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Conspiracy Powered By Docstoc

I.    Definitions
      A. Common Law
         1. An agreement by two or more persons to commit a criminal act or series
             of criminal acts, or to accomplish a legal act by unlawful means
         2. Conspiracy is so vague that it almost defies definition
         3. It is predominantly mental in composition because it consists primarily of
             a meeting of minds and an intent
         4. Conspiracy is both an inchoate offense and a complicity doctrine
      B. Model Penal Code § 5.03(1)—a person is guilty of conspiracy with another
         person or persons to commit a crime if with the purpose of promoting or
         facilitating its commission he:
         1. agrees with such other person or persons that they ore one or more of them
             will engage in conduct that constitutes such crime or an attempt or
             solicitation to commit such crime; or
         2. agrees to aid such other person ore persons in the planning or commission
             of such crime or of an attempt or solicitation to commit such crime
                                                          
II.   Punishing Conspiracies: Why we Punish
      A. Conspiracy as an Inchoate offense: Preventive law Enforcement
         1. Conspiracy laws allow police officers to arrest persons whom they believe
             intend to commit a criminal offense
         2. Allows them to stop crimes earlier than attempt laws do
         3. An agreement to commit a criminal act is concrete and unambiguous
             evidence of the actor’s dangerousness and the firmness of their criminal
         4. Fills in the gaps left by attempt law
      B. Group Criminality: Special Dangers and Weaknesses
         1. Dangers
             a. Two people united to commit a crime are more dangerous than one or
                  both of them separately planning to commit the same offense
             b. A party is less likely to abandon their criminal plans out of fear of co-
                  conspirators, loyalty to them, or enhanced morale arising from the
                  collective effort
             c. Collectivism promotes efficiency through division of labor
             d. Group criminality makes the attainment of more elaborate crimes
             e. Combination in crime makes it more likely that other crimes will be
                  committed that are unrelated to the original purpose for which the
                  group was formed
         2. Weaknesses
             a. With more people involved there is an enhanced risk that someone will
                  leak information
             b. There is a greater danger that some of the parties will turn against the

              c. Or someone might try to convince colleagues to desist from their
                  criminal endeavor
                                                            
III.   Punishing Conspiracies: How Much?
       A. In General
          1. Common Law
              a. Modern statutory treatment of conspiracy varies widely among the
              b. At common law conspiracy was a misdemeanor
              c. In most states, conspiracy is punished less severely than the target
          2. Model Penal Code
              a. Grades a conspiracy to commit any crime other than 1st degree murder
                  at the same level as the object of the conspiracy
              b. If the conspiracy has multiple objectives then the conspiracy is graded
                  on the most serious of the target offenses
       B. Punishment When the Target Offense is Committed
          1. Common Law
              a. The offense of conspiracy does not merge into the attempted or
                  completed offense that was the object of the conspiracy
              b. The non-merger doctrine does not make sense if:
                  i.       The main purpose of conspiracy law is to provide the police
                           with an opportunity to prevent commission of target offense
                  ii.      The focus of the offense is on the dangerousness of the
                           individual conspirator
              c. The non-merger doctrine does make sense if one focuses on the
                  alternative rationale of attacking the special threats that conspiratorial
                  groupings represent
              d. It is also a deterrent to the formation of conspiracies
              2. Model Penal Code—a person may not be convicted and punished for
                  both conspiracy and the object of the conspiracy or an attempt to
                  commit the target offense, unless the prosecution proves that the
                  conspiracy involved the commission of additional offenses not yet
                  committed or attempted
                                                            
IV.    Conspiracy: The Agreement
       A. In General
          1. An agreement to commit an unlawful act or series of acts
          2. An express agreement does not need to be proved
          3. An agreement can exist although not all of the parties to it have
              knowledge of the details or each other, as long as each party is aware of its
              essential nature
          4. A conspiracy exists even if a conspirator does not agree to commit or
              facilitate each and every part of the substantive offense
          5. There must be present with each conspirator a communion of a mind and
              will outside the self of the conspirator

