not necessary, however, that all per­sons involved and named as conspirators be charged, and you may thus have what are known as unindicted or unchanged co-conspira­tors.

                In the case of United States v. Fox, 130 F. 2d 56 (3d Cir. 1942), the Third Circuit Court of Appeals discussed the law with regard to conspiracy as follows:


                                The law of conspiracy has been nearly as proliferative as that of larceny in its development of technical doctrine. The question in this case is limited, however, to the growth of one branch. By definition, conspiracy is a group offense; therefore, two or more people must participate to create the crime. Morrison v. California, 1934, 291 U.S. 82, 92, 54 S. Ct. 281, 78 L. Ed. 664. There it is held that where an indictment for conspiracy names only two, an acquittal or reversal as to one is an acquittal or reversal as to the other. This is no doubt the law announced by the majority of the decisions including the federal courts, although as the New York court says the `contrary view is arguable.' This result, however, is not to be expanded into a general `all or none' rule. The conviction of some alleged conspirators does not fall because others named are acquitted, even though the conviction of the others is logically required for the finding of guilty of those held. Nor is the convic­tion of one alleged conspirator vitiated because of the possible later acquittal of co-defendants not yet tried or even apprehended.


                                Furthermore, one may be convicted and punished for a conspiracy even though his fellow conspirators may be immune from prosecution because of the immunity at­taching to representatives of foreign governments, the Fifth Circuit declaring that `The rule that the acquittal of all save one of alleged conspirators results in the acquit­tal of all applies to acquittals on the merits.'


                                * * [material omitted] * *


                                We come then to the actual legal question presented in this appeal. Suppose there is a conviction of one named conspirator and nolle prosequi as to the other and only the two are named? The South Carolina decision in State v. Jackson, 1876, 7 S.C. 283, 24 Am. Rep. 476, squarely holds that a conviction under such circumstances cannot be sustained. This was approved obiter in the Second Cir­cuit and approved, but the question left open, by the Fourth Circuit. In an earlier federal case it was held in the charge of the trial judge that any one of those prosecuted could be found guilty of a conspiracy with another, as to whom a nolle prosequi had been entered, although his co­defendants were acquitted. The result of a conviction of one and a nolle prosequi as to the others of named con­spirators is not answered by any authority which we are bound to follow. The South Carolina decision is certain­ly close to the point. Contra is the Rindskopf case, al­though the matter appears not to have been given much consideration. The dicta in the other opinions are not, as is obvious from the context, the deliberate thought of the courts upon the point.


                                We think that to treat a convicted conspirator whose fel­low conspirator's case has ended by a nolle prosequi like the case where one is convicted and the other is acquitted goes too far.

                                                                                          End of Opinion


                In Craig v. United States, 81 F. 2d 816 (9th Cir. 1936), the fol­lowing language was used by the Ninth Circuit Court of Appeals in discussing the crime of conspiracy:


                                Furthermore, it should be borne in mind that the offense which it is charged the appellants conspired to commit need not be stated with that particularity which would be required in an indictment charging the offense itself. Wong Tai v. United States, 273 U.S. 77, 81, 47 S. Ct. 300, 71 L. Ed. 545; Ford v. United States (C.C.A. 9) 10 F. (2d) 339, 343, affirmed, 273 U.S. 593,47 S. Ct. 531, 71 L. Ed. 793; Coates v. United States (C.C.A. 9) 59 F. (2d) 173, 174; Enrique Rivera v. United States (C.C.A. 1) 57 F. (2d) 816, 819.


                                The details of a conspiracy are worked out and unfolded during its course. It would be holding a pleader to an inor­dinate degree of exactitude to compel him to allege each step with mathematical accuracy; for, when a plan is hatched, the conspirators themselves do not foresee all its ramifications. In the words of lago ‑‑ "Tis here, but tis confused: Knavery's plain face is never seen till used."


                                `Conspiracy is essentially a crime of intent.' Britton v. United States (C.C.A. 7) 60 F. (2d) 772, 773, certiorari denied, 287 U.S. 669, 670, 53 S. Ct. 314, 77 L. Ed. 577. The crime here charged was completed when the appel­lants agreed on the scheme detailed elsewhere in count 1. That agreement unequivocally alleged, and it is `ear­marked' by the subsequent particulars to `identify' the spe­cific offense charged, `sufficiently to distinguish it from other similar offenses.' Hood v. United States (C.C.A. 10) 43 F. (2d) 353. The complete details of the plan, although they need not have been stated, could not possibly have prejudiced the substantial rights of the appellants. Hosier v. United States (C.C.A. 5) 64 F. (2d) 657,658, Certiorari denied, 290 U.S. 677, 54 S. Ct. 100, 78 L. Ed. 584.

                                                                                          End of Opinion


                In most jurisdictions, it is a defense to the charge of criminal conspiracy and criminal solicitation if the accused persuades the per­son solicited not to commit the act or otherwise acts to prevent the commission of the offense.

                The elements of conspiracy can thus be stated to be:


                1.             Two or more persons (other than police or their agents)

                2.             Combining, confederating or agreeing,

                3.             To do an act they know to be unlawful


                4.             Doing an act in furtherance thereof (may only constitute mere preparation)


                To effectively withdraw from a conspiracy, the withdrawal must be communicated to the other participants and accepted by them.  Preventing the commission of the target offense can be considered withdrawal and a defense to the charge.  While in a conspiracy, each co-conspirator is responsible for the actions of every other member of the conspiracy.