Criminal Law - Conspiracy
Conspiracy, in itself, is often a crime. Still, it is sometimes merged, as a lesser included offense, in which it can be shown to have been a vital component. (We will return to this avenue later in this article.)
A criminal conspiracy comes into being when two or more persons agree to commit a criminal act, or to make use of unlawful means to accomplish an act which is not unlawful. It is unique in that it is one of the few crimes which require at least two participants.
Only two other crimes, dueling and adultery fell beneath this rubric. Dueling is now obsolete, and adultery is rarely a crime. It is brought forth, if at all, as a factor in divorce litigation. While originally viewed as between a man and a woman, one or both of whom were married to others, the development of the civil partnership and the probability of same-gender marriage is likely to expand this purview.
A number of legal scholars believe the acceptance of conspiracy as a crime allows an unfair advantage to the prosecution. A separate trial may take place regarding it, with evidence, generally inadmissible, allowed to be brought forward. Given the freedom of courts to interpret the mental state required, one judge (Learned Hand) defined it as “the darling of the modern prosecutor’s nursery.” This statement is based on the emphasis placed upon thought rather than conduct, subjective interpretation rather than concrete fact.
Hypothetically, Ray has a doctoral degree in Russian literature. Connie, a friend, tells him she is struggling with an article on a 19th century Russian novel. Her deadline at hand, she asks Ray to tell her all he can about the writing and publication of Tolstoy’s War and Peace. Ray does so. Later, he learns Connie bought a copy of War and Peace at a garage sale, and sold it to a rare book collector as a first edition. If she is prosecuted, Ray will have no involvement.
Still, what if Connie, in hopes of strengthening her defense, testifies that Ray provided the information and urged her to commit the crime so that they might split its proceeds? Ray may then face a charge of conspiracy to defraud.
Oliver Wendell Holmes wrote
“Intent to commit a crime is not in itself criminal. There is no crime in a man intending to commit a murder the day after tomorrow. The law only deals with conduct.”
The Star Chamber was an English court of the royal palace during the 15th and 16th centuries which dealt with both civil and criminal matters. Its purpose was to hear in secret; cases that the lower courts could not fairly judge, due to the fact that the defendants were of such importance that their power and influence would impede justice.
While first set forth in 1611, in the English Star Chamber, the law governing conspiracy has remained consistent, in most respects, in our modern system. A major difference lies in the fact that early law denoted it as a misdemeanor. In our own day, it is often viewed as a felony.
Overview: Jack and Jill as co-conspirators
Let’s say Jack and Jill go up that proverbial hill after having agreed to do so in order to steal the pail of water. In legal terms “fetch” is somewhat ambiguous. For the purposes of this example, this water springs from a well owned by a neighbor.
Though they may attempt to claim their youth as a defense, the prosecution can, in all probability, prove they possessed the appropriate mens rea (guilty mind), to commit this theft. Still, as Jack broke his crown (bumped his head) during his fall, the pair seemed to have abandoned this plan. Jurisdictions differ as to whether they are guilty of conspiracy. Many maintain that the plan itself contains the actus reus element of a crime. Others hold that the actus reus must consist of an actual step towards the commission of the crime.
Alternatively, if Jack and Jill’s parents told them they had paid the neighbor for the water, the children would lack the required mens rea.
A different twist: Jack and Jill live next door to each other. Jack thinks the neighbor is willing to give him and Jill the water in exchange for his having milked his cows that morning. If Jack does not convey this belief to Jill, Jill alone had the mens rea to steal. Thus, there was no conspiracy due to the fact that it takes at least two people to form a conspiracy, and Jack lacked the needed mens rea.
The plot thickens. Having lost their impetus to pilfer the water, Jack and Jill decide instead to steal little Bo-Peep’s sheep. Bo-Peep has already lost them. Therefore Jack and Jill if charged with conspiracy can raise the defense of impossibility; they could not steal what was already lost. This defense may or may not succeed, as they did agree to permanently deprive Bo-Peep of her flock.
Two early cases
Conspirators John Mason and Thomas Tyler
In 1799, cobbler William Grieve, (hereinafter G.), allowed a young man named Tyler to work as his errand boy, (in current terms a live-in courier), probably in exchange for food, housing and a small salary.
