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83.3 Conspiracy: Defenses And Defense Theories

    83.3.1 Miscellaneous Defenses And Defense Theories

    83.3.1.1 Conspiracy: Impossibility As Defense Theory
    83.3.1.2 Defense Theory That Intent To Commit Reckless Or Unintentional Crime Is Not Conspiracy
    83.3.1.3 Conspiracy With Government Agent Or Feigned Participant As Defense Theory
    83.3.1.4 Conspiracy: Lack Of "Jointly Conceived Plan" As Defense Theory
    83.3.1.5 Conspiracy: Person Who Joins Conspiracy After Its Formation Not Liable For Or Bound By Acts Committed Before He Or She Joined The Conspiracy
    83.3.1.6 Conspiracy: Defense Theory That Intended Offense Requires Two Perpetrators (Wharton's Rule)
    83.3.1.7 Conspiracy: Defense Theory That Agreement Or Overt Act Did Not Occur In The Venue Where The Charges Were Brought
    83.3.1.8 Conspiracy: Mistake Of Fact As Defense Theory
    83.3.1.9 Conspiracy: Defendant's Belief That He Or She Is Assisting The Government As Defense Theory
    83.3.1.10 Conspiracy: Professional And Ethical Responsibilities Of Lawyer As Defense Theory
    83.3.1.11 Conspiracy: Defense Theory Challenging A Charge Of Attempted Conspiracy

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     83.3.1.1    Conspiracy: Impossibility As Defense Theory

 PRACTICE NOTE:  See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003), Chapter 7, §§ H & I.

   See also NCJIC 66.3.1 [Defense Theory That Factual Impossibility Precludes Conviction For Attempt].

    See also NCJIC 66.3.4 [Attempt: Legal Impossibility As Defense].

Annotation, Impossibility Of Consummation Of Substantive Crime As Defense In Criminal Prosecution For Conspiracy Or Attempt To Commit Crime, 37 ALR3d 375.

See also generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Just as one cannot attempt to commit an unintentional crime (see State v. Almeda (CT 1983) 455 A2d 1326, 1329-30), one cannot agree anticipatorily to accomplish an unintended result. "There is just no such crime as would require proof that one intended a result that accidentally occurred." (Hull v. State (TN 1977) 553 SW2d 90, 94.) Accordingly, conspiracy to commit an offense based on recklessness should not be a cognizable crime. (State v. Beccia (CT 1986) 505 A2d 683, 685; see also Palmer v. People (CO 1998) 964 P2d 524, 528-30 [conspiracy to commit reckless manslaughter not a cognizable offense]; see also People v. Horn (CA 1974) 12 C3d 290, 295 [115 CR 516; 524 P2d 1300] ["...conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense"].)

    For example, it has been held that there should be no such thing as conspiracy to commit the unintentional crime of depraved-heart murder. (See State v. Baca (NM 1997) 950 P2d 776, 787-88; see also State v. Deccia (CT 1986) 505 A2d 683 [no crime of conspiracy to commit reckless burning]; cf. People v. Swain (CA 1996) 12 C4th 593 602-07 [49 CR2 390; 909 P2d 994] [conspiracy to murder requires intent to kill].)

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: There is neither true agreement nor meeting of the minds when an individual "conspires" to violate the law with a government agent. (United States v. Ritter, 989 F2d 318, 321 (9th Cir. 1993); U.S. v. Vasquez (11th Cir. 1988) 874 F2d 1515, 1516; see also Montgomery v. U.S. (2nd Cir. 1988) 853 F2d 83, 85; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1198-1200; People v. Towery (CA 1985) 174 CA3d 1114, 1131 [220 CR 475].) Hence, in cases where only two persons are involved and one is a government agent or informer, the other cannot be convicted of conspiracy. The crime of conspiracy requires at least two people to have the requisite criminal specific intent, and a government agent by definition cannot be a coconspirator. (See Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:3, p. 19-20; HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 2.06 [Conspiracy With Government Agent] (TRCC 1999); U.S. v. Lewis (4th Cir. 1995) 53 F3d 29, 34-35 [error to refuse instruction that conspiracy can only occur if at least one of the other conspirators is not a government agent]; but see conflict in cases discussed in LaFave & Scott, Substantive Criminal Law (West, 1999 Supp.) § 6.5, fn. 64.1; see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003), Chapter 2, § B.)

    However, the feigned participation of a false coconspirator or government agent in a conspiracy of more than two people does not negate criminal liability for conspiracy as long as there are at least two other conspirators who actually agree to the commission of the subject crime, specifically intend that the crime be committed, and themselves commit at least one overt act for the purpose of accomplishing the object of the conspiracy. (See People v. Liu (CA 1996) 46 CA4th 1119, 1131 [54 CR2d 578].)

    See also NCJIC 83.3.3.1 [Defense Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy].

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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RATIONALE: In cases where the defense argues that the defendant acted with another but did not do so pursuant to any prior agreement, the defense should have the right to an instruction which explains the need to find a "jointly conceived plan."

