Agreement as the Criminal Act

Agreement as the Criminal Act

The first common-law element, an agreement between two or more persons, carries more weight than its place in the list suggests.¹ It also supplies the actus reus of the offense. Under the traditional definition the agreement itself is the culpable act, and the prosecution need not prove any additional overt act, meaning any further step taken to carry the plan out.² The coffee-table plan in the introduction shows the consequence. Okafor and Lind had done nothing toward the bank, and the offense was already complete because the act, the agreement, had already occurred.

The rule raises an obvious question: how can a meeting of minds be conduct when nothing visible has happened? One court answered that when two persons agree to carry an unlawful design into effect, “the very plot is an act in itself,” because the mind “proceeds from a secret intention to the overt act of mutual consultation and agreement.”³ The reasoning can be taken in steps. A private intention lives in a single head, where no one can observe it or prove it. Once a second person is involved, one must communicate the plan and the other must commit to it, and those exchanges are events that witnesses can describe. The same step from one person's wish to two people's joint resolve also makes the target crime more likely, since people committed to one another are less likely to abandon a plan than a lone wrongdoer.⁴ The law therefore has a reason to punish at that point, and the exchange of commitments is concrete enough to be called an act.

The two scenes differ in one fact, which is whether a second person joined in the plan. A related limit applies to people who happen to want the same thing. Two persons who each want a third person's property burned have not conspired, even if they have told each other so, unless they actually reached an agreement to do it.⁵ On an exam stem, a shared wish is not an agreement, and the first question is always whether the facts show that two people committed themselves to the same plan.

Because the agreement is the act, courts call it the gist or essence of the crime, and it is punishable even if its purpose is never achieved.⁶ The nature of the agreement also decides whether the required mental state is present, whether enough persons are party to it, and whether there is one conspiracy or several.⁷ The same feature creates a risk. Nothing physical separates the act from the intent behind it, and the intent to agree is so bound up with the agreement that courts have found the two hard to keep apart.⁸ A court can therefore drift into convicting on proof of a defendant's intent or later conduct without finding that an agreement was ever made. The law guards against that drift by being precise about what counts as an agreement and how one may be proved. Three questions follow: what kind of agreement the law requires, how a prosecutor proves one when conspirators rarely sign anything, and how the common-law rule that nothing beyond the agreement is required compares with modern statutes that add an act.

What Counts as Agreement

The common-law element is an agreement between two or more persons, and the word asks for less than a reader used to contracts might expect. What the law requires is a shared determination to accomplish a goal that the law of conspiracy punishes: the parties' minds must meet in an understanding to pursue the same objective by mutual action.¹⁰ The understanding need not be written down, spoken aloud, or stated in explicit terms, and a tacit understanding, one the parties never put into words, is enough.¹¹ As the Supreme Court put it in Iannelli v. United States, the agreement "need not be shown to have been explicit," and it can instead be inferred from the facts and circumstances of the case.¹²

Contract law looks for offer and acceptance, a meeting of the minds that the parties can usually point to. Conspiracy takes a deliberately looser view of the same idea.¹³ The looser definition follows from the people it has to reach. Those planning a crime rarely sign anything, and they have every reason to avoid creating a record that could come back to haunt them at trial.¹⁴ A rule that demanded written terms or spoken assent would let conspirators escape simply by leaving their understanding unspoken. The danger the offense addresses is the joint commitment, and a commitment can be fully real without any formality at all.

Two facts in that scene carry the result: each party is aware of the other's role, and each performs a part directed at the same end. Neither has to announce assent. The coordinated roles, together with each party's awareness of the other's, are the understanding, and a jury may treat them as proof of it. How far a jury may go in inferring an agreement from conduct, and where the inference has to stop, is the subject of the next subsection.

The agreement can be a single one even when the parties stand far apart. A person can join a conspiracy without knowing the identity of every other member and without having had direct dealings with them, and a person can join after the conspiracy has formed.¹⁵ Participants also need not be aware of every detail of the plan of operation.¹⁶ The reason is practical. Organized schemes are often divided so that each participant knows only a piece of the whole, and a rule requiring everyone to know everyone and everything would reward the organizers who divide the work most carefully.

The flexibility has a floor, which is the basic purpose of the plan. The parties do not have to know all of its details, but they must know why the group is acting and must knowingly take part in it.¹⁷ The government must prove that the conspirators agreed on the essential nature of the plan, though under Blumenthal v. United States it need not prove that all of them knew every detail or even who all the other participants were.¹⁸ In United States v. Stavroulakis, the Second Circuit affirmed a conviction for conspiracy to violate the money-laundering statute even though the defendant believed the money came from narcotics trafficking and the co-conspirator believed it came from gambling, because both had agreed on the essential scheme, which was to launder money.¹⁹ The details and the source of the funds differed, and the agreement still held. Someone who never learns what a scheme is for has nothing to agree to, which is why knowledge of the basic purpose sits beneath all the latitude described above.

Because the element is a meeting of minds, it takes at least two parties to it. The common-law idea of agreement is a combination of minds, and one person cannot conspire with only oneself.²⁰ The Model Penal Code takes a different, unilateral approach under which a defendant's belief that another is agreeing can be enough, a departure that matters when the Code's definition is reached below.²¹ The plurality requirement does not oblige the government to charge every participant, and a prosecution commonly proceeds against one defendant while other conspirators are mentioned in the charging document without being indicted.²² What the prosecution must show is that the defendant reached a genuine agreement with at least one other person.

The line the law insists on separates agreement from a shared wish. Two people may want the same unlawful result and may have told each other so, and the element is still missing unless they have reached an understanding that they will act toward it.²³ Knowledge works the same way, so that mere knowledge of another's plan does not satisfy the element without agreement.²⁴ The line is easy to lose in practice, because courts that stress that an agreement may be shown circumstantially sometimes forget that it must be proved at all.²⁵ A related contrast, between knowing that a venture is criminal and intending to advance it, is taken up with the mental state below.

The only difference between the two scenes is whether the parties committed themselves to act together. Wanting the same thing and knowing that the other wants it is a matching state of mind. A commitment to a joint course of action is what the law treats as the act of conspiracy.

Proving Agreement Circumstantially

Conspirators who plan a bank robbery do not sign a notarized contract, and they have every reason to keep their understanding off paper, so the prosecution rarely holds a document recording the terms.²⁷ Direct evidence usually exists only when a participant turns state's evidence or when investigators happen to record the planning session.²⁸ An offense whose act is an agreement would be close to unprovable if only direct proof counted. The law therefore lets the jury infer the agreement from the "facts and circumstances of the case" and from the course of conduct of the alleged conspirators.²⁹

The logic of the inference is that group conduct is usually the product of an earlier agreement.³⁰ An English jury instruction from 1837, Regina v. Murphy, gives the classic form: if two persons pursued the same object, often by the same means, one performing one part of an act and the other another part, the jury is free to conclude that they were engaged in a conspiracy to reach that object.³¹ People whose actions interlock, each supplying what the other needs, are rarely doing so by coincidence, and the better explanation is that they arranged it beforehand. The inference thus runs backward from coordination a witness can observe to an understanding no witness saw.

How little observable conduct can support that inference is shown by United States v. Alvarez. Undercover agents arranged to buy marijuana that was to be flown in from South America, and the two sellers told them that Alvarez, who was driving the agents' truck, would be at the off-loading site. When an agent asked Alvarez whether he would help unload, he nodded, smiled, and asked whether the agent would be on the plane when it arrived.³² A three-judge panel reversed his conviction. It reasoned that a defendant does not join a conspiracy merely by participating in a substantive offense or by associating with conspirators, and it worried that his willingness to help was being used twice, once as his part in the crime and again as proof that he had earlier joined an agreement.³³ The en banc Fifth Circuit reinstated the conviction on the same facts. It noted that a person may join a conspiracy after it forms, that Alvarez knew a plan to import the drugs and unload them at that site was already in place, and that his stated intention to help unload let a jury infer he had agreed to do so at some earlier time.³⁴

The two Alvarez opinions mark where inference ends and speculation begins. The en banc court found enough because the defendant's conduct was directed to the group, in answer to a question about his role in their plan, and was joined with knowledge that the plan existed. Conduct of that kind is best explained by a commitment already made. The panel's concern still states the danger: when the only evidence of agreement is the very conduct that makes up the crime, a court can reason in a circle.

