Also known as: merger doctrines · doctrine of merger
Written by attorneys — see sources below.
2 senses
A common-law rule under which the inchoate offenses of solicitation and attempt merge into a completed felony when the principal crime is accomplished by the defendant or another actor connected to the preliminary conduct, while conspiracy remains a distinct offense that does not merge.
A common-law rule under which the inchoate offenses of solicitation and attempt merge into a completed felony when the principal crime is accomplished by the defendant or another actor connected to the preliminary conduct, while conspiracy remains a distinct offense that does not merge.
A doctrine providing that a contract for the sale of land merges into the deed upon delivery and acceptance at closing so that unperformed contractual promises relating to title are extinguished while promises concerning matters other than title may survive as collateral agreements.
A doctrine providing that a contract for the sale of land merges into the deed upon delivery and acceptance at closing so that unperformed contractual promises relating to title are extinguished while promises concerning matters other than title may survive as collateral agreements.
Each sense below has its own examples, sources, and questions.
Mustafa Mahmoud agreed with two lab assistants to divert experimental medications for black-market sale and later solicited a third employee to assist with removal. The third employee completed the diversion weeks later using a different loading dock. The completed felony absorbed the solicitation charge so separate conviction on the inchoate offense was barred.
Malcolm McKinley conspired with a coworker to steal proprietary designs and the coworker later transmitted the files to a buyer. McKinley argued that the completed theft should merge the conspiracy count into the substantive offense. The court rejected the merger claim and permitted separate prosecution of the conspiracy.
In the United States District Court for the Eastern District of Missouri a jury convicted petitioner on two counts under the Hobbs Anti-Racketeering Act. Count I charged conspiracy to obstruct commerce by extorting money and Count II charged the substantive offense of obstructing commerce by extortion. The district court imposed consecutive twelve-year terms on each count but suspended the sentence on Count II and replaced it with a five-year probation term to commence upon expiration of the Count I sentence. The Court of Appeals affirmed the conviction. Petitioner then filed a motion in the district court under Rule 35 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 2255 seeking correction of the sentence. He asserted that the Act established a maximum penalty of twenty years for obstructing interstate commerce by any means and that Congress had not intended to authorize two separate penalties. The district court denied relief. It held that the Hobbs Act gave no indication of any departure from the usual rule allowing cumulative punishment for conspiracy and the substantive crime that was its object. Petitioner appealed the denial to the Court of Appeals for the Eighth Circuit. The Court of Appeals affirmed the district court's judgment. The Supreme Court granted certiorari because it deemed the question raised by petitioner of sufficient importance.
View caseMariam Mansour entered a conspiracy to divert shipments and her co-conspirator completed the theft months later without further direction from Mansour. Prosecutors charged Mansour with both the conspiracy and the completed offense. The court upheld the separate conspiracy conviction because the doctrine does not merge conspiracy into the substantive crime.
Walter and Daniel Pinkerton are brothers who lived a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals. The Supreme Court granted certiorari because one of the questions presented involved a conflict between the decision below and United States v. Sall, decided by the Circuit Court of Appeals for the Third Circuit. A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. There is no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained. There was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter’s crimes were done. The indictment was filed after a prior one for conspiracy alone had been dismissed following reversal on appeal.
2 common questions
No. At common law the merger doctrine folded solicitation and attempt into a completed felony but left conspiracy as a distinct offense that does not merge even when the object crime is accomplished.
Supporting sources
Yes. The common-law rule treats the completed felony as absorbing the preliminary offenses when any actor connected through the solicitation or conspiracy finishes the crime even if the methods or scale differ slightly from the original plan.
Supporting sources
Marco Marquez contracted to buy a warehouse from Maxwell Manufacturing and the agreement required the seller to repair the loading dock before closing. At closing Maxwell delivered a deed silent on the repair obligation and Marquez accepted it. After closing the buyer could not enforce the repair promise because the contract merged into the deed.
Mina Mehta purchased an office building from Morgan Financial under a contract promising both marketable title and post-closing installation of a backup generator. The deed delivered at closing addressed only title matters. After closing the title covenant merged and was extinguished while the generator promise remained enforceable as a collateral agreement.
Michelle Murphy obtained a separate handwritten note from the seller promising to build a boundary fence after closing. Neither the purchase contract nor the deed mentioned the fence. After closing the buyer could enforce the note because the parties treated the fence obligation as an independent collateral agreement that did not merge into the deed.
3 common questions
No. The doctrine of merger discharges contractual promises not embodied in the deed so the buyer cannot enforce a repair obligation that the deed does not restate.
Supporting sources
Some survive. Promises that concern matters other than title or that the parties intended to keep separate remain enforceable after closing as collateral agreements.
Supporting sources
Generally no. The merger doctrine together with the parol evidence rule limits enforcement of prior promises not reflected in the deed unless the promise qualifies as a collateral agreement or an exception such as fraud applies.
Supporting sources
…also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another. The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared.…