CONSPIRACY

Introduction

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, agreement—a "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. 1153–1154).

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 conspiracy—who 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 conspiracies—one 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. §§ 1961–1968 (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 crimes—a task that is exceedingly difficult in the context of a large, sprawling criminal organization—the 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. 7–46).

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 jurisdictions—notably 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 magistrate—that 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 evidence—since 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.

Conclusion

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.

BIBLIOGRAPHY

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

Coke, Edward. The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes (1641). London: E. & R. Brooke, 1797.

Developments in the Law. "Criminal Conspiracy." Harvard Law Review 72 (1959): 920–1008.

Filvaroff, David B. "Conspiracy and the First Amendment." University of Pennsylvania Law Review 121 (1972): 189–253.

Harno, Albert J. "Intent in Criminal Conspiracy." University of Pennsylvania Law Review 89 (1941): 624–647.

Johnson, Phillip E. "The Unnecessary Crime of Conspiracy." California Law Review 61 (1973): 1137–1188.

Levie, Joseph H. "Hearsay and Conspiracy: A Reexamination of the Co-conspirators' Exception to the Hearsay Rule." Michigan Law Review 52 (1954): 1159–1178.

Marcus, Paul. The Prosecution and Defense of Criminal Conspiracy Cases. New York: M. Bender, 1978–1990.

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

Note. "Conspiracy: Statutory Reform since the Model Penal Code." Columbia Law Review 75 (1975): 1122–1188.

Sayre, Francis. "Criminal Conspiracy." Harvard Law Review 35 (1922): 393–427.

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

U.S. National Commission on Reform of Federal Criminal Laws. Final Report: A Proposed New Federal Criminal Code (Title 18, United States Code). Washington, D.C.: The Commission, 1971.

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

Wellington, Harry H. Labor and the Legal Process. New Haven, Conn.: Yale University Press, 1968.

Wright, Robert S. The Law of Criminal Conspiracies and Agreements. Philadelphia: Blackstone, 1887.

CONSPIRACY

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.

cross-references

Communism.

Conspiracy

Conspiracy is one of the four "punishable acts" of genocide, in addition to the crime of genocide itself, declared punishable in Article III of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The other three acts are direct and public incitement, attempt, and complicity. Subsequent instruments of international criminal law, such as the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, have maintained this distinction between genocide itself and the four other punishable acts. The distinction reflects similar provisions in many domestic criminal law codes that define a crime, such as murder or rape, and then set out various forms by which an individual may participate in the crime other than as the primary or principal perpetrator.

The word conspiracy is derived from Latin and means, literally, to breathe together. By its very nature, therefore, conspiracy is a crime that must be committed collectively, involving a minimum of two offenders. The reference to conspiracy to commit the crime of genocide in Article III of the Genocide Convention is somewhat enigmatic, and there is nothing further in the text to suggest exactly what is meant. It is not necessarily helpful to look at national legal provisions for guidance, because the term conspiracy means different things in different criminal codes. In some, notably those based on continental European models like the Napoleonic penal code, conspiracy refers to a form of conspiracy. It entails collective planning or organization of a crime that is actually committed. Under the common-law system, on the other hand, conspiracy is a crime that can be committed once two or more persons meet and agree to commit a crime, even if it is not committed. It is thus an "inchoate" or incomplete crime.

Two factors suggest that the common-law approach should be followed in defining the crime of conspiracy to commit genocide. First, the published record of the General Assembly and the other United Nations (UN) bodies involved in drafting the Genocide Convention make it quite clear that this is what was intended. To an extent, it is acceptable under international law to refer to the debates surrounding adoption of a text as a way to interpret it. Second, if the rival interpretation is adopted, whereby conspiracy is treated as a form of complicity, then there is no need for the provision at all. Complicity to commit the crime of genocide is also a punishable act recognized by Article III of the Convention. Because the common-law concept of conspiracy was unfamiliar to lawyers from the continental tradition, there was difficulty finding an appropriate term for the French version of the Convention. Ultimately, the drafters opted for entente instead of complot, but they admitted there was no entirely appropriate term.

