WCC (1/27/21)

Assignment
• For today, you should have started reading pp.
61-89 (Ch. 3 – Conspiracy)
• Next assignment will be pp. 90-108 (Ch. 3 –
Conspiracy)
 Issues
• Ch. 2 – Corporate and Individual Liability (pp.
21-60)
– Fourth theory of corporate liability: willful
ignorance
– Individual Liability: U.S. v. Park (pp. 50-57)
• Ch. 3 – Conspiracy (pp. 47-108)
– Conspiracy generally
• Plurality requirement
• Overt act requirement
• 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)
 Fourth Theory of Corporate Liability: Willful
Ignorance or Blindness
• For the past several decades, courts have
consistently held that conscious avoidance of
knowledge itself amounts to knowledge.
• Casebook (p. 49) equates constructive
knowledge with willful ignorance, but this
equivalence is wrong.
 Conscious Avoidance Doctrine in Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070
(2011) (pp. 49-50, 64)
• “(1) the defendant must subjectively believe
that there is a high probability that a fact
exists and
• (2) the defendant must take deliberate actions
to avoid learning of that fact.”
• Note: without (2), (1) would just be
recklessness.
 Constructive Knowledge
• Sufficient information or evidence was available to
defendant.
– Example: The information was published.
• Constructive knowledge, like willful ignorance, is
almost always considered to be knowledge, but it
may not be willful (deliberate).
• Note: constructive knowledge sometimes
confused with negligence because both involve
the notion that the defendant should have known.
Individual Culpability
U.S. v. Park, 421 U.S. 658 (1975) (pp. 50-57)
 Central Legal Questions
• When lower-level employee commits crime on
the job, he/she is generally culpable (assuming
mens rea, etc.).
• But what about employee’s superior? Is he/she
also culpable?
– Is conscious wrongdoing required?
– Is negligent wrongdoing required?
– Or is it a matter of strict liability (responsible
relationship)?
 Federal Food, Drug and Cosmetic Act (21
U.S.C.A. § 331(k))
• The following acts and the causing thereof are
prohibited: ... The alteration, mutilation,
destruction, obliteration, or removal of the whole
or any part of the labeling of, or the doing of any
other act with respect to, a food, drug, device,
tobacco product, or cosmetic, if such act is done
while such article is held for sale (whether or not
the first sale) after shipment in interstate commerce
and results in such article being adulterated or
misbranded.
 Facts
• [T[he defendants had received food that had
been shipped in interstate commerce.
• [T]hey caused [the food] to be held in a
building accessible to rodents and to be
exposed to contamination by rodents.
• These acts were alleged to have resulted in
the food's being adulterated ...
• [Park, CEO of Acme Markets, a national retail
food chain] … related that upon receipt of [a
letter from the FDA], he had conferred with
the vice president for legal affairs, who
informed him that the Baltimore division vice
president 'was investigating the situation
immediately and would be taking corrective
action and would be preparing a summary of
the corrective action to reply to the letter.'
• [Park] stated that he did not 'believe there
was anything (he) could have done more
constructively than what (he) found was being
done.'
 Case History
• In a five-count information filed in the United
States District Court for the District of
Maryland, the Government charged Acme and
Park with violations of the Federal Food, Drug
and Cosmetic Act.
Summary of District Court’s Jury Instructions

• Responsible relationship sufficient for liability.

• Conscious wrongdoing not necessary.
 District Court’s Jury Instructions
• The main issue for your determination is
only ... whether the Defendant held a position
of authority and responsibility in the business
of Acme Markets.
• An individual is liable if it is clear, beyond a
reasonable doubt ... that the individual had a
responsible relation to the situation, even
though he may not have participated
personally.
• The individual is or could be liable under the
statute, even if he did not consciously do
wrong.
• … [H]e must have had a responsible
relationship to the issue.
• The issue is, in this case, whether ... Park, by
virtue of his position in the company, had a
position of authority and responsibility in the
situation out of which these charges arose.
 District Court Result
• The jury found respondent guilty on all counts
of the information, and he was subsequently
sentenced to pay a fine of $50 on each count.
 Fourth Circuit
• Reversed the conviction and remanded for a new trial.
• Interpreted SCOTUS’s Dotterweich decision to mean that
–while conscious wrongdoing is not necessary for
liability,
–non-conscious wrongdoing (negligence) still is
necessary for liability.
• Implication is that responsible relationship is not
sufficient.
• Again, at least negligent wrongdoing is also necessary.
 Supreme Court's Decision (C.J. Burger)