        6. Even though agreements are hard to prove, it has become the prosecutor’s
            greatest advantage
        7. The courts have permitted broad inferences to be drawn from evidence of
            acts, conduct, and circumstances
        8. A conspiracy may be inferred from a development of a collocation of
     B. Distinguishing the Agreement from the Group that Agrees
        1. Conspiracy describes the agreement that constitutes the offense for which
            the parties may be punished
        2. The essence of a conspiracy is the agreement and not the group of
     C. Object of the Agreement
        1. At common law, the object of a conspiracy must be to do either an
            unlawful act or a lawful act by criminal or unlawful means
        2. If the legislature has not made a specified act criminal it is unfair to
            surprise people by punishing the agreement to commit the non-criminal
     D. Overt Act
        1. At common law conspiracy is complete upon formation of the unlawful
        2. Some states require proof of the commission of an overt act in furtherance
            of the conspiracy
        3. Does not have to go as far as an attempt
        4. Any act, no matter how small, is sufficient if performed in pursuance of
            the conspiracy
        5. The overt act does not have to be illegal
        6. The proof of a single overt act by one member of the conspiracy is enough
            to prosecute every member of the conspiracy
        7. Helps to separate the truly dangerous agreements from banter
     E. Model Penal Code
        1. In General
            a. Four types of agreements fall w/in the definition of conspiracy
                i.      Commission of an offense
                ii.     Attempt to commit an offense
                iii.    Solicitation of another to commit an offense
                iv.     Aiding another person in the planning or commission of an
            b. The agreement is the core of the conspiracy
        2. Object of the Agreement—the object of the agreement must be a criminal
        3. Overt Act
            a. For misdemeanors or felonies of 3rd degree—need overt act
            b. For felonies of 1st and 2nd degree—no overt act needed
                                                        
V.   Mens Rea
     A. In General

   1. Common law conspiracy is a specific intent crime
      a. Intent to agree
      b. Intent that the object of their agreement be achieved
   2. At times the mens rea required for conspiracy will be greater than that
      required for the target offense
B. Special Issues
   1. “Purpose” v. “Knowledge”: The Meaning of Intent
      a. The specific intent of the conspiracy is the intent that the object of the
          agreement be achieved
      b. The common law term “intent” encompasses both the mental state of
          purpose and knowledge
      c. Should either state of mind be used to demonstrate a conspiracy or
          only a proof of purpose that the conspiratorial objective be achieved?
      d. Argument for Purpose—conspiracy laws should be reserved for those
          with evident criminal objective, not just anyone who knows about it
      e. Argument for Knowledge—society has a compelling interest in
          deterring people from furnishing their wares and skills to those whom
          they know will use them unlawfully
   2. Mens Rea Regarding Attendant Circumstances
      a. The specific-intent element of conspiracy applies to the proscribed
          conduct or results of conduct that are the object of agreement
      b. The federal conspiracy statute does not require any greater mens rea as
          to attendant circumstance (those that are unknown to the conspirators)
          than is embodied in the substantive offense itself
      c. Example—a person may be convicted of assault upon a federal officer
          as long as she has the requisite intent to commit the assaultive acts,
          even if she does not know that the intended victim was an officer
   3. Corrupt-Motive Doctrine
      a. In addition to the usual mens rea requirements for conspiracy, the
          parties must also have a corrupt or wrongful motive for their actions
      b. Malum-in-se offenses has no additional requirements—the parties
          must have sufficient knowledge of the relevant facts so that they can
          appreciate the their conduct is wrong
      c. Malum prohibitum offenses—corrupt-motive doctrine acts as an
          exception to the rule that ignorance of the law is no excuse—in
          absence of knowledge of the law, the parties lacked a corrupt motive
C. Model Penal Code
   1. A person is not guilty of conspiracy unless the conspiratorial agreement
      was made “with the purpose of promoting or facilitating” the commission
      of the substantive offense
   2. Conspiracy does not exist if a provider of goods or services is aware of,
      but fails to share, another person’s criminal purpose
   3. Does not recognize corrupt-motive doctrine
   4. Does not determine what culpability if any regarding an attendant
      circumstance of substantive offense is required to convict for the offense
      of conspiracy

