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The crime of conspiracy is traditionally defined as an agreement between two or more persons, entered into for the purpose of committing an unlawful act. At first carefully delimited in scope, conspiracy evolved through a long and tortuous history into a tool employed against dangerous group activity of any sort. The twentieth century in particular has witnessed an expansion of conspiracy law in the face of modern organized crime, complex business arrangements in restraint of trade, and subversive political activity. At the same time, indiscriminate conspiracy prosecutions have sparked great controversy, not only because the vagueness of the concept of agreement and the difficulty in proving it frequently result in convictions with only a tenuous basis for criminal liability, but also because conspiracy law involves a number of extensions of traditional criminal law doctrines. The principal extensions are the following:

  1. Conspiracy criminalizes an agreement to commit a crime, even though an attempt conviction would not be permitted because of the highly preparatory nature of the act.
  2. Although conspiracy is now generally limited in most jurisdictions to agreements to commit statutorily defined crimes, traditionally persons agreeing to commit tortious acts, or indeed any acts resulting in "prejudice to the general welfare," could be held liable for conspiracy.
  3. All conspirators are liable for crimes committed in furtherance of the conspiracy by any member of the group, regardless of whether liability would be established by the law of complicity.
  4. Contrary to the usual rule that an attempt to commit a crime merges with the completed offense, conspirators may be tried and punished for both the conspiracy and the completed crime.
  5. Special procedural rules designed to facilitate conspiracy prosecutions can prejudice the rights of defendants. For example, all conspirators may be joined for trial, with resultant danger of confusion of issues and of guilt by association; and rules of evidence are loosened to alleviate the difficulties of proving the existence of a clandestine agreement.

In order better to understand and evaluate these doctrines, it is necessary to examine the elements of the crime of conspiracy. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state.

The agreement

One of the fundamental purposes of the criminal law is to prevent conduct that is harmful to society. Accordingly, the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. However, the law does not punish all persons shown to harbor a criminal intent. Everyone occasionally thinks of committing a crime, but few actually carry the thought into action. Therefore, the law proceeds only against persons who engage in acts that sufficiently demonstrate their firm intention to commit a crime.

The act of conspiracy. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Agreement represents an advancement of the intentions that a person conceives in his mind. Intervention of the law at this point is said to be justified because the act of agreement indicates a firm intention to promote the crime, and because the agreement enhances the likelihood that unlawful action will ensue. The greater probability of action is believed to stem from the dynamics of group activity: the group exerts psychological pressure against withdrawal of its members, a single individual cannot deflect the will of the group as easily as he can change his own mind, and the group can bring greater resources to bear on its objective than could an individual acting alone. Conspiracy law, then, seeks to counter the special dangers incident to group activity reaching back to incipient stages of criminal behavior.

Ironically, conspiracy was initially directed neither at preparatory activity nor at group crime in general. Rather, it was a narrowly circumscribed statutory remedy designed to combat abuses against the administration of justice. According to Edward Coke, it consisted of "a consultation and agreement between two or more to appeal or indict an innocent man falsely and maliciously of felony, whom accordingly they cause to be indicted and appealed; and afterward the party is lawfully acquitted" (p. 142). A writ of conspiracy would lie only for this particular offense, and only when the offense (including acquittal of the falsely indicted party) had actually taken place. However in 1611 the Court of Star Chamber extended the law by upholding a conspiracy conviction even though the rarely accused party was not indicted (Poulterers' Case, 77 Eng. Rep. 813 (K.B. 1611) (Coke)). The court reasoned that the confederating together, and not the false indictment, was the gist of the offense. The ramifications of this decision were twofold. First, if it was not necessary that the intended injury occur, then conspiracy punished the attempted crime. Second, if the agreement and not the false indictment was the target of conspiracy law, then conspiracy was loosed from its mooring: subsequent decisions logically could and in fact did hold that agreement to commit any unlawful act was criminal conspiracy.

There is a serious question as to whether the act of agreement is not too slender a reed to support such a vast extension of conspiracy law. First, agreementa "conscious union of wills upon a common undertaking" (Developments in the Law, p. 926)is an act primarily mental in nature. This is emphasized by the fact that parties to an agreement need not communicate directly; a tacit understanding may constitute an agreement. Conspiracy thus comes perilously close to criminalizing an evil state of mind without any accompanying act. Most jurisdictions have therefore bolstered the act element by requiring an overt act in pursuance of the conspiracy. The function of the overt act is "to manifest that the conspiracy is at work . . . and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence" (Yates v. United States, 354 U.S. 298, 334 (1957)). However, this requirement rarely hinders a conspiracy prosecution because almost any act, however trivial, will suffice. For example, if two persons plan to rob a bank, the purchase of disguises would be a sufficient overt act. An act of this nature is highly equivocal; it would not support an attempt conviction because it is not a substantial act that sufficiently demonstrates the defendants firm intention to rob the bank. There is reason, then, to support the position of a few states that set a stricter standard by requiring a substantial step in pursuance of the object of the conspiracy, and thereby render conspiracy more comparable to the law of attempt (Note, pp. 11531154).

Second, conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his coconspirators. Since an agreement of this kind can rarely be shown by direct proof, it must be inferred from circumstantial evidence of cooperation between the defendants. What people do is, of course, evidence of what lies in their minds. Since a person's acts might, by extension of this principle, create an inference concerning what he has agreed to do, it is fair to infer an agreement to join a conspiracy from the performance of acts that further its purpose. However, this evidentiary rule can obscure the basic principle that conspiracy is not established without proof of an agreement. Conspiracy is not merely a concurrence of wills, but a concurrence resulting from agreement. Even if a conspiracy between two parties is established, not every act of a third party that assists in accomplishment of the objective of the conspiracy is a sufficient basis to demonstrate his concurrence in that agreement.

Unfortunately, many courts have not adhered strictly to the requirement of an agreement. The decision of the United States Supreme Court in Interstate Circuit Inc. v. United States, 306 U.S. 208 (1939) is more representative of the courts' loose treatment of the requirement of an actual agreement. In this case, the manager of Interstate, a motion picture exhibitor that dominated the motion picture business in certain cities in Texas, sent a letter to eight motion picture distributors demanding certain concessions as conditions for continued exhibition of those distributors' films. He requested that, in selling their products to "subsequent run" theaters, the distributors impose the restrictions that the films never be exhibited below a certain admission price or in conjunction with another film as a double feature. Both of these restrictions constituted significant departures from prior practice.

The Court found that the distributors conspired with one another and with Interstate to impose the demanded restrictions in violation of the Sherman Antitrust Act. Agreement among the distributors was inferred from several strands of evidence. First, the letter named all eight distributors as addressees; hence each distributor was aware that the proposals were being considered by the others. Second, the distributors were in active competition; hence without unanimous action with respect to the restrictions, each risked substantial loss of business, and, conversely, unanimity yielded a prospect of increased profits. Finally, the distributors did in fact act with substantial unanimity. However, since the actions of each distributor might just as easily have resulted from the exercise of self-interest in the absence of any illegal agreement, the Court had to take one step further. It declared, "We think that in the circumstances of this case such agreement for the imposition of the restrictions upon subsequent run exhibitors was not a prerequisite to an unlawful conspiracy. It was enough that, knowing that concerted action was contemplated and invited, the distributors gave their adherence to the scheme and participated in it" (Interstate Circuit Inc., 226). Such a dilution of the requirement of agreement may be necessary in view of the special problems of enforcing the nation's antitrust policy. However, difficulties of proof lead courts to extend the principle to conspiracy prosecutions generally.

The scope of a conspiracy. Another large problem that arises in connection with the requirement of an agreement is that of determining the scope of a conspiracywho are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each defendant. Ascertaining the boundaries or scope of a conspiratorial relationship is crucial for resolving several major questions. Among these are (1) the propriety of joint prosecution; (2) the admissibility against a defendant of hearsay declarations of other conspirators; (3) the satisfaction of the overt-act requirement; (4) the liability of a defendant for substantive crimes committed by other conspirators pursuant to a conspiracy; and (5) the possibility of multiple convictions for conspiracy and substantive crimes.

