Concept
The Modern No-Merger Rule
Merger
The Modern No-Merger Rule
The old rule rested on a procedural mismatch between felony and misdemeanor trials. Once that mismatch disappeared, nothing remained to absorb a conspiracy into the crime it aimed at. The prevailing rule now treats the conspiracy and the crime that was its object as separate and distinct offenses.1 That premise supports everything else in this section, so it is worth saying exactly what separate means. Each offense has its own definition, its own elements, and its own charge, and the state must prove each one on its own terms.
The two wrongs can stand apart because they differ in kind. A conspiracy is an inchoate crime, meaning an offense that can be established before the criminal goal is reached. Its wrong lies in the criminal agreement, which is dangerous whether or not the conspirators attain their objective.2 The completed object offense is defined instead by the act it prohibits and the result that act produces. Because the two rest on different conduct, proof of one does not prove the other, and with merger gone no doctrine folds one into the other.
The three consequences apply one idea from different sides. The first answers what merger once forbade: where the old rule allowed only the felony conviction, separate offenses allow two convictions. The second and third govern how verdicts and charges relate. An outcome on one offense does not decide the other, and a charge of the completed crime does not produce a conspiracy conviction. Students lose points here when they treat the conspiracy and the completed crime as a single offense, because each must be charged and proved on its own elements.7 The rule is the prevailing one rather than a universal one. Cumulative sentences are permitted in most jurisdictions, though critics object when the conspiracy aims at nothing beyond the one offense actually committed, and only a minority of modern recodifications follow the Model Penal Code's narrower approach.8 Those variations, and the reasoning behind the prevailing rule, come later in this chapter.
The first and most significant of these consequences, conviction and punishment for both offenses, is taken up next.10
Conviction for Both Offenses
A defendant who carries out the crime a conspiracy aimed at may be convicted and punished for both the conspiracy and the completed substantive offense, meaning the offense the conspirators agreed to commit.11 Of the three results that follow from treating the two offenses as separate, this one has the largest practical effect, because it reverses what the traditional rule produced. Under merger, a conspiracy that ripened into a completed felony disappeared into the felony, so only the felony could be punished and proof of the felony barred a conspiracy conviction altogether.12 Once courts and legislatures abandoned merger, nothing remained to absorb the agreement, and it stands beside the completed offense as a conviction of its own.
The reason lies in what each count punishes. The conspiracy punishes the partnership in crime, a danger that exists apart from whether the partners reach their objective.13 The substantive offense punishes the harm the partnership actually produced. Because the agreement and the completed act are different conduct, proved with different evidence, a conviction for the harm says nothing about the agreement. Under merger, conspirators who succeeded therefore paid no separate price for having organized, while conspirators who failed did. Separate convictions let the law answer each wrong with its own count, and the reasoning the leading cases give for that choice is taken up in a later section.
The stock illustration is robbery paired with conspiracy to commit robbery, and it is worth running with a twin that changes one fact.
The twin isolates the variable. Conspiracy and attempt are both inchoate offenses, which means offenses that are complete before the criminal goal is reached, yet only the conspiracy survives completion of the goal. A drug-dealing example makes the same split. A two-person team that sells narcotics to a customer can be tried, convicted, and punished for both conspiracy to distribute narcotics and distribution of narcotics, but not for both attempt to distribute and distribution.16 Why attempt behaves differently from conspiracy is the subject of the last section of this chapter. For now the point is that the answer to a stem pairing a conspiracy with a completed crime does not depend on the habits of attempt.
The same rule governs punishment, since a conviction that cannot be punished would add little. Cumulative sentences for the conspiracy and the completed offense are permissible in most jurisdictions.17 In Callanan v. United States the Supreme Court upheld consecutive twelve-year sentences, one for obstructing commerce by extortion and one for conspiracy to commit the same offenses.18 Actual practice may be gentler than the rule, because there is some evidence that defendants convicted of both offenses are seldom punished for both.19 An exam answer still follows what the law permits, which is a sentence on each conviction.
The prevailing rule has limits in jurisdiction and in acceptance. In the federal system, conspiracy is a separate offense and charging it alongside the underlying substantive offense raises no double jeopardy problem, so the defendant can be tried and convicted for both.20 Some states differ, because in a few the conspiracy and the underlying offense may still merge, so an answer should check the jurisdiction's approach whenever the facts supply it.21 Critics also object to cumulative sentences when the conspiracy aimed at nothing beyond the one crime actually committed, since the agreement then carried no danger beyond the offense already punished.22 That objection, and the Model Penal Code's alternative to the prevailing rule, come later in this chapter.
