Concept
Related Conspiracies
Joinder of Conspiracy Prosecutions
Related Conspiracies
The first gateway asks who agreed with whom. The charging document is read to see whether each defendant is charged with conspiring with the others, and § 5.03(2) widens that circle only to people the defendant knew a partner had conspired with to commit the same crime. The second gateway changes the question. Under § 5.03(4)(a)(ii), defendants may be prosecuted jointly when "the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct."1 The subject of that sentence is the conspiracies themselves, in the plural, so the provision assumes that more than one agreement has been charged and sets aside whether the defendants agreed with one another. What it asks about is how the alleged agreements relate to each other, and that shift from the parties' agreement to the relationship among agreements is the whole content of the gateway.
A second route exists because real criminal networks are built from links that do not all meet. A supplier, a distributor, a retailer, and a launderer may each have agreed only with the next person along the line. Gateway (i) can reach past a defendant's immediate partners only through § 5.03(2), which requires two things the links in a network often lack: knowledge that the partner has conspired with others, and identity of crime between the defendant's agreement and the partner's other agreements.2 When either is missing, the two ends of the chain are not charged with conspiring with one another. If (i) were the only route, the prosecution would have to try each link in its own proceeding and call the same witnesses to tell the same story about the same enterprise. Yet a complex and far-flung network can be impossible to understand except as a whole, and the part each participant played makes sense only against the whole.3
Pia's knowledge does not make Pia a conspirator with Rudy, because § 5.03(2) reaches only agreements to commit the same crime, and heroin distribution and firearms sales are different crimes.4 Gateway (i) therefore joins Pia with Quinn and Quinn with Rudy, but it cannot put all three in one trial. Gateway (ii) is the only route left, and it asks whether the two alleged conspiracies are aspects of one organized scheme. The facts as stated do not answer that question, which is the one the rest of this section develops.
The breadth that makes the second route useful also makes it dangerous. If any two conspiracies sharing a participant could be tried together, unrelated crimes would be swept into one proceeding, and a defendant on the margin would sit through evidence of conduct in which that defendant had no part. The Code therefore ties the second gateway to the relatedness of the conspiracies themselves, requiring that they be different aspects of a scheme of organized criminal conduct.5 A genuine network keeps the efficiency of a single trial, and a coincidental overlap does not. The text raises three questions, and the subsections below take them in order: whether the parties to the alleged conspiracies must be the same, what makes conspiracies aspects of one scheme, and where the test stops. The first begins with the phrase "whether they have the same or different parties."
Same or Different Parties
The second gateway contains a clause that settles whether party identity matters: the conspiracies alleged may be joined "whether they have the same or different parties."7 Read as written, the clause removes membership from the threshold question. Two alleged agreements may share some members, all of their members, or none. In each situation joinder turns on the one question the rest of (ii) asks, which is whether the agreements are so related that they constitute different aspects of a scheme of organized criminal conduct.8
Gateway (i) works differently, and the contrast explains why the clause exists. There the parties' mutual agreement is the question: each defendant must be charged with conspiring with the others, and § 5.03(2) stretches that circle only to people the defendant knew a partner had conspired with to commit the same crime.9 Those limits make sense for deciding what each defendant is guilty of, because the Code measures a person's conspiracy by that person's own purpose and agreements, and its commentary describes subsections (1) and (2) as confining an actor's conspiracy to the crimes the actor meant to promote and to the parties the actor agreed with, subject to the knowledge extension.10 They would be a poor guide to who may be tried together, however, because the people in a criminal network often never meet and may not know the others exist. A membership test in (ii) would drop the links that serve one enterprise merely because the participants at either end never dealt with each other, and it would send back to separate trials the very networks the second gateway exists to reach. The scope-of-conspiracy provisions answer the party question and the separate question of which crimes a conspiracy aims at, and gateway (ii) does not reopen the party question; it compares the agreements themselves.
Shared membership still matters in practice, because a participant common to two agreements is often the channel that ties them together. The tie is what the test requires, and a shared person is only one way of showing it.11 Students go wrong when they treat a shared participant as enough, or a missing one as fatal. A participant who deals separately with unconnected groups joins no agreements to one another, and two groups with no member in common may still be consecutive stages of one enterprise. The hub-and-spoke limit below develops the first point, and the narcotics chain in the next subsection illustrates the second.
As the charges are framed, gateway (i) cannot reach all of them, since Larry is not charged with conspiring with any judge other than Jane. Gateway (ii) can. The Larry-Jane agreement and the pool agreement have different parties, which the clause makes immaterial, and what remains is whether the two agreements fit together.12 On these facts they do, because the pool exists to collect information about generous bribers and to spread the proceeds among its members, and Larry's payment to a member is exactly that kind of input. Jane's membership carries the bribe from a two-person arrangement into the pool, so the agreements are different aspects of one scheme of bribe-taking by judges. Larry is thus joined with the pool defendants without having agreed with the other judges, and the joinder does not make him a party to the pool agreement, since paragraph (b) governs any joint prosecution under (a).13 In a real prosecution the answer would rest on what the indictment alleges and the evidence shows about how the pool actually operated.