POINTS AND AUTHORITIES: Although the prosecution need not show that the conspirators agreed on the details of their criminal scheme, it is required to show the "essential nature of the plan." (Blumenthal v. U. S. (1947) 332 US 539, 557 [68 SCt 248; 92 LEd 154].) This is because the agreement itself is the crime, and "it is therefore essential to determine what kind of agreement or understanding existed as to each defendant." (U.S. v. Borelli (2d Cir.1964) 336 F2d 376, 384; U.S. v. Perez (5th Cir.1973) 489 F.2d 51, 62; People v. Butts (CA 1965) 236 CA2d 817, 831 [46 CR 362].)

    See also NCJIC 83.3.6.1 [Conspiracy: Defense Theory The Defendant Committed The Crime As An Independent Or Spontaneous Act Apart From The Conspiracy].

    See also NCJIC 83.3.5.6 [Conspiracy: Lack Of "Meeting Of The Minds" As Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

    The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

    You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06B [Conspiracy: "Agreement" Explained] ¶ 2 (2000).]

    The prosecution must prove that the agreement included a jointly conceived plan to commit the intended crime.

[Source: NCJIC.]

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RATIONALE: It would be unfair to impose liability for acts committed before the defendant joined the conspiracy. The defendant should have the right to instruct the jury in this regard.

POINTS AND AUTHORITIES: It has been suggested that the acts of coconspirators committed prior to the defendant’s joining the conspiracy may be imputed to the defendant even though he was not a member of the conspiracy at the time the acts were committed. (See Wharton’s Criminal Law (West, 15th ed. 1993) § 685, p. 563; compare U.S. v. Neapolitan (7th Cir. 1986) 791 F2d 489 [under RICO Act defendant must agree to commission of very acts for which retrospective liability is sought].) However, this view is contrary to fundamental concepts of fairness, mens rea and vicarious liability.  (See U.S. v. Covelli (7th Cir. 1984) 738 F2d 847, 859; U.S. v Bloome (ED NY 1991) 777 FSupp 208 [conspirator is not liable for substantive offenses committed by the conspiracy before he joined it]; Campbell v. A.H. Robins Co., Inc. (WD WI 1985) 615 FSupp 496, 500 [retrospective liability of coconspirators does not operate to make late-entering conspirator responsible for already-completed substantive offenses of his cohorts]; People v. Brown (CA 1991) 226 CA3d 1361 [277 CR 309] [conspirator cannot be held liable for substantive offense committed pursuant to conspiracy if offense was committed before he joined conspiracy].)

    See also NCJIC 92.9.4.11 [Accomplice Liability For Felony Murder: Intent To Aid And Abet Must Be Formed Before Or During The Killing].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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RATIONALE: There can be no conspiracy between two persons when the intended offense requires two perpetrators. In such a situation it may be appropriate to instruct the jury that a conspiracy may only be based upon an agreement with a person not involved in the intended crime.

POINTS AND AUTHORITIES: A conspiracy may not be based on an agreement to commit a crime which necessarily requires the participation of two persons for its commission. (See Wharton's Criminal Law (West, 15th ed. 1998 Supp.) § 684, pp. 551-553; Robinson, Criminal Law Defenses (West, 1984) § 83, pp. 408-12; LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.5(g)(4), pp.118-122; McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § M [Wharton's Rule]; Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:16.)

    However, the Wharton's Rule does not apply when the number of participants who were involved exceeds the minimum number of participants required to complete the underlying crime. (See e.g., Baker v. U.S. (9th Cir. 1968) 393 F2d 604, 610.) For example, Wharton's Rule would preclude conspiracy prosecution if the defendant agrees with the legislator to bribe the legislator. However, conspiracy may be found if two persons agree to bribe the same legislator. (See U.S. v. Burke (S.D.N.Y. 1915) 221 F 1014, 1015.)

    Moreover, because Wharton's Rule is a "mere judicial presumption" and not based on double jeopardy principles, legislative intent to retain separate convictions for both conspiracy and the substantive crime must be followed. (See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § M [Wharton's Rule]; see also Iannelli v. U.S. (1975) 420 US 770 [95 SCt 1284; 43 LEd 616]; see also U.S. v. Walker (4th Cir. 1986) 796 F2d 43, 47 [Wharton’s Rule inapplicable to conspiracy and espionage charges].)