• Reversed Court of Appeals and sided with

District Court.
• Neither conscious wrongdoing nor negligent
wrongdoing is necessary for criminal liability.
• Responsible relationship sufficient.
• Omissions to fulfill corporate duties are
attributable to people responsible for fulfilling
them.
 C.J. Berger: Why Responsible Relationship Is
Sufficient for Individual Liability
• [Dotterweich interpreted the Federal Food,
Drug, and Cosmetic Act, s 301(a), 21 U.S.C.A. s
331(a), to hold] criminally accountable the
persons whose failure to exercise the
authority and supervisory responsibility
reposed in them by the business organization
resulted in the violation complained of …
• … [T]he offense was committed 'by all who…
have … a responsible share in the furtherance
of the transaction which the statute outlaws.'
• … Dotterweich and the cases which have
followed reveal that in providing sanctions which
reach and touch the individuals who execute the
corporate mission … the [Federal Food, Drug, and
Cosmetic] Act imposes not only
– a positive duty to seek out and remedy violations
when they occur
– but also, and primarily, a duty to implement measures
that will insure that violations will not occur.
• … The Act does not … make criminal liability
turn on 'awareness of some wrongdoing' or
'conscious fraud.'
• The duty imposed by Congress on responsible
corporate agents is, we emphasize, one that
requires the highest standard of foresight and
vigilance …
Similar Theory of Liability in International
Crim ...
Elements of Command (or Superior)
Responsibility
 Element #1
• Superior-subordinate relationship; the former
has “effective control” over the latter.
– Effective control is a “material ability” to prevent
and punish transgressions
 Element #2
• Superior has actual knowledge or constructive
knowledge (reason to know) that the
subordinates were about to commit or were
committing a crime of genocide, crimes
against humanity, or war crimes.
– Reason to know: there is some information
available to superior which would put him on
notice of possible unlawful acts.
 Element #3
• Superior fails to take necessary and
reasonable measures either to prevent the
acts or to punish the perpetrators after the
acts.
 The Main Difference Between Park Decision and
Command Responsibility in International Criminal Law

• In Park, only elements ##1 and 3 are

necessary for culpability.
• #2 (knowledge) is not.
• Pretty radical.
Ch. 3, Conspiracy (pp. 61-108)
Individual Responsibility = Foundation of
Criminal Justice System
I Didn’t Do It = Effective Defense Unless…
 1. Punishable Omission
• Failure to fulfill statutory duty.
 2. Causal or Responsible Relationship to
Wrongdoer
• Ordering or soliciting another person to do
“dirty work”
• Accomplice liability (aiding and abetting)
• Co-conspirator’s overt acts and crimes in
furtherance of conspiracy
 Conspiracy = Form of Group/Collective
Responsibility
• But conspiracy is not the same as collective
punishment – i.e., punishment of innocents
for another person’s crime.
– Routinely practiced by Hitler and Stalin.
• Still, conspiracy is eerily similar to collective
punishment.
• Consistent with American criminal justice
system?
Danger of Conspiracy = Prejudicial Effect

• Conspiracy trial can sometimes amount to

guilt by association.
• Just being co-defendant with obvious “bad
guy” can make co-defendant look guilty.
 Conspiracy Theories
• Conspiracy theories are designed to explain, to
make sense of things, but they are often short on
evidence.
• Too many people, including jurors, still accept them
because the narrative is so fascinating or powerful.
• In other words, the sheer power of the narrative
can offset or outweigh the paucity of evidence.
• Jurors are susceptible to the same kind of
irrationality.
 Plurality Requirement (p. 63)
• Requires agreement and therefore at least two
actors.
• Traditionally, mere agreement to commit crime
was sufficient.
• Many jurisdictions, including federal government,
require an overt act in furtherance of agreement
as evidence of conspiratorial intent.
– 18 U.S.C. § 371 (conspiracy against US)
– 18 U.S.C. § 1962(d) (RICO conspiracy)
• Again, at least two persons required.
• These two persons can be
– two corporations
– a corporation and its subsidiary
– a corporation and its agent, but there must be at
least one other agent or co-conspirator
• In other words, strangely, corporation and its agent are
two different persons but not legally distinct enough to
satisfy two-person requirement.
 Two Exceptions to Plurality Requirement

• 1. Defendant may be convicted of conspiracy

even if co-conspirator is never arrested, tried,
or convicted. (p. 58)
• 2. In some jurisdictions, defendant may be
convicted of conspiracy even if co-conspirator
was actually an undercover police officer.
– Unilateral theory of conspiracy (minority approach)
– as opposed to bilateral theory of conspiracy
(majority approach).
 Undercover Police Officer
• Has specific intent to enter into conspiratorial
agreement but not specific intent to commit
object offense(s).
• Intends to arrest co-conspirator before object
offense(s) committed.
• No conspiracy in bilateral conspiracy
jurisdiction.
Overt Act Requirement (pp. 63-64)
• Required by most jurisdictions, including federal gov't,
as corroborating evidence of conspiratorial intent.
• Very easy to satisfy. Need not meet the actus reus of
attempt (either dangerous proximity or substantial
step).
• Act by one co-conspirator is enough to satisfy overt
act requirement for all co-conspirators.
– Salinas v. U.S., 522 U.S. 52 (1997)
– Similar to Pinkerton Doctrine: crime by one co-conspirator
generally attributable to all other conspirators.
LA = Unilateral or Bilateral Jurisdiction?

• State v. Kihnel, 488 So.2d 1238, 1241 (La. Ct.

App. 1986).
• “Under the bilateral formulation for conspiracy
adopted by our legislature when it enacted
La.R.S. 14:26, we conclude that in Louisiana
there can be no conspiracy when the only
supposed co-conspirators are a state informer
and an undercover police officer who both
only pretend to conspire.”