The inference has an edge, because behavior that resembles agreement often has a different explanation. One person can assist another in committing a crime with no agreement between them at all.³⁵ Al, a loan applicant refused at the bank, is leaving just as a stranger, Slim, arrives to rob it. Al cheers, claps, and shouts approval, and cheers louder when Slim pistol-whips the loan officer, but the two never speak and Al knew nothing of the plan beforehand. There is no agreement and so no conspiracy.³⁶ The same result followed in State v. Tally, where the defendant tried to help murderers by keeping a warning telegram from reaching the victim. He could be convicted as an accomplice but not as a conspirator, because no agreement or concert of action linked him to the killers.³⁷ Al's cheering might still be examined under complicity, which punishes a defendant for his own support or encouragement of another's crime, but that is a separate offense with its own elements and proves nothing about conspiracy.³⁸

The reason for the limit follows from what the inference is for. If assistance were treated as proof of agreement, every accomplice would become a conspirator and be exposed to the broader liability and added punishment that conspiracy carries.³⁹ Proving an earlier agreement from a later criminal act also risks collapsing the substantive offense into the prior agreement, so that the crime itself is taken as its own proof of conspiracy.⁴⁰

The pair differs in one respect, whether the conduct is coordinated or merely simultaneous. Awareness of what the other is doing is present in both versions and settles nothing. What supports the inference is interlocking effort toward a shared end, which is the pattern the old instruction described.

That pattern is also what the instruction can lead courts to forget. Its language can be misread to mean that a concurrence of wills is enough, when the concurrence must result from an agreement, and courts that stress circumstantial proof sometimes lose sight of the fact that an agreement is still the thing to be proved.⁴¹ The care matters more here than in most offenses, because conspiracy comes closer than almost any doctrine to punishing a state of mind in people who are nowhere near carrying out their plan.⁴² On an exam stem, approval, assistance, or parallel action is evidence from which a jury may infer an agreement, and it does not establish one by itself. The question to ask is whether the facts show that the parties committed themselves to a common plan, with each aware of the other's role.

No Overt Act at Common Law

The preceding sections treated the agreement as the act of conspiracy and showed how a jury may infer it from conduct. A further question follows once the agreement is proved: must the prosecution also show that some conspirator then did something to carry the plan out? At common law the answer is no. The agreement is itself the culpable act, and the prosecution need not prove any additional overt act, meaning a step beyond the agreement that a conspirator takes to advance the plan.⁴⁴ In People v. Carter, the Michigan Supreme Court described the same rule in terms of timing: the crime is complete upon formation of the agreement, and an act in furtherance of it is no component of the offense.⁴⁵ Conspirators who have bought nothing, traveled nowhere, and done nothing except commit themselves to one another can therefore be prosecuted and punished for the agreement alone.⁴⁶

The rule can look as though it punishes a plan that lives only in the participants' heads, and the common-law answer is that a plan shared by two people has left the head. In Mulcahy v. The Queen, an 1868 House of Lords decision, the defendants were charged with conspiring to foment the Irish rebellion and argued that the indictment was defective because it alleged no overt act, such as publishing writings or procuring arms.⁴⁷ The court rejected the argument, reasoning that when two people agree to carry a design into effect, "the very plot is an act in itself," each party having made a promise against the other's promise.⁴⁸ The court also saw an absurdity in the alternative. An overt-act requirement would make the disloyal design indictable if someone procured a single stand of arms, yet would leave it beyond the law if the plotters conspired with a thousand men to enlist.⁴⁹