The problems generated by the question of the scope of conspiracy are among the most troublesome in conspiracy law. They derive from the necessity of applying the theoretical idea of agreement to the reality of ongoing, fluctuating partnerships engaged in diverse criminal activity. Can a single agreement embrace persons unknown to one another in a sprawling, far-flung illegal operation? Can separate decisions made over a course of time to commit various crimes be said to stem from a single agreement? Generally, does the multiplicity of relationships making up a criminal organization constitute one large conspiracy or several smaller ones?

The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration of such a single conspiracy, its parts bound together as links in a chain, is the process of distributing an illegal foreign drug. In one such case, smugglers, middlemen, and retailers were convicted of a single conspiracy to smuggle and distribute narcotics (United States v. Bruno, 105 F.2d 921 (2d Cir.), rev'd on other grounds, 308 U.S. 287 (1939)). On appeal, the defendants argued that there were separate conspiraciesone between the smugglers and the middlemen, and the other between the middlemen and the retailers. The court rejected this view and found a single overall conspiracy despite the absence of cooperation or communication between the smugglers and retailers, stating:

The smugglers knew that the middlemen must sell to retailers; and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. . . . The accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of the part with which he was immediately concerned, was dependent upon the success of the whole [922].

Another prototype, denominated the wheel conspiracy, exists where one central figure, the hub, conspires with several others, the spokes. The question is whether there is a rim to bind all the spokes together in a single conspiracy. A rim is found only when there is proof that the spokes were aware of one another's existence and that all promoted the furtherance of some single illegal objective. In the celebrated case of Kotteakos v. United States, 328 U.S. 750 (1946), one man, Brown, agreed with a number of different persons to obtain loans for each of them from the Federal Housing Authority through fraudulent means. Since each of these transactions was entirely distinct and independent of the others, there could not be a finding of a single conspiracy. Instead, there were a number of separate conspiracies consisting of Brown and each of his customers.

On the other hand, a single conspiracy may be found where each person's success depends on continued operation of the hub, which in turn depends on success of all the spokes. In this situation each spoke can be said to contribute to the separate objectives of all the other spokes. In the case of Anderson v. Superior Court, 78 Cal. App. 2d 22, 177 P.2d 315 (1947), a woman who referred pregnant women to a physician for abortions was indicted for a conspiracy to commit abortion with him and with other persons who referred pregnant women to him. She was also indicted for the illegal abortions committed upon the women she referred, as well as for the abortions committed upon women referred by the other persons who had made such referrals. The court held that the evidence permitted the inference of a conspiracy among all the referring persons and the physician, because the defendant knew that the others were referring business to him, and because his continued functioning and hence the woman's commission depended upon continuance of all these sources of referral. For these reasons it might be said that she contributed to each separate instance of abortion.

These models deal with situations in which various parties conspire to promote a single unlawful objective. The traditional concept of agreement can also accommodate the situation where a well-defined group conspires to commit multiple crimes; so long as all these crimes are the objects of "the same agreement or continuous conspiratorial relationship," a finding of one large conspiracy is appropriate (Model Penal Code, 1962, § 5.03(c)).

However, traditional conspiracy law is inadequate when applied to criminal organizations in which highly diverse objectives are pursued by apparently unrelated individuals. Hence, Congress enacted the Racketeer Influenced and Corrupt Organizations Act of 1970 [RICO] to cope with the growing problem of organized crime (18 U.S.C. §§ 19611968 (1999)). This act facilitates conspiracy prosecutions by modifying the traditional idea of a conspiratorial objective. Instead of proving that each defendant conspired to commit a particular crime or crimesa task that is exceedingly difficult in the context of a large, sprawling criminal organizationthe prosecution need only show that each defendant conspired to promote the enterprise through his individual pattern of criminal activity. No matter how diverse the goals of a large criminal organization, there is but one objective: to promote the furtherance of the enterprise.

The problem with this tendency to view conspiracy as an ongoing criminal enterprise is that it beclouds the idea of an act of agreement. Many persons may thereby be snared in the coils of a single conspiracy whose nature and membership were unknown to them. The effect may be to convict people in circumstances where the traditional requirement of personal guilt is not present. The Model Penal Code has attempted to reformulate the definition of conspiracy to avoid this consequence. For each defendant, it would ask whether and with whom he agreed to commit which parts of the entire illegal scheme, thus reaffirming the centrality of the agreement in a conspiracy prosecution (MPC, 1960, commentary on § 5.03). A number of state criminal codes have now adopted this approach.

Mental state

The two elements of mental state required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. The first of these elements is almost indistinguishable from the act of agreement. Agreement is in any case morally neutral; its moral character depends upon the nature of the objective of agreement. It is the intention to promote a crime that lends conspiracy its criminal cast.

Some crimes do not require an intention to cause the prohibited result. Manslaughter, for example, may be committed by a person who kills another by his act of driving carelessly. These crimes may not be the basis of a conspiracy, however, since two people could not be said to agree together to kill another carelessly. The nature of the requirement of agreement, therefore, limits the objectives of conspiracy to those crimes that are committed by intentional actions.

Problems arise, however, in determining the sense of intention that is required. Does it include acting with knowledge of the probable results of one's action, or is it confined to acting with a purpose to attain such results? The question has most frequently arisen in the case of suppliers who furnish goods to members of a conspiracy with knowledge of their intended illegal use. Examples include the supplying of yeast and sugar to a group known to be using them to engage in illegal production of whiskey (United States v. Falcone, 311 U.S. 205 (1940)), or the furnishing of medical drugs by a manufacturer that knows they will be used for nonmedical and illegal purposes (Direct Sales Co. v. United States, 319 U.S. 703 (1943)).

Some courts have found it enough to convict the supplier for an illegal conspiracy with the user when the supplier knew of the illegal use. The justification for this position is that the supplier has knowingly furthered a crime and has no interest in doing so that is worthy of protection (MPC, 1960, commentary on § 5.03). However, the majority view is to the contrary: the supplier must be shown to have had a purpose to further the illegal objectives of the user (MPC, 1962, § 5.03(1)). In the language of Judge Learned Hand, "he must in some sense promote their venture himself, make it his own, have a stake in its outcome" (United States v. Falcone, 109 F.2d 579, 581 (1949)). This might be demonstrated by evidence of the sale of unusually large quantities of goods, particularly where such goods are legally restricted; by evidence of inflated charges or of the sale of goods with no legitimate use; or by evidence that sales to an illegal operation have become a dominant proportion of the seller's business.

The reasons for requiring a stake in the venture are twofold. First, the act of agreement necessarily imports a purpose; indifference to illegal use by another of what one supplies him for otherwise legitimate reasons does not constitute an agreement. Second, making the supplier liable in these situations whenever a jury decides that he knew of the illegal use imposes an undue burden on legitimate business since to avoid liability suppliers would be obliged to police the intended uses of their purchasers. By taking into account the social usefulness of the commercial activity and the magnitude of the seller's contribution to the crime, the majority rule strikes a balance between the needs of business enterprises to operate without oppressive restriction and of society to protect itself against crime.

Sometimes the issue arises whether a mistake of fact that would not defeat liability for the object offense nevertheless defeats liability for conspiracy. The argument that it does is sometimes couched in logical or conceptual terms: "While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant," Judge Learned Hand wrote in another famous decision, "one cannot be guilty of conspiring to run past such a light unless one supposes that there is a light to run past" (United States v. Cummins, 123 F.2d 271, 273 (1941)). But other courts, including the U.S. Supreme Court in United States v. Feola, 420 U.S. 672, 693 (1975), have taken a more pragmatic stance, reasoning that the mental state element of the conspiracy charge should mirror that of the substantive offense "unless one of the policies behind the imposition of conspiratorial liability [would] not [be] served by such a result." The Model Penal Code makes this an issue to be resolved on a case-by-case basis (MPC 1985, commentary on § 5.03, at 4.13).

