Shared Criminal Intent

Shared Criminal Intent

The first element of common-law conspiracy, the agreement, is the criminal act, and the remaining elements describe what the defendant had in mind. A conspiracy consists of an agreement between two or more persons, an intent to enter into that agreement, and an intent that the participants accomplish the objective of the agreement.¹ The formulation names two intents because they answer different questions. The intent to agree shows only that the parties meant to reach an understanding, and an understanding carries no moral weight of its own, since people reach them every day about renting apartments or planning dinners. The objective is what gives an agreement its criminal character, so liability attaches only where the parties share a purpose to attain an objective that the law of conspiracy covers.²

Because the two intents answer different questions, either one can exist without the other. A and B agree to burn certain property. A knows the property belongs to C, but B, misled by A, believes it belongs to A. Each intended to agree, yet B does not share A's objective, so the two have no common intent to commit the same crime.³ Change the facts so that A and B both know the building is C's and each wants it burned, and both intents are present in both of them. The failure can also run the other way. Two people may each want C's property burned and even tell each other so, but if they never reached an agreement there is no conspiracy, because communicated desires fall short of an agreement.⁴ On an exam, a stem showing that the parties plainly meant to reach an arrangement settles only the first intent, and the intent to agree is not the intent to commit the crime.

The requirement is shaped this way for reasons that follow from what conspiracy punishes. The offense reaches a combination before any harm is done, so the agreement cannot carry the moral weight of the crime, and the defendant's purpose has to carry it. Requiring each participant to hold the criminal objective keeps the offense from reaching someone who went along with an arrangement without sharing its aim. Requiring at least two persons who hold that same purpose ties liability to the joint undertaking that justifies punishing at such an early stage. At common law, then, at least two persons must each specifically intend to accomplish the same criminal purpose, a meeting of guilty minds, so in the burning example A's guilty mind alone does not make a conspiracy.⁵ That is why courts usually call conspiracy a specific-intent crime: the required mental state is the intent to enter an agreement together with the intent to commit, or to aid in committing, the acts that make up the target crime.⁶ The subsections that follow develop that mental state step by step. They begin with the two intents, then the meeting of guilty minds, then the line between intending an objective and merely knowing of it, then the way the target crime's own mental state carries into the conspiracy, and finally whether conspirators must know their plan is unlawful.

Two Intents Required

The common-law definition of conspiracy places two separate mental states inside its last two elements: the intent to enter into the agreement and the intent that the participants accomplish the agreement's objective.⁸ Courts often compress the pair into one phrase. In People v. Carter the Michigan Supreme Court spoke of a twofold specific intent, an intent to combine with others and an intent to accomplish the illegal objective.⁹ The California Supreme Court divided the specific intent the same way in People v. Swain, into an intent to agree and an intent to commit the offense that is the object of the conspiracy.¹⁰ The two intents carry unequal weight in practice, and the difference becomes clear when each is taken in turn.

The intent to agree is the lighter burden. It means only that the parties meant to reach a mutual understanding about pursuing a common end, and it is proved by the same inference from conduct that proves the agreement itself. Because the two are so closely bound together, many courts do not treat the intent to agree as part of the mens rea at all, and one court observed that the state of mind in conspiracy concerns what the conspiracy is meant to produce rather than the act of conspiring.¹¹ Folding the first intent into the act has a practical reason. Evidence of a meeting of minds already shows that the parties meant to meet, so demanding separate proof would add a second hurdle that evidence could rarely clear and would protect no one. The first intent also cannot do the criminalizing work, because an intent to agree is without moral content, and people form understandings every day about leases or dinner plans.¹² Once the agreement is shown, then, the first intent is almost always satisfied, which leaves the second intent to carry the case.

The second intent is the one that makes the agreement criminal, and the prosecution must establish it for each defendant individually. Each conspirator must want the objective accomplished, so a jury cannot convict one participant on the strength of another participant's purpose, however clear that other purpose may be. Knowledge supplies a starting point, since a defendant must know that the conspiracy exists and what its objective is, and must also intend to take part in it.¹³ Knowing the objective still falls short of intending it, a gap that the later subsection on intent versus knowledge develops. The individual focus follows from what the offense punishes. A conspirator is liable as a partner in a criminal purpose, and a defendant who does not share the purpose has no place in that partnership.¹⁴

Because the two intents answer different questions, one can exist without the other. Two people who each want a third person's property burned, and who have told each other so, share an unlawful aim, but they have no conspiracy unless they actually reached an understanding that someone would act, since a communicated wish is not an agreement.¹⁵ The misled participant in the preceding section's burning example shows the reverse, an intent to agree with no common criminal objective. When both intents are present, they often rest on the very same conduct, as the next scene shows.

The same conduct did double duty there, which is common and explains why the first intent is seldom the contested point. Conspiracy is called a specific-intent crime because the second intent is a purpose to bring about a particular result that is criminal or that conspiracy law otherwise covers.¹⁶ Some writers regard the label as unhelpful, since the possible objectives vary so widely that it is hard to think of a crime with a less specific intent, and the label has caused confusion elsewhere in criminal law.¹⁷ It still appears in opinions and exam stems, so it is best read as shorthand for the two intents just described. On an exam, facts that show a meeting of minds ordinarily show an intent to meet, and the live dispute is whether each defendant wanted the objective accomplished, a question that evidence of agreement alone does not answer.

Meeting of Guilty Minds

The two intents described in the previous subsection have to be counted across the participants as well as within each one. At common law a conspiracy exists only when at least two persons each specifically intend to accomplish the same criminal purpose, a shared and culpable understanding of the objective that is often called a meeting of guilty minds.¹⁹ The phrase poses a head-counting question. Intent is a fact about one person's mind, so a jury must ask of each alleged participant, separately, whether that person truly held the criminal purpose, and the number of conspirators is the number of people who did. Nothing in one participant's state of mind can fill the place of another's. That is why the burning example in the preceding section failed when only A wanted C's property destroyed and B did not share that objective.

The requirement follows from what conspiracy punishes. The offense reaches an agreement before any harm occurs, and it justifies that early reach by the added danger of people combining toward a crime. If only one person holds the criminal purpose, the others share nothing culpable with that person, and what remains is a single guilty mind, which the offense was not designed to reach. The same logic explains why a participant who only pretends to go along, or who agrees to something innocent, does not count toward the two. Under the common-law approach, called the bilateral approach, an agreement with a legally insane person, or with an undercover police officer who never meant the substantive offense, is not an agreement between two guilty persons, so no conspiracy results.²⁰ With an undercover officer there is no genuine criminal collaboration, and law enforcement is positioned to make sure the objective is never achieved, so the special danger of a group is absent.²¹ Most courts that refuse to find conspiracy in that setting regard solicitation as the proper charge.²²

The first scene shows that the count is made person by person, and that a participant without the guilty purpose is left out of the count without defeating the others. The second scene changes only the number of people who share the larcenous intent.

The agreement, the car, and A's purpose are identical in both scenes, so the second guilty mind is the fact that moved the answer. A's own intent is equally culpable in each version, and A's acquittal on this charge rests entirely on the absence of a partner. The same counting explains a related rule about verdicts. Under the traditional common-law approach, if every charged conspirator but one is acquitted in the same trial, the verdict shows only one guilty party and the remaining conviction must be reversed, whereas a conspirator who has fled can still be shown to have agreed with the defendant on trial.²³ A fuller account of plurality, including how the Model Penal Code frames the question differently, comes later in this chapter. Here the point is only that each defendant's liability depends on a second guilty mind actually existing.

On an exam, a stem that gives the defendant a partner invites the assumption that two people means a conspiracy. The step that gets skipped is asking what the partner actually intended. When the partner is an undercover officer, or plans only an innocent version of the act, or the facts say nothing to show a second person shares the purpose, a feigned or innocent partner is not a second guilty mind, and the common-law conspiracy fails.

Intent Versus Knowledge

The requirement that each conspirator personally share the criminal purpose creates a recurring problem at the edges of a venture, where a person learns what a wrongdoer is planning and then deals with that wrongdoer anyway. Such a person knows the objective is criminal, but knowing an objective and wanting it accomplished are different mental states, and conspiracy demands the second. A defendant must know that the conspiracy exists and what its objective is, and must in addition intend to take part in it, so knowledge is a necessary starting point that does not complete the element.²⁵ Mere knowledge without agreement also fails the agreement element.²⁶ A telephone company that knows some of its customers use their phones to arrange drug sales illustrates the point. That knowledge does not make the company a party to a drug conspiracy, because the prosecutor must prove that the company intended to advance the conspiracy by providing the service.²⁷

The insistence on intent follows from what conspiracy liability carries with it. A conspirator answers for the agreement itself, and under the Pinkerton doctrine also as a principal for crimes that co-conspirators commit in the course and in furtherance of the conspiracy, a reach that can extend to offenses committed by people the defendant never met.²⁸ If knowledge were enough, every seller of ordinary goods or provider of an ordinary service who happened to learn a customer's plans would be exposed to that liability, although the seller's only connection to the crime is a transaction that would have occurred with any customer. Requiring intent confines the offense to those who have adopted the criminal aim, the same filter that the meeting-of-guilty-minds rule applies when counting participants.²⁹ The Model Penal Code builds that filter into its text by requiring the purpose to promote or facilitate the offense or to aid others in committing it.³⁰ The American Law Institute also voted down a proposal to impose accomplice liability on anyone who knowingly gives substantial aid, which shows that the Code treats purpose as the dividing line even outside conspiracy.³¹

Decisions applying the rule come out the same way. In State v. Maldonado, a New Mexico appellate court found no conspiracy where the defendant sold pseudoephedrine to a buyer known to be using it to manufacture methamphetamine, because the statute requires intent rather than mere knowledge, and in United States v. Alvarez the Fifth Circuit held that unloading the illegal cargo of a plane did not make a person a member of the conspiracy that person knew about.³² Courts have occasionally sustained conspiracy convictions on a showing closer to knowledge than to purpose, but those decisions mark the outer limit of the doctrine, and conspiracy is still usually treated as a specific-intent crime.³³ The ordinary merchant shows the baseline most clearly.

The inference of intent becomes reasonable in two recurring situations, and each rests on a fact beyond the seller's knowledge. The first arises when the item is a specialty good that the buyer could not easily get elsewhere. A seller of a common product is replaceable, so the sale tells a jury nothing about the seller's attitude toward the crime, whereas a seller who is the venture's only practical source holds the thing on which the plan depends, and supplying it is hard to explain as indifference. The second arises when the seller has a stake in the venture, as when the seller raises the price because of the buyer's purpose. A premium charged for the crime ties the seller's profit to the criminal use, and a seller whose gain grows with the plan's success has a reason to want it to succeed. In State v. Routon, a Wisconsin appellate court treated a seller of psilocybe spores, a legal product, as a member of a conspiracy for selling to persons known to intend to manufacture illegal drugs from them, because that illegal use was the predominant part of the seller's business.³⁴ These circumstances do not replace the intent element. They are facts from which a jury may infer it, by the same reasoning from conduct that proves the agreement itself.

The two scenes differ only in scarcity and in the price increase, so those are the facts that moved the answer. On an exam, a stem in which a seller, landlord, or service provider learns what a customer plans invites an automatic conspiracy conclusion. The analysis should ask what else the seller did or received: whether the item could be had elsewhere, and whether the price or the business depends on the crime. Where the answer is nothing, knowing about a plan is not intending it, and the seller does not supply a second guilty mind.³⁵ A few modern codes reach such a seller with a separate offense of criminal facilitation instead of conspiracy.³⁶

Mental State of the Target Crