The Bilateral Agreement Rule

The Bilateral Agreement Rule

The last section counted minds; this one asks whether those minds actually joined. The common-law answer is the bilateral agreement rule: a conspiracy existed only if at least two parties actually agreed to commit a crime and both possessed genuine criminal intent.¹ Bilateral means two-sided, so the agreement has to run in both directions between people who each mean it, and the federal courts and some states still follow this approach.² The rule joins the two elements already introduced. Because the agreement is the act of the crime, a second genuine party is needed for the agreement to exist at all, and that same party's intent supplies the second guilty mind. When one of the two apparent participants only pretended to agree, or could not legally form criminal intent, no conspiracy arose.³

The agreement the rule demands is looser in form than a contract and remains an agreement all the same. Conspiracy does not require a written statement, spoken words, or the formalities of a contract; a tacit understanding will do, and it can be inferred from the facts and circumstances rather than shown by explicit words.⁴ People can even belong to a single agreement without dealing directly with one another or knowing who the others are.⁵ What the law keeps from the ordinary meaning of the word is its two-sidedness: an agreement is a joining of two or more minds on a common objective, and it is impossible to conspire with oneself.⁶ So the looseness concerns how the joining is proved, while the joining itself must still occur between at least two people.

Because conspirators rarely announce their arrangements, courts let the agreement be proved by inference. In Regina v. Murphy (1837) the judge told the jury that when two people pursue the same object by the same means, each performing a part of one act so as to complete it, the jury may conclude they were engaged in a conspiracy.⁷ That instruction has a boundary. Two people who hold the same purpose have a concurrence of wills, and an agreement is a concurrence that results from agreement; loose readings of the instruction have led courts to neglect the fundamental fact that an agreement has to be proved.⁸ Justice Holmes's epigram that conspiracy is "a partnership in criminal purposes" invites the same slip, because treating every joint venture as a partnership would make each actor at the scene a conspirator, whereas a partnership presupposes that the partners reached an agreement.⁹ Courts accordingly want compelling circumstances before they infer agreement, and some insist on more direct evidence.¹⁰

In both scenes a person who shares the criminal objective also contributes to it, so the difference lies in whether the participants' conduct meets in a mutual understanding. A and B's coordinated acts allow the inference that it does. D's help is a one-sided commitment that the others never learn of, and the trap is treating a shared purpose as though it were an agreement. A conspiracy charge needs the agreement itself, and a participant who never joined it must be reached, if at all, by some other theory of liability.

The rule rests on two reasons that work differently. The first comes from the meaning of the act. Since the agreement is the act of the crime, and an agreement joins minds, a defendant whose only apparent partner is not genuinely committed has formed no agreement at all. The partner who lacks the intent is not guilty for want of a mental state, and the defendant who has the intent is not guilty either, because the act of conspiracy never occurred.¹¹ The second reason comes from what conspiracy is for. The offense strikes at genuine group criminality, where a second committed person encourages the first, shares the work, and makes it more likely that the plan will be carried through.¹² A partner who only pretends adds none of that, and law enforcement is in a position to see that the objective is never achieved. The first reason is a matter of definition and holds in every case; the second is a matter of function and fits some failing partners better than others.

The two parties the rule requires are counted by genuineness, and the count does not depend on convictions. A conviction can stand when the other genuine party has fled the jurisdiction, provided the prosecutor proves an agreement between two or more persons, and the same holds when that party has diplomatic immunity.¹³ What defeats the charge is a record showing that no one else truly agreed, and a later section explains how the acquittal of every other alleged conspirator at the same trial supplies that showing. Counting by genuineness also means that one pretender among several does no harm to the others. The rule has no application when there are three apparent conspirators and only one of them is unserious or incompetent, because the other two can conspire with each other.¹⁴ In the prosecution of Borges and Rosado, a DEA agent posed as a cocaine buyer, Borges set up the meeting and sat in on the negotiations, Rosado promised to supply the cocaine, and the court found a conspiracy between Borges and Rosado to sell cocaine to the agent.¹⁵ The agent was the target of that plan and no part of the count, but the two sellers were two genuine parties.

