Limits of the Rule

Limits of the Rule

The rule that impossibility is no defense to conspiracy answers one argument and only one: that an outside fact made the agreed objective impossible to accomplish. It leaves every other element of the offense in place, so a defendant who loses the impossibility argument may still defeat the charge on another ground. A conspiracy requires a genuine agreement and the intent to achieve the objective, which includes whatever mental state the target crime itself demands. Those requirements survive for a structural reason. Whether a plan could have worked is a question about the outside world, while intent and agreement are questions about what the parties had in mind and what they actually did together. A rule that settles the first question cannot supply proof on the second, so the prosecution must establish each element whether or not the plan was feasible.

Mislabeling is the usual error here, because a conspiracy charge that fails looks, from a distance, like a plan that failed. The two events differ. Impossibility describes parties who meant to commit a crime and were blocked by a hidden fact. A charge that fails for want of intent or agreement describes a prosecution that cannot prove something about the parties themselves, even if the plan could have been completed without a hitch. The same separation appears in solicitation, where the offense is complete once the defendant purposefully encourages another to commit a crime and the law generally does not ask whether the crime could have been carried out successfully.¹ What remains to be proved in such offenses is purpose, which is why students lose this issue when they attach the impossibility label to an intent or agreement problem and then argue about whether the plan could have worked, when the real dispute concerns what the defendants believed or whom they agreed with.

Attempt law shows how the mental element interacts with an impossibility argument. In People v. Jaffe the New York Court of Appeals reversed a conviction for attempting to receive stolen goods, because the goods had been returned to their owner, who was cooperating with the police to catch the buyer, and so were no longer stolen. The court reasoned that attempt required knowledge of the stolen character of the goods, and that knowledge could not exist when the goods were not in fact stolen.² The drafters of the Model Penal Code cited that decision as a misuse of the impossibility defense, and the Code rejects legal as well as factual impossibility except when the impossibility is true legal impossibility.³ The flaw in the reasoning is that the mental state the offense requires is the defendant's subjective belief that the goods were stolen. If certainty were demanded, no buyer of stolen goods could ever be convicted, since every one of them could say that he believed the goods stolen but did not know it to a certainty.⁴ The lesson carries into conspiracy in both directions. The parties' beliefs fix what they intended, so a hidden fact does not undo an intent they really had. By the same logic, parties who honestly believed facts that made their objective lawful did not intend the target crime, and that gap is a failure of the intent element, which the impossibility rule never reaches.

A separate limit appears when the chance of success is so remote that nobody could take the plan seriously. Attempt law, where this reasoning developed, treats the voodoo doctor who fervently expects a curse to kill another person as the classic case. Even though the impossibility there is factual and the defense is generally refused, courts hesitate to impose liability when the defendant has not shown himself to be dangerous.⁵ The Model Penal Code does not exculpate such conduct outright. When the conduct is so inherently unlikely to culminate in a crime that neither it nor the actor presents a public danger warranting the grading, the court may enter judgment for a lower grade or degree or, in extreme cases, dismiss the prosecution.⁶ That mechanism adjusts grading and prosecution, so it does not revive the impossibility defense. The line it draws is also narrow: a defendant who feeds the intended victim a harmless substance thought to be poison is no closer to murder than the voodoo doctor, yet is more dangerous, because the next effort will probably be made with greater care.⁷

An attempt problem built around this limit involves John, who plans to kill Judge Smith with a voodoo death hex and enlists his brother Lonny to obtain the objects the hex requires from the judge's housekeeper.⁸ The defense may call the case legal impossibility because no law forbids voodoo. John believed the hex would kill the judge, however, and killing the judge is a crime, so the impossibility is factual and the as-believed test rejects the label.⁹ The argument left is the remote-chance one: that a death hex is so unlikely to work that the court should dismiss.¹⁰ Because that argument comes from attempt law, whether a given jurisdiction carries it into conspiracy is a separate question. Lonny's own exposure to conspiracy liability would depend on the other limits, namely whether he genuinely agreed with John and shared the purpose of killing the judge, facts the problem leaves open.

Return to the partners who agreed to sell bags they believed held cocaine. When the bags held talcum powder, the impossibility was factual and the charge stood. Reverse the facts and the diagnosis changes.

In the earlier scene a hidden fact stood between a believed crime and its completion. Here the hidden fact turned the completed sale into a crime the partners never meant to commit. The as-believed test returns no, since on the facts as pictured the sale was lawful, but the error concerns a fact rather than the law, so this is not true legal impossibility. The element in question is intent. Whether the honest belief defeats the charge depends on whether the target statute requires awareness of the substance's nature or treats that fact as a strict-liability element, and where awareness is required the defendant may present the belief to negate the culpability element.¹¹

Steps two and three do the work that the impossibility rule leaves undone. The next two sub-sections take them in turn, beginning with the mistake that negates intent.

Mistake Negating Intent

The impossibility rule answers only the argument that an outside fact made the objective unreachable, so the first limit on it comes from an element it never touches: intent. A conspiracy requires that the parties intend to achieve the objective, and that intent includes whatever mental state the target crime itself demands.¹⁴ The offense punishes a criminal purpose joined with an agreement. A participant who honestly lacks the mental state for the target crime therefore does not share the criminal purpose, however willing he is to carry out the plan as he pictures it. That failure has nothing to do with whether the plan could have worked, which is why it calls for a different analysis from impossibility.

Arson shows how the limit operates. Where the offense requires the intent to burn another's property without the owner's consent, the agreed objective is a crime only if the participants mean to burn property whose owner has not agreed to the fire. A conspirator who believes the owner has agreed is picturing a different act.

