Concept
Merger Compared With Related Doctrines
Merger
Merger Compared With Related Doctrines
The no-merger rule gives conspiracy an unusual place among the offenses that precede or accompany a completed crime, and the clearest way to see how unusual is to set it beside the neighbors that still absorb one another. In its criminal sense, merger means that a lesser offense is swallowed by a more serious one when a person is charged with both, which protects the defendant from double jeopardy. A defendant therefore cannot be convicted of both attempt or solicitation and the completed crime, although merger does not apply to conspiracy and the completed crime.1 The word also has meanings in contract, property, and corporate law, and none of them bears on this chapter.2 Attempt and solicitation are earlier stages of the same wrong that the completed offense punishes, so once the crime is finished nothing remains for them to punish. Conspiracy carries an added element, the agreement, along with the group danger traced in the preceding sections, and that added element is why it does not fit the pattern. Three comparisons follow: attempt and solicitation, which merge; lesser included offenses, where merger and double jeopardy overlap; and Wharton's Rule, a separate doctrine about object crimes that require two or more participants, which is often mistaken for merger. The first takes up attempt and solicitation.
Attempt and Solicitation
The no-merger rule gives conspiracy an unusual status, and the contrast shows most clearly when the other two inchoate offenses are put through the same test. An inchoate offense is a step toward a further crime that is serious enough to be punished in its own right, and the recognized members of the family are attempt, conspiracy, and solicitation.3 When the crime they aimed at is carried out, two of the three are absorbed into it. A defendant cannot be convicted of both attempt (or solicitation) and the completed crime, although merger does not apply to conspiracy and the completed crime.4 Earlier in this chapter the reasons conspiracy escapes merger were set out, and what follows explains why its two siblings do not.
The reason attempt and solicitation merge lies in what each one punishes. Solicitation punishes a person for urging another to commit a crime, and attempt punishes a person who, intending the crime, acts toward it and falls short of finishing it; courts commonly describe the act required for attempt as one falling short of the completed offense.5 Each offense is defined by its relation to a single target crime and marks an earlier point on the road to it. When the target crime is finished, that earlier point belongs to the same journey: the urging, the attempt, and the completion are one wrong seen at different stages, and convictions for both an earlier stage and the finished crime would count that wrong twice. Conspiracy is treated differently because it adds an element the others lack, the agreement, and the group-danger rationale developed earlier rests on the agreement itself. Attempt and solicitation have no comparable feature to justify a second conviction once the crime is complete.
The only variable in the two scenes is whether the earlier offense is a solicitation or a conspiracy, and that variable alone decides whether the earlier offense survives beside the completed crime. Attempt follows the solicitation pattern: a defendant who attempts a robbery and then completes it cannot be convicted of both the attempt and the robbery. That bar holds even in the jurisdictions that allow convictions for both conspiracy and the completed crime, and statutes to this effect are not uncommon.8 Sellers of narcotics who complete a sale illustrate the full contrast, since they may be convicted of both conspiracy to distribute and distribution, yet they cannot be punished for both attempt to distribute and distribution.9
The bar operates on the pair of convictions, so it leaves the prosecutor free to choose among charges. When a shooter intends to kill and the victim later dies of the wound, the state cannot obtain convictions for both murder and attempted murder, yet it may charge attempted murder alone, and a conviction on that charge stands even though the facts would also have supported a murder conviction. The rule guards against cumulative convictions for one wrong and says nothing about which single charge the state prefers. Some courts have gone further and held that failure to complete the crime is not an element of attempt, so that a jury in reasonable doubt about whether the crime was completed is not forced to acquit on both counts.10
Attempt and conspiracy also stand in a relationship of their own, separate from their relationship to the completed crime. On the traditional approach, attempt does not merge with conspiracy, so two people who agree to kill a victim, one of whom loads the gun while the other fires and misses, can each be convicted of both attempted murder and conspiracy to commit murder. Nothing was completed in that example, so the question is whether two inchoate offenses absorb one another, and on this approach they do not. A number of states depart from that result by statute, providing that there may be no conviction for an attempt and another inchoate crime with the same objective.11
The Model Penal Code states a general version of that limit, forbidding conviction of more than one inchoate crime for conduct designed to commit or to culminate in the commission of the same crime.12 This is a Code position, and it departs from the traditional approach just described. Its justification follows the counting logic of the Code's critique of cumulative sentences discussed in the previous topic: an agreement and an attempt that both aim at one burglary are two routes to a single object, and punishing each separately counts the risk of that one object twice.
Students lose this issue when they treat all three inchoate offenses alike, either by applying the no-merger rule of conspiracy to attempt and solicitation or by merging conspiracy because its two siblings merge. The sorting question is which offense is paired with the completed crime, since solicitation and attempt merge into it and conspiracy does not.
Lesser Included Offenses
Attempt and solicitation merge into the completed crime because they mark earlier stages of one wrong. A second kind of merger rests on a different test, one that can be run by reading two definitions side by side. A lesser included offense is a crime composed of some, but not all, of the elements of a more serious crime and necessarily committed in carrying out the greater one; battery, for example, is a lesser included offense of murder.14 The word necessarily ties the relationship to the definitions of the crimes rather than to the facts of a particular case. The question is whether the greater crime can be committed without also committing the lesser, and if it cannot, the lesser is included.
