WCC (2/1/21)

Assignment
• For today, you should have read pp. 61-89 (Ch.
3 – Conspiracy)
• For Wed., please read pp. 90-108 (Ch. 3 –
Conspiracy)
• Next assignment will be pp. 109-29 (Ch. 4 –
mail fraud, wire fraud, etc.)
 Issues
• Ch. 3 – Conspiracy (pp. 47-108)
– Conspiracy generally
• Conspiracy vs. attempt
• Wheel conspiracy vs. chain conspiracy
• Joinder
• Single vs. multiple conspiracy
• Ch. 3 – Conspiracy (pp. 47-108)
– Conspiracy generally
• Advantages to prosecution of conspiracy charge
• F.R.E. Rule 801
• Mens rea
• Withdrawal from conspiracy
• MPC § 5.03
• 18 USC § 371
• Factual impossibility is not a defense to § 371 charge
• Justice Jackson’s criticisms of conspiracy law
• Conspiracy vs. accomplice liability
• Conspiracy cases
– Pinkerton v. U.S. (pp. 105-07)
– Kotteakos v. U.S. (pp. 83-88)
– U.S. v. Arch Trading (70-73)
– U.S. v. Rigas (74-82)
– U.S. v. Lewis (65-67)
– U.S. v. Jimenez Recio (pp. 90-92)
– Krulewitch v. U.S. (pp. 93-97)
– Smith v. U.S. (99-102)
What’s Difference Between Recklessness and
Willful Ignorance?
• Recklessness = conscious disregard of
substantial and unjustifiable risk of causing
criminal harm.
• Willful ignorance = deliberate omission to
investigate red flags.
• But they sound like the same thing. Both seem
to involve knowledge of a substantial risk.
 Doctrinal Difference
• Willful ignorance requires establishing not
merely carelessness but deliberate
indifference.
• Carelessness is usually motivated by laziness
or undue optimism. (Example: speeding)
• These motives are more innocuous than what
motivates deliberate indifference: plausible
deniability.
 Evidentiary Difference
• Less evidence required to establish
recklessness than to establish actual (as
opposed to constructive) knowledge.
 Conspiracy vs. Attempt
• Conspiracy is principal charge against defendants
who attempt, but fail, to commit white collar crimes.
• Casebook (p. 61) points out that there is no federal
statute that criminalizes attempts generally.
• Instead, different statutes criminalize specific kinds
of attempts:
– 18 U.S.C. 1503. Federal obstruction of justice
(criminalizing “endeavors” to obstruct justice).
– 26 U.S.C. 7201. Criminal tax evasion (criminalizes “willfully
attempt[ing] in any manner to evade or defeat any tax.”)
 Merger Doctrine
• In federal law, conspiracy – unlike attempt –
does not merge with objects of conspiracy. (p.
108)
• So defendant may be found guilty of both
conspiracy and object of conspiracy
– Example: conspiracy to commit securities fraud
and securities fraud itself.
MPC §1.07(1)(b) Wanted Merger Doctrine to
Apply to Conspiracy
 § 1.07. Method of Prosecution When Conduct
Constitutes More Than One Offense.
(1) Prosecution for Multiple Offenses; Limitation on
Convictions. When the same conduct of a
defendant may establish the commission of more
than one offense, the defendant may be
prosecuted for each such offense. He may not,
however, be convicted of more than one offense if:
... (b) one offense consists only of a conspiracy or
other form of preparation to commit the other ...
 Mens Rea (pp. 64, 68-69)
• Defendant must specifically intend to join
conspiracy.
• This specific intent breaks down into two sub-
elements:
– intentionally enter into an agreement
– intend to achieve those objectives
• Sometimes courts consider defendants to
have satisfied mens rea if they intentionally
entered into scheme with mere knowledge
(including conscious avoidance) of scheme’s
illegality rather than specific intent to achieve
illegal objectives.
Mens Rea – Required and Not Required
What government must prove
Defendant specifically intended (1) to Defendant specifically intended that
enter into conspiratorial agreement
and (2) that object offense(s) be
committed.
Many courts have relaxed (2) to
knowledge.
What government need not prove
all the object crimes be committed.
Defendant knew all the details of the
object crimes.
Defendant knew identities of all the
alleged co-conspirators.
Defendant knew of circumstances
providing for federal jurisdiction (e.g.,
that victim was federal police officer).
So jurisdiction can be matter of strict
liability.
Withdrawal from Conspiracy (pp. 98-
99)
• U.S. v. Gypsum, 438 U.S. 422, 464-65 (1978):
withdrawal requires “affirmative acts
inconsistent with the object of the conspiracy
and communicated in a manner reasonably
calculated to reach coconspirators.”
• So can commit conspiracy and then undo guilt
for crime by completely and voluntarily
renouncing conspiracy.
• May be effective as long as criminal objectives
of conspiracy have not yet been achieved.
Advantages to Prosecution of Conspiracy
Charge
 Advantage #1: Increased Leverage
• Government can often use conspiracy both to
criminalize civil offenses and to obtain harsher
penalties for minor crimes.
 Advantage #2: Burden of Proof
• Relatively easy to convince juries that there
was a meeting of the minds.
• Tantamount to prosecuting for mere thoughts
alone.
 Advantage #3: Joinder Can Have Prejudicial
Effect
• Joinder of defendants (for single conspiracy) is
more efficient and makes it easier to convict
most/all of them.
• All tarred with the same brush despite
different levels of evidence against each.
 Advantage #4: Expanded Jurisdiction