The object of a conspiracy

Common law conspiracy encompassed agreements to commit an unlawful act. The key word is unlawful: it refers not only to criminal, but also to tortious acts, or even to acts that, in the opinion of a court, result in "prejudice to the general welfare or oppression of an individual of sufficient gravity to be injurious to the public interest" (Commonwealth v. Dyer, 243 Mass. 472, 138 N.E. 206 (1922)). This rule owed its origin to seventeenth-century expansion of the scope of conspiracy, which was stimulated by impatience with the narrow technicalities of medieval law, coupled with a tendency to identify criminality with immorality. It was thought that courts had authority to correct

errors and misdemeanors extra-judicial, tending to the breach of peace, or oppression of the subjects, or to the raising of faction, controversy, debate, or to any manner of misgovernment; so that no wrong or injury, either public or private, can be done, but that it shall be here reformed or punished by due course of law. (Bagg's Case, 77 Eng. Rep. 1271 (K.B. 1616) (Coke))

The doctrine's most significant use in the United States occurred in the early nineteenth century, when many courts sustained criminal-conspiracy prosecutions against unions of workers seeking to organize in order to pressure employers to meet their employment demands by collectively withholding their labor (Wellington, pp. 746).

In affording discretion to judges to punish as a crime the group pursuit of any objectives they determined to be against morality and the public interest, the law of conspiracy contravened the classic principle of nulla poena sine lege (no punishment without law). It also went contrary to the principle forbidding ex post facto punishment (criminalizing conduct not previously declared to be criminal). Today, such discretionary criminal liability is vulnerable to constitutional attack as violative of due process of law (Musser v. Utah, 333 U.S. 95 (1948)). Although the common law rule still prevails in some jurisdictionsnotably in the federal provision directed against conspiracy to commit "any offense" against or to defraud the United States (18 U.S.C. § 371 (1999))the modern approach limits the scope of conspiracy to statutorily defined criminal objectives, except where the legislature has identified and prohibited specific kinds of concerted activity.

Conspiracy and complicity

Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for even reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that

criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as part of a larger division of labor to which the defendant had also contributed his efforts [Developments in the Law, p. 998].

This rationale, however, becomes attenuated in many situations in which the doctrine is applied. For example, in the leading case of Pinkerton v. United States, 328 U.S. 640 (1946), a defendant who had earlier conspired with his brother to operate an illegal still was held liable for his brother's later acts of operating the still, despite the fact that by the time those acts were committed, the defendant was in prison for another offense.

Although dilution of the strict concepts of causality and intention may be required to cope with the dangers of organized crime, serious objections have been raised to this aspect of the law of conspiracy. Liability for substantive crimes is predicated on the loose evidentiary standards of conspiracy law; liability attaches for crimes not actually intended or even necessarily foreseen; and holding each member of a conspiracy liable for all crimes committed by the group without regard to the character of that person's role within the group yields overly broad liability without penal justification. This is particularly true in those jurisdictions that allow the finding of a single conspiracy, rather than several smaller ones, in cases of large, sprawling, and loosely confederated criminal enterprises. As a consequence, some states, following the lead of the Model Penal Code, have eliminated this feature of traditional conspiracy by declaring that one is liable for the criminal actions of another only if he is made liable by the doctrines of the law of complicity.

Procedural rules

Perhaps the most significant advantage of a prosecutor's decision to charge several defendants with conspiracy is that he may invoke special procedural rules that apply only to conspiracy cases. The major prosecutorial advantages of conspiracy are that it enables the prosecution to join all the conspirators for trial and to use out-of-court statements of each conspirator against all the others.

Joinder of conspirators for trial, coupled with relaxation of the rules of venue to allow the trial to take place wherever acts in pursuance of the conspiracy have occurred, is a measure designed to promote efficiency and convenience for courts, prosecutors, and witnesses. Where evidence pertaining to all defendants substantially overlaps, joinder avoids multiple trials involving the same issues and evidence. Even where the cases against various defendants are more distinct, the rule is helpful to the prosecution, since such constraining factors as prosecutorial resources and availability of witnesses often dictate a choice between joint trial and dismissal of charges against some of the conspirators.

In some situations, however, joinder may well yield not increased efficiency but rather a profusion of evidence, a multiplication of issues, and consequently much ambiguity and confusion. Moreover, joinder may substantially impair the rights of defendants. Where the jury is asked to hear a large amount of complex evidence, to remember which evidence applies to which defendant, and to make fine discriminations of individual guilt or innocence, there are several problems. First, there is serious danger of guilt by association. Second, conspirators may be hampered in their defense if optimal group strategy conflicts with the best course for an individual. Frequently, defendants attempt to cast the blame on someone else, and end up by convicting one another.

Loosened standards of admissibility of evidence prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency (hearsay), is admissible against each coconspirator. For example, in a conspiracy prosecution of a sheriff and a magistrate for extorting money from a coal company, an executive of the company testified that the sheriff told him that the magistrate was his (the sheriff's) agent in the extortion scheme and would pick up the extortion payments (United States v. Vinson, 606 F.2d 149 (6th Cir. 1979)). This testimony would normally be inadmissible because it is hearsay as against the magistratethat is, it is testimony by the declarant (the witness) of what someone else said (the sheriff), offered to prove the truth of the matter asserted by that other person (that the magistrate was his agent in the scheme). However, since there was enough evidence of a conspiracy, the hearsay testimony was admitted as further evidence of the conspiracy and of the magistrate's participation in it.

The conventional reason for the exclusion of hearsay evidence is that such evidence is thought to be untrustworthy. The witness may report it poorly, either from faulty memory or from motive to misstate, and more importantly, the jury has no means of evaluating the credibility of the declaration unless the original declarant is available for cross-examination. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Explaining this rule, Judge Hand said, "Such declarations are admitted upon no doctrine of the law of evidence, but of the substantive law of crime. When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made 'a partnership in crime.' What one does pursuant to their common purpose, all do, and as declarations may be such acts, they are competent against all" (Van Riper v. United States, 13 F.2d 961, 967 (2d Cir. 1926)).

Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres. Although this theory may explain why co-conspirators are liable for each other's declarations, it does not really dispel the concerns of the hearsay rule regarding the trustworthiness of evidence. By requiring that the declarations be made within the scope of the agency relationship and with intent to advance the objectives of that relationship, the rule excludes declarations made before the agreement or after the termination of the conspiracy as peripheral and hence too unreliable. It thereby creates a nexus between the declarations and the criminal goals of the conspiracy, with whatever assurance of truth that might import.

However, the justification for circumventing the hearsay rule in conspiracy prosecutions is the practical need for such evidencesince conspiracy is a type of crime of which direct evidence is usually unavailable, the choice may be between admitting inferior evidence and admitting no evidence at all. Nevertheless the practice of admitting this evidence conflicts with the policy of the hearsay rule.

The problems encountered in applying the exception to the hearsay rule for co-conspirators were aptly described by justice Robert Jackson in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453 (1949):

Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.


Conspiracy, a crime special to common law jurisdictions and largely unknown, except in modest forms, in continental European countries, is one of the most controversial of all substantive crimes. It affords great advantages to law enforcement, since it avoids multiple trials, permits prosecution of preparatory activity at an early stage, facilitates prosecution against organized criminality, and extends a number of evidentiary and procedural advantages to the prosecution. At the same time, it constitutes what Justice Jackson in Krulewitch termed an "elastic, sprawling and pervasive offense" (445) that departs from traditional requirements of liability: (1) the crime of conspiracy is vaguely defined and its contours are often unpredictable; (2) it permits conviction on acts largely mental in character; (3) its essential feature, an agreement, is often diluted to something approaching suspicion of agreement; and (4) it affords a highly tenuous basis for holding the defendant for substantive crimes committed by others. Moreover, the procedural advantages to the prosecution impose corresponding disadvantages on the defendant, disadvantages thought inappropriate and unfair when other crimes are charged.

The balance has been struck on the side of retaining the offense with modest revisions, despite long-standing criticism ( Johnson). The crime of conspiracy will in all likelihood remain an integral part of the prosecutor's arsenal. Whether it will be kept within tolerable bounds depends on how sensitively and critically prosecutors employ it, courts administer and interpret it, and legislators act to preclude its excesses.

James Alexander Burke

Sanford H. Kadish

Dan M. Kahan

See also Accomplices; Attempt; Solicitation.


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. Model Penal Code: Tentative Draft No. 10. Philadelphia: ALI, 1960.

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Johnson, Phillip E. "The Unnecessary Crime of Conspiracy." California Law Review 61 (1973): 11371188.

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Marcus, Paul. The Prosecution and Defense of Criminal Conspiracy Cases. New York: M. Bender, 19781990.

Mitford, Jessica. The Trial of Dr. Spock, the Rev. William Sloane Coffin, Jr., Michael Ferber, Mitchell Goodman, and Marcus Raskin. New York: Knopf, 1969.

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Sayre, Francis. "Criminal Conspiracy." Harvard Law Review 35 (1922): 393427.

Turner, Marjorie B. S. The Early American Labor ConspiracyCasesTheir Place in Labor Law: A Reinterpretation. San Diego. Calif.: San Diego State College Press, 1967.

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. Working Papers, vol. 1. Washington, D.C.: The Commission, 1970.

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An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors.

Conspiracy is governed by statute in federal courts and most state courts. Before its codification in state and federal statutes, the crime of conspiracy was simply an agreement to engage in an unlawful act with the intent to carry out the act. Federal statutes, and many state statutes, now require not only agreement and intent but also the commission of an overt act in furtherance of the agreement.

Conspiracy is a crime separate from the criminal act for which it is developed. For example, one who conspires with another to commit burglary and in fact commits the burglary can be charged with both conspiracy to commit burglary and burglary.

Conspiracy is an inchoate, or preparatory, crime. It is similar to solicitation in that both crimes are committed by manifesting an intent to engage in a criminal act. It differs from solicitation in that conspiracy requires an agreement between two or more persons, whereas solicitation can be committed by one person alone.

Conspiracy also resembles attempt. However, attempt, like solicitation, can be committed by a single person. On another level, conspiracy requires less than attempt. A conspiracy may exist before a crime is actually attempted, whereas no attempt charge will succeed unless the requisite attempt is made.

The law seeks to punish conspiracy as a substantive crime separate from the intended crime because when two or more persons agree to commit a crime, the potential for criminal activity increases, and as a result, the danger to the public increases. Therefore, the very act of an agreement with criminal intent (along with an overt act, where required) is considered sufficiently dangerous to warrant charging conspiracy as an offense separate from the intended crime.

According to some criminal-law experts, the concept of conspiracy is too elastic, and the allegation of conspiracy is used by prosecutors as a superfluous criminal charge. Many criminal defense lawyers maintain that conspiracy is often expanded beyond reasonable interpretations. In any case, prosecutors and criminal defense attorneys alike agree that conspiracy cases are usually amorphous and complex.

The Elements of Conspiracy Agreement

The essence of conspiracy is the agreement between two or more persons. A single person acting alone cannot be guilty of conspiracy.

Quiz Show Conspiracies

In the 1950s, the new medium of television was fast becoming a staple in U.S. households, and quiz shows, with their low production costs and high-stakes drama, were enjoying immense popularity. Contestants on quiz shows played until they lost; some competed for months and won tens of thousands of dollars. The quiz show concept of rewarding intelligence with instant wealth appealed to the U.S. public and inspired many to seek an invitation to play.

In May 1958, Edward Hilgemeier was in the studio audience of the quiz show "Dotto" when he was approached by a "Dotto" producer. The producer asked if Hilgemeier would like to compete on the show. Hilgemeier, an aspiring actor, accepted the offer. On May 20, he went to the "Dotto" set as a standby contestant.

Marie Winn, a student at Columbia University, was the defending champion of "Dotto." A charming, animated native of Czechoslovakia, the twenty-one-year-old Winn had won "Dotto" on two consecutive nights. As Hilgemeier waited for his possible turn against Winn, he got the impression that studio personnel were unduly familiar with the woman.

Winn's first challenger that day was Yeffe Kimball Slatin. Hilgemeier watched as Winn defeated Slatin with ease; Winn seemed to have every answer at hand. After the contest between Winn and Slatin, Hilgemeier returned to the contestants' dressing room, where he discovered a notebook belonging to Winn that appeared to contain answers to "Dotto" questions. Hilgemeier notified Slatin, and the two returned to the dressing room, where one of them tore the apparent answer sheet out of Winn's notebook.

That night, after speaking to Slatin's lawyer, Hilgemeier and Slatin went to the "Dotto" offices, where they spoke with the show's producers. The "Dotto" producers promised compensation to both Hilgemeier and Slatin. Slatin agreed to stay quiet about the affair for a nominal sum of money from "Dotto," but Hilgemeier, fearing for his reputation, refused. Hilgemeier took his information to Manhattan district attorney Frank Hogan and assistant district attorney Joseph Stone.

Initially, the Manhattan district attorney's office was skeptical of Hilgemeier's complaint. The rigging of quiz shows was, after all, not illegal. Shortly into the investigation, however, it became apparent to Hogan and Stone that a widespread conspiracy was in place to hide the truth from the public—and conspiracy to commit fraud wasillegal.

The Manhattan district attorney's office convened grand jury hearings, and a subcommittee of the U.S. House of Representatives held congressional hearings on the quiz shows' practices. Many producers and contestants lied to the grand jury and the congressional subcommittee about their role in quiz show trickery. On October 14, 1959, their elaborate web of deceit began to unravel when Charles Van Doren, a Columbia University professor, admitted to the subcommittee his involvement in a rigged quiz show, "Twenty-One." (This incident was the basis of Robert Redford's 1995 film Quiz Show.)

Quiz show producers and contestants eventually admitted their subterfuge to authorities. What emerged were stories of how favored quiz show contestants were coached to agonize and sweat over answers they already knew. On August 30, 1960, the U.S. Congress passed a bill that made giving or receiving assistance on a quiz show a federal crime. The bill was signed into law by President dwight d. eisenhower two weeks later. Now, under 47 U.S.C.A. § 509, it is a federal crime to rig quiz shows with the intent to deceive the listening or viewing public. Under 18 U.S.C.A. § 371, a conspiracy to engage in prohibited practices regarding radio and television quiz shows is also a federal crime.

However, if a coconspirator dies prior to the indictment or trial, the surviving coconspirator may still be charged with conspiracy. A husband and wife can be guilty of conspiracy. A corporation is considered a person for conspiracy purposes, so a corporation can be guilty of conspiracy, but it cannot conspire with itself. For example, if two or more employees within a corporation conspire to break the law and subsequently commit an act in furtherance of the conspiracy, the corporation itself is not criminally liable for conspiracy.

The agreement must be made voluntarily and with an intent to participate in furthering a common purpose. Mere knowledge or approval, in the absence of an actual agreement to cooperate, does not constitute conspiracy.

Once an agreement with criminal intent is made, the conspiracy is complete, unless the applicable statute requires the additional element of an overt act. The agreement need not be written or formal, and it may be proved by circumstantial evidence. A tacit understanding is sufficient to constitute agreement, even if no words are spoken that expressly communicate the conspiracy. Conspiracy exists if there is some form of mutual understanding between persons working together with a common unlawful end.

Intent Criminal intent is also necessary to create a conspiracy. This means that the parties must intend both to agree on and to engage in the unlawful act. Ignorance of the law is not usually a defense to a crime, but an unwitting conspirator may defend against conspiracy charges on grounds of ignorance. Ignorance will not be a defense if the person continues to participate in the common plan after learning of its illegality.

Either the purpose of the agreement or the means by which it is accomplished must be illegal to support criminal prosecution on conspiracy charges. If the purpose is unlawful, the offense is committed even if the means used to achieve the purpose are lawful. One illustration is where a noncustodial parent conspires with another person to kidnap the parent's child, and the child is abducted during a court-approved visit. Conspiracy also occurs if the purpose of the agreement is lawful but the means used to achieve it are illegal. For example, if a custodial parent chooses to retrieve a child who has been kidnapped by the noncustodial parent, an agreement to use unlawful force constitutes conspiracy.

Overt Act An overt act can be any step that indicates that the execution of the conspiracy has begun. This can be an innocuous act and need not be illegal unto itself. For example, if two persons agree to rob a bank, then purchase a ski mask, the act of buying the mask may constitute the overt act required to charge the two with conspiracy.