In a late 1990s ruling, the International Criminal Tribunal for Rwanda confirmed that conspiracy to commit genocide is an inchoate or incomplete offense, committed even when there is no evidence that the underlying crime of genocide has actually taken place. In the Musema case, the Trial Chamber said it was "of the view that the crime of conspiracy to commit genocide is punishable even if it fails to produce a result, that is to say, even if the substantive offense, in this case genocide, has not actually been perpetrated." Musema had been the director of a Rwandese tea factory during the 1994 genocide. He was convicted by the international criminal tribunal for his role in the killings.

The tension between the two major criminal law systems with respect to the concept of conspiracy had emerged at Nuremberg, three years before the Genocide Convention was adopted. The Charter of the Nuremberg Tribunal had recognized conspiracy as a distinct crime with respect to aggression, referring to "participation in a common plan or conspiracy for the accomplishment" of "a war of aggression, or a war in violation of international treaties, agreements or assurances." At the London conference, where the charter was adopted, the French and Soviet delegations agreed with the British and Americans that conspiracy was a common-law concept, because this was appropriate to the type of crimes being prosecuted. However, the intent of the drafters was not fully grasped by the judges at Nuremberg, who ruled that conspiracy could not stand alone as an autonomous crime and that, instead, it was a form of participation in a crime that had actually been committed. The prosecutor at Nuremberg had indicted Nazi leaders for conspiracy with respect to war crimes and crimes against humanity, as well as aggression, but this was rejected by the judges as being inconsistent with the Charter of the Nuremberg Tribunal.

Difficulty on the issue still persists. The much more recent Rome Statute of the International Criminal Court, adopted in 1998, does not entirely succeed in incorporating the common-law approach to conspiracy to commit genocide. Instead of listing the four other punishable acts together with the definition of genocide, as is the approach in the statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, the Rome Statute presents the definitions of three categories of crime—genocide, crimes against humanity, and war crimes—together in a series of provisions, Articles 6 through 8. In a totally separate section of the Rome Statute, Article 25, the various ways in which a person other than the principal offender may actually participate in the crime are enumerated.

The problem with the Rome Statute is that although conspiracy, at least in its inchoate or common-law formulation, was already recognized in international law with respect to the commission of genocide, there is nothing similar for crimes against humanity or war crimes. The same situation exists with respect to another of the punishable acts, direct and public incitement. In the latter case, Article 25 of the Rome Statute resolves this with a separate paragraph, making direct and public incitement to commit genocide a distinct form of the offense, but does not do the same for crimes against humanity and war crimes. It does not, however, do the same with respect to conspiracy to commit genocide. Nowhere does Article 25 actually use the word conspiracy. This is the best example of a failure in the Rome Statute to translate faithfully the terms of the Genocide Convention. Thus, the crime of conspiracy to commit genocide, while a punishable act under the 1948 Convention, cannot be prosecuted before the International Criminal Court.

Although it may be rather exceptional to prosecute crimes that do not actually occur, but that are only discussed and planned, the listing of conspiracy to commit genocide as a punishable act is a way of underscoring the seriousness of the crime and the intention of the world community to prevent it. After all, the 1948 Convention includes the word prevention as well as punishment in its title. Making punishment of conspiracy a distinct offense also provides criminal justice with a tool that can strike at criminal organizations, especially their leaders. Similar approaches are used in various domestic legal systems in order to deal with other particular forms of criminal behavior that elude prosecution, such as organized crime and gangsterism.

It would probably not be acceptable to convict an individual of genocide simply because that person was a member of an organization which had been involved in genocidal activity, such as the Nazi SS or Rwandan interahamwe. The Nuremberg Tribunal acquitted some Nazi leaders of conspiracy—Wilhelm Frick, Martin Bormann, and Karl Dönitz—because there was no evidence that they had actual knowledge of planning to commit crimes. But once it can be established that an individual participated in a meeting with others at which the crime was organized, then the crime of conspiracy to commit genocide is committed, and this is as it should be if prevention is to be truly effective. In one case before the International Criminal Tribunal for Rwanda, the Trial Chamber warned the prosecutor that indictments for conspiracy to commit genocide must mention names or other identifying information on coconspirators (Prosecutor v. Nsengiyumuva, May 12, 2000).

