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A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then

take some action toward its completion. The action taken need not itself be a crime, but it must indicate
that those involved in the conspiracy knew of the plan and intended to break the law. One person may be
charged with and convicted of both conspiracy and the underlying crime based on the same
circumstances.

For example, Andy, Dan, and Alice plan a bank robbery. They 1) visit the bank first to assess security, 2)
pool their money and buy a gun together, and 3) write a demand letter. All three can be charged with
conspiracy to commit robbery, regardless of whether the robbery itself is actually attempted or completed.

The "Agreement" Requirement

You might be wondering how exactly the agreement between two co-conspirators actually takes place.
First, the agreement does not need to be expressly conveyed. For instance, in the above example, Andy
isn't required to tell Dan and Alice in unequivocal terms, "I agree to commit a conspiracy with you,"
(although, that statement would surely be a prosecutor's dream and strong evidence of a criminal
conspiracy).

Instead, the agreement may be implicit or shown by the action of "two or more guilty minds," as required
under common law. Examples of evidence of an implicit agreement can include the appearance of the co-
defendants at transactions and negotiations in furtherance of the conspiracy such as a planning meeting.

It is important to note that courts have found that mere presence or association with those committing a
crime doesn't, by itself, make someone a co-conspirator unless there are other factors that collectively
point to an implicit agreement.

The Element of "Intent"

As with other specific intent crimes, your intention means everything. But that's not the only intent the
court will care about. Not only does one other individual in the conspiracy need to intend to agree, all
parties must intend to achieve the outcome.

Simply put, knowledge of a crime isn't enough to get you thrown behind bars. For instance, just because
your friend tells you he is going to burglarize a house, doesn't mean you are part of the conspiracy to
burglarize it. Not unless you also agree to help by acting as a getaway car or helping him scope out the
property ahead of time.

Penalties

A conspiracy conviction can yield some pretty tough penalties depending on the underlying crime. You
can be punished for both the conspiracy and the actual crime itself if, it were completed. For example, if
you are charged and convicted of conspiracy to commit robbery and the actual crime of robbery, you may
have to suffer the consequences of both. Additionally, in some cases if you are convicted of a conspiracy
to commit a felony, you may have to serve a mandatory minimum sentence.

Attempts
An attempted crime is one that wasn’t finished, which failed to achieve completion for one of two
reasons:

 The defendant did everything she set out to do, but failed. For example, she decides to shoot the victim,
buys the gun, follows the victim, shoots, but misses. This is known as a “complete attempt,” or
 The defendant does some of the acts needed to finish the crime, but is prevented from succeeding or
decides to quit. For instance, the defendant takes the steps noted above but changes her mind at the last
minute, or is prevented from continuing by the intervention of a police officer. This is known as an
“incomplete” attempt.
Can one “attempt” to do every crime?
A person can be convicted of attempting to commit only certain crimes—those that require “specific
intent.” Specific intent describes the defendant’s state of mind, which is to achieve the result that the
criminal statute prohibits. Specific intent crimes differ from general intent crimes, which require only the
intent to complete the physical act. For example:

 Murder is a specific intent crime because it requires the prosecutor to show that the defendant intended
the victim to die.
 Battery is a general intent crime, because it requires only that the prosecution prove that the defendant
intentionally hit the victim, not that he wanted to cause specific injury or harm.
It’s not easy to tell the difference between specific and general intent crimes. One way is to look at the
statute of the crime itself: Does the definition include a requirement that the actor intends the result?
Under this test, it’s clear why “receiving stolen property” is a specific intent crime, because its definition
includes receiving the property knowing that it is stolen.

What must the defendant do to constitute an “attempt?”


People must take a concrete, substantial step towards furthering their intent to break the law before they
will be guilty of an attempt. This is an act of perpetration (Step Four, above), not mere preparation (Step
Three). So, for example, purchasing the weapon, without more, won’t expose the actor to attempted
murder, but aiming it towards the victim and firing will.

