The crime of conspiracy consists of an agreement between two or more people to commit a specific crime and one of the members of the conspiracy commits an act in furtherance of the conspiracy.
For example, let’s revive the characters in our hearsay hypothetical and say Beauregard, who is still married, has a thing for Amanda that resembles a pickle in his pocket, but she loves Peter Piper. In fact she told Beauregard that she had just moved into Peter Piper’s apartment. They are living together and discussing getting married.
Poor Beauregard! Unrequited love is difficult, but not as difficult as being married to Zelda, who is a trust fund baby and a dominatrix to boot, literally. The money is nice, but he loses access to it, per the prenup, if he leaves her. Talk about golden handcuffs. My oh my!
Over a few beers one night, make that quite a few beers, Beauregard confesses his love lust for Amanda to his friend Igor Ivarson and they agree that Peter Piper needs to die.
Amanda and Peter Piper do not know Igor, so Beauregard and Igor agree that Igor will shoot Peter Piper when Peter and Amanda arrive home from work the next day.
Beauregard tells Igor that he has another friend, Bernie the Zipper, who knows how to keep his mouth shut, and Bernie has a knack for obtaining guns with obliterated serial numbers. So, the deal is Beauregard will acquire an untraceable gun from Bernie and give it to Igor. When Igor commits the murder, Beauregard will be with Zelda doing what comes naturally, to her. Thus, he will have an alibi.
Pleased with themselves and their plan, they have another beer, and drink to better days.
Beauregard calls Bernie the next morning and tells him he wants to buy a gun and Bernie being Bernie, he agrees to sell him one that’s untraceable, but it’s going to take some time to find one. Bernie tells Beauregard that he’ll call him when he’s ready to deliver.
Later in the day after he sobers up, Igor calls Beauregard and tells him that what seemed like a cool idea no longer is a good idea. In fact, he thinks the idea is crazy and he just called the cops and spilled the pickles, er beans. They are on their way to pick him up for questioning.
What, if any, are the legal consequences?
First, ask yourself what are the elements of the crime of conspiracy? Elements, by the way, are what a prosecutor must prove beyond a reasonable doubt to obtain a conviction.
Elementary, my dear Watson. Eh, what?
The first element is proof of an agreement to commit a specific crime. Check. Beauregard and Igor agreed to participate in a murder with each of them performing specific acts to make it happen.
Is that it?
Nope, you forgot the overt act. Remember the phone call.
Beauregard called Bernie and told him he wanted to buy an untraceable gun. While the call by itself was not illegal, Beauregard called him to facilitate the commission of the crime. Therefore, he committed an overt act in furtherance of the conspiracy.
Well, the crime of conspiracy was completed with the overt act.
Does it matter that the object of the conspiracy was not completed, or that it was impossible to complete, given Igor’s decision to withdraw from the conspiracy and call the police?
No. Impossibility is not a defense.
Does it matter that Igor Ivarson did not know that Beauregard had called Bernie the Zipper before he called the police?
No, if it was reasonably foreseeable that Beauregard would call Bernie, which it was because Beauregard told him that he was going to call him.
By calling the police, did Igor withdraw from the conspiracy in timely fashion so that he is not guilty of conspiracy?
Yes, to withdraw from a conspiracy, a member of the conspiracy must contact the police and inform them of the conspiracy and then stop participating in the conspiracy.
Did Bernie join the conspiracy?
No, he did not know why Beauregard wanted the gun and did not agree to provide it so that it could be used to kill someone. He did not know that there was a conspiracy to kill Peter and did not agree to join it.
Since a conspiracy requires at least two people and Igor withdrew from the conspiracy, can Beauregard be convicted of conspiracy when he is the only member?
Yes, because the crime of conspiracy came into being after the agreement to kill Peter when he committed the overt act in furtherance of the agreement by calling Bernie the Zipper.
Does Beauregard have a defense to the charge based on voluntary intoxication or diminished capacity?
No, because his effort the next morning to contact Bernie the Zipper demonstrated that he recalled what he agreed to do and he followed up on what he agreed to do when he was sober.
The crime of conspiracy is easy to prove. Conspiracies typically begin to unravel when a member of the conspiracy is arrested and agrees to inform on his coconspirators in exchange for leniency. In drug cases, the cooperating coconspirator usually introduces an undercover cop to his fellow coconspirators as an interested buyer or seller of drugs. Several deals are negotiated and then the big bust happens during a deal involving sufficient drugs to trigger minimum mandatory sentences.
Under federal law (the United States Sentencing Guidelines), the sentences are based on the total amount of drugs dealt over the course of the conspiracy and each member of the conspiracy is liable for the whole amount even though they may not have known about some of the deals. In this way, wives and girlfriends who relay messages to their husbands and boyfriends from coconspirators generally knowing that the messages relate to drug dealing, find themselves in a hell of a jam when the bust goes down because they are liable for all the drugs dealt by all members of the conspiracy, even though they knew very little about what was going on.
We also have been seeing federal prosecutions for conspiracy to commit acts of terrorism where the feds have inserted an undercover informant into a group of malcontents who talk about revolution in order to get them to do what they like to talk about doing. The informant facilitates the offense.
Does that constitute entrapment, which is a defense?
Depends on whether the malcontents were predisposed to commit the offense and the undercover informant merely provided them with an opportunity to do what they already were predisposed to do. If so, entrapment is not a defense.
To keep fear alive so that the government can continue to eliminate our civil rights without a peep in protest, the feds continue to seek out malcontents and infiltrate them with instigators to get their periodic busts and the attendant headlines. They operate as close to the line on entrapment as they can and sooner or later they are going to cross it.
Cross posted at my new law blog and the Smirking Chimp.