VI.    “Plurality” Requirement
       A. Common Law
          1. Must be at least two persons with the requisite mens rea to commit a
          2. There can be no common law conspiracy if one of the two parties lack the
              specific intent to commit the substantive offense
          3. The acquittal of one alleged conspirator traditionally requires the discharge
              of the remaining defendant, regardless of the jury’s reason for acquittal
          3. Plurality rule does not require two persons to be prosecuted and convicted
              of conspiracy (i.e. one party has not been apprehend, is dead or unknown)
          5. Modern rule is that a convicted conspirator is not automatically entitled to
              relief b/c of the acquittal of the remaining conspirator in a separate trial
          6. Criticism
              a. The rule undermined the law enforcement purpose of conspiracy laws
              b. One who believes he is conspiring w/ another is no less dangerous or
                  culpable simply because he was conspiring with an undercover officer
       B. Model Penal Code
          1. Unilateral approach to conspiracy liability
          2. Inquiry is focused on the culpability of the individual actor rather than the
              entire group
          3. There is no defense for party that the person with whom the actor
              conspired with :
              a. Has not been or cannot be convicted
              b. Is acquitted in the same or subsequent trial on the ground that she did
                  not have the intent to go forward with the criminal plan
VII.   Parties to a Conspiracy
       A. The Issue
          1. Kotteakos v U.S.
              a. Procurement of fraudulent loans involving a total of 32 people
              b. One giant conspiracy or 8 separate conspiracies with Brown, the
                  broker and each member of the 8
          2. Blumenthal v. U.S
              a. Sale of whiskey at a price in violation of the law
              b. Single conspiracy btw owner, distributor, and salesmen or separate
                  conspiracies: owner and distributors: distributors and salesmen
          3. United States v. Peoni
              a. Sale of counterfeit money
              b. Single conspiracy or separate conspiracies
          4. U.S. v. Bruno
              a. Conspiracy to import, sell, and possess narcotics
              b. Single conspiracy or separate: importers and middlemen: middlemen
                  and NY retailers: middlemen and TX-LA retailers
       B. Why the Issue Matter
          1. Liability for conspiracy—structure of a conspiracy will affect the
              number of counts of conspiracy of which a particular person may be
              prosecuted and convicted

   2. Liability of Parties for Substantive Offenses—the structure may affect
      an individual conspirator’s liability for the substantive crimes of others
      (one conspiracy, guilty of all crimes by all conspirators: many
      conspiracies, only guilty of crimes of specific conspiracy)
   3. Use of Hearsay Evidence—two exceptions
      a. An out-of-court admission by a Δ to a co-conspirator is admissible
      b. An out-of-court statement of a conspirator made by Δ while
          participating in the conspiracy may be introduced as evidence by co-
   4. Joint Trial—joint trials are more efficient but makes it more difficult for
      innocent or barely culpable Δs to separate selves from guilty co-Δs
   5. Overt-Act Requirement—structure is important b/c an over act by one
      conspirator renders a prosecution permissible against every other party to
      the same agreement
   6. Venue—a trial may be held in any juris. In which the crime was
      committed—in juris. where agreement was formed—in juris. where any
      member performed any act in its furtherance
C. Structure of Conspiracies
   1. Wheel Conspiracies
      a. Conspiracy is centered around one person or group who transacts
          illegal dealings with various other persons or groups
      b. For a wheel conspiracy to be complete there must be a rim around the
          wheel—the outer parties must know that the center is dealing with
          more than one group
   2. Chain Conspiracies
      a. Several layers of personnel dealing with a single subject matter, as
          opposed to a specific person
      b. Most often occur in business-like criminal activities, in which each
          person or group in the conspiracy has specialized responsibilities that
          link together various aspects of the unlawful conduct
      c. The longer the chain the more tenuous the relationship btw distant
   3. Chain-Wheel Conspiracies—very large conspiracy that has the features
      of both a wheel and a chain
D. Common Law Analysis
   1. In General
      a. To be regarded as a co-conspirator, a person does not have to know the
          identity or existence of every other member of the conspiracy
      b. Does not need to participate in every detail or event of the conspiracy
      c. Must have a general awareness of both the scope and the objective of
          the enterprise
   2. Wheel Conspiracies—where a rim does not exist the prosecutor must
      demonstrate that the spokes viewed their contacts with the hub as part of a
      plan broader than any individual spoke’s relationship with the hub—a
      shared single criminal objective, not just similar or parallel objectives btw
      similarly situated people