• Overt act by any defendant is attributable to

all.
• Conspiracy charge may be brought in any
district where agreement was entered into or
overt act in furtherance of conspiracy was
committed.
Advantage #5: Expanded Evidence
• Scope of relevant evidence expanded by fact
that all acts by co-conspirators in furtherance
of conspiracy are potentially relevant.
 Advantage #6: Extended Statute of
Limitations
• Even if all criminal objectives have been
achieved and even if charges for object
offenses are time-barred, all co-conspirators
can still be charged with conspiracy up to 5
years after last overt act. (p. 98)
• So all it takes is one overt act to start the clock
running all over again for everybody.
 Example
• Walter and Jesse entered into conspiracy to
cook and sell meth on Sept. 9, 2016.
• They successfully cooked meth and sold most
of the meth on Sept. 9.
• Walter kept the remainder.
• Statutes of limitations for meth manufacture
and distribution have expired.
• It is now Sept. 8, 2021.
• Without telling Jesse, Walter sells some meth
to a stranger.
• The statute-of-limitations clock now starts for
not only Walter but also Jesse.
• In other words, the statute of limitations for
their conspiracy now ends on Sept. 8, 2026.
 Advantage #7
• Conspirator may be tried and convicted even if
no other co-conspirators are tried or
convicted.
• Most common reasons for not trying other co-
conspirators:
– They died
– They can’t be found
– Immunity
 Advantage #8: Non-Hearsay
• Co-conspirator’s statements in the course and
furtherance of conspiracy are not considered
hearsay under FRE 801(d)(2)(E).
 F.R.E. Rule 801. Definitions That Apply to
This Article; Exclusions from Hearsay
(d) Statements That Are Not Hearsay. A statement
that meets the following conditions is not hearsay:

(2) An Opposing Party's Statement. The statement is

offered against an opposing party and:

... (E) was made by the party's coconspirator during

and in furtherance of the conspiracy.
 Translation
• F.R.E. Rule 801(d)(2)(E) means that an out-of-
court statement
– (a) made by defendant’s co-conspirator during and
in furtherance of conspiracy
– (b) that tends to incriminate defendant
• is not considered hearsay and is therefore
admissible evidence.
 Example of Hearsay
• Defendant charged with conspiracy to commit
armed robbery and armed robbery.
• Witness Bill testifies to conversation with
Charlie, a friend of Defendant.
• Bill says: “Charlie said that Defendant told him
he robbed the liquor store.”
• This is classic hearsay. Unreliable because
defense can’t cross-examine Charlie.
Example of F.R.E. Rule 801(d)(2)(E)
• Charlie and Defendant were part of conspiracy
to rob liquor store.
• Bill testifies that he overheard Charlie say to
Defendant before reaching liquor store: “I’ve
got my gun. Do you?”
• This is not hearsay.
 Advantage #9: No Corroboration
Requirement
• http://lawprofessors.typepad.com/comparative_
law/2014/03/can-real-corroboration-requiremen
ts-prevent-wrongful-convictions.html
• There is currently no federal corroboration
requirement for accomplice testimony, snitches,
or one-witness identification.
– See, e.g., United States v. Florez, 447 F.3d 145, 155
(2nd Cir. 2006) (“[A] federal conviction may be
supported ‘by the uncorroborated testimony’ of even
a single accomplice witness ‘if that testimony is not
incredible on its face and is capable of establishing
guilt beyond a reasonable doubt.’”).
 But …
• “Most courts require … that the government
adduce further proof – in addition to the co-
conspirator’s statement – of the existence of
the conspiracy.” (casebook, p. 97)
– U.S. v. Silverman, 861 F.2d 571 (9th Cir. 1988)
 J. Jackson's Criticisms of Conspiracy Law
(concurrence in Krulewitch v. U.S., 336 U.S. 440
(1949) (pp. 95-97))
 Objection #1: Too Vague
• The modern crime of conspiracy is so vague
that it almost defies definition.
• [E]ven when appropriately invoked, the
looseness and pliability of the doctrine
present inherent dangers which should be in
the background of judicial thought wherever it
is sought to extend the doctrine to meet the
exigencies of a particular case.
• A recent tendency has appeared in this Court
to expand this elastic offense and to facilitate
its proof.
 Objection #2: Flexible Venue Conflicts with 6th Am.
Right to Be Tried in Jurisdiction Where Crime Was
Committed
• An accused, under the Sixth Amendment, has
the right to trial 'by an impartial jury of the
State and district wherein the crime shall have
been committed.'
• The leverage of a conspiracy charge lifts this
limitation from the prosecution and reduces
its protection to a phantom, for the crime is
considered so vagrant as to have been
committed in any district where any one of
the conspirators did any one of the acts,
however innocent, intended to accomplish its
object.
 Objection #3: Guilt by Association
• The hazard from loose application of rules of
evidence is aggravated where the Government
institutes mass trials.
• [T]he order of proof of so sprawling a charge is
difficult for a judge to control.
• As a practical matter, the accused often is
confronted with a hodgepodge of acts and
statements by others which he may never
have authorized or intended or even known
about, but which help to persuade the jury of
existence of the conspiracy itself.
 Objection #4: Circularity
• [A] conspiracy often is proved by evidence that is
admissible only upon assumption that conspiracy
existed.
• What J. Jackson most likely had in mind = evidence
of conspiracy being admitted on the unproven
assumption that there was a conspiracy:
– Judge admits testimony that would have been
inadmissible as hearsay on the grounds that it’s from a
co-conspirator and therefore non-hearsay.
– This testimony is then used to prove conspiracy.
Objection #5: Co-Conspirators' Testimony Need
Not Be Corroborated
• [I]n federal practice there is no rule preventing
conviction on uncorroborated testimony of
accomplices, as there are in many jurisdictions,
• and the most comfort a defendant can expect
is that the court can be induced to follow the
'better practice' and caution the jury against
'too much reliance upon the testimony of
accomplices.'
Casebook Qualifies Objection # 5 (p. 97)

• Most courts now require the government to

corroborate co-conspirator's statement that
there was indeed a conspiracy in the first
place.
18 U.S.C. § 371. Conspiracy to commit offense
or to defraud United States.
• If two or more persons conspire either
– to commit any offense against the United States,
or
– to defraud the United States, or any agency
thereof in any manner or for any purpose,
• and one or more of such persons do any act to
effect the object of the conspiracy,
• each shall be fined under this title or
imprisoned not more than five years, or both.
• If, however, the offense, the commission of
which is the object of the conspiracy, is a
misdemeanor only, the punishment for such
conspiracy shall not exceed the maximum
punishment provided for such misdemeanor.
 “any offense against the U.S.” = Violation of
Federal Law
• U.S. need not be target of offense. Target
could be private party.
• Could be civil, not criminal, offense.