Run the elements against Crazy Horse. He agreed, and he acted, and the objective was not merely feasible but achieved, because the farm burned. Nothing outside the plan blocked it. The charge still fails as to him, because the intent the target crime requires, to burn property without the owner's consent, was absent from his mind. The belief does not have to be reasonable. Intent measures what the defendant actually believed, and subjective belief is the measure the law applies to mental states such as knowing that goods are stolen.¹⁵ An implausible story will make a jury doubt that the belief was sincere, but once the belief is honestly held, its unreasonableness cannot supply an intent that never existed.

The contrast with true impossibility comes from flipping the one variable that decided Crazy Horse's case, namely what the participants believed.

In this second scene the believed plan is a crime and the hidden fact only obstructs it, so the claim is rejected for the reason given earlier: a mistake about facts does not defeat a conspiracy.¹⁶ In Crazy Horse's scene the believed plan is lawful, so the participant lacks the intent the offense requires. The two rules therefore work on different elements and never collide. The impossibility rule says that frustration of the objective by outside facts is no defense, and the limit says that each defendant's own mind must hold the intent the target crime requires. The Crazy Horse scene is no exception to the impossibility rule, which stays fully in force, because the prosecution simply cannot prove an element. Students lose this issue when they file an honest mistake about a fact the target crime makes relevant under impossibility and then argue about feasibility, when the real question is what the defendant intended.

Attempt law supplies a parallel on the same variable. An impotent man who tries to commit rape can be guilty of attempted rape, yet evidence that he knew of his own impotence is relevant to whether he really had the specific intent to rape, as State v. Ballamah recognized.¹⁷ By analogy, conspirators who know the objective cannot be reached stand differently from conspirators frustrated by a fact they never suspected, because knowledge of the obstacle bears on whether they truly intended to achieve the objective.¹⁸ A hidden fact leaves intent intact, while a known fact leaves intent open to question.

Which beliefs can negate intent depends on the target statute. Where the statute requires awareness of the fact in question, an honest contrary belief can be offered to negate the culpability element. Where the fact is a strict-liability element, the belief has no required mental state to negate, and the defendant is in real difficulty.¹⁹ The first move on such a stem is therefore to read the target offense and ask which facts it requires the defendant to be aware of.

Feigned Agreement

The rule against impossibility defenses answers one question, whether an outside fact that kept the objective out of reach excuses the conspirators, and it says no.²² A different outside fact raises a different question. When the person the defendant dealt with was only pretending to join, as an undercover officer does, the objective may be as reachable as ever, and what comes into doubt is whether anyone besides the defendant ever agreed to anything. That doubt attaches to the agreement element, so the analysis turns on what counts as an agreement in the jurisdiction.

At common law the agreement is a meeting of minds, a combination of two or more people who actually arrive at the same plan.²³ This is the bilateral view, because both sides must genuinely agree. Since it is impossible to conspire with oneself, a defendant whose only counterpart is feigning has no co-conspirator, and the charge fails at the first element.²⁴ The reason lies in what the offense targets. Conspiracy punishes a group committed to a criminal purpose, and the added danger of a group comes from several people each really bound to the plan. An officer who only pretends is bound to nothing and is working against the plan, so there is no group for the offense to reach.

The feasibility of the robbery plays no part in that result. The plan could have succeeded in full and the outcome would be the same, which shows that the defect lies in the agreement and has nothing to do with whether the objective was reachable.

The Model Penal Code takes the opposite view with its unilateral approach. Actual agreement is not required so long as the defendant believes another person is agreeing to commit the crime, so a purported agreement with a government agent is enough.²⁵ The unilateral view looks to the defendant's own culpable commitment. A person who sincerely joins a criminal plan has displayed the purpose the law punishes, whether or not the counterpart was sincere. That emphasis on belief echoes the treatment of mistake and intent earlier in this chapter, where what the defendant actually believed fixed what the defendant intended.

Statutes do not always fall cleanly into one camp. Washington's conspiracy statute, RCW 9A.28.040, punishes a person who, intending that conduct constituting a crime be performed, agrees with one or more persons to engage in or cause that conduct, when any one of them takes a substantial step.²⁶ The State argued that the statute follows the Code's purely unilateral approach, so that an agreement with a government agent would do. The court rejected that reading, because the statute requires an agreement, the word carries its common-law meaning of a combination of minds, and nothing showed that the legislature meant to abandon that long-established requirement.²⁷ The statute does adopt unilateral reasoning in a limited way. Under subsection (2), failing to convict the accused's sole co-conspirator does not by itself block proof of the agreement against the accused, but two participants must still reach a genuine agreement.²⁸ The result on a feigned agreement therefore depends on the approach the jurisdiction takes to the agreement element, and impossibility has no role in it.

The agreement problem should be kept apart from a true impossibility claim, because the two can appear in one fact pattern and have separate answers.

Here the agreement is real, so no agreement problem exists, and the only argument left is that the objective was unreachable. That is the claim the rule rejects.²⁹ Add an undercover officer to the same scene and the two questions separate. The closed bank still does nothing for the defendant, while the officer's pretense decides the case, producing no conspiracy under the bilateral view and a possible conviction under the unilateral view. Students lose this issue when they treat a feigned agreement as an impossibility problem and argue about whether the plan could have worked, when the dispute is whether a genuine agreement, or a belief in one, existed. The discussion of the plurality requirement elsewhere in this chapter covers the two approaches in more detail.