There has only been one conviction for conspiracy to commit genocide before the International Criminal Tribunal for Rwanda, and none before the International Criminal Tribunal for the Former Yugoslavia, where it has not even been charged in indictments. On September 4, 1998, the man who had been prime minister of Rwanda during the weeks in 1994 in which genocide took place, Jean Kambanda, was found guilty of conspiracy to commit genocide and sentenced to life imprisonment. Kambanda pleaded guilty to the charge and conceded evidence that he had been part of the conspiracy. He was also convicted for the underlying crime of genocide, and to this extent the conviction for conspiracy was really redundant and should not have been imposed. But in a contested case, that of Elizaphan and Gérard Ntakirutimana, the same tribunal acquitted the accused for lack of any evidence that they had been part of meetings at which the crimes were planned, although they were both found guilty of genocide as such.

This has always been the great problem in proving conspiracy. Evidence of the meetings at which the crime is planned is difficult to obtain. Usually, this will require the cooperation of an insider who agrees to inform on his coconspirators. Sometimes international prosecutors will offer an individual immunity and other benefits in exchange for such insider evidence, but this raises other problems. The evidence of such insiders may be dismissed as lacking credibility, because it has in effect been purchased from them in exchange for favorable treatment.

The record of the ad hoc tribunals, and the effective exclusion of conspiracy to commit genocide from the Rome Statute of the International Criminal Court, may simply attest to the practical difficulties involved in such prosecutions. The idea of those who drafted the Genocide Convention in 1948 was a good one, namely to nip genocide in the bud and prosecute its organizers before the crime actually takes place. In practice, regrettably, the international community waits for the crime to occur before intervening. International criminal courts have enough of a burden dealing with genocide that has been committed. In practice, then, the criminalization of a stand-alone crime of conspiracy to commit genocide, despite the fact that it is not actually committed, has been of no real significance.

SEE ALSO Collaboration; Complicity

BIBLIOGRAPHY

Barrett, Richard P., and Laura E. Little (2003). "Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals." Minnesota Law Review 88:30.

Fletcher, George P. (2002). "Liberals and Romantics at War: The Problem of Collective Guilt." Yale Law Journal 111:1499.

Jorgensen, Nina (2001). "A Reappraisal of the Abandoned Nuremberg Concept of Criminal Organisations in the Context of Justice in Rwanda." Criminal Law Forum 12:371.

Schabas, William (2000). Genocide in International Law, the Crime of Crimes. Cambridge, U.K.: Cambridge University Press.

William A. Schabas

Conspiracy

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.

Tom DeLay Indicted, Resigns Seat in Congress

Representative Tom DeLay (R.-Tex.) was forced to resign his position as House Majority Leader in 2005 when he was indicted on charges that he violated a Texas political fundraising law. The charges stem from DeLay's alleged role in a conspiracy to inject illegal contributions into the 2002 state elections in Texas. The scandal later led to his announcement that he would not seek reelection in 2006, ending an 11-term run in Congress. DeLay resigned from Congress on June 9, 2006.

DeLay was first elected to Congress in 1984 as a representative of the 22nd District of Texas. Ten years later he was elected as House Majority Whip. As one of the more vocal members of Congress, he played a public role in several controversies during the 1990s. He was part of a group in 1997 that tried to remove former House Speaker Newt Gingrich. During the following year, DeLay helped lead calls for the impeachment of President Bill Clinton. After the retirement of Dick Armey in 2002, DeLay was elected as majority leader without opposition. His hard-nosed approach to politics earned him the nickname, "The Hammer." He describes himself as a champion of free enterprise and deregulation.

According to allegations, DeLay's legal problems began in 2002, when he helped found Texans for a Republican Majority PAC (TRMPAC). This political action committee allegedly sent a check for $190,000 to the Republican National State Elections Committee (RNSEC), which in turn sent money to Texas House candidates. The Texas Elections Code forbids corporations from contributing to election campaigns. This law has existed for more than a century. After the 2002 elections, Texas Republicans took control of its state legislature for the first time in 130 years. In order to be convicted of violating the state election law, prosecutors would have to prove that DeLay knew about and approved the transaction between TRMPAC and RNSEC.