The overt act must follow the agreement and must be executed with an intent to carry out the purpose of the conspiracy. For example, if one of the potential bank robbers buys a ski mask after the agreement is made, the purchase may not constitute the overt act if the ski mask will not be worn to carry out the robbery. An overt act need not be committed by each and every conspirator; an overt act by one conspirator solidifies the offense for all coconspirators. Thus, a conspirator who does not participate in the overt act can be charged with conspiracy.

If a conspirator completely and voluntarily renounces the criminal purpose to all conspirators, that person may withdraw from the conspiracy before the overt act is committed. Many jurisdictions require that the withdrawing conspirator also inform law enforcement officials or take measures to thwart the crime, in order to avoid criminal liability for the conspiracy.

Other Considerations

A conspiracy exists as long as measures are taken to conceal evidence of the crime. A person who did not participate in the original agreement can become a coconspirator after the actual criminal act if the person joins in the concealment of the conspiracy. Whether a coconspirator received personal benefit or profit is of no importance.

Generally, conspirators are liable for all crimes committed within the course or scope of the conspiracy. The application of this general rule varies from state to state. Ordinarily, an act is within the course or scope of the conspiracy if it is a foreseeable result of the agreement. In some states, a conspirator is not liable where he or she has no knowledge of the specific act and argues successfully that the act was beyond the scope of the conspiracy. Also, if the purpose of the agreement is later changed by coconspirators, a conspirator who did not participate in the alteration may not be held liable for the new conspiracy. A person is liable for conspiracy only in regard to the meaning of the agreement as he or she understands it.

In some jurisdictions, a person may be guilty of conspiracy even if a coconspirator is immune from prosecution. For example, if two persons conspire to commit murder and one is found to have been insane at the time of the killing, the other conspirator may not be exempt from prosecution for conspiracy.

One who provides services to conspirators will not be guilty of conspiracy if that person has not participated in the agreement and does not know that a conspiracy exists. There must be a willful participation in the conspiracy, as well as an intent to further the common purpose or design for conspiratorial liability. Therefore, aiding a conspiracy by selling material to further it does not make someone a conspirator if the person does not know of the conspiracy, even if that person knows the goods sold will be used for an unlawful purpose. However, if the circumstances indicate a conspiracy, one who cooperates and knowingly sells goods for illegal use may be guilty of conspiracy.

Generally, if a number of conspirators agree to carry out different functions in furtherance of the conspiracy, the agreement constitutes a single conspiracy. This is so even if the different functions amount to more than one unlawful purpose. In some states, however, the different functions may constitute multiple conspiracies if there is an agreement to commit more than one crime.

Punishment for the crime of conspiracy is ordinarily defined by statute and varies in accordance with the conspiracy's objective. For example, a conspiracy to commit a misdemeanor will not be subject to the same punishment as a conspiracy to commit a felony. Conspiracy may be alleged in a civil case if the plaintiff has suffered an injury as a result of the conspiracy. Civil conspiracy is ordinarily not a cause of action, but the existence of a conspiracy may be used in determining the amount of damages in a civil action and the respective liabilities of civil codefendants for the payment of damages.

History of Conspiracy

Federal conspiracy statutes were first passed in 1909. Under 18 U.S.C.A. § 371, it is a crime to commit an offense against or to defraud the United States or any agency of the United States. If the crime actually committed is a felony, the punishment is a fine of not more than $10,000 or five years' imprisonment, or both. Under 18 U.S.C.A. § 372, it is a crime to conspire to impede or injure a federal law enforcement officer.

The U.S. Congress has made specific conspiracies illegal through a variety of statutes. For example, conspiracy to murder federal or foreign officials is prohibited by 18 U.S.C.A. § 1117, a freestanding statute. Conspiracy to kidnap is contained in subsection C of 18 U.S.C.A. § 1201, the federal kidnapping statute. Other federal statutes prohibit conspiracies to assassinate the president, the vice president, and their successors; assassinate the director or deputy director of the central intelligence agency (CIA); assassinate or kidnap a Supreme Court justice; interfere with commerce and trade; violate computer laws; launder money; obstruct state or local regulation of gambling; injure property of the federal government; tamper with consumer products; gather, transmit, lose, remove, or destroy national defense information or materials; incite sailors to mutiny; engage in prohibited practices regarding radio broadcasts or game show contests; defraud the tennessee valley authority; violate or interfere with voting rights; and sexually exploit children.

Conspiracy cases are often infamous for their ambition and breadth. The assassination of President abraham lincoln in 1865 by John Wilkes Booth was a product of a conspiracy between Booth and several supporters of the defunct Confederacy. In the early 1950s, the U.S. Congress conducted numerous hearings on Communist conspiracies against the United States. In the mid-1970s, several White House aides were indicted on charges of conspiracy in connection with the 1972 burglary of the offices of the Democratic National Committee in the Watergate Hotel, in Washington, D.C.

In November 1986, a Lebanese weekly, Al-Shiraa, reported that the U.S. government had secretly sold military weapons to so-called moderate factions in Iran. In exchange for the arms sales, according to Al-Shiraa, the moderate Iranians would work to secure the release of U.S. citizens held hostage in Lebanon. Thus began an investigation into a conspiracy that became popularly known as the iran-contra affair.

Congressional investigations that followed the Al-Shiraa article revealed a covert "enterprise" connected with the arms sales. The operation, staffed by private citizens and funded by private monies, had diverted profits from the sale of the weapons to the Contras, a loosely knit military force in Honduras that sought to overthrow the socialist Sandinista government in Nicaragua.

Congressional investigations in the spring of 1987 revealed that the enterprise had been supervised by U.S. national security council (NSC) staff. The NSC, created by the National Security Act of 1947 (61 Stat. 496 [50 U.S.C.A. §§ 402]) and amended by the National Security Act Amendments of 1949 (63 Stat. 579 [50 U.S.C.A. § 401 et seq.]), existed to advise the president with respect to the integration of domestic, foreign, and military policies relating to national security.

One of the many problems presented by the enterprise was its apparent violation of the Boland amendments to a series of appropriations bills. These bills were established in the early 1980s to prevent any "agency or entity of the United States involved in intelligence activities" from spending funds available to it "to support military or paramilitary operations in Nicaragua" (133 Cong. Rec. H4982-87 [daily ed. June 15, 1987]). The covert arms sales also violated procedural and substantive requirements of the Arms Export Control Act of 1976 (Pub. L. No. 90-629, 82 Stat. 1320 [22 U.S.C.A. §§ 2751–2796c (1989 Supp.)]). Moreover, the executive branch's failure to notify Congress of the covert arms sales flouted the reporting provisions of the 1980 Intelligence Oversight Act (Pub. L. No. 96-450, tit. IV, § 407(b)(1), 94 Stat. 1981 [50 U.S.C.A. § 413 (1982)]).

In 1987, Lawrence Walsh, a former american bar association president and former federal judge, was assigned by the U.S. Court of Appeals for the District of Columbia Circuit, Independent Counsel Division, to investigate the Contra-funding scheme. In March 1988, Walsh charged Richard Secord, Albert Hakim, Oliver North, and John Poindexter with conspiracy to obstruct the U.S. government. North and Poindexter had worked for the NSC.

As in all conspiracy cases, an important goal of the prosecution was to determine who was involved in the agreement. A major issue in the Iran-Contra investigation was to determine precisely who in the executive branch authorized or was aware of the arms diversions and, specifically, whether the president had knowledge of the unlawful activities.

In the legal battles that ensued over access to information in connection with the prosecutions, Walsh faced challenges by the ronald reagan and george h. w. bush administrations, the justice department, intelligence agencies, and lawyers for the accused. Ultimately, the White House refused to relinquish classified information crucial to the prosecutions, and Walsh was forced to drop all conspiracy charges. The Iran-Contra Affair resulted in criminal convictions of several persons directly connected with the Reagan administration, but Walsh was never able to link the president to a conspiracy to obstruct the U.S. government.