         3. Chain Conspiracies—large chain conspiracies are easier to prove than
            wheel conspiracies since the chain usually involve unlawful plans that
            cannot be performed unless every link successfully performs her
            responsibilities in the arrangement
         4. Chain-Wheel Conspiracy—Bruno—each link had a larger stake in the
      E. Model Penal Code
         1. Relevant Provisions
            a. § 5.03(1)—adopts the unilateral approach to conspiracy and provides
                 that a person is guilty of conspiracy if, with the purpose of promoting
                 or facilitating the commission of a crime, she agrees with another to
                 commit the offense
            b. § 5.03(2)—if a person guilty of conspiracy knows that a person with
                 whom he conspires to commit a crime has conspired with another
                 person or persons to commit the same crime, he is guilty of conspiring
                 w/ such other persons whether or not he knows their identity, to
                 commit such crime
         2. Example of the Code Approach: U.S. v. Bruno—Under MPC, the result
            represent the divergent culpabilities of the parties: Importer and
            middleman, who were deeply involved, are guilty of conspiring w/
            everyone: the retailers, who cared little about anything other than sales in
            their respective regions, would be guilty of conspiracy w/ middleman to
            sell drugs in their region and no more
                                                           
VIII. Objectives of a Conspiracy
      A. The Issue—confusion can arise in determining the number of conspiracies—
         how to conclude
         1. # of crimes
         2. # of victims
         3. # of statutes violated
         4. # of times parties got together to form conspiracy
      B. Common Law Analysis
         1. The nature an extent of the conspiracy must be determined by reference to
            the agreement which embraces and defines its objectives
         2. The one agreement cannot be taken to be several agreements and hence
            several conspiracies b/c it envisages the violation of several statutes rather
            than one
         3. The issue is whether one agreement was formed or several distinct ones
         4. Many courts avoid careful inquiry into the events and, instead, treat the
            initial agreement btw the parties as implicitly incorporating later
      C. Model Penal Code
         1. Provides that a person w/ multiple criminal objectives is guilty of only one
            conspiracy if the multiple of objectives are:
            a. Part of same agreement; or
            b. Part of a continuous conspiratorial relationship

         2. There is one conspiracy as long as there was a single and continuous
            association for criminal purposes
                                                          
IX.   Defenses
      A. Impossibility
         1. Common Law
            a. Majority rule is that neither factual impossibility nor legal
                impossibility is a defense to criminal conspiracy
            b. The impossibility claim may be less relevant to a conspiracy, which is
                primarily a mental offense, than it is to an attempt, which the primary
                focus is on the proximity of the conduct to the consummation of the
                target crime
         2. Model Penal Code—does not recognize a defense to factual or hybrid
            legal impossibility
      B. Abandonment
         1. Common Law
            a. In some juris. the conspiracy is complete the moment the agreement is
            b. Once offense is complete abandonment is not a defense
            c. If a person withdraws for conspiracy is not liable for subsequent
                crimes committed in furtherance of conspiracy by co-conspirators
            d. Once withdrawal occurs the statutes of limitation for conspiracy
                begins to run
            e. Usually abandoning party must communicate her withdrawal to each
                of co-conspirators
            f. Some courts require that must successfully dissuade others from
                pursuing their criminal objectives
         2. Model Penal Code—provides an affirmative defense to the crime of
            conspiracy if the conspirator renounces her criminal purpose and thwarts
            the success of the conspiracy under circumstance demonstrating a
            complete and voluntary renunciation of her criminal intent
      C. Wharton’s Rule
         1. Common Law
            a. In general—an agreement by two persons to commit an offense that by
                definition requires the voluntary concerted criminal participation of
                two persons cannot be prosecuted as a conspiracy
                i.      Wharton’s Rule is not a common law bar to a conspiracy
                        prosecution for:
                    A. Possession of a Controlled substance w/ the intent to deliver
                    B. Bartering, exchanging or offering an illegal narcotic to another
                    C. Unlawfully receiving or disposing of another person’s property
                ii.     Many cts limit the applicability of the doctrine to cases in
                        which the substantive offense has been consummated or
            b. Exceptions to the Rule

