One Agreement, Many Crimes

One Agreement, Many Crimes

The earlier sections in this chapter asked whom a defendant conspired with. The object dimension asks a counting question that arises once the crimes are fixed: when one defendant's agreement reaches several crimes, how many conspiracies has the defendant committed? Section 5.03(3) answers that a person who conspires to commit a number of crimes is guilty of only one conspiracy, so long as those crimes are the object of "the same agreement or continuous conspiratorial relationship."¹ The provision is the counterpart of the party rule in subsection (2). The party rule decides how far the circle of co-conspirators extends, and subsection (3) decides how many conspiracies that circle contains once the defendant's criminal objectives have been identified. The Commentary describes the three subsections as working together on the culpability of the individual actor: subsections (1) and (2) confine the conspiracy to the crimes the defendant purposely sought to promote and to the proper parties, and subsection (3) keeps the result a single conspiracy despite a multiplicity of objectives.²

The reason for counting agreements rather than targets starts with what conspiracy punishes. The offense does not wait for any target crime to be carried out, so the wrong lies in the joining together itself.³ One act of joining does not become several acts because the participants happened to name several crimes within it. If the number of conspiracies followed the number of targets, the length of a plan's wish list would drive the number of convictions, and a prosecutor could turn one relationship into many counts simply by itemizing what the partners meant to do. The Code's rule removes that leverage by counting the agreement or relationship once. A single count does not understate the wrong, because a conspiracy takes the grade of the most serious offense that is among its objects.⁴

The alternative "continuous conspiratorial relationship" in the text exists because conspirators rarely recite every target in a single conversation. Plans grow, and partners add jobs as an enterprise proceeds. A test that looked only for one moment of agreement would split an ongoing partnership into fragments each time a new target was added, and the continuity language prevents that result. It also fits the way the Code treats the life of a conspiracy: under § 5.03(7)(a), a conspiracy is a continuing course of conduct that ends when the crimes that are its object are committed or when the agreement that they be committed is abandoned by the defendant and by those with whom the defendant conspired.⁵ Because a conspiracy can last for years, a conspiracy charge can also extend the period in which prosecution remains available.⁶ Abandonment and limitation periods have their own rules in § 5.03(7) and belong to their own readings. The only point needed here is that the same continuing character explains why the object rule asks about a relationship that persists rather than about a single moment.

The same words also mark the outer edge of the rule. Crimes fall into one conspiracy only when they share an agreement or a relationship that runs from one to the next, so genuinely separate schemes are not swept into a single count. The rule also leaves each defendant's objectives where subsections (1) and (2) put them. The Commentary reasons that, once the objectives are treated as particular crimes and each participant is tested separately, some parties to an operation may have conspired to commit the whole series of crimes while others conspired to commit only some of them.⁷ Subsection (3) then counts what each defendant purposely took on. If those crimes were the object of the same agreement or continuing relationship, the defendant has one conspiracy, whether it covers a single crime or the entire series.⁸

The Terry and Luis problem shows the rule at work. Terry and Luis murder Carol on January 1, murder Daniel on January 2, and rob and murder Elaine on January 3, and the problem directs that they be treated as having acted conspiratorially.⁹ On that assumption the three murders and the robbery were carried out through one continuing partnership, so all four crimes are objects of the same agreement or continuous conspiratorial relationship. Under the Code Terry and Luis are therefore guilty of one conspiracy, and the count does not rise to three or four with the number of victims.¹⁰ The killings and the robbery remain chargeable as crimes in their own right, but whether each partner answers for the other's substantive crimes is a separate question that a later section takes up. Students lose this issue when they count one conspiracy per target crime and forget that the Code counts agreements and relationships.

A contrast from the drug statutes shows that the counting rule depends on the kind of statute charged. In Albernaz v. United States, the defendants were convicted under one statute criminalizing conspiracy to import narcotics and another criminalizing conspiracy to distribute them, and the trial judge imposed consecutive sentences on both counts. The Supreme Court upheld both convictions even though the Government never proved separate agreements to import and to distribute, reasoning that Congress, by enacting two separate conspiracy statutes, intended separate penalties for violating each, and it distinguished Braverman because the defendants there were charged under a general conspiracy statute.¹¹ That outcome rests on congressional intent about two particular statutes. A general conspiracy provision such as § 5.03 is the setting in which the single-agreement rule operates.

The same economy appears in the Code's sentencing provisions. Section 5.05(3) provides that a person may not be convicted of more than one offense defined by Article 5 for conduct designed to commit or to culminate in the commission of the same crime.¹³ The two provisions work as companions. Subsection (3) fixes how many conspiracies a plan comprises, and § 5.05(3) keeps one target crime from supporting several Article 5 convictions at once, so a defendant who conspired to commit a robbery and also attempted that same robbery faces a single Article 5 conviction for it. The next section applies the party rules and the object rules together to a chain of smugglers, middlemen, and retailers, where the number of conspiracies depends on both dimensions at once.