In another conspiracy case, Patricia Caldwell, a bookkeeper with the Northwest Community Exchange (NCE), was charged with conspiracy to defraud the United States because she refused to provide to the IRS certain account information it requested regarding NCE customers. The NCE was one of a number of warehouse banks, which promised their customers that they would not reveal account information to third parties, including the internal revenue service (IRS). As a result, the IRS shut down the warehouse banks, and it charged several customers and employees with conspiracy to defraud the United States. A jury convicted Caldwell of conspiring to defraud the United States, in violation of 18 U.S.C.A. § 371.

The Ninth Circuit Court of Appeals reversed Caldwell's conspiracy conviction (United States v. Caldwell, 989 F.2d 1056 [1993]). The government had argued that people have a duty to conduct their business affairs so as to not impair or impede the collection of revenue by the IRS. The majority opinion, written by Judge Alex Kozinski, rejected this interpretation of 18 U.S.C.A. § 371 and held that to defraud the government, a person had to act deceitfully or dishonestly. To allow otherwise would create an oppressive theory of criminal conspiracy. The court observed that under the government's theory, "a husband who asks his wife to buy him a radar detector would be a felon … because their actions would obstruct the government function of catching speeders." According to the court, Congress did not intend to make a federal crime out of actions that merely make "the government's job more difficult."

The jury in Caldwell's case had not been instructed that it had to find that Caldwell agreed to obstruct the IRS's tax-collecting functions by deceitful or dishonest means. This failure to inform the jury about an essential element of conspiracy constituted reversible error, and Caldwell's conviction was overturned.

American Honda Conspiracy

The sheer size of a conspiracy can create distinct problems for prosecutors and defense attorneys alike. In 1993, U.S. attorneys in New Hampshire began to investigate employees of the American Honda Motor Company. By 1994, prosecutors had cobbled together an immense conspiracy-based commercial bribery case.

The conspiracy prosecutions of American Honda executives and dealers began to develop in 1989, when Richard Nault, an automobile dealer in Nashua, New Hampshire, brought a civil suit against American Honda, claiming unfair treatment. In 1993, after testimony raised concerns of bribery, the judge in Nault's case recommended that federal authorities investigate the financial affairs at American Honda.

Investigations by the federal bureau of investigation (FBI) revealed a widespread pattern of illegal payoffs in which American Honda executives were given cash, jewelry, cars, and store ownership interests in return for the awarding of new Honda dealerships and favorable car allocations. According to the prosecutors, assistant U.S. attorneys Michael Connolly and Donald Feith, the alleged conspiracy involved twenty-two American Honda executives and dealers, encompassed thirty states, and was responsible for the misappropriation of approximately $50 million. In 1993 and 1994, prosecutors dangled various substantive and conspiracy charges before the executives and dealers.

By the end of 1994, only three of the alleged conspirators had refused to plead guilty: John Billmyer, an 18-year American Honda veteran and longtime vice president of auto field sales; Stanley Cardiges, another vice president of auto field sales and Billmyer's protégé; and Dennis Josleyn, whose last position was West Coast sales manager for Acura, American Honda's flagship automobile. In March 1994, Billmyer, Cardiges, and Josleyn were arrested at their homes, booked at local jails, and then released pending trial.

A federal grand jury charged Billmyer with one count of conspiring with Cardiges and Josleyn to defraud American Honda, the United States, the treasury department, and the IRS, in violation of 18 U.S.C.A. § 1341. Specifically, the indictment alleged that Billmyer, Josleyn, and Cardiges had conspired to receive money and gifts by secretly selling the valuable contract rights conferred on prospective dealers by American Honda.

Cardiges and Josleyn were charged with participating in the broad conspiracy with Billmyer and also conspiring to receive kickbacks in connection with an American Honda advertising campaign. Cardiges and Josleyn were further charged with violating the racketeer influenced and corrupt organizations act (18 U.S.C.A. § 1961 et seq.). In November 1993, Cardiges allegedly asked former American Honda zone manager Edward Temple to tell the FBI that payments the two had received from a hidden interest in a Conway, Arkansas, car dealership were actually loan payments.

American Honda was portrayed by prosecutors as a victim of the conspiracies. As the trial approached, lawyers for Cardiges and Josleyn prepared a defense that would further victimize the company. According to Cardiges's lawyer Philip Israels, any conspiracy case should have included the Japanese executives of Honda Motor Company International, the owner of American Honda. Israels maintained that the Japanese executives knew of, condoned, and even participated in the kickback schemes. Israels further charged that the federal government had information that suggested that Japanese executives knew of the kickbacks, and that the decision not to prosecute the Japanese executives was being used as a bargaining chip in trade negotiations between the United States and Japan.

Josleyn adopted a defense similar to that of Cardiges. Josleyn's attorneys, Paul Twomey and Mark Sisti, noted that the alleged conspiracy was so widespread that Japanese executives must have known of it. Josleyn would deny no specific facts. Rather, he would invert the meaning of the mountain of evidence uncovered by the prosecutors and the FBI, to show that the Japanese executives must have known about and approved of the kickback schemes. Such a showing would allow Josleyn's attorneys to argue that the alleged conspiracy was actually a lawful, routine business practice promoted by American Honda's parent company.

Billmyer had retired from American Honda in 1988. His lawyers, David Long and Kevin Sharkey, centered his defense on a variety of grounds. Their arguments included that the prosecution of Billmyer was barred by the five-year statute of limitations on conspiracy charges because the indictment actually alleged multiple conspiracies, and any criminal liability for a conspiracy involving Billmyer expired in 1993; Billmyer had withdrawn from any alleged conspiracies by retiring in 1988; and New Hampshire was an improper venue because none of the acts Billmyer was alleged to have committed had any relation to New Hampshire.

In the months before trial, several motions to dismiss the case were denied by Judge Joseph DiClerico of the U.S. District Court for the District of New Hampshire. On January 22, 1994, after two years of maintaining his innocence and just one day before jury selection was scheduled to begin, Cardiges pleaded guilty to all charges. In exchange for lenient sentencing recommendations by the prosecutors, Cardiges agreed to testify against Billmyer and Josleyn. All the conspirators except Billmyer and Josleyn were prepared to testify to conspiracies to defraud.

The case proceeded to jury trial in February 1995 and was presided over by Judge DiClerico. In opening statements, assistant U.S. attorney Connolly submitted to the jury that the conspiracy was limited to a few rogue U.S. executives and dealers, and that the United States and American Honda had been conspired against and defrauded by them. Twomey declared that "the government is going to take you everywhere—north, south, east and west" to prove a conspiracy that was supposedly limited to U.S. executives and was completely unknown to Japanese executives. Long and Sharkey covered the litany of apparent infirmities in the government's conspiracy case against Billmyer.

A seemingly endless stream of witnesses then proceeded to testify against Billmyer and Josleyn. American Honda executives and dealers regaled the jury with descriptive accounts of opulence and excess. The kickback schemes resembled homage to the executives, a practice that Honda and Acura dealers called kissing the ring. Dealers and executives told of expensive offerings, including cash payments, free automobiles, Rolex watches, shopping sprees, swimming pools, and tuition payments for children. In several days on the witness stand, Cardiges alone testified to the receipt of approximately $5 million in kickbacks.

At the close of the government's case in chief, Long made a motion to dismiss, arguing that the suit was one of multiple conspiracies, that any conspiracy involving Billmyer supported by the evidence was barred by the statute of limitations, and that any payments or gifts received by Billmyer were unconnected to any conspiracy with Josleyn. The motion was denied, Billmyer called no witnesses, and Josleyn began his defense.

Throughout the presentation of the government's case, Josleyn's lawyers had been fighting a battle with American Honda. They sought to obtain, and eventually received, a copy of handwritten notes kept by Sherry Cameron, American Honda's vice president of human resources. Cameron's notes had been made in connection with American Honda's 1992 internal investigations into rumors of kickbacks. American Honda had appealed Judge DiClerico's decision to order American Honda's release of the notes to the defense, but the First Circuit Court of Appeals refused to reverse the order.

