Working a Conspiracy Problem

Working a Conspiracy Problem

A conspiracy fact pattern usually delivers everything at once: a group of people, a plan, a few conversations, and sometimes a crime that has already happened. The offense sorts most easily when the questions follow the order in which it is built. At common law the elements are two or more people who agree to perform an unlawful act, to achieve an unlawful goal, or to achieve a lawful goal by unlawful means.¹ The agreement is the act, and the mental state is intent to commit the target crime, so knowing that something criminal is under way usually does not suffice.²

Each element answers a different question, which is the reason for taking them in sequence. The agreement identifies the act, the intents identify the culpability, and the object identifies which agreements the law chooses to punish. Taking them out of order invites two errors. A solver may let a bad motive carry the analysis when nobody ever reached an understanding with anyone, or may let a completed crime stand in for proof of agreement. The second error is the more tempting, yet a conspiracy is complete once the agreement is reached and the target offense need not occur at all, so the occurrence of the crime proves nothing about whether the defendants agreed.³ Two people can burgle the same store on the same night without ever coming to terms, and the burglary alone tells a court nothing about whether they did.

Changing one fact at a time shows which step then decides the problem. Remove the agreement and step 1 ends the analysis. Al, just refused a loan at a bank, leaves as Slim arrives to rob it, and Al, who does not know Slim, cheers him on and cheers louder when Slim pistol-whips the loan officer. Al plainly wants the robbery to succeed, yet there was no agreement between Al and Slim, so there is no conspiracy and the later steps are never reached.⁴ The explanation lies in what the act of conspiracy is: a meeting of minds in an understanding to pursue a common purpose, and knowledge or approval without that understanding does not satisfy the element.⁵ Whether Al could be liable for supporting the robbery is a separate question for the law of complicity, since a person who is no conspirator may still commit a complicity offense.⁶ Students lose this step when they treat approval without agreement as a meeting of minds.

Remove the intent and step 2 decides the problem even when some understanding exists. A telephone company that knows some of its customers use their phones for drug deals does not thereby become a party to a drug conspiracy, because the prosecutor must prove that the company intended to advance the venture by providing the service.⁷ The mental element has two parts, the intent to agree and the intent that the objective be accomplished.⁸ The second part carries with it at least the degree of criminal intent that the target offense itself requires, so a conspiracy to commit a specific offense cannot rest on a weaker mental state than the offense demands.⁹

Step 2 also asks whose mind is being examined, and the answer depends on the framework. The traditional view treats conspiracy as a relationship among at least two people, so a partner who only pretends to agree leaves the sincere defendant without a co-conspirator.¹⁰ The Model Penal Code frames the offense around the individual defendant instead, requiring agreement by the defendant but not an agreement between two or more guilty persons.¹¹ The plurality reading takes up how a given jurisdiction chooses between them. In working a problem, the point is to notice which framework governs before deciding whether a feigned partner defeats the charge.

Remove the unlawful object and step 3 ends the problem, however firm the agreement and however many people joined it. The width of this step varies with the law. At common law an agreement to achieve a lawful goal by unlawful means qualifies, and the federal general statute reaches agreements to commit an offense against the United States or to defraud it.¹² The Model Penal Code narrows the object to conduct constituting a crime, or an attempt or solicitation to commit one, whether the defendant agrees that the conduct will occur or agrees to aid in planning or committing it.¹³

The last variable is the jurisdiction, and it explains why A and B in the first example are guilty on one set of rules and not yet on another. Under the common-law rule the crime is complete upon formation of the agreement, and no overt act is an element.¹⁴ The federal general conspiracy statute adds a requirement that one or more of the conspirators do some act to effect the object, so A and B would not be guilty under it until one of them acted.¹⁵ That act need not itself be criminal and need not be performed by the defendant charged, because a single conspirator's act satisfies the element for all, and some federal conspiracy statutes, such as the RICO and money laundering provisions, require no overt act whatever.¹⁶ Even where an act is required, the most trivial acts will do, which is why this step rarely decides a problem that has passed the first three.¹⁷