Only Jane's membership has changed, and it changes the result. The parties again differ, but now no fact connects the arrangements: the pool receives no information about Larry and takes no share of the proceeds of Jane's ruling. Gateway (i) is unavailable for the same reason as before, and gateway (ii) is unavailable because nothing makes the Larry-Jane bribe an aspect of the pool's scheme.14 That both arrangements involve bribing judges of one court makes them similar, and similarity between two arrangements does not make them aspects of one scheme. Larry never agreed with the other judges in either scene, so a test built on agreement among the defendants could not distinguish the two; the relationship between the agreements does.
Aspects of One Scheme
The core of the second gateway is its final clause, which requires that the alleged conspiracies be so related that they constitute "different aspects of a scheme of organized criminal conduct."16 Each word narrows the test. A scheme is a connected criminal purpose, an aspect is one part of that purpose carried out through a particular agreement, and "organized" tells the reader that overlap in personnel or in subject matter falls short. The agreements must fit together as pieces of one enterprise, each doing work the enterprise needs, and two conspiracies that merely resemble each other do not meet that description.17
The reason for tying joinder to relatedness lies in how the Code measures a defendant's own conspiracy. Each defendant's conspiracy is confined to the crimes that defendant purposed to promote and to the parties that defendant agreed with, plus those the defendant knew a partner had conspired with to commit the same crime.18 A defendant's own conspiracy can therefore be narrower than the network around it. If joinder required a finding that everyone in the network conspired with everyone else, the network could be tried together only by overstating the liability of its outer participants. Gateway (ii) removes that pressure by separating two questions: the network is tried in one proceeding because its parts are aspects of one organized scheme, and each defendant's guilt is still decided by that defendant's own agreements.19
The narcotics chain shows the separation at work. An operation in which smugglers import narcotics, distributors possess and sell them onward, and retailers sell to users involves several distinct crimes: the importing, and the possession and sale carried out by each group.20 Because the Code asks of each defendant whether, and with whom, that defendant conspired to commit each of those crimes, the answers can differ from link to link. The smugglers may have conspired in the retailers' sales, since they depend on the retail markets and seek to foster them, while the retailers, who may have many suppliers and no stake in any single source, did not conspire in the importing.21 No finding that the retailers conspired in the importing is needed, and on facts like these none would be warranted. The operation is nonetheless one operation. Each alleged conspiracy is a stage in carrying the narcotics from the border to the buyer, so the conspiracies are different aspects of one scheme of organized criminal conduct, and (ii) permits the whole chain to be tried together.22
This is why the chain is the model case for the gateway. Joinder under (ii) rests on a judgment about how the alleged agreements relate to one another, and it leaves open whether any defendant conspired with all the others. The retailer sits at the same table as the smuggler, yet the retailer's guilt is still measured by the retailer's own agreements and by the crimes the retailer purposed to promote.23
Gateway (ii) also presupposes that more than one conspiracy has been alleged, and § 5.03(3) marks where that presupposition fails. 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.24 If some participants in the chain formed a single continuing relationship aimed at the whole series of crimes, from the importing through the final sales, they would be guilty of one conspiracy, and no question about relating separate conspiracies would arise for them.25 The two provisions therefore divide the ground. Section 5.03(3) decides how many conspiracies exist when one agreement or relationship has many objectives, and (ii) decides whether conspiracies that are separately alleged may still be tried together.26
A constructed pair of agreements, differing in one fact, locates the line between related conspiracies and unrelated ones.
Gateway (i) joins Dean with Cal and Dean with Ed, but it cannot join Cal with Ed, because they are not charged with conspiring with one another. Section 5.03(2) does not close the gap, since it reaches only a partner's agreements to commit the same crime, and drug distribution and laundering are different crimes.27 Gateway (ii) supplies the route, because the laundering exists to serve the heroin business: it takes the business's proceeds and converts them into usable money. The laundering agreement is therefore an aspect of the same scheme as the sales agreement, and Cal and Ed may be tried together.28
Only the object of the second agreement has changed, and it changes the result. Dean is still the participant common to both agreements, and the parties still differ, which gateway (ii) treats as immaterial. The check forging, however, does not serve, finance, or conceal the heroin business, and the heroin business does nothing for the forgery. With nothing connecting the two agreements except Dean, they are separate ventures that happen to share a person, so Cal and Ed cannot be joined under (ii).29 Dean may still be joined with Cal under (i) and with Ed under (i), but only in separate proceedings.
Because Dean was the shared participant in both pairs of agreements, a shared participant cannot be what separated them. The moving variable was whether the second agreement serves the first. Joinder rules in the federal courts and many states sort cases the same way: a slight membership overlap between two conspiracies, with nothing more, does not support joinder, while a single common conspirator suffices when the conspiracies are tied together as parts of that conspirator's gambling operations.30 Overlap in membership is evidence that two agreements may be related, and the relationship itself is what (ii) requires. That limit becomes sharper when the shared participant sits at the center of many groups that have no connection with one another, the situation taken up next.