Once this arrangement had lasted some while, an older man, claiming to be Tyler’s father, visited the shoe shop to say that, out of gratitude for his kindness to his son, he would be glad to recommend Grieve to a businessman, a Mr. Mason, (hereinafter M.), for whom he performed clerical duties.
Next day, M. appeared at G.’s shop, seemingly to evaluate the deftness of his craftsmanship in the making of shoes. Satisfied, he asked G. to bring a trunk filled with several quality leather pairs of shoes to his place of business at a specified time. While no definite price was arranged, the parties agreed that, if M. approved the shoes, he would pay G. in ready money.
Having arrived at the designated time with a trunk of shoes, M. claimed to be in too great a hurry to examine them. Reaching his hand into his pocket, he brought it out, without any money whilst asking G. to return the following morning to receive full payment. M. quickly left the premises. G. voiced to the clerk some alarm as to leaving his goods upon trust, without having received a penny in payment. The clerk, who had on the previous day claimed to be Tyler’s father, assured G. of M.’s absolute integrity.
Quote by Samuel Johnson
“We are inclined to believe those whom we do not know because they have never deceived us.”
Not surprisingly, when G. returned next day M. was not present and the shoes were gone. The clerk denied all knowledge of any transactions. G. was enraged, but having no written evidence of a contract or knowledge of where M. could be found was unable to resolve the matter.
Conducting his own search G. finally found M. and demanded he pay up or accept the results of his fraudulent dealings. Eventually, both the clerk Thomas Tyler and John Mason, were found guilty of conspiracy. They were sentenced to be whipped in public on the pillory followed by 2 years confinement in Newgate Prison.
Punishment in public
Stocks were two boards of wood with two apertures close to the ground that held either the hands or the feet.
The Pillory was often constructed on a platform and had three apertures that held the prisoner in an upright position by the head and the arms. The duration of punishment could be one hour or several days. The public were allowed to throw rotten food and other filth at the prisoners who often died from exhaustion and injury.
Conspirators John Davis and Benjamin Taylor
In 1727, 3 men appeared to intend to break into a victim’s home, but only two were genuinely prepared to do so. The third supposed conspirator had thwarted this plot by having alerted the police beforehand.
In terms of facts, Robert Legard, (hereinafter L.), a fairly wealthy man, had befriended John Davis (hereinafter D.) when D., after his release from prison, was destitute.
Apparently, L.'s ‘trust in D. grew to the point where D. was welcomed into L.’s home as a visitor. While benefiting from L.’s hospitality, D. must have been assessing the premises in terms of enrichment if he were to rob his benefactor.
Perhaps in quest of an accomplice, D., having met a Mr. Thomas Doler after observing him in a street fight, suggested he join him in this robbery, promising him a substantial share of its profits. He added that he had also found a third strong cohort, Benjamin Taylor. If L. resisted, he was to be shot and killed. In preparation for this attack, D. gave Doler a loaded pistol.
Doler, half-hearted in his initial agreement, now mentioned D.’s plan to a friend who served as a justice of the peace. Alerted to the enterprise, the police urged Doler to continue to appear to be an eager participant.
Hence, when the three approached L.’s house for their intended break-in, the police were in readiness. Once arrested and tried, John Davis and Benjamin Taylor were found guilty of conspiracy and sentenced to be held in the stocks for three days, after which each of them was consigned to a prison term of 6 months. Once released, they were forced to “give security” for a further 5 years. In all likelihood, this meant a form of suspended sentence.
Although Thomas Dolor had agreed to the original plan, his reporting it to the police was viewed as a withdrawal from the conspiracy.
Two recent conspiracy cases
John Drewe and John Myatt: a pair of nobodies?
In 1985, When John Drewe, (Hereinafter D.), among other aliases, met John Myatt, (hereinafter M., the two soon found they had symbiotic dreams. In truth, the chameleon-like M. could fashion a scheme to the vulnerability of any prey-if wealth could be gained by so-doing. Having gleaned M.’s frustration at his failure to market his art work, D. convinced him of his ability to succeed, if willing to copy the works of deceased, renowned painters.
Quote by Julian Barnes
“Sometimes there is a tender complicity between faker and victim. “I want you to believe that such-and-such is the case,” says the faker. “If you want to believe it too, and in order to cement that belief, you for your part are willing to give me a great deal of money, and I for my part will laugh behind your back-the deal is done.”