In September 2004, grand jurors indicted three of DeLay's associates, including Jim Ellis, John Colyandro, and Warren RoBold, in an investigation of these corporate contributions. If DeLay were indicted as well, he would be forced to resign his position as House Majority Leader because Republican Party rules forbid a person facing a criminal indictment from serving in a leadership position. In November 2004, party members adopted a rule change that would al-low DeLay to keep his post. Two months later, however, the party reversed this rule after facing pressure from Democrats and members of the public. The House of Representatives also rejected changes in ethics rules that would have made an investigation of ethical violations more difficult. House Democrats claimed that these proposed changes were designed to protect DeLay.

On September 28, 2005, a grand jury in Travis County, Texas (which includes state capital Austin) indicted DeLay, Ellis, and Colyandro. Within hours, House Republicans named Representative Roy Blunt (R.-Mo.) as a temporary replacement for majority leader. DeLay attacked the prosecutor, Ronnie Earle, calling him a "partisan fanatic." According to DeLay, he violated no laws and said that he would prevail. He would face up to two years in prison if he were convicted of violating state campaign laws.

DeLay, Ellis, and Colyandro faced additional charges when a grand jury on October 3 indicted the three for money laundering and conspiracy to launder money. These charges were more serious than the previous ones and surprised commentators. According to the indictment, DeLay orchestrated an effort to launder the $190,000 through an arm of the Republican National Committee in Washington and then send the money back to Texas Republicans. DeLay turned himself in later that month, smiling broadly in his mug shot.

A squabble ensued regarding the judge that would preside over DeLay's case. The first judge, Bob Perkins, was removed in November due to an allegedly liberal bias, despite protests by the prosecution. On November 4, the chief justice of the Texas Supreme Court, Wallace B. Jefferson, appointed retired judge Pat Priest to preside over the case. Even this choice was not without controversy, since Priest had reportedly contributed small amounts to state Democratic candidates in 2004.

DeLay and the other defendants sought to have the court dismiss the charges. In December, Priest dismissed the charge that the three had conspired to violate the election law. However, the judge refused to dismiss the money laundering charges, which carry long prison terms and fines. An appellate court in Texas upheld the judge's ruling in April 2006.

DeLay's reputation was further tarnished by his relationship with lobbyist Jack Abramoff. In November 2005, Michael Scanlon, a former aide of DeLay, pleaded guilty to conspiracy to bribe public officials. This charge stemmed from a government investigation of work that Scanlon performed with Abramoff in an Indian gaming scandal. Abramoff pleaded guilty in January 2006 to charges of conspiracy, tax evasion, and tax fraud. He was later sentenced to six years in prison but has been allowed to remain free while he assists in an investigation of corruption in Congress.

The controversies surrounding DeLay and Abramoff led in part to an effort to reform ethics rules in Congress. House Speaker Dennis Hastert (R.-Ill.) led calls to restrict members of Congress from receiving free gifts and travel through outside groups. However, these proposals met with resistance, even within the Republican Party. Some lawmakers argued that instead of restricting meals and gifts paid by lobbyists, the rules should require more complete disclosure.

DeLay won the Republican primary for his House seat on March 7, but polls indicated that he would face stiff challenges in the November elections. The investigation into Abramoff's activities also led to speculation that DeLay could face additional legal problems. Moreover, DeLay expressed dissatisfaction with not being a leader in the House. These factors led DeLay to announced his decision to resign his seat.

Conviction of Former Alabama Governor Don Siegelman

After a six-week trial, 11 days of jury deliberations, and two jury deadlocks, a federal district court jury convicted former Alabama Governor Don E. Siegelman on seven counts of conspiracy, bribery, mail fraud, and obstruction of justice. The July 2006 verdict concerned crimes committed from 1994 (when Siegelman was running for lieutenant governor), to January 2003, when Siegelman's term as governor ended. The charges centered on illegal activity in conjunction with Siegelman's official acts and duties while in public office.

On the day that Siegelman was convicted, FBI Director Robert Mueller reported there had been 1,700 public corruption-related convictions nationwide in the previous two years. In Alabama alone, two governors had been convicted in the last 13 years.

