Concept

Chains of Distribution

Scope of the Conspiratorial Relationship

Chains of Distribution

The party rules and the object rule come together in a chain of distribution, where contraband passes from importers to middlemen to retailers and each link commits crimes of its own. The smugglers commit importing, the middlemen commit possession and resale, and the retailers commit possession and sale to users. An operation built this way raises both questions that the earlier sections taught separately: with whom did each participant conspire, and to commit which crimes?¹ This section adds no new rule. It runs the rules already taught on a realistic structure and explains why the answers can differ from one participant to the next.

The reason for asking those questions one participant and one crime at a time shows up when the alternative is tried. In Bruno, a prosecution arising from a narcotics operation run by smugglers, middlemen, and retailers, the court described the conspiracy's objective as the whole operation: smuggling the drugs in and distributing them to addicts in several states.² Once the objective is the entire series, only two findings are possible. Either there was no conspiracy, or there was a single conspiracy in which all three links conspired to commit all of each other's crimes.³ Neither finding fits the participants as they actually stood. The first would excuse a smuggler who built the distribution network for the sales it was meant to serve, and the second would bind a retailer with no interest in the importing to that crime. The overall objective of the operation is real, but it is a poor measure of what any single participant is culpable for.⁴

The Code's alternative starts from the individual. Subsections (1) and (2) of § 5.03 confine each defendant's conspiracy to the crimes the defendant purposely sought to promote or facilitate and to the people the defendant agreed with, together with those whom a partner has conspired with to commit the same crime to the defendant's knowledge. Subsection (3) then gathers the crimes that share one agreement or continuing relationship into a single conspiracy.⁵ Applied to a chain, those rules yield a procedure that can be run on every participant in turn.

Exam Analysis Steps

Because the conclusion can differ for each participant, the analysis is best run as a repeated loop rather than as one verdict on the whole operation. The steps are these:

Separate the operation into its distinct crimes, such as the importing, the wholesale possession and resale, and the retail sales, instead of describing one overall objective.
Choose one participant and identify which of those crimes the participant purposely sought to promote or facilitate, since purpose fixes the participant's criminal objectives.⁶
For each such crime, identify the partners the participant agreed with, and add any further persons whom the participant knows a partner has conspired with to commit that same crime, whether or not the participant knows their names.⁷
Group the participant's crimes that are the object of one agreement or one continuing relationship, and count a single conspiracy for each group.⁸
Repeat the inquiry for every other participant, without assuming that a result reached for one carries over to another.

Step two carries most of the weight, because it is where the participants in a chain separate from one another. A participant's knowledge that others upstream or downstream are committing crimes does not by itself supply the purpose that the first subsection requires for each crime, so awareness of the whole operation never makes the whole operation the participant's objective.⁹ Steps three and four then say how far each participant's conspiracy reaches once those objectives are fixed.

The Commentary's own illustration shows the answers diverging within one chain. Smugglers may depend on their retail markets and work to foster them, and in that situation the smugglers conspired to commit the retailers' illegal sales as well as their own importing.¹⁰ Retailers, on the other hand, may have many suppliers and be indifferent to the success of any single source, and in that situation they did not conspire to commit the smugglers' importing, even though they knowingly buy what was imported.¹¹ The asymmetry follows from purpose. A smuggler who needs the retail outlet has a stake in each sale, so each sale is a result the smuggler is seeking. A retailer who can replace any supplier at will has no stake in whether a particular shipment arrives, because the importing is only the way the goods reach the shelf, and the retailer knows about it without seeking it. Matching liability to these commitments keeps an upstream operator from escaping responsibility for the market it cultivates, and it keeps a peripheral buyer from being swept into crimes the buyer never sought to promote.

Smugglers and retailers rarely deal with each other directly, so the smuggler's conspiracy with the retailers is ordinarily reached through § 5.03(2). A smuggler who has agreed with a middleman that the retail sales will be made, and who knows that the middleman has conspired with retailers to make those same sales, is guilty of conspiring with those retailers, whether or not the smuggler knows who they are.¹² The extension follows the crime. The retail sale links smuggler and retailer, but the importing does not link them in the other direction, since the retailer never purposely sought it and so lacks the predicate conspiracy on that crime from which an extension could run.

Hypothetical Illustration

An importer, Vega, sells each shipment to a middleman, Marsh, and wants Marsh's resale network to grow because it is Vega's only outlet. Vega agrees with Marsh that the drug will be pushed to street retailers in new neighborhoods, and Vega knows Marsh has lined up retailers for those sales, though Vega has never learned who they are. One of those retailers, Okafor, buys from Marsh, has other suppliers, and cares only that the product sells. Okafor knows that Marsh and Vega have an arrangement under which Vega imports the drug but takes no step to help any shipment arrive. Vega is guilty of one conspiracy covering the importing and the retail sales, including conspiring with the retailers as to the sales. Okafor's conspiracy covers only the retail sales, because the importing was never Okafor's objective. Change one fact: Okafor agrees with Marsh to put up money for Vega's next shipment so that the supply line keeps running. Okafor now has the purpose of promoting the importing, and because Okafor knows Marsh has conspired with Vega to import, Okafor is also guilty of conspiring with Vega on that crime, within a single conspiracy that includes the retail sales.

Both versions of Okafor share the same knowledge of the arrangement. What changed was purpose, and with it the predicate conspiracy that § 5.03(2) requires before any extension can run. The comparison also shows the last point a chain teaches: one operation can hold participants whose conspiracies differ in size. Smugglers and middlemen may have conspired to commit, promote, or facilitate every step from the importing to the final retail sale, while the retailers conspired with those same people only as to their own possession and sales, indifferent to what happened before the goods reached them.¹³ Under subsection (3), those who sought the entire series are guilty of one conspiracy if all of the crimes were the object of the same agreement or continuous conspiratorial relationship, however many separate crimes it covers.¹⁴ A retailer in the same operation is guilty of one conspiracy as well, but its object is only the retailer's own sales. Traditional doctrine finds results like this hard to reach, because it tends to treat an agreement as a two-sided relationship that is the same size for each party in both who is in it and what it covers. The Code lets two people who deal with the same partners carry different objectives.¹⁵

The sequence of Cal, Dean, Ed, Flora, Gil, and Helen puts the whole procedure to work. Cal, Dean, and Ed run a heroin trade and then take on a salesperson in Florida for heroin, a supplier in Texas for a new line of cocaine, and a franchisee in North Dakota for fencing stolen jewels.¹⁶ The narrative leaves open what each newcomer knew and sought, so the answers below rest on what the facts as told most naturally suggest. For Cal, Dean, and Ed, heroin, cocaine, and fencing look like successive lines of business added by one continuing partnership, which makes them the object of a single continuous conspiratorial relationship and gives each of the three one conspiracy covering all of it.¹⁷ Flora's objective is heroin sales, Gil's is the cocaine supply, and Helen's is the fencing franchise, so each has a conspiracy with the group limited to that line, unless a prosecutor can show that the newcomer also purposely sought to promote another line.¹⁸ A newcomer who knows that the partner who recruited the newcomer is acting with others on that same line is linked to those others under § 5.03(2) as well, without having met them.¹⁹ Whether Cal, Dean, or Ed answers for the assault that Helen arranged on a buyer who failed to pay is a separate question for a later section, because it turns on rules about liability for another's substantive crime and not on how many conspiracies exist. Federal statutes aimed at criminal enterprises, such as RICO, are a separate device and are not addressed here.

Chains of Distribution

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