Band at the execution

[wpbinzel]

Today’s federal criminal conspiracy laws, while certainly more detailed, are not unrecognizable from those used in the trial of Lincoln conspirators. The essence is an agreement between two or more persons in furtherance of a criminal enterprise. Under some aspects of the today’s law, the mere existence of criminal conspiracy is sufficient to warrant conviction; however, conviction under 18 U.S.C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.

Criminal enterprises may involve one or many conspiracies. In an analogy suggested by the U.S. Supreme Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement. That would certainly apply to all who knew of Booth’s change in tactics (i.e., murder instead of abduction); and would also suggest that an agreement to assault the President with the potentially lethal force necessary to kidnap him would constitute a “common agreement” with the use of lethal force to murder him. While that may be subject to debate, at least the argument can be made.

In determining whether they are faced with a single conspiracy or a “rimless collection of overlapping schemes,” the courts will look for the existence of a common purpose; interdependence of various elements of the overall play; and overlap among the participants. Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.

If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.

Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities.

As Roger noted in his discussion of vicarious liability, anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself (18 U.S.C. 2). If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense.

[I apologize for the length of this post, but lawyers can never say in few words when many more will do; and I thought it to be an opportunity to add to the understanding of the core concepts of federal criminal conspiracy law. Most of the above comes from an excellent overview prepared by Charles Doyle of the Congressional Research Service, a division of the Library of Congress. Mr. Doyle’s complete overview with citations may be found at: http://fas.org/sgp/crs/misc/R41223.pdf ]