Cameron had testified for the government in March 1995, and Sisti's cross-examination of her had been suspended while the production of her notes was contested. On May 15, 1995, Cameron resumed the witness stand and was faced with poster-sized copies of her notes, one of which revealed that her "point of view" in the investigation was to "try to protect" the company. Cameron further testified that she had limited her investigation to facts, not rumors.

Twomey then called to the stand J. D. Powers, a prominent market research specialist for the automobile industry. Powers testified that in 1983, he sent a letter to Yoshihida Munekujni, then president of American Honda, informing him of widespread rumors of corruption in American Honda. According to Powers, several unindicted top-ranking American Honda executives knew of the kickback schemes in the early 1980s.

This and other evidence allowed Twomey to argue in his closing statement that the conspiracy was so implicit as to constitute one company's policy. Twomey asked the jury whether it could be satisfied that it knew the entire truth in the case. Long contended, in part, that the government had been selective and heavy-handed in its prosecution. The case was submitted to the jury. After five days of deliberations, Billmyer and Josleyn were convicted of all charges. Both vowed to appeal.

Although no Japanese executives were charged in the case, 20 American Honda executives and dealers pleaded guilty, making this the largest conspiracy-based commercial bribery prosecution in the history of the United States.

United States v. Mohamed

Even before the september 11th attacks against the United States in 2001, the country and the world were well aware of the activities of Osama bin Laden and the terrorist network known as al Qaeda. In October 2000, 48-year-old Ali A. Mohamed pled guilty in federal court in New York to five counts of conspiracy, including conspiring to kill U.S. nationals; conspiring to murder, kidnap, and maim outside the United States; conspiring to murder in general; and conspiring to destroy U.S. buildings and property. The charges stemmed from the August 7,

1998, terrorism at U.S. embassies in Nairobi, Kenya, and in Dar es Salaam, Tanzania. More than 200 people, including 12 American citizens, were killed in the attacks, and more than 5,000 were injured.

The case attracted national and international attention because Mohamed was a former U.S. Army officer and because he implicated bin Laden in the bombings. Mohamed, a native Egyptian, served briefly with the CIA in 1984, until the agency determined that Mohamed had revealed his assignment to Middle East terrorists. In 1985, Mohamed moved to the California, seeking to become a U.S. citizen. He enlisted in the U.S. Army and was assigned to the Special Operations Command at Fort Bragg, where the Army trains its Special Forces. Mohamed was trained as a paratrooper and achieved the rank of sergeant before being honorably discharged in 1989. Upon his discharge, he renewed his contacts with the Egyptian "Islamic Jihad," a radical group he had secretly associated with since the early 1980s. In 1991 he was recruited by al Qaeda to serve several missions directly related to bin Laden's terrorist activities.

In 1993, bin Laden asked Mohamed to scout possible sites in Kenya to target for terrorist attacks. Mohamed, then a naturalized U.S. citizen, took photographs and drew diagrams of the U.S. embassy in Nairobi. He personally delivered these to bin Laden, who planned the attack that occurred about five years later. Mohamed became a suspect when one of his aliases turned up at the Nairobi bombing site. After reaching a plea bargain agreement with federal prosecutors, Mohamed implicated bin Laden in the attacks. At the time, prosecutors said it was the first time that a close associate of bin Laden had implicated the reputed terrorist in open court. Mohamed faces a prison term for an unspecified number of years. Less than one year after he gave his testimony, the United States suffered terrorist attacks on its own soil, as al Qaeda operatives destroyed the World Trade Center in New York City and seriously damaged the Pentagon in Washington, D.C.

further readings

Kaplan, John, and Robert Weisberg. 1991. Criminal Law: Cases and Materials. 2d ed. Boston: Little, Brown.

Stone, Joseph, and Tim Yohn. 1992. Prime Time and Misdemeanors. New Brunswick, N.J.: Rutgers Univ. Press.



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CONSPIRACY. A conspiracy is an agreement between two or more persons to commit an illegal act or to achieve a legal objective through illegal means. The essence of a conspiracy is the agreement; and the perceived harm is the increased danger from concerted action. An overt act in furtherance of the agreement is sometimes required by statute to complete a conspiracy, but the purpose of this requirement is merely to demonstrate an active agreement. Conspiracy may be prosecuted as a crime or as a civil cause of action. The presence of conspiracy expands the rules of evidence and procedure.

The crime of conspiracy originated as a series of statutes in fourteenth-century England prohibiting agreements to support false accusations in legal proceedings. Very soon thereafter, liability for an illegal agreement was also found for "confederacies" to evade taxes, commit treason, cheat, or evade just price, wage, and guild regulations. By the beginning of the eighteenth century, confederacy and conspiracy merged into the common law crime of conspiracy as it is now understood. Whether or not a criminal conspiracy was alleged or proved, a party who suffered harm as a result of a conspiracy could bring a civil suit in law or equity. In the United States, early conspiracy cases in the state courts included claims that workers unlawfully conspired to raise wages by concerted action.

Federal courts did not recognize common law crimes against the United States, and early efforts to prosecute conspiracies proved difficult. For example, Aaron Burr was acquitted of treason in 1807 despite recruiting an army in order to secure the secession of Louisiana. Burr was not shown to have personally participated in conduct considered "levying war" as charged in his indictment, but only in procuring and advising "levying war." Conspiracy to commit treason was not treason except by operation of the common law. On the other hand, John Mitchell was convicted of treason in 1795 for participation in the Whiskey Rebellion. Although Mitchell had not actually carried arms against the United States, he was present and participated in the insurrection, and was held responsible for all acts performed in its course. The Sedition Act of 1798 made a conspiracy "with intent to oppose any measure or measures of the government…or to impede the operation of any law" a crime, but it expired in 1801.

The general federal conspiracy statute, Title 18 U.S. Code Section 371, originally enacted in 1867, made it a crime to conspire to commit an offense against the United States, or to defraud the United States in any manner. The prototypical political conspiracy, Watergate, was a conspiracy to commit an offense (obstruct justice) by "covering up" the burglary of the Democratic Party's 1972 presidential campaign headquarters. Conspiracy "to defraud" has been interpreted broadly to include any conduct that "impaired or obstructed the lawful function of any government agency." In United States v. Dennis (1966), the Supreme Court found sufficient an indictment that charged labor leaders with conspiracy to defraud the National Labor Relations Board by falsely claiming to have resigned from the Communist Party, even though requiring noncommunist affidavits was unconstitutional. In addition to the general conspiracy statute, there are more than twenty specific prohibitions against conspiracy attached to substantive offenses in the United States Code.

Conspiracy cases have substantial procedural advantages for prosecutors and are among the most frequently charged federal crimes. Conspiracy is a separate offense from the substantive crime that it intends, enabling multiple prosecutions for the same conduct without double jeopardy attaching. Conspiracy can exist where the substantive crime cannot be proved, and even where its commission is impossible. All coconspirators can be charged together in one indictment, and crimes pertaining solely to individual conspirators are often included in the indictment despite prejudice to codefendants. All coconspirators are responsible for all conduct engaged in by any coconspirator during the course of the conspiracy, and the statute of limitations on the conspiracy runs from the last act of any of the coconspirators. The statements of coconspirators during the course of the conspiracy are not "hearsay" and may be admitted into evidence against all coconspirators.

The influence of federal criminal law enforcement increased dramatically in the last half of the twentieth century because of the threat of international criminal conspiracies. The Kefauver Committee's investigation into organized crime in 1950 and 1951 spurred the enactment in 1970 of the Racketeer Influenced and Corrupt Organization Act (RICO) and the organization of the Department of Justice's Strike Force Against Organized Crime. The Comprehensive Drug Abuse Prevention and Control Act of 1970 created a comprehensive regulatory and law enforcement apparatus based on a conspiracy model of crime. These initiatives were responsible for extending federal criminal jurisdiction to legitimate business enterprises and traditional state court crimes.

Popular belief in vast unsubstantiated conspiracies is a recurring theme in American history. For example, the Red Scare of 1919 and 1920 (thirty-six bombs simultaneously mailed to prominent citizens) instigated a nationwide search for a Bolshevik conspiracy. Similarly, Senator Joseph McCarthy's 1950 allegation that communists had infiltrated the State Department precipitated wholesale investigations unjustifiably stigmatizing many individuals and organizations. Conspiracy theories can persist in the absence of credible supporting evidence. For example, many people believe that the 1963 assassination of President John Kennedy was the act of a broad conspiracy despite extensive investigation and the Warren Commission's contrary conclusion.