Spokes Without a Rim
The second gateway's phrase "so related" is where its limit lies, because (ii) asks whether the alleged conspiracies fit together as different aspects of a scheme of organized criminal conduct.32 A person at the center of many dealings can be connected to each of them without the dealings being connected to one another. When a central figure deals separately with many groups that have no tie among themselves, the picture is of many conspiracies and no scheme joining them. The reason follows from what (ii) compares. It sets one alleged agreement beside another, so a shared contact relates each agreement to the contact and leaves the agreements unrelated to each other.
The classic picture of that limit comes from Kotteakos v. United States, a 1946 decision that arose under the federal general conspiracy statute and decided nothing under a provision like § 5.03(4).33 The question the Court framed was whether the petitioners suffered substantial prejudice from being convicted of one general conspiracy on evidence that the Government admitted proved eight or more different conspiracies of the same sort, all carried out through a common key figure.34 The indictment named thirty-two defendants and charged that they had sought to induce lenders to extend credit on loans that would then be offered to the Federal Housing Administration for insurance on applications containing false information.35 Simon Brown, the key figure in every transaction proved, was president of a lumber company and acted as a broker who placed modernization and renovation loans for others at a five percent commission, knowing the proceeds would not be used for the purposes the applications stated.36
The other defendants had each dealt with Brown, but no connection was shown among them beyond the fact that Brown had arranged each loan, and in many cases they had no relationship with one another at all.37 The Government itself described the pattern as "separate spokes meeting at a common center," and the Court added that the wheel was "without the rim of the wheel to enclose the spokes."38 A rim is therefore whatever links the spokes to one another rather than to the hub alone: a purpose the groups share, a dependence of each group's success on the others, or an awareness that others are carrying out the same project.39 The smuggling chain in United States v. Bruno shows a rim at work. Retail groups in New York and Louisiana had no communication or cooperation with each other or with the importers, yet the court affirmed a finding of one conspiracy, because the importers knew the middlemen had to resell and the retailers must have known their distributor bought from an importer, so that each had joined a venture whose success depended on all of them.40 Both cases have a hub, and the difference is interdependence and knowledge: the Bruno spokes needed one another, while the evidence in Kotteakos tied one group to another through Brown and nothing else. Those cases decide how many conspiracies exist, which is a different question from the one (ii) asks, but the links that bind spokes into one agreement are the same kind of links that make separate agreements aspects of one scheme.41
The reason for requiring a rim is the danger of spillover prejudice. Independent groups that each deal with one intermediary but have no stake in one another's success generate proof that says nothing about the other groups. A single trial nonetheless puts all of that proof before one jury, which sees one figure at the center of a great deal of crime and is invited to carry guilt from the groups the evidence reaches to the groups it does not. Requiring that the conspiracies be aspects of one organized scheme keeps the evidence against each defendant relevant to that defendant, since a scheme gives the groups a reason to be tried together that a common contact does not. Paragraph (b), which the next section develops, supplies safeguards for any joint prosecution under (a), including severance and special verdicts, because even a joinder that survives the gateway must leave the jury able to decide each defendant's own conspiracy.42
Courts applying the federal joinder rule, which uses different words from § 5.03(4), draw a similar line when the shared figure is a conspirator. Joinder of several conspiracies is improper where nothing more than a slight overlap in membership is shown, yet even a single common conspirator can suffice when the conspiracies are also tied together as parts of one operation, such as that conspirator's gambling operations.43 The tie in the second situation is a rim made of a common operation. A constructed contrast shows how the same broker and the same loans can come out either way.
Gateway (i) joins each contractor only with the broker, since the contractors are not charged with conspiring with one another. Gateway (ii) can reach all four, because the agreements are not independent: each loan needs the other three, the proceeds are shared, and each contractor knows the rest are involved, so every agreement is a part of one scheme that the others depend on.44 Strip out the package funding, the pooling, and the mutual knowledge, and the loans look like Brown's. Each contractor then deals with the broker alone, profits alone, and neither knows nor needs the others, so nothing connects the agreements except the broker, and (ii) is unavailable. The false statements and the broker are identical in both versions, which shows that similar conduct and a shared intermediary cannot stand in for a link among the agreements themselves.45
The Code's phrase "scheme of organized criminal conduct" leaves room for argument at the margins, and no bright line separates every case.46 A prosecutor facing a hub like Brown can contend that the brokerage was itself the organized enterprise and that each group's loans were an aspect of it, while the defense answers that each group ran a separate venture the broker merely serviced. The answer depends on what the evidence shows about shared purpose, dependence, and awareness among the groups. Students lose this issue when they treat a common contact as a common scheme, and they lose it in the other direction when they assume that spokes must know one another, since the smuggling chain shows a rim built from interdependence and knowledge. On an exam stem that gives one dealer and many unconnected groups, (ii) fails unless the facts supply a link among the groups themselves. Where the stem adds pooling, mutual dependence, or awareness of the others, (ii) is available and paragraph (b) governs the joint trial.