How are attempts punished?


Interestingly, the crime of attempt wasn’t even a crime until the late 18th century (before that, “a miss was
as good as a mile”). After that, attempts were classified as misdemeanors, but today, almost all attempts
to commit a felony are themselves felonies. Attempts to commit specific felonies are often punished at
half the maximum allowed for the target crime; if the target is a capital crime or carries life in prison, the
attempt will be punished for a specific term of years.

Defendants who successfully complete a crime have also, in the course of their acts, attempted the crime.
Logically, they’ve committed an attempt and the resulting crime. They can be charged with both, and the
jury can be given both verdicts to choose from, but defendants cannot be convicted of both. In legal lingo,
the attempt “merges” with the concluded crime.

Conspiracy
The crime of conspiracy is another incomplete, or inchoate, crime. It’s an agreement, explicit or implied,
among two or more people, to commit a criminal act. But it’s a very controversial crime, because its
definition is so vague. Courts have struggled for years to differentiate mere ideas from agreements to
break the law; there’s a real risk that people will be punished for what they say, not for what they do.
Indeed, historically conspiracy laws have been used to suppress controversial activity, such as strikes and
dissent against public policies.

Is a mere agreement sufficient for a conspiracy to be formed?


Historically, the state did not have to prove that the defendants did any act to further the goal of the
agreement. But this led law enforcement to intervene prematurely, before anything dangerous had
happened, and to target what turned out to be banter. Accordingly, modern laws require one step, however
trivial, be taken by the actors toward furtherance of their goal. This is known as an “overt act,” and it need
not be an attempt to further the conspiracy. For example, making a phone call pursuant to the agreement,
or even attending a lawful meeting, may suffice. A single overt act taken by one member of the group
suffices to prosecute every member, even members who join the conspiracy after the act has taken place.

How do prosecutors prove an agreement?


The essence of a conspiracy is a mutual agreement to commit an illegal act or series of such acts. Every
member of the group need not agree to every detail of the arrangement, nor must every member agree to
commit each element of the offense. It’s enough if each member agrees to commit or facilitate some of
the acts that make up the target crime.

Prosecutors may establish an agreement with circumstantial evidence, from which juries can draw broad
inferences as to a mutual plan. One way of identifying a conspiracy is to ask whether the resulting crime
appeared to be “choreographed.” For example, imagine a car driven by Tom, in which Dick and Harry are
passengers. Tom stops the car, Dick and Harry get out, leave the doors open, accost and rob the victim,
jump back in the car, and Tom drives off. A jury could validly conclude that the robbery was planned by
all three, who could be prosecuted for conspiracy to rob and robbery itself.

What is the punishment for conspiracy?


Unlike the crime of attempt, conspiracy does not merge into the completed target act. As shown just
above, all three defendants face two charges each: conspiracy and robbery.

In a typical state statute, the punishment for conspiracy will parallel the punishment for the target crime,
so that conspiring to commit a misdemeanor will be a misdemeanor; and conspiring to commit a felony
will be a felony (though punished less severely than the target felony itself).

What are the defenses to conspiracy?


Defendants have offered several defenses to conspiracy charges, depending on the circumstances and the
laws of their states. Here are a few of the common ones.

Abandoning the plan. Sometimes defendants change their minds and abandon the criminal plan short of
accomplishing it. But a change of heart will not defeat a conspiracy conviction, because the crime is
complete once the agreement is formed or, in some states, once an overt act has taken place. But if a
conspirator withdraws from the plan (imagine that Dick gets out of the car but runs away), that person at
least avoids liability for the completed crime.

Conspiring to commit a crime that requires the agreement of two people. Some crimes, such as
adultery and bigamy, by definition require the willing cooperation of at least two people. Put another way,
one person alone cannot commit these crimes, which also include dueling, selling contraband, and
receiving a bribe. Many courts will not allow convictions for conspiring to commit them, but some will
disallow a conspiracy conviction only when the target offense has in fact been accomplished or attempted.
Interestingly, this rule disappears in some situations when more than two persons are involved in the
conspiracy – the conspiracy and the target offense convictions are each allowed to stand.