Bassano, Joseph J. Conspiracy. Vol. 16 of American Jurisprudence. 2d ed. Rochester, N.Y.: Lawyers Co-operative Publishing, 1998.

Davis, Beth Allison, and Josh Vitullo. "Federal Criminal Conspiracy." American Criminal Law Review 38 (2001): 777–817. An annual survey of the state of the law.

Fenster, Mark. Conspiracy Theories: Secrecy and Power in American Culture. Minneapolis: University of Minnesota Press, 1999.

Forkosch, Morris D. "The Doctrine of Criminal Conspiracy and Its Modern Application to Labor." Texas Law Review 40 (1962): 303–338, 473–508.

Goldstein, Abraham S. "Conspiracy to Defraud the United States." Yale Law Journal 68 (1959): 405–463.

Selz, Shirley A. "Conspiracy Law in Theory and in Practice: Federal Conspiracy Prosecutions in Chicago." American Journal of Criminal Law 5 (1977): 35–71.

M. SusanMurnane

See alsoAlien and Sedition Laws ; Crime ; Justice, Department of ; Racketeer Influenced and Corrupt Organization Act ; Warren Commission ; Watergate ; Whiskey Rebellion .

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conspiracy, in law, agreement of two or more persons to commit a criminal or otherwise unlawful act. At common law, the crime of conspiracy was committed with the making of the agreement, but present-day statutes require an overt step by a conspirator to further the conspiracy. It is not necessary for guilt that the act be fully consummated. Many acts that would not be criminal if accomplished by an individual alone may nevertheless be the object of a conspiracy. With the rise of the labor movement in the 19th cent., British and American courts used this legal consent against unions; courts held that while an individual employee might lawfully abstain from work, the concerted stoppage of a group of employees, as in a strike, might be criminal. In 1875, Britain passed a law exempting unions from prosecution for conspiracy, and in 1932 the U.S. Congress passed a law that limited the power of federal courts to restrain union activity. Other controversial aspects of conspiracy laws include the modification of the rules of evidence and the potential for a dragnet. A statement of a conspirator in furtherance of the conspiracy is admissible against all conspirators, even if the statement includes damaging references to another conspirator, and often even if it violates the rules against hearsay evidence. The conspiracy can be proved by circumstantial evidence. Any conspirator is guilty of any substantive crime committed by any other conspirator in furtherance of the enterprise. It is a federal crime to conspire to commit any activity prohibited by federal statute, whether or not Congress imposed criminal sanctions on the activity itself. An individual injured by a conspiracy may sue the conspirators to recover damages.

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"conspiracy." The Columbia Encyclopedia, 6th ed.. . 19 Jan. 2018 <>.

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126. Conspiracy (See also Intrigue.)

  1. Babington Plot abortive plot to assassinate Elizabeth I; sealed Mary Stuarts fate (1586). [Br. Hist.: NCE, 202]
  2. Black Friday (September 24, 1869) gold speculation led to financial panic. [Am. Hist.: Van Doren, 259]
  3. Brutus plotted against Caesar with Cassius and Casca. [Br. Lit.: Julius Caesar ]
  4. Cassius intriguer and accomplice in plot against Caesar. [Br. Lit.: Julius Caesar ]
  5. Cinq-Mars conspires against Cardinal Richelieu. [Fr. Lit.: Cinq-Mars ]
  6. Cointet brothers use a corrupt lawyer to ruin a young printer and cheat him of his invention. [Fr. Lit.: Balzac Lost Illusions in Magill II, 595]
  7. Doctors Plot physicians falsely tried for trying to poison Stalin. [Jew. Hist.: Wigoder, 160]
  8. Duke of Buckingham Richard IIIs counsels consistory; assisted him to throne. [Br. Lit.: Richard III ]
  9. Fawkes, Guy (15701606) leader of Gunpowder Plot to blow up Houses of Parliament (1605). [Br. Hist.: EB, IV: 70, 801]
  10. Gunpowder Plot See Fawkes, Guy .
  11. Josephs brothers sold him into slavery out of envy and hatred. [O.T.: Genesis 37:1828]
  12. Pontiac (17201769) brains behind widespread American Indian uprising (1762). [Am. Hist.: Jameson, 398]
  13. Shallum plots and successfully executes overthrow of Zechariah. [O.T.: II Kings 15:10]
  14. Watergate political intrigue leading to resignation of Pres. Nixon. [Am. Hist.: EB, X : 568569]
  15. Woman in White, The Laura Fairlie is unjustly confined to an insane asylum in a plot to obtain her money. [Br. Lit.: Magill I, 1125]

Constancy (See LOYALTY .)

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"Conspiracy." Allusions--Cultural, Literary, Biblical, and Historical: A Thematic Dictionary. . 19 Jan. 2018 <>.

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con·spir·a·cy / kənˈspirəsē/ • n. (pl. -cies) a secret plan by a group to do something unlawful or harmful: a conspiracy to destroy the government. ∎  the action of plotting or conspiring.

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"conspiracy." The Oxford Pocket Dictionary of Current English. . 19 Jan. 2018 <>.

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a body or band of conspirators, 1386.

Examples: conspiracy of graces, 1580; of honesty and virtues, 1538; of things, 1691.

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"Conspiracy." Dictionary of Collective Nouns and Group Terms. . 19 Jan. 2018 <>.

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conspiracy •radiancy •immediacy, intermediacy •expediency • idiocy • saliency •resiliency • leniency •incipiency, recipiency •recreancy • pruriency • deviancy •subserviency • transiency • pliancy •buoyancy, flamboyancy •fluency, truancy •constituency • abbacy • embassy •celibacy • absorbency •incumbency, recumbency •ascendancy, intendancy, interdependency, pendency, resplendency, superintendency, tendency, transcendency •candidacy •presidency, residency •despondency • redundancy • infancy •sycophancy • argosy • legacy •profligacy • surrogacy •extravagancy • plangency • agency •regency •astringency, contingency, stringency •intransigency • exigency • cogency •pungency •convergency, emergency, insurgency, urgency •vacancy • piquancy • fricassee •mendicancy • efficacy • prolificacy •insignificancy • delicacy • intricacy •advocacy • fallacy • galaxy •jealousy, prelacy •repellency • valency • Wallasey •articulacy • corpulency • inviolacy •excellency • equivalency • pharmacy •supremacy • clemency • Christmassy •illegitimacy, legitimacy •intimacy • ultimacy • primacy •dormancy • diplomacy • contumacy •stagnancy •lieutenancy, subtenancy, tenancy •pregnancy •benignancy, malignancy •effeminacy • prominency •obstinacy • pertinency • lunacy •immanency •impermanency, permanency •rampancy • papacy • flippancy •occupancy •archiepiscopacy, episcopacy •transparency • leprosy • inerrancy •flagrancy, fragrancy, vagrancy •conspiracy • idiosyncrasy •minstrelsy • magistracy • piracy •vibrancy •adhocracy, aristocracy, autocracy, bureaucracy, democracy, gerontocracy, gynaecocracy (US gynecocracy), hierocracy, hypocrisy, meritocracy, mobocracy, monocracy, plutocracy, technocracy, theocracy •accuracy • obduracy • currency •curacy, pleurisy •confederacy • numeracy •degeneracy • itinerancy • inveteracy •illiteracy, literacy •innocency • trenchancy • deficiency •fantasy, phantasy •intestacy • ecstasy • expectancy •latency • chieftaincy • intermittency •consistency, insistency, persistency •instancy • militancy • impenitency •precipitancy • competency •hesitancy • apostasy • constancy •accountancy • adjutancy •consultancy, exultancy •impotency • discourtesy •inadvertency • privacy •irrelevancy, relevancy •solvency • frequency • delinquency •adequacy • poignancy

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"conspiracy." Oxford Dictionary of Rhymes. . 19 Jan. 2018 <>.

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