In October 2005, the U.S. Department of Justice (DOJ) released a public announcement that a 30-count superceding indictment had been returned by a federal grand jury in Montgomery, Alabama, charging Siegelman and his former chief of staff Paul Michael Hamrick with various federal crimes, including violations under the Racketeer Influenced and Corrupt Organizations (RICO) statute.

The indictments were the result of a joint federal and state investigation starting in 2001 into numerous improprieties in the Siegelman administration. They directly followed the entering of guilty pleas from three other individuals in connection with the alleged scheme involving Siegelman. Alabama businessman Clayton Young, former director of Alabama's Department of Economic and Community Affairs Nick Bailey, and architect William Curtis Kirsch all pleaded guilty to public corruption charges, including bribery. The indictment of Siegelman included a charge that he and Paul Hamrick accepted hundreds of thousands of dollars in bribes from Young in return for favorable government treatment of Young's business interests, including the awarding of contracts to companies controlled by Young. Both Young and Bailey were key prosecution witnesses at Siegelman's trial.

The five-year investigation leading up to the indictment began in May 2001, following a local newspaper story reporting irregularities connected with the building of two state warehouses. The story reported that G.H. Construction Company had been awarded the contract to build the warehouses. The company was secretly owned by Young, a major contributor and friend of Siegelman's, and a close associate of Hamrick and Bailey. Allegedly, the initials "G.H." stood for "Goat Hill," the nickname for the area of downtown Montgomery where key state offices are located. Young, Bailey, and a Montgomery architect pleaded guilty to bribery and other associated crimes involving the warehouse deal, and agreed to cooperate with prosecutors in the Siegelman probe.

Perhaps the most visible and reported charges against Siegelman focused on his relationship with then-HealthSouth CEO Richard M. Scrushy, who was also indicted along with Siegelman. (Prosecutors suffered a defeat in 2005 in the widely-reported acquittal of Scrushy on charges that he had participated in a $2.7 billion Enron-style accounting fraud at Health-South, the corporation of local hospitals that he founded.)

One of the more egregious charges of criminal enterprise stemmed from Siegelman's alleged acceptance of bribes from Scrushy in return for official actions. To wit, the indictment charged that Scrushy made two disguised payments totaling $500,000 to Siegelman in exchange for an appointment to Alabama's hospital-regulatory review board. Siegelman also allegedly demanded $100,000 and accepted $40,000 from another person after threatening to harm that person's business with the Alabama Department of Transportation, and demanded $250,000 from still another individual under the same threat.

Ultimately, Siegelman was acquitted of RICO charges, but convicted of bribery and conspiracy charges relating to the $500,000 from Scrushy for the board seat. (Scrushy was also convicted.) In conjunction with this, Siegelman was convicted of separate counts of mail fraud regarding letters of appointment and reappoint-ment of Scrushy to the state hospital board.

Siegelman had been targeted once before for state Medicaid fraud in connection with the alleged aiding of a Tuscaloosa physician seeking to rig bids for Medicaid contracts. A federal district judge dismissed the charges in 2004. Two years prior, in 2002, the state Ethics Commission, following a closed-door hearing, cleared then-governor Siegelman of accusations that he had used his official position for personal benefit. The complaint alleged that Siegelman had been paid $800,000 by a law firm that benefited from a settlement he arranged in a lawsuit by the University of South Alabama against cigarette makers.

CONSPIRACY

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.

Pro Hockey Player Sentenced to Prison for Bizarre Murder Plot

Mike Danton, a professional hockey player for the St. Louis Blues, received a sentence of seven and one-half years in 2004 in a bizarre murder-for-hire case. Danton was accused of scheming with a 19-year-old acquaintance and a police dispatcher to murder Danton's agent.

Danton was born Mike Jefferson in Brampton, Ontario, in 1980. He earned fame as a junior hockey star in Canada. One of Danton's first coaches, David Frost, later became his agent. Danton continued to play in Canada throughout the 1990s. His career in the National Hockey League (NHL) began in 2000 when the New Jersey Devils drafted him. Danton played in 68 games for the Blues during the 2003-04 season.