A tender complicity
It is axiomatic that many of the greatest figures in all the arts have lived and died in relative or complete poverty. Only after their deaths have their works commanded enormous prices in galleries, on auction blocks or via private art dealers. Collectors are prepared to invest huge sums in order to purchase such paintings. Indeed, if the price were too low, the legitimacy of the work would be questioned. As a team, D. and M. sold a good many fakes, with D. keeping far more than his share of the proceeds. During their 9-year partnership, while D. made well over a million pounds, he passed only one hundred thousand pounds onto M.
A waste of astuteness
Then, as often happens with successful fraudsters, D. allowed greed to outweigh his caution. As an increasing number of M.’s painting sold, buyers began to check their validity with experts. In addition, D. in order to garner administrators’ trust contributed two ostensibly fine works of art to England’s Tate Gallery.
This seeming benevolence, combined with various false credentials submitted by D., gained him permission to conduct research within the gallery’s private archives. This freedom, combined with his significant skills, enabled D. to change the provenance of various works in order to enhance the authenticity of M.’s paintings. In time, one gallery skeptic made contact with other experts, leading to evaluation by one painter’s widow.
In 1995, an accumulation of evidence led to arrest, and charges of fraud being brought against D. and M.
At D.’s trial, the judge stated, regarding D, that the venture had been “a waste of a clever, astute, hugely retentive brain.” Based upon conspiracy to defraud, among other charges, both D. and M. were sentenced to prison terms. Typical of his narcissistic perspective, D. said, after sentencing, “The whole art world is corrupt; why pick on me?”
The case of Cheng Chui Ping
“The smuggler is a person who, no doubt, highly blamable for violating the laws of the country is frequently incapable of violating those of natural justice, and would have been, in every respect, an excellent citizen, had not the laws of its country named that a crime which nature never meant to be so.” Adam Smith
Quote by Honore de Balzac
Despite the wisdom of Smith’s idea, the immigration laws of any nation, like other aspects of law, must be accepted.
Cheng Chui Ping generally known as “Sister Ping”, (hereinafter P.), first entered the U.S. legally, then became a citizen. The exact time when she decided to become a “snakehead”, a helper of Chinese people eager to leave their native land to come to the U.S. will perhaps never be known.
We may surmise that, like many large conspiracies, its emergence was gradual. At any rate, P. began flying to China and bringing “visitors” back with her. Rather than forcing them to commit to menial jobs until they had paid their debt to her, she retained them under supervision for a specified time-often 72 hours-while they gathered thousands of dollars, in meager but consistent amounts, from others. Once paid, P. would release them into New York’s Chinatown where they would become unrecognizable by most other races. Repayment would then be resolved between themselves and their creditors.
Evil incarnate or modern Robin Hood?
P.’s transactions, beginning in 1984, ended in 2000. Her urge to expand her market led to involving various co-conspirators, some of whom proved unsavory and even deadly. There is no evidence that she, at any time, condoned or knew of violence towards those she was aiding in their immigration attempts until after they happened. Still, in 2000, the authorities being aware of her implication in these acts, P. fled America for China. Once back in her homeland, her fears eased away, in her belief that she had eluded the American judicial system..
By this time, however, realizing many of those she had smuggled into America were well-ensconced and untraceable, the FBI and INS became determined to prosecute her. As China does not extradite criminals, P. would have escaped America’s judicial system, had she not visited Hong Kong. The authorities in this area, still adhering to a number of laws set down during British rule. Thus Hong Kong’s authorities allowed her to be arrested and brought, under guard, back to the U.S.
Once detained, she was tried in 2006. Although she insisted upon her innocence, the evidence against her was such as to have no effect. Her credibility was further undermined by a headline In the Daily News referring to her as “evil incarnate”. Still, to many in Chinatown, she was viewed as a female Robin Hood, in the sense of assisting the poverty-stricken to reach a land of hope and potential.
Still, according to one cynic: “When did Robin Hood earn two million dollars?”
By way of sentencing, P. received 5 years for conspiracy to smuggle people into the U.S., and an additional 30 years for further offenses. The aggregate sentences, running consecutively, will last for 35 years. Given that P was nearing 60 at the time, she will almost certainly squander her last days in confinement. There is a bleak irony in the fact that, due to her efforts to find freedom first for herself and then others, she will, in all likelihood, die in captivity.