The rule also carries costs. Because the second party must be a guilty party, the group-danger rationale can overreach: a defendant who agrees with a person legally incapable of criminal intent has formed a genuine collaboration, and the incapable partner can still contribute intelligence, effort, and encouragement.¹⁶ The rule also sits uneasily with the inchoate purpose of conspiracy, which is to reach crime at its earliest stage. Police cannot intervene on a conspiracy charge against a plainly dangerous person until a culpable second participant appears, even though that person may soon find a willing partner.¹⁷ The alternatives are a solicitation charge, which carries a relatively light punishment, or waiting until the person has gone far enough to commit an attempt.¹⁸ Courts have generally been unsympathetic to charging attempted conspiracy in these cases and treat solicitation as the proper charge, so when the second party fails, solicitation is the usual alternative.¹⁹

The rule fails in three recurring ways, each leaving a defendant without a genuine second party: an apparent partner may only pretend to agree, as an undercover officer or informant typically does; an apparent partner may be legally incapable of forming criminal intent; or an apparent partner may belong to the class of people the underlying statute protects. The next three sections take these in turn. In each of them the question is the one asked here, whether a second person genuinely agreed, and the answer decides whether the remaining participant can be convicted of conspiracy or must be charged with something else.

Feigned Agreement

Pretense is the most common way a bilateral agreement fails, because sting operations depend on it. At common law, when one party to a two-person arrangement merely pretends to agree and does not share the illicit purpose, the other party cannot be convicted of conspiracy.²¹ The pretender is usually an undercover officer or a police informant, but the label carries no weight. A private citizen who goes along with a proposed crime in order to learn more, or to trap the person proposing it, feigns acquiescence in the same legal sense, and the result is the same.²² The Fifth Circuit put the idea in Sears v. United States in one sentence: "as it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy." A later panel in United States v. Delgado repeated it and called it axiomatic that a conspiracy conviction may not rest on an "agreement" with a government informer.²³

Two links in the reasoning produce this result. The first concerns the act. Agreement is the act that makes up the crime, and an agreement is a joining of minds on a common objective, so a pretender's imitation of assent joins nothing. The defendant has made a proposal and received a performance of acceptance, which leaves the defendant with no one with whom an agreement could have been made.²⁴ The second link concerns the mental state. Each conspirator must genuinely intend the criminal objective, and the pretender by definition does not, so the arrangement holds only one guilty mind.²⁵ Courts applying this view have treated the feigned partner's lack of intent as meaning that no conspiratorial agreement was ever formed.²⁶ A functional reason points the same way. A pretender brings no commitment to the objective and adds no real encouragement or division of labor, and an officer who pretends is positioned to make sure the plan fails. The group dangers that justify punishing agreement are therefore missing.

Two decided cases show the problem arising against defendants whose own resolve was beyond doubt. In People v. Foster the defendant approached Ragsdale in a bar, asked if he was interested in making money, and laid out a detailed plan to rob an elderly man. Ragsdale came to believe the plan was serious and decided to feign agreement to gather more information. The appellate court reversed the conviction for conspiracy to commit robbery, reasoning that the statute required actual agreement between at least two persons and that Ragsdale never intended to agree.²⁷ In Garcia v. State the defendant told Allen Young she wanted her husband killed, and Young went to the police and recorded further conversations. At the last meeting the defendant gave a plainclothes detective $200, a photograph of her husband, and a record of his daily habits, while Young testified that he only feigned acquiescence and never meant to carry out the plan.²⁸ In neither case was the defendant's purpose in doubt. What the courts had to decide was whether one person's purpose could make a conspiracy, and each opinion framed that as a choice between the traditional bilateral concept and the Model Penal Code's unilateral one.²⁹ The common-law answer is the one stated here. The Model Penal Code and many states have rejected it, and a later section in this chapter develops that contrast.³⁰

The bilateral rule removes the pretender from the count and removes no one else. The two situations below differ in a single fact: whether a second genuine participant exists apart from the undercover agent.

The comparison shows why the exam trap is treating an undercover agent's presence as fatal to every conspiracy charge, when fakery defeats only the missing second mind. The charge fails when the pretender was the sole apparent partner and succeeds when two other people genuinely agreed.³¹ The count also does not rise with the number of pretenders. If a defendant believes two others have assented but both are part of a sting, the bilateral view does not let the conviction stand, because in effect no one agreed with the defendant.³² Timing matters as well, because the question is whether the partner's agreement was genuine when it was given.

Because the rule turns on counting genuine participants, it is best run as a short sequence on any stem that involves an undercover officer, an informant, or a suspicious new partner.