                i.     The “third party exception” provides that if more than the
                       minimum number of persons necessary to commit an offense
                       agree to commit the crime then Wharton’s Rule is not triggered
               ii.     Wharton’s Rule does not apply if the two persons involved in
                       the conspiracy are not the two people involved in committing
                       the substantive offense
        2. Model Penal Code—Wharton’s Rule is not recognized under the Code—a
            conspirator may not ordinarily be convicted and punished for both a
            conspiracy to commit a crime and for its attempt or successful commission
     D. Legislative-Exemption Rule
            1. Common Law—a person may not be convicted of conspiracy to
               violate an offense if her conviction would frustrate a legislative
               purpose to exempt her from prosecution for the substantive crime
            2. Model Penal Code
               a. A person may not be prosecuted for conspiracy to commit a crime
                   if she would not be guilty of the consummated substantive offense:
                   i.      Under the law defining the crime
                   ii.     As an accomplice in its commission
               b. A person is not guilty as an accomplice if she was the victim of the
                   prohibited conduct or if her conduct was “inevitably incident to its
               c. One who conspires with the immunized party remains subject to
                   conviction for conspiracy
X.   Circumstantial Conspiracies
     A. There is an express agreement that must be inferred from circumstantial
     B. People v. Lauria
        1. Motive
        2. Reliance—cooperation is essential
        3. Knowledge
        4. Controlled Action
        5. Common Understanding
        6. Parallel Action—unanimity of action—doing same thing at same time
        7. Stake in Venture
            a. Δ promotes that venture and has a stake in the outcome
            b. Provides goods or services at inflated prices
            c. A grossly disproportionate demand of item
            d. Knowledge inferred when good has no legitimate uses
            e. A high proportion of sellers business is from the conspirator
        8. Evidence of a common design


I.     Racketeer Influenced and Corrupt Organizations Act
       A. Racketeering Activity
          1. Any act or threat involving murder, kidnapping, gambling, arson, robbery,
              bribery, extortion, dealing in obscene matter, or dealing in controlled
          2. Any act which is indictable under any of the following provision under 18
              U.S.C. …big long list
          3. Any act which is indictable under title 29 of U.S.C. section 186 dealing
              with restrictions on payments of loans to labor organizations or section
              501(c) relating to embezzlement from union funds
          4. Any offense involving bankruptcy fraud, fraud in the sale of securities, or
              the felonious manufacture, importation, receiving, concealment, buying,
              selling, or otherwise dealing in controlled substance
       B. Enterprise—any individual, partnership, corporation, association, or other
          legal entity, and any union or group of individuals associated in fact although
          not a legal entity
       C. Pattern of Racketeering Activity—requires at least two acts of racketeering
          activity, one of which occurred after the effective date of this chapter and one
          which has occurred w/in ten years after the commission of a prior act of
          racketeering activity
II.    Misc. RICO Stuff
       A. In order to “conduct or participate directly or indirectly in the conduct of an
          enterprise’s affairs,” an individual must have some role in directing or
          managing the business of the enterprise
       B. Congress intended to authorize the single prosecution of a multi-faceted
          diversified conspiracy by replacing the inadequate “wheel and chain”
          rationales with the enterprise
       C. Helps to fill in gaps left by conspiracy
       D. Direct evidence of agreement is not necessary: “proof of such an agreement
          may rest upon inferences drawn from relevant and competent circumstantial
       E. Charges are brought by agreeing to participate in the enterprise through
          individual’s actions not by agreeing to commit each of the crimes through
          which the overall affairs of the enterprise were conducted
III.   Elements of RICO
       A. Enterprise: an entity separate from activities w/ continuity of structure &
       B. Racketeering: enumerated activity
       C. Pattern of Racketeering: at least two or more acts with a showing of
       D. Penalties are higher than in conspiracy and include treble damages in any civil
          suit arising out of the criminal action
       E. Cedric Kushner Promotions v. Don King


I.     Complicity: Overview to Accomplice and Conspiratorial Liability
       A. Two bases of complicity
          1. A person may be held accountable for the conduct of another person if he
             assists the other in committing an offense—accomplice or accessory
          2. A person may be held accountable for the conduct of a co-conspirator who
             commits a crime in furtherance of their agreement
       B. Distinction of Parties
          1. The “primary party” is the person who personally commits the physical
             act that constitutes an offense
          2. Any person who is not the primary party, but who is associated with him
             in commission of an offense is a “secondary party”
II.    Accomplice Liability: General Principles
       A. General Rules
          1. Definition of an “Accomplice”—S is an accomplice of P in the
             commission of an offense if he intentionally assists P to engage in the
             conduct that constitutes the crime
          2. Criminal Responsibility of an Accomplice: Derivative Liability
             a. Accomplice is not guilty of an independent offense of “aiding and
             b. As a secondary party, he derives his liability from P with whom he is
             c. The accomplice may be convicted of any offense committed by the P
                 with the accomplice’s intentional assistance
       B. Theoretical Foundations of Accomplice Liability
          1. In criminal law, an accomplice is held accountable for the conduct of the
             primary party because, by intentionally assisting the P the S voluntarily
             identifies himself w/ the other. His intentional conduct, therefore, is
             “equivalent to manifesting consent to liability under the civil law”
          2. “He who choice to aid in the crime forfeits his right to be treated as an
III.   Accomplice Liability: Common Law Terminology
       A. Parties to a Felony
          1. General Comments—almost every state has legislatively repealed the
             common law distinctions btw P and S in whole or in part
          2. Principal in the First Degree
             a. In General—principal in the first degree is the person who, with the
                 mens rea required for the offense:
                 i.      Physically commits the act that constitute the offense or;
                 ii.     Commits the offense by use of an “innocent instrumentality” or
                         “innocent human agent”
             b. Innocent-Instrumentality Rule

                 i.     In General—a person is the principal in the first degree if, with
                        the mens rea required, he uses a non-human agent or a non-
                        culpable human agent to commit the crime
                ii.     Difficulties in Application of the Rule
                    A. Some offenses, by definition, only prohibit conduct of
                        designated classes of persons
                    B. With other offenses, the nature of the proscribe action appears
                        to be “non-proxyable”—an action that cannot be committed
                        through an agent
         3. Principal in the Second Degree—one who is guilty of an offense by
            reason of having intentionally assisted in the commission thereof in the
            presence, either actual or constructive, of the principal in the first degree
         4. Accessory Before the Fact—helps with the planning but is not actually or
            constructively present when the crime is committed
         5. Accessory After the Fact—one who, with knowledge of another’s guilt,
            intentionally assists the felon to avoid arrest, trial, or conviction
      B. Principals Versus Accessories: Procedural Significance
            1. General Comments—Although the common law distinguished btw
                principals in the first and second degree, no matter of procedural
                significance depends on the dichotomy
            2. Jurisdiction
                a. A principal was prosecuted in the juris. in which the crime was
                b. An accessory had to be tried in the juris. where the accessorial acts
            3. Rules of Pleading—at common law, an indictment had to state
                correctly whether the party was a P or a S
            4. Timing of the Trial of Accessories—P and S could be tried jointly or
                separately, however, the S could not be tried b-4 the P
            5. Effect of Acquittal of the Principal—a S could not be convicted of a
                crime unless and until the P was convicted
            6. Degree of Guilt of Parties
                a. A S could not be convicted of a more serious offense, or higher
                    degree of an offense, then his P
                b. An exception existed—a S could be convicted of a higher degree
                    of criminal homicide than the P
IV.   Accomplice Liability: Assistance
      A. Types of Assistance
         1. In General—Three types
            a. Assistance by physical conduct
            b. Assistance by psychological influence
            c. Assistance by omission (assuming that the omitter has a duty to act
         2. Physical Conduct—most straight forward type of assistance
         3. Psychological Influence
            a. Occurs if S incites, solicits, or encourages P to commit the crime

            b. Mere presence at the crime scene is insufficient to convict a person as
                an accomplice
            c. Encouragement may be found from the expressed assurance of a
                bystander that he will not interfere with the perpetrator’s plan
            d. Proof of presence, coupled with a prior agreement to assist, will
                support a claim of encouragement, even if such assistance is not
        4. Assistance by Omission—a person is not an accomplice simply b/c he
            knowingly fails to prevent the commission of an offense, but such failure
            to act my serve a critical fact in determining that he affirmatively assisted
            by psychological influence
     B. Amount of Assistance Required
        1. In General
            a. A person is not a S unless his conduct in fact assists in the commission
                of the offense
            b. Once it is determined that S assisted P, however, the degree of aid or
                influence provided is immaterial. Any aid, no matter how trivial,
        2. Accomplice Liability and the Doctrine of Causation
            a. The Law
                i.      A S is accountable for the conduct of the P even if his
                        assistance was causally unnecessary to the commission of the
                ii.     S must help, but need not cause, the crime
                iii.    Proof that the P caused the social harm satisfies the
                        requirement of establishing the causal relationship of the
            b. Criticism of the Law
                i.      Causality serves two important functions
                     A. It guarantees that criminal liability will be personal rather than
                     B. Causation is a tool by which to calibrate the appropriate level
                        of wrongdoer’s punishment
                ii.     If a causal connection btw S’s assistance and P’s criminal
                        conduct were required the risk of attenuated liability would be
                iii.    Accomplice law can result in disproportionate punishment
V.   Accomplice Liability: Mens Rea
     A. In General—two parts to intent
        1. The intent to assist the P to engage in the conduct that forms the basis of
            the offense
        2. The mental state required for commission of the offense, as provided in
            the definition of the substantive crime

      B. Significant Mens Rea Issues
         1. The Feigning Accomplice—accomplice not only have the purpose that
             someone else engage in the conduct charged but must also share in the
             same intent which is required for commission of the substantive offense
         2. “Purpose” verses “Knowledge”: the meaning of Intent—most courts
             hold that a person is not a S unless he shared the criminal intent of the P;
             there must be a community of purpose in the unlawful undertaking
         3. Liability for Crimes of Recklessness and Negligence—since the S must
             want the offense to be committed by the other party it is impossible for a
             person to be an accomplice in the commission of a crime of recklessness
             or negligence
         4. Attendant Circumstances—as long as the S acts with the purpose of
             assisting the P in the conduct that constitutes the offense—and has the
             level of culpability required as to the prohibited result, if any, of the
             offense—he should be deemed a S if his culpability as to the attendant
             circumstances would be sufficient to convict him as a P
         5. Natural-and Probable-Consequences Doctrine—in most juris. a person
             encouraging or facilitating the commission of a crime may be held
             criminally liable not only for that crime, but for any other offense that was
             a “natural and probable consequence” of the crime aided and abetted
VI.   Liability of the Secondary Party In Relation to the Primary Party
      A. General Principals—for a S to be liable for an offense, there must be a P
      B. Liability When the Primary Party is Acquitted
         1. “Primary Party” As an Innocent Instrumentality—Δ is not a S, instead
             Δ is directly liable for committing the crime through the instrumentality—
             Δ’s guilt is not derived from another culpable person
         2. Acquittal on Basis of a Defense
             a. Justification Defenses—if P was acquitted b/c his actions were
                 justified then S should also be acquitted
             b. Excuse Defenses—when a P is acquitted on the basis of an excuse his
                 acquittal should not bar a successful prosecution of a S to who the
                 excuse does not extend
         3. Acquittal on Basis of Lack of Mens Rea
             a. In General—some scholars would permit conviction of a S, as long as
                 he assists in the commission of the actus reus of an offense—the
                 wrongful act of the P is imputed to the S, which when coupled with the
                 S’s own mens rea, creates the crime
             b. Special Problem: The Feigning Primary Party—a P who is feigning
                 lacks the mens rea to commit the crime therefore it is difficult to find S
                 as an accomplice since a person cannot be an accomplice to a crime
                 that has never occurred
      C. Liability of an Accomplice When the Primary Party is Convicted
         1. There is no bar to convicting an accessory before the fact or a principal in
             the second degree of lessor offenses or degree of offense than is proven
             against the P if the S is less culpable than the P

         2. Some believe it is alright to convict a S of a more serious offense than that
             committed by the P b/c each person has a different amount of culpability
         3. A person cannot be a S to a crime that didn’t occur
VII. Limits to Accomplice Liability
      A. Legislative-Exemption Rule—a person may not be prosecuted as an S to the
         commission of a crime if he is a member of the class of persons for whom the
         statute prohibiting the conduct was enacted to protect
      B. Abandonment—a person may avoid accountability for the subsequent
         criminal acts of the P by abandoning the criminal endeavor by communicating
         a withdrawal to the P and making an effort to neutralize the effect of his prior
VIII. Conspiratorial Liability: The Pinkerton Doctrine
      A. “Accomplice” v. “Conspiratorial” Liability
         1. Conspiratorial liability is potentially broader than accomplice doctrine
         2. Accomplice liability requires proof that an actor at least indirectly
             participated in the crime: agreement is not necessary
         3. One can be a conspirator w/o being an accomplice
         4. In most cases an accomplice is a co-conspirator
      B. Rule of Conspiratorial Liability—a party to a conspiracy is responsible for
         any criminal act committed by an associate if it:
         1. Falls w/in the scope of the conspiracy
         2. Is a foreseeable consequence of the unlawful agreement
      C. Comparison of Liability
         1. Conspiracy--A person may be held accountable for the natural and
             probable consequences of the conspiracy, which may result in extensive
             liability if the agreement is a broad one
         2. Accomplice--a person is only responsible for the natural and probable
             consequences of the particular crimes in which the person has
             intentionally assisted
IX.   Model Penal Code
      A. Forms of Liability
         1. In General—a person is guilty of an offense if he commits it “by his own
             conduct or by the conduct of another person for which he is legally
             accountable, or both
         2. Accountability Through an Innocent Instrumentality—one is guilty of
             the commission of a crime if he uses an innocent instrumentality to
             commit the crime
             a. A person is legally accountable for the conduct of and innocent or
                 irresponsible person if:
                 i.        Has the mental state sufficient for commission of the offense:
                 ii.       Causes the innocent person to engage in criminal conduct
             b. Code looks to “but for” test in showing accountability
         3. Miscellaneous Accountability—a person may be held accountable for
             another person’s conduct if the law defining an offense so provides
         4. Accomplice Accountability