Impossibility. Finally, defendants sometimes raise the issue of factual or legal impossibility as a defense
to conspiracy. For example, are Jane and Carol guilty of conspiring to murder someone if the intended
victim is already dead? Or, are they guilty of conspiring to steal trade secrets that turn out not to be trade
secrets at all, or of conspiring to receive stolen property that isn’t really stolen? Most courts will not
recognize these “impossibilities” as a defense to conspiracy.

Solicitation

Solicitation is another incomplete crime, consisting of inviting, requesting, commanding, hiring, or


encouraging another person to commit a crime. Traditionally, one could solicit only felonies, but modern
law applies to misdemeanors, too.

What must the defendant intend when soliciting a crime?


The prosecution will need to prove to the jury that the defendant intended the other person to do just what
the defendant suggested. For example, a joking suggestion to harm someone, which is taken seriously by
the listener, won’t rise to the crime of solicitation if the defendant can convince the jury that the words
were meant in jest.

What must the defendant do to justify a conviction for solicitation?


The defendant must invite, request, and so on, but the actual target crime need not be committed, or even
attempted, for the accusation of solicitation to stick. For example, if Able asks Bob to rob Victor, but Bob
refuses, Able has still solicited Bob. However, if the request is never communicated, the crime may be
attempted solicitation, as when Mary writes to Kay, asking Kay to perform an illegal act, but Kay never
receives the letter: Here, Mary may be guilty only of attempted solicitation.

Solicitation is a very “incomplete” crime


Solicitation is perhaps the most incomplete of the three crimes discussed in this article. If the listener
agrees to do the act, the two have formed a conspiracy; and if the act is accomplished or simply
attempted, they become principals (responsible for the crime itself or the attempt). So, on the time-line of
criminal thinking and behavior, it’s at the far end, where merely asking someone to do a criminal act,
without regard to that person’s response, is criminal behavior. In a sense, a solicitation is an attempted
conspiracy.

CONSPIRACY
18 U.S.C. 371 makes it a separate Federal crime or offense for anyone to conspire or agree with someone
else to do something which, if actually carried out, would amount to another Federal crime or offense. So,
under this law, a 'conspiracy' is an agreement or a kind of 'partnership' in criminal purposes in which each
member becomes the agent or partner of every other member.
In order to establish a conspiracy offense it is not necessary for the Government to prove that all of the
people named in the indictment were members of the scheme; or that those who were members had
entered into any formal type of agreement; or that the members had planned together all of the details of
the scheme or the 'overt acts' that the indictment charges would be carried out in an effort to commit the
intended crime.

Also, because the essence of a conspiracy offense is the making of the agreement itself (followed by the
commission of any overt act), it is not necessary for the Government to prove that the conspirators
actually succeeded in accomplishing their unlawful plan.

What the evidence in the case must show beyond a reasonable doubt is:

First: That two or more persons, in some way or manner, came to a mutual understanding to try to
accomplish a common and unlawful plan, as charged in the indictment;

Second: That the person willfully became a member of such conspiracy;

Third: That one of the conspirators during the existence of the conspiracy knowingly committed at least
one of the methods (or 'overt acts') described in the indictment; and

Fourth: That such 'overt act' was knowingly committed at or about the time alleged in an effort to carry
out or accomplish some object of the conspiracy.

An 'overt act' is any transaction or event, even one which may be entirely innocent when considered
alone, but which is knowingly committed by a conspirator in an effort to accomplish some object of the
conspiracy.

A person may become a member of a conspiracy without knowing all of the details of the unlawful
scheme, and without knowing who all of the other members are. So, if a person has an understanding of
the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is
sufficient to convict him for conspiracy even though he did not participate before, and even though he
played only a minor part.

Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may
have associated with each other, and may have assembled together and discussed common aims and
interests, does not necessarily establish proof of a conspiracy. Also, 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 conspirator.