Danton experienced a less-than-stellar career with the Devils. The team suspended him for the 2001-02 season when he refused to accept a demotion to one of the team's minor league clubs. After that season, he legally changed his name from Jefferson to Danton, reportedly due to "constant and emotional abuse" by his father, Stephen Jefferson. Danton returned to the Devils for the 2002-03 season. He played in 17 games for the Devils during the 2002-03 season, but the Devils again suspended him after he refused another demotion. Danton was not a member of the team that won the 2003 Stanley Cup, awarded annually to the champions of the NHL.

The St. Louis Blues acquired Danton from the Devils in 2003, and he became a starter for the Blues. At some point, he became acquainted with 19-year-old Katie Wolfmeyer, a nursing

student and athlete at St. Louis Community College. The exact nature of the relationship is unknown, although news reports indicated that the two were not linked romantically.

The Blues lost to the San Jose Sharks in the first round of the NHL playoffs in 2004. Hours after the final loss, police arrested Danton based on a criminal complaint filed in federal court in Illinois. The complaint alleged that Danton and Wolfmeyer had conspired to kill Frost.

Some acquaintances of Frost described him in news reports as a "lunatic" or "scary," while others referred to him as a "mentor." As Danton distanced himself from his parents during his teenage years, he spent most of his time with Frost. During the 1990s, Frost assembled a small group of talented teenagers to serve as protégés, including Danton, but news reports indicated that Frost's relationship with these players had often been rocky. On the other hand, several reports indicated that Frost had exerted considerable control over Danton as well as over the other young players.

According to prosecutors, Danton solicited Wolfmeyer's help in arranging a murder. The criminal complaint indicated that Danton had engaged in an argument with an unnamed person who allegedly was going to inform the Blues organization of Danton's "promiscuity and use of alcohol." Prosecutors alleged that Danton, through Wolfmeyer, had offered a hit man $10,000 to kill the unnamed acquaintance in Danton's apartment. According to reports, the murder was supposed to appear as the result of a failed burglary .

The complaint then alleged that Wolfmeyer had put Danton in touch with Justin Levi Jones, a police dispatcher in Columbia, Illinois. Jones recorded conversations with Danton and turned the recordings over to his police chief. Federal prosecutors charged Danton and Wolfmeyer with conspiring to murder Frost and with using the telephone across state lines to organize the murder.

In one of the case's unusual twists, Frost, who was not harmed as a result of the plot, not only denied that he was the target, but also became one of Danton's most vocal supporters after police foiled the plot. Danton pleaded guilty to the conspiracy charges on July 16, 2004. U.S. District Judge William Stiehl's comments to Danton during a sentencing hearing reflected the strange nature of the case. "I do not believe in over 18 years on the bench I have been faced with a case as bizarre as this one," Stiehl said. "The exact reasons you felt you needed to engage in a murder plot remain a mystery to me."

Wolfmeyer faced her own trial in East St. Louis, Illinois, in September 2004. Danton did not testify at Wolfmeyer's trial. Prosecutors maintained that Wolfmeyer had put Danton in touch with Jones. Jones testified that Wolfmeyer had known that Danton had wanted to murder someone, and still participated in the plot. Defense attorneys denied that Wolfmeyer had had any involvement. "Katie Wolfmeyer never intended to murder, never intended to be involved in a murder, never intended to have one committed," defense attorney Donald Groshong told the jury during his closing argument . The jury acquitted Wolfmeyer of the charges on September 19, 2004.

The court sentenced Danton to seven and one-half years in prison on November 8, 2004. Danton's attorney, Bob Haar, requested that the court place Danton in a prison in Pennsylvania that is accustomed to handling applications for international transfers. Danton was expected to request a transfer to Canada, and prosecutors said that they would not seek to block this transfer.

Danton's contract with the Blues expired after the 2003-04 season, and his NHL career is likely over. The federal system does not allow parole, and, as Stiehl noted at the sentencing hearing, Danton may be barred from entering the United States at the conclusion of his sentence. Haar acknowledged that Danton's behavior had been "strange" and "aberrant" but added that Danton's aspirations were to return to Canada to "put his life back together again."