      a. A person is legally accountable for the conduct of another person if he
          is an accomplice of the other in the commission of the criminal offense
      b. Two features
          i.      It is a form of liability independent of the innocent person
          ii.     Accomplice liability is dependant on the relationship of the
                  parties in the commission of a specific offense
   5. Rejection of Conspiratorial Liability—MPC rejects the Pinkerton
      Doctrine of conspiratorial liability—a person is not accountable for the
      conduct of another solely b/c he conspire w/ that person to commit an
B. Nature of an “Accomplice”
   1. Conduct
      a. In general—S is an accomplice of P in the commission of an offense
          if, with the requisite mens rea he:
          i.      Solicits P to commit the offense
          ii.     Aids, agrees to aid, or attempts to aid P in the planning or
                  commission of the offense
          iii.    Has a legal duty to prevent the commission of the offense, but
                  makes no effort to do so
      b. Accomplice Liability by Solicitation—S is an accomplice of P in the
          commission of an offense if he solicits P to commit the crime
      c. Accomplice Liability by Aiding—the MPC dispenses with many
          common law and statutory terms used to describe conduct that may
          constitute assistance and replaces them with the word “aids”
      d. Accomplice Liability by Agreeing to Aid—S is an accomplice of P if
          he agrees to aid P in the planning or commission of an offense even if
          S does not fulfill his promise—not the equivalent to conspiring to
          commit an offense
      e. Accomplice Liability by Attempting to Aid
          i.      In General—S may be held accountable as an accomplice of P
                  in the commission of the offense if he attempts to aid in the
                  planning or commission of the crime, even if his aid proves
          ii.     The Relationship of § 2.06 (complicity) to § 5.01 (Criminal
                  Attempt)—a person may be found guilty of attempt even when
                  a complicity charge cannot be brought since there was no
                  offense committed from which liability could be derived
      f. Accomplice Liability by Omission—if the omitter has a duty to
          prevent the commission of the offense and does not engage in
          prevention, he can be found as an accomplice if he as the required
          mental state
   2. Mental State
      a. In General—a person is an accomplice if he assists “with the purpose
          of promoting or facilitating the commission of the offense

        b. Liability for Crimes of Recklessness and Negligence—a person is
           an accomplice in the commission of an offensive if:
           i.      he was an accomplice in the conduct that caused the result
           ii.     he acted with the culpability, if any, regarding the result that is
                   sufficient for the commission of the offense
        c. Attendant Circumstances—the MPC does not address this issue
        d. Natural-and-Probable-Consequences Doctrine—MPC rejects the
           doctrine and as a result, the liability of an accomplice does not extend
           beyond the purposes that he shares
C. Liability of the Accomplice In Relation to the Perpetrator—an accomplice
   in the commission of an offense may be convicted of a crime, upon proof of
   its commission by another person, regardless of whether the other person is
   convicted, acquitted, or not prosecuted
D. Limits to Accomplice Liability—a person is not a S in the commission of an
   offense if any of three circumstances exist:
   i.      S may not be convicted as an accomplice if he was a victim
   ii.     S is not an accomplice of P if S’s conduct is “inevitably incident” to
           the condition of the offense
   iii.    A person is not an accomplice in the commission of a crime if he
           terminates his participation before the crime is committed and he: 1.
           Neutralizes his assistance: 2. Gives timely warning to the police of the
           impending offense or; 3 in some other manner attempts to prevent the
           commission of the crime


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