The consequence is a double jeopardy consequence. For double jeopardy purposes, a lesser included offense counts as the same offense as the greater, so an acquittal or a conviction on either one precludes a separate trial on the other.15 Two working results follow. A defendant who has been placed in jeopardy on one of the pair may not later be retried on the other, and a defendant may not be convicted of both in a single proceeding. Criminal law calls the second result merger, the absorption of the lesser included offense into the more serious one when a person is charged with both, and the modern meaning of the term refers to necessarily included offenses in the double jeopardy setting.16
The reason for the rule comes from the logic of the elements. Proving the greater offense necessarily proves every element of the lesser, so a conviction for the greater has already established everything the lesser requires. A second conviction would therefore punish the same conduct twice, and a second trial would give the state another opportunity to convict on facts it has already put before a factfinder. The bar on double jeopardy forbids both, and because that bar is constitutional, the rule survives even though the old felony and misdemeanor merger doctrine has been abandoned.
Two decisions show the bar operating from opposite directions. In Brown v. Ohio a defendant convicted of operating a vehicle without the owner's consent was afterward charged with stealing the same vehicle in the same incident, and the later prosecution was barred because the first offense is a lesser included offense of theft.17 In Harris v. Oklahoma a defendant convicted of felony murder based on an armed robbery was then convicted of the armed robbery itself, and the second prosecution was barred because the robbery, as the underlying felony, was a lesser included offense of the felony murder.18 What distinguishes the two is sequence. In Brown the lesser offense was tried first and the state then reached for the greater, while in Harris the greater was tried first and the state then reached for the lesser. The bar applies in either order, because the pair counts as one offense and a second round of prosecution is forbidden whichever half came first.
Conspiracy fails the comparison in both directions. The completed crime does not require an agreement, since one person acting alone can commit it, and conspiracy does not require the completed act, since an agreement that goes no further is already a conspiracy. Each offense therefore contains an element the other lacks, and neither is a simple subset of the other. That reasoning fits the separate-offense rule developed earlier, under which merger does not apply to conspiracy and the completed crime.19
The two scenes differ in one variable, which is whether the second offense's elements all sit inside the first. On an exam, the usual error is to label every pairing of a completed crime with an earlier offense as merger, or to reason from how closely the offenses are related on the facts. The test looks at the elements as the offenses are defined, because the same incident can support a conspiracy count that survives and a larceny count that does not.
Wharton's Rule Distinguished
Merger, as this chapter has used the word, asks what becomes of a conspiracy once the crime it aimed at has been carried out. Another doctrine, Wharton's Rule, also blocks a conspiracy charge in some cases, and the two are easy to confuse because either can leave the prosecutor holding only the substantive offense. The rule provides that an agreement to commit a crime cannot be prosecuted as a conspiracy when the crime is of such a nature that it necessarily requires the participation of two or more people.23 Adultery is the standard example, because one person cannot commit it alone. The reason follows from the definition of the offense. When the law already makes concert part of the crime, the agreement between the participants adds nothing the crime does not contain, so a separate conspiracy count would punish one concerted act twice.24
The rule's origin shows how far it sits from merger. In Iannelli v. United States the Supreme Court traced the rule to Shannon v. Commonwealth, an 1850 Pennsylvania decision that ordered dismissal of an indictment for conspiracy to commit adultery, brought after the State had failed to obtain a conviction for adultery itself.25 The Pennsylvania court feared that a State which could not prove the greater offense could force the defendant through a second prosecution for the lesser one, and it reasoned that where concert is a constituent part of the act, a party acquitted of the major offense cannot be indicted for the minor.26 Merger, by contrast, grew out of the mismatch between felony and misdemeanor procedure.27 The ordinary rule also runs the opposite way on acquittal, since acquittal of the object crime does not bar a conspiracy conviction for the agreement to commit it.28 Both results can stand side by side because the line is drawn by what the object offense is: an agreement to rob may be prosecuted whatever became of the robbery charge, while an agreement to commit adultery between its only two participants may not.
The rule reaches only offenses in which concert is built in. Courts have applied it, though not strictly, to bribery, to buying, selling, or delivering contraband, and to receiving stolen goods.29 Robbery falls outside it, because one person can commit robbery, so a conspiracy to rob is judged under the no-merger principles covered earlier. The rule also gives way when the agreement is larger than the offense. If more people join the agreement than the offense requires, the rule does not apply and all of them may be charged with conspiracy.30 A supplier who agrees to sell cocaine to a buyer and then makes the sale shows the point. A sale needs a seller and a buyer, so the supplier can argue that the rule leaves only the sale to prosecute. The government's answer is that the buyer had told the supplier a third person was involved, which enlarged the agreement beyond the two parties a sale requires and defeats the rule.31
Completion is the same in both scenes, and the only variable is whether the object offense requires concert. That variable is why the rule is not a form of merger. Its modern status is also weaker than the traditional statement suggests. In Iannelli the Court rejected the rule as a substantive limit on conspiracy law and treated it as a judicial presumption about legislative intent, one that yields when the legislature shows a contrary purpose, as the Court found for the federal gambling statute, 18 U.S.C. § 1955.34 The rule appears to have arisen in a double jeopardy setting, but the Supreme Court has described it as a principle of broader application that does not rest on double jeopardy, which is why it stands apart from the lesser included offense analysis just covered.35
The Model Penal Code rejects the rule altogether. Avoiding cumulative punishment for the conspiracy and the completed offense is a sound aim, but applying the rule when the object was never achieved overlooks conspiracy's preventive function, because the fact that an offense requires concert is no reason to shield the preparation to commit it.36 The Code instead bars conspiracy only for a person who could not be convicted of the substantive offense as an accomplice, and under its unilateral approach that person's immunity leaves the other party to the agreement open to conviction.37
Students lose this issue when they ask whether the object crime was completed instead of asking whether the offense itself requires two participants. Completion drives merger and the no-merger rule, while the nature of the object offense drives Wharton's Rule.