    For example, when the underlying crime can only be committed by at least two persons (e.g., sale of controlled substance), the jury should be instructed that the person with whom the illicit agreement is made is not the person involved in the transaction.  (See State v. Valdobinos (WA 1993) 858 P2d 199, 205; see also WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 110.02 [Attempts-Elements] comment (1998 Pocket Part) (West, 2nd ed. 1994).) See sample instruction below.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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    83.3.1.7    Conspiracy: Defense Theory That Agreement Or Overt Act Did Not Occur In The Venue Where The Charges Were Brought

PRACTICE NOTE: Venue in a conspiracy prosecution is properly laid either in the jurisdiction where the conspiracy was formed or in any jurisdiction wherein a conspirator committed an overt act in furtherance of the conspiracy. (See Hyde v. U.S. (1912) 225 US 347, 365-66 [32 SCt 793; 56 LEd 1114]; Finley v. U.S. (5th Cir. 1959) 271 F2d 777, 781.) Where overt acts are alleged to have been committed in more than one jurisdiction, it is essential in a conspiracy prosecution that the jury be properly instructed as to venue. (See Green v. U.S. (5th Cir. 1962) 309 F2d 852, 856.) "This is no pedantic, justice-defeating technicality. The dangers of abuse are manifold if the Government can obtain an indictment for conspiracy in a district other than the district where the offense was actually committed merely by alleging that one act, which need never be proved, was committed in that district. Surely the Government should not be able to procure an indictment . . . without having to prove to the satisfaction of a jury that at least one act was done in the district of the indictment." (Green v. U.S., supra, at p. 856; Jones v. State (GA 1975) 219 SE2d 585, 591.)

    For example, in U.S. v. Miller (10th Cir. 1997) 111 F3d 747, 750, the court instructed the jury regarding venue for the conspiracy charge as follows: "You are instructed that a conspiracy may be prosecuted in any district where the conspiracy began, continued, or the conspiracy ended." This instruction removed an element from the jury’s consideration because it "did not inform the jury that it was required to make findings on the issue of venue, or that to enter a guilty verdict it must find either an agreement or some overt act by a conspirator in [the state where the charges were brought]. Rather, after instructing the jury on finding a conspiracy, the court simply declared that the conspiracy, if found, could be prosecuted where it began, continued, or ended. As a consequence, the jury was never required to make a determination that venue existed in the case." (Miller, 111 F3d at 750; see also generally, McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § F(1) [Venue].)

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "A defendant’s mistake of fact may negate criminal intent for both conspiracy and a substantive offense." (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § J [Mistake of Fact]; see also U.S. v. Ruiz (11th Circuit 1995) 59 F3d 1151, 1154.)

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE:  There may be no criminal intent if the defendant believed he was helping the government.  (See U.S. v. Ruiz (11th Cir. 1995) 59 F3d 1151, 1154; U.S. v. Anderson (11th Cir. 1989) 872 F2d 1508, 1518-19; see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § J [Mistake of Fact].)

    See also NCJIC 252.10.1.1 [Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement].

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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RATIONALE:  Without a special instruction the jury may not understand that the prosecution must prove beyond a reasonable doubt that the lawyer's conduct did not constitute lawful, bona fide legal representation.

POINTS AND AUTHORITIES: "[A] lawyer accused of participating in his client’s fraud is entitled to present evidence of his professional, including ethical responsibilities, and the manner in which they influenced him." (U.S. v. Seago (5th Cir. 1994) 39 F3d 1299, 1309; see also U.S. v. DeLucca (5th Cir. 1980) 630 F2d 294, 301 [jury may consider canons of professional ethics as factor in determining whether lawyer’s participation in the offense was willful]; U.S. v. Kelly (11th Cir. 1989) 888 F2d 732, 743-44 [lawyer-defendant’s testimony as to his professional and ethical obligations was erroneously excluded]; McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § N(2).)

    For example, in United States v. Kellington (9th Cir. 2000) 217 F3d 1084, 1099-1101, the trial court properly granted new trial motion because of the erroneous restriction of expert opinion to mere "background" and not permitting defense counsel to argue counsel’s ethical duties to the client as a defense theory to obstruction of justice based on destruction of evidence. Obstruction of justice is a specific intent offense, and legal representation is a defense. Expert opinion evidence is admissible in such cases (United States v. Cavin (5th Cir. 1994) 39 F3d 1299, 1309), and defendant "had a fundamental right under the 6th Amendment to present his theory of the case in closing arguments."  (See Herring v. New York (1975) 422 US 853 [95 SCt 2550; 45 LEd2d 593].)

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

See also NCJIC Federal Models By Offense: Obstruction Of Justice (Title 18 - Chapter 73).

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PRACTICE NOTE: It has been held that there is no such crime as attempted conspiracy. (See State v. Sanchez (AZ 1993) 846 P2d 857, 861; see also U.S. v. Anzalone (CMA 1995) 43 MJ 322, 324 [theory of attempted conspiracy to commit espionage rejected]; LaFave & Scott, Substantive Criminal Law (West, 1999 Supp.) § 6.4(d), fn. 105; Robbins, Double Inchoate Crimes (1989) 26 Harv. J. Legis; Wharton’s Criminal Law (West, 15th ed. 1998 ) § 682, p. 546 [no crime of attempted conspiracy].)

See generally, NCJIC 305.3.11 [Conspiracy].

See generally, NCJIC 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].