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Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 3

By Miller Moreau
Professor Bolitho - 2021

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V. Conspiracy

a. Two Primary Functions— (1) charge group crimes and (2) charge planned crimes

b. 18 U.S.C. § 371—General conspiracy statute available for all FCL

  1. Max sentence = 5 years
  2. Covers a “conspiracy to defraud the U.S. AND to commit an offense against the U.S.
  3. Conspiracy to defraud the U.S.
    1. Can be a stand-alone crime, whereas conspiracy to commit an offense against the U.S. tags along with another substantive crime
    2. Defraud—cheat, impair, defeat the lawful function of a gov’t entity. There is no need to prove elements of a related offense.

c. Rationale Behind a Conspiracy Charge

  1. Iannelli v. U.S. (1975) (Powell)
    1. Wharton’s Rule—prohibits prosecution of two conspirators to commit a particular offense when the offense in question can only be committed by at least two people.
      1. Third Party Exception—the rule is inapplicable when the conspiracy involves the cooperation of a greater number of people than required for the commission of the offense.
      2. Purpose—Prevent conspiracy charges where the parties to the agreement are the only participants AND the consequences of the crime rest solely upon the participants and not society at large.
      3. In order to apply, the crime itself MUST contemplate a conspiracy
      4. The purpose of Wharton’s is NOT to prevent double jeopardy
    2. Why punish planning and commission separately?
      1. It involves separately, socially reprehensible conduct arising from (1) the criminal agreement; (2) concerted action, which makes it less likely one will depart from their conduct; (3) allows attaining of more complex criminal success—more hands make less work; and (4) Due to the nature of a conspiracy, the danger it generates goes beyond the desired end.
  2. Prosecutorial Advantage
    1. Areas of advantage include joinder, venue, admitting hearsay, and the SoL
    2. Krulewitch—For venue, the crime is committed where ANY conspirator had acted in furtherance of the conspiracy. For HS, the statement of one D in furtherance of the conspiracy is imputed upon all others as a party statement after conspiracy has been prima facially established [FRE 801(d)(2)]. Further, there is no rule preventing the conviction of D on the basis of uncorroborated accomplice testimony.
    3. Joinder—Fed Rule of Crim Pro 8
      1. If evidence at trial shows multiple conspiracies rather than one large one, joinder of other parties may prejudice a D. This occurs where contemplation of a single conspiracy was the basis for joinder.
    4. FRE 404(b)—Prior Bad Acts
      1. With conspiracy, these prior bad acts may become admissible evidence of the conspiracy.
    5. The indictment is sent back with the jury during deliberations. The D should make a motion for surplusage to remove excess allegations.

d. Statute of Limitations

  1. Begins when the conspiracy ends and typically last 5 years
  2. Conspiracies can dissolve in 3 ways (1) completion, (2) abandonment, or (3) withdrawal.

e. Elements of a Conspiracy

  1. Elements Simplified
    1. Agreement
    2. Voluntarily and knowingly entered
    3. Overt act—ONLY required in § 371
  2. Proof of an Agreement
    1. U.S. v. Paret-Ruiz (2009) (1st Cir.)
      1. “Agreement”
        1. It must be for the purpose of committing the underlying crime
        2. The D elected to join that conspiracy with the intent of carrying out the underlying crime
        3. Can be implied upon a “plausible inference” of membership
        4. Negotiations, failed attempts to make a deal, perceived ability, or desires to join are NOT an agreement.
        5. There is NO such thing as a conspiracy where the only agreeing members are the D and gov’t agents
        6. Bilateral Approach—there must be a “meeting of the minds” to have a conspiracy. i.e., there must be mutual assent
  3. Overt Act
    1. Only one is needed, but you probably want to plead multiple
    2. Does not need to be illegal, just needs to put them closer to the end goal