Named after Francis Wharton, the first criminal law scholar to set it forth, no conspiracy exists where the offense in question requires two people, and only these two people are involved. It is analogous to a see-saw, which needs two seats in order to qualify as such.
By way of example, in order for an illegal drug transaction to take place, there must be a willing buyer and seller. The same is true of cases of other unlawful sales, such as that of guns, services of an intimate nature, or gambling. In Wharton’s view, conspiracy merges with the crime, and is therefore absorbed into it. Still, this only applies to a two-person endeavor. If one or more other person leaps aboard our above-mentioned see-saw, a conspiracy is born.
Wharton’s theory has not met with wholehearted acceptance in the legal community. It is not utilized outside the U.S. and has not been included in The Model Penal Code, a compilation of generally recognized laws and defenses. In addition, where it conflicts with a state statute, the statute prevails. (Some states have statutes regarding designated crimes, such as gambling or drug-trafficking. Still, the rule is followed in a number of states, and remains part of the legal lexicon.
Types of conspiracies: wheels and chains.
Complex conspiracies, such as drug cartels and money laundering schemes, tend to involve a large number of persons. As with nearly every aspect of life, the Internet has facilitated conspiracies by means of global connections. In a wheel conspiracy, individuals interact, for the most part, only with one leader.
This commander can be perceived as a hub, central to all other spokes in his circle. Indeed, this is often deliberate. Lack of knowledge regarding identities, locations and activities of fellow members minimizes the information available if one member is apprehended, or decides to report illegal acts /goals to a law enforcement agency.
Similarly, a chain conspiracy includes numerous members, but is sequential. Rather than being centralized in one all-knowing hub, conspirators are linked: A deals with B, who then deals with C, and so on. Akin to a wheel, the participants in a chain are often not disclosed to one another for the same security reasons.
Withdrawal from conspiracy.
At what point can a choice to opt out of a plan free one from the clutches of justice? There are times when a co-conspirator, based on conscience, decides to dissociate himself from his potential partners in crime.
In both the UK and U.S., withdrawal is a valid defense, if it meets the requirements. This can be shown by evidence that the person who claims to have withdrawn reported the intended crime to the police in time to prevent its commission, or made genuine efforts to prevent the carrying out of the crime in question. Some concrete proof must be provided in order for the defense of withdrawal to succeed. While reporting to authorities is one indicator, notification to former conspirators, in a timely manner, may be another. Timing is pivotal.
In a number of jurisdictions, reportage of the conspiracy must be shown to have prevented the intended crime from reaching fruition. In addition, disclosure made due to fear of being found out by the authorities negates the defense of withdrawal. To a large degree, this returns us to the mens rea element, in that the mental state impelling withdrawal is a primary factor.
Ultimately, one must withdraw before having made substantial steps towards assisting his cohorts. If, having provided the security code for entry into an office building after midnight, the provider alerts the police ten minutes before the intended crime is about to occur, he can hardly succeed in claiming to have withdrawn. True, this scenario is extreme and improbable. Still, it illustrates the ways in which honest withdrawal is culled from a pretense based solely on self-interest.
Conspiracy, as we have seen, is a complex and controversial aspect of law. Its major pitfall lies in its reliance upon mens rea, a state of mind which at best can only be judged by supposition. Still, in order to limit, to its utmost ability, the agreement between two or more persons to commit a criminal act detrimental to societal order, the crime of conspiracy is likely to be retained within the judicial arsenal.
- Keefe, Patrick Radden: The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream: Anchor 2010
- Lippman, Matthew Ross: Contemporary Criminal Law Concepts Cases and Controversies: Sage 2007
- Proceedings of the OLD BAILEY www.oldbaileyonline.org, Ref: t17270830-54 & t17991030-88 & t17930529-100
- Roe, Diana: Criminal Law: Hodder Education 2005
- Salisbury, Laney. Aly Sujo: Provenance: How a Con Man and a Forger Rewrote the History of Modern Art: Penguin 2010
- Schmalleger, Frank: Criminal Law today: An introduction with Capstone cases: Prentice Hall 2002
© 2013 Colleen Swan