Two separate worries lie behind dispensing with the act. The first concerns danger: a joint commitment makes the target offense more likely, both psychologically and practically, because each party has bound the other to the plan and can supply what the other lacks.⁵⁰ The second concerns timing. An overt-act requirement forces the law to wait until the conspirators have begun to act, while dropping it lets police and prosecutors intervene when the plan is still only a plan, before anyone has been harmed. That early reach fits an inchoate offense, one defined by its relationship to a target crime that never has to be completed.⁵¹

Most modern statutes depart from this baseline by adding an overt act requirement, so the common-law rule is the starting point and the overt act is a statutory add-on.⁵² The addition answers a criticism of the common-law rule: punishing a bare agreement, with nothing beyond it, came dangerously close to punishing thoughts, and jurisdictions responded by requiring an overt act by some member of the conspiracy in furtherance of the plan.⁵³ The act shows that the conspiracy has moved beyond a purely mental state and reached the stage of implementation.⁵⁴ Where such a statute governs, an agreement standing alone is not yet a chargeable conspiracy, and the elements are complete only when a conspirator acts.

The statutory act is a low hurdle. It can be lawful and innocent in itself, such as renting a van or buying a ladder, and it need not come anywhere near the substantial step that attempt requires, although a few states do demand a substantial step.⁵⁵ Courts have found the requirement met by unexplained possession of dynamite, attending a lawful meeting, picking a lock, or making a phone call, and even an omission may qualify.⁵⁶ In a standard illustration, Heather and Penelope agree to buy drugs and resell them. In a jurisdiction that requires an overt act they have not yet committed conspiracy, but Penelope's call to a supplier to get drugs on credit supplies the act, even though the call is innocent in itself and did not move the plan any further along.⁵⁷ Because the act can be so slight, it says little about how firm the conspirators' intent is, and its main work is to mark the point at which the plan has moved from intention to action.⁵⁸

The agreement and the intent are identical in every version of that scene. The only variable is the governing rule, and under the statutory rule the van rental that supplies the act, however innocent on its face. Notice also that the act was Marcus's, yet it completes the offense as to Lena as well. Federal law shows the same pattern at larger scale. The general federal conspiracy statute, 18 U.S.C. § 371, requires an agreement to commit an offense against the United States or to defraud it, plus an act by one or more of the conspirators to effect the object of the conspiracy, and the act need not be illegal or be performed by the accused so long as one member of the conspiracy performed it.⁵⁹ Other federal conspiracy statutes, including those for racketeering and money laundering, require no overt act.⁶⁰ In Whitfield v. United States, the Supreme Court held that when a federal conspiracy statute is silent, no overt-act requirement is read into it, because Congress is presumed to adopt the common-law meaning of the terms it uses.⁶¹ The common-law baseline therefore governs wherever the legislature has not changed it.

The Model Penal Code takes a middle course, which this reading treats only as a comparison point. Section 5.03(5) requires an overt act, by the defendant or by someone with whom the defendant conspired, only when the target offense is something other than a felony of the first or second degree.⁶² For serious target offenses the Code in effect keeps the common-law rule, on the view that the act of agreeing to a grave crime is "concrete and unambiguous," so there is little danger of mistaking innocent conduct for criminal conduct.⁶³ The drafters also reasoned that the case for preventive intervention is greater for serious offenses, but recent state codes that otherwise follow the Code have generally not adopted this exception.⁶⁴ A jurisdiction that borrows the Code's other provisions may therefore still demand an overt act for every target offense.

On an exam, the question to settle first is which rule the jurisdiction applies. A problem that speaks of common-law conspiracy, or of a silent statute, makes the agreement the complete act, and a defendant who argues that nothing was ever done has no argument on this element. A problem that quotes a statute demanding an overt act requires a search for one act by any conspirator, however small or lawful, and the search usually succeeds.