Students lose this issue when they carry the merger instinct over from attempt and solicitation and treat the completed crime as absorbing the conspiracy.24 A success in the fact pattern is not a defense to the agreement count, and the exam tip is to analyze each possible charge separately.
Acquittal Does Not Bar Conspiracy
A second consequence of treating conspiracy and its object crime as separate offenses concerns verdicts. Acquittal of the crime that was the object of the conspiracy is no bar to conviction for the conspiracy to commit it.26 The traditional rule linked the two offenses by letting a completed felony absorb the agreement, so that the felony's proof displaced the conspiracy.27 With merger abandoned, no doctrine links the verdicts, and each count is decided on its own proof.
The reason lies in what each count requires the state to prove. A conspiracy rests on an agreement to commit a crime and the intent to see it carried out, and nothing in that definition makes success of the plan an element. The jury's question on the conspiracy count is therefore whether the agreement existed, and that question stays open however the jury decides the object offense. The law reaches the same result when the plan could never have worked, because impossibility of success is no defense to conspiracy, since criminal combinations are dangerous apart from the danger of attaining the particular objective.28 An acquittal on the object crime records only that the state failed to prove that offense, and the failure may come from a gap the agreement never touches, such as missing proof that anyone actually entered the building. A verdict that leaves the agreement undecided cannot erase the conspiracy count.
A different kind of acquittal does bar a conspiracy conviction in most jurisdictions, and it should be kept apart from the rule just stated. When the conspiracy has only two alleged members, an acquittal or similar disposition of one of them bars conviction of the single remaining co-conspirator.30 The usual explanation follows from the nature of the offense: a two-person conspiracy is an agreement between those two people, and a verdict that one of them did not join leaves the other with no partner to the agreement. This is a separate doctrine about the number of parties to a conspiracy, and it is mentioned here only to prevent confusion.
The two scenes differ in what the acquittal decided. In the first, the jury rejected only the completed burglary and said nothing about the agreement. In the second, the verdict addressed the agreement itself and found it unproved as to Hana, which is why Gus cannot be left standing alone. Students lose this issue when they fail to ask which charge the acquittal disposed of, since an acquittal of the object crime and an acquittal of a co-conspirator on the conspiracy count produce opposite results.32
Separate Offenses, Separate Charges
The third consequence of treating conspiracy and its object crime as separate offenses concerns what the state must charge. A conspiracy conviction may not be obtained on a charge of the completed crime.34 The first two consequences asked how a conviction or an acquittal on one offense affects the other. This one asks what must be in front of the jury before a conspiracy conviction is possible at all. The answer is a conspiracy charge of its own, proved by its own elements, because a charge of the completed crime puts only the completed crime in issue.
The reason has two parts, and both come from the way a criminal charge works. The first is notice. A charge tells the defendant which conduct the state calls criminal, so that the defense can be built around it, and an agreement is different conduct from the act that carried the plan out. A defendant charged only with the completed crime has been called on to answer for what was done, and has not been called on to answer for an agreement to do it. Entering a conspiracy conviction on that charge would convict the defendant of an offense the accusation never described. The second part is proof. A separate charge ties the conspiracy conviction to proof of the agreement itself. Without that requirement, a jury that found a crime was committed by several people could infer an agreement from the completed act, although the agreement is a distinct fact the state must establish.
None of this keeps the completed crime out of a conspiracy trial. Evidence that the offense was carried out, such as coordinated roles or shared equipment, can help show that an agreement existed, and the state may offer it for that purpose once the conspiracy is charged. That evidence goes to whether the agreement existed and does not stand in for that element. The practical consequence is that each possible charge is analyzed on its own, which is also how an exam answer should proceed. Nothing prevents the state from charging both offenses in one prosecution. Even the jurisdictions that keep a merger rule and bar conviction for both do not forbid charging both counts, so the prosecutor can still put the conspiracy before the jury.35
The two scenes share the same underlying facts and the same completed fire. The only variable is whether the state accused the defendants of an agreement and then proved it. That is why a stem that describes a completed crime and a planning session still requires a look at what was actually charged. Students lose this issue when they assume a charge of the completed crime carries a conspiracy conviction along with it.38