f. Numerous Co-Conspirators

  1. U.S. v. Evans (10th Cir.) (1992)
    1. Wagon-Wheel Conspiracy—when the person at the hub deals individually and separately with others who are the spokes. Individual spokes are only involved the larger conspiracy if there is a “rim” connecting them, which may be satisfied by communication.
    2. Chain Conspiracy—operates vertically, similar to a business
    3. Multiple Conspiracy Doctrine
      1. If it is hard to fit it into either chain or wagon-wheel, then there are likely multiple separate conspiracies.
      2. Variance—proving something other than what was charged. Where this results in prejudice it will get reversed.
    4. Bringing actors under the same umbrella
      1. NO requirement that they know all of the others or the full extent of the conspiracy
      2. MUST have a general idea of the scope and objective
      3. Mere knowledge of others is NOT enough
        1. However, even where they do not know of the others, they may still be connected so long as there is (1) interdependence AND (2) a common shared goal
          1. Interdependence is absolutely crucial to bringing multiple conspiracies into one.
    5. Interdependence
      1. Present when each alleged confederate depends upon the operation of each link in the chain to achieve the common goal
      2. The D’s conduct must “facilitate the endeavors” of the enterprise or another member
      3. Where two enterprises deal with the same supplier of central figure, that alone is NOT enough
      4. The criminal objective must shared, not just similar or parallel. Sporadic and inconsequential contact is NOT enough
      5. Must show they intended to act together for shared, mutual benefit within the scope of the conspiracy charge.
    6. If one crime is disqualified, the verdict must either (1) be set aside if disqualified because it is unconstitutional or not legally sufficient OR (2) can stand if disqualified due to insufficient evidence.
    7. An isolated act that aids the conspiracy, but was for a separate purpose (i.e., b/c you are friends) does NOT bring someone into the ring.
    8. Scope—If the indictment charges a broad conspiracy, then it must actually be that large in its scope.
      1. Proof of a buyer-seller relationship is insufficient to show a broader agreement. Plus, the two actors have different purposes. Unless, you are viewed as a “major buyer.”

g. Jury Instructions

  1. Establishing Membership
    1. Gov’t must show (1) D knew of the main purpose and (2) he voluntarily joined
      1. Knowledgeable Assent
        1. Alone, a showing of approval, sporadic presence, or small acts that helped by happenstance are NOT enough
        2. Knowledge may be implied if facts rise above mere association
  2. Overt Acts
    1. One that moves the enterprise one step closer to achieving its goal
    2. Does not have to be inherently illegal
    3. The purpose of committing the act must be to aid the conspiracy
  3. Charging Multiple Conspiracies
    1. To convict, the government must prove that the D is guilty of every facet of the conspiracy. Even if the D is partially guilty by way of a robbery plan, but not guilty of the laundering scheme, then he is wholly not guilty.
    2. Factors to Find Multiple Conspiracies
      1. Nature and extent of the agreement
      2. Not controlling, but consider
        1. Timing of entry
        2. Knowledge of others and their roles
      3. When overt acts occur
      4. Presence of sub-groups
      5. Most Important—overall agreement on common goals
  4. Pinkerton Liability (See Pinkerton Liability below for cases)
    1. All members of a conspiracy are guilty of related crimes committed by a confederate. No ratification is required if (1) the crime was reasonably foreseeable given the conspiracy’s scope AND (2) the purpose was to advance the conspiracy
    2. Elements
      1. Member of the conspiracy
      2. During membership, another committed X crime
      3. X crime was in furtherance
      4. X crime was reasonably foreseeable given the scope of the project
        1. Foreseeable—reasonably anticipated as a necessary or natural consequence of the conspiracy
  5. Withdrawal (See Duration below)
    1. WITHDRAWAL IS NOT A TRADITIONAL DEFENSE. It is a means to avoid liability for more charges under Pinkerton. Withdrawal must be pleaded as an affirmative defense to negate liability for the crime. It DOES NOT negate an element.
    2. D has the BoP to prove withdrawal
    3. Elements
      1. Complete/non-temporary withdrawal
      2. D took an affirmative step to withdraw
        1. Includes an act inconsistent with the ends. Must be communicated to the other in a manner that would reach them.
          1. Must be communicated either to (1) someone with authority OR (2) intend for it to be further communicated to other members.
        2. Merely avoiding contact or doing nothing is insufficient
      3. The withdrawal occurred before an overt act is committed
        1. Otherwise, the crime is complete
    4. Effect of Withdrawal
      1. Ends future liability, but D is still liable for the acts occurring during his tenure.
      2. Begins accrual of the SoL. If time has passed, that is also the burden of D to show.
  6. Impossibility of Success
    1. NOT a defense. The D can be guilty even if success was impossible
      1. EX. Sting operation seizes the cocaine
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