Incapable Partners

A second way the bilateral agreement can fail involves a partner who may be perfectly sincere about the plan but is legally incapable of forming criminal intent. The standard example is a legally insane person. The traditional rule requires an actual agreement between at least two parties who both hold genuine criminal intent, so an agreement with such a partner leaves only one guilty mind behind the arrangement and no conspiracy arises.³⁴ The reasoning follows the logic of the feigned-agreement rule. Agreement is the act that makes up the crime, and a person who cannot agree in the legal sense cannot be the one with whom the defendant formed it, so the defendant is left with no one to have agreed with.³⁵ The variable differs from the one in the previous section. A pretender lacks criminal intent because the pretender never shared the objective, while an incapable partner may share it completely and lacks only the legal capacity to hold the intent the offense requires.

The two scenes differ in a single fact, the partner's capacity, and that fact alone moves the answer. This application is the most criticized part of the bilateral rule, because the reason the rule makes sense for a sting fits poorly here. When an undercover officer pretends to agree, no real collaboration exists, and law enforcement is positioned to make sure the objective is never reached. A defendant who agrees with a legally insane partner has formed a genuine collaborative criminal effort, and that partner, even if later found not guilty by reason of insanity, can still contribute intelligence, effort, and encouragement toward the objective.³⁶ The common-law count asks whether the partner is a guilty party, so heavy participation by an incapable partner earns no credit toward the second mind. The trap on an exam stem is reasoning that genuine participation can stand in for criminal capacity, which leads to a conspiracy conviction the common law would refuse.

Because the conspiracy charge fails, the prosecutor is usually left with solicitation, which punishes asking another person to commit a crime and carries a relatively light penalty. The only other course is to wait until the defendant's own conduct amounts to an attempt, since courts have shown little sympathy for charging attempted conspiracy in these cases.³⁷ The Model Penal Code answers the criticism by defining conspiracy around the defendant's own agreement and purpose, which makes the partner's incapacity immaterial, and a later section develops that contrast.³⁸

Incapacity should also be kept apart from immunity. A partner with diplomatic immunity is shielded from prosecution, but the partner's genuine intent and the agreement itself remain intact, so under the bilateral view a conviction of the other participant can stand.³⁹

Protected-Class Partners

The third recurring failure of the bilateral agreement differs from the first two in what is missing. A pretender lacks the intent, and an incapable partner lacks the legal capacity, but a partner who belongs to the class an offense was written to protect may agree sincerely, intend the result, and have full capacity, yet the conspiracy still fails. The reason is that such a person cannot be guilty of the underlying crime and so cannot be guilty of conspiring to commit it. The common-law bilateral rule requires at least two parties who both hold genuine criminal intent,⁴¹ and the same rule asks that at least two participants genuinely share the criminal objective.⁴² When one of the two apparent partners is a person the law will never treat as an offender, only one possible guilty party stands behind the agreement, and the count of two cannot be reached.

The result rests on two separate steps, and each has its own reason. The first step is that a protected person cannot be guilty. A statute written to protect a class treats its members as victims of the offense, so reading the same statute to convict them would punish the very people it exists to shield. It would also give a victim a reason to stay silent, since reporting the offense would expose the victim to a charge of conspiring in it. The second step is that the plurality rule counts only parties who could be guilty. Once the protected person is removed from that roster, the defendant has no guilty counterpart, in the same way that a defendant has none when the apparent partner was only an undercover pretender. The result therefore applies the plurality rule to a particular kind of statute and adds no new element to conspiracy.

Adding a genuinely culpable third party changes the arithmetic, because the protected person was never the only possible source of a second guilty mind.

The two scenes differ in a single fact: whether a culpable participant exists in addition to the protected person. In the checklist from the feigned-agreement section, the protected person drops out at the same stage as a pretender, and the number of culpable participants who remain decides the outcome. The trap on an exam stem is treating the protected person's enthusiasm as enough, since willingness does not make a victim a conspirator. A stem that describes the protected person planning the offense, supplying tools, or urging the defendant on still leaves the defendant with one possible guilty party unless someone else genuinely joined.

The analysis shifts in jurisdictions that follow the Model Penal Code, because that definition asks about the defendant's own purpose and agreement rather than demanding a second guilty party.⁴³ Whether the partner could be guilty therefore does not control the outcome there as it does under the traditional rule, and a later section develops that contrast. The common-law answer for the exam remains the one stated here.