Whitfield v. United States

Criminal conspiracy laws generally require that a defendant commit an overt act in furtherance of the conspiracy if a conviction is to be sustained. However, Congress has enacted federal conspiracy statutes that remove the need for the prosecution to prove that the defendant committed an overt act. Defendants have disputed whether Congress meant to omit the overt-act requirement when a statute was silent on that point. The U.S. Supreme Court, in Whitfield v. United States, __U.S. __, 125 S.Ct. 687, __ L.Ed.2d __ (2005) confronted this issue concerning a federal money-laundering statute. The Court concluded that an overt act is not required for a conspiracy conviction where the statute does not mention such a requirement.

David Whitfield was a member of the executive board of an organization called the Greater Ministries International Church (GMIC). GMIC operated a "gifting" program in which unwary investors were induced to invest money with GMIC; the investors were promised that they would double their money in 18 months. The investors' "gifts" were supposedly invested in gold and diamond mines, offshore banks, and commodities. What made the enterprise unique was that the GMIC said that it would donate a portion of its profits to charitable activities. However, GMIC proved to be a fraudulent company that never made the promised investments, lacked any assets, and donated almost nothing to charity. Many GMIC investors received little or no income from their contributions, while the GMIC representatives received more than $1.2 million in commissions.

In 1999, Whitfield was one of a number of GMIC representatives charged by federal prosecutors in Florida with conspiracy to launder money, in violation of 18 U.S.C.A. §1956(h). Congress enacted this criminal conspiracy law in 1992. Prior to its enactment, prosecutors relied on the general criminal conspiracy statute, 18 U.S.C.A. §371, to pursue criminal defendants who sought to launder money. Section 1956 stated that persons who conspired to violate the money-laundering statutes could be subject to the same penalties as those prescribed for the actual commission of money laundering . At the trial of Whitfield and his alleged coconspirators, the defense sought a jury instruction that required at least one of the defendants to have committed an overt act in furtherance of the money-laundering conspiracy. The overt-act requirement is contained in the general conspiracy statute, §371, but not in §1956(h). The judge denied the request, and Whitfield and his fellow GMIC colleagues were convicted of the money-laundering conspiracy charge. The U.S. Court of Appeals for the Eleventh Circuit upheld Whitfield's conviction, ruling that §1956(h) did not require an overt act. However, the court noted that two other circuit courts had ruled that an overt act is required to sustain a conviction. Because of these conflicting decisions, the U.S. Supreme Court agreed to resolve the issue.

The Court, in a unanimous decision, concluded that the Eleventh Circuit had ruled correctly. Justice Sandra Day O'Connor, writing for the Court, agreed with the Eleventh Circuit that the high court's ruling in United States v. Shabani, 513 U.S. 10, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) controlled the interpretation of §1956(h). In that case, the Court held that a drug-conspiracy statute did not require proof of an overt act. Because the language of the drug-conspiracy and money-laundering-conspiracy laws were almost identical, the Shabani reasoning should control in Whitfield's case.

Justice O'Connor, relying on Shabani, pointed out that the Court had "consistently held that the common law understanding of conspiracy 'does not make the doing of any act other than the act of conspiring a condition of liability."' Unlike the general conspiracy statute, §371, which "superseded the common law rule by expressly including an overt-act requirement," the drug conspiracy statute in Shabani did not require proof of an overt act. Therefore, if Congress used text modeled on §371, it intended to impose an overt act requirement. When it omitted such language, as with the drug and money-laundering statutes, it intended to dispense with an overt-act requirement.

Whitfield had argued that §1956(h) had not established a new conspiracy offense but that it had only increased the penalty for conviction of money-laundering conspiracy under §371. Therefore, Whitfield could not be convicted unless the government proved he had committed an overt act. Justice O'Connor was not impressed with this argument, as the text of §1956(h) clearly established an offense, and there was no cross-reference in §1956(h) to §371. Because the money-laundering statute was unambiguous, O'Connor concluded that there was no need to consult the legislative history to ascertain congressional intent. However, even if it had been consulted, the record disclosed that Congress had created a new offense and a new penalty. Justice O'Connor's conclusion was buttressed by the fact that Congress had enacted at least 22 other current conspiracy statutes that each contained an overt-act requirement. Congress knew how to impose such a requirement when it wished to do so, making the omission in §1956(h) an intentional act.