A combination or agreement of two or more persons to join together to attempt to accomplish some
unlawful purpose. It is a kind of 'partnership in criminal purposes,' and willful participation in such a
scheme or agreement, followed by the commission of an overt act by one of the conspirators is sufficient
to complete the offense of 'conspiracy' itself even though the ultimate criminal object of the conspiracy is
not accomplished or carried out. To establish the offense of 'conspiracy' the Government must prove:

(1) That two or more persons in some way or manner, came to a mutual understanding to try to
accomplish a common and unlawful plan, as charged in the indictment; (2) That the person willfully
became a member of such conspiracy; (3) That one of the conspirators during the existence of the
conspiracy knowingly committed at least one of the methods (or 'overt acts') described in the indictment;
and (4) That such 'overt act' was knowingly committed at or about the time alleged in an effort to effect or
accomplish some object or purpose of the conspiracy.

A person may become a member of a conspiracy without full knowledge of all of the details of the
unlawful scheme or the names and identities of all of the other alleged conspirators. So, if a person has an
understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one
occasion, that is sufficient to convict him for conspiracy even though he had not participated before and
even though he played only a minor part.

Of course, mere presence at the scene of a transaction or event, or the mere fact that certain persons may
have associated with each other, and may have assembled together and discussed common aims and
interests, does not necessarily establish proof of a conspiracy. Also, 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 conspirator.

An agreement between two or more persons to do an unlawful act or an act which may become by the
combination injurious to others. Formerly this offence was much more circumscribed in its meaning than
it is now. Lord Coke describes it as 'a consultation or agreement between two or more to appeal or indict
an innocent person falsely and maliciously, whom accordingly they cause to be indicted or appealed and
afterwards the party is acquitted by the verdict of twelve men.'

The crime of conspiracy, according to its modern interpretation, may be of two kinds, Damely,
conspiracies against the public, or such as endanger the public health, violate public morals, insult public
justice, destroy the public peace, or affect public trade or business.

To remedy these evils the guilty persons may be indicted in the name of the commonwealth. Conspiracies
against individuals are such as have a tendency to injure them in their persons, reputation, or property.
The remedy in these cases is either by indictment or by a civil action.

In order to render the offence complete, there is no occasion that any act should be done in pursuance of
the unlawful agreement entered into between the parties, or that any one should have been defrauded or
injured by it. The conspiracy is the gist of the crane.

By the former laws of the United States, a willful and corrupt conspiracy to cast away, burn or otherwise
destroy any ship or vessel with intent to injure any underwriter thereon, or the goods on board thereof, or
any lender of money on such vessel, on bottomry or respondentia, is made felony, and the offender
punishable by fine not exceeding ten thousand dollars and by imprisonment and confinement at hard labor
not exceeding ten years.

By the old Revised Statutes of New York it is enacted that if any two or more persons shall conspire
either: 1. To commit any offence, or; 2. Falsely and maliciously to indict another for any offence, or; 3.
Falsely to move or maintain any suit, or; 4. To cheat and defraud any person of any property, by any
means which are in themselves criminal, or; 5. To cheat and defraud any person of any property, by
means which, if executed, would amount to a cheat, or to obtaining property by false pretences, or; 6. To
commit any act injurious to the public health, to public morals, or to trade and commerce, or for the
perversion or obstruction of justice, or the due administration of the laws; they shall be deemed guilty of a
misdemeanor. No other conspiracies are there punishable criminally. And no agreement, except to
commit a felony upon the person of another, or to commit arson or burglary, shall be deemed a
conspiracy, unless some act besides such agreement be done to effect the object thereof, by one or more
of the parties to such agreement.
When a felony has been committed in pursuance of a conspiracy, the latter, which is only a misdemeanor,
is merged in the former; but when a misdemeanor only has been committed in pursuance of such
conspiracy, the two crimes being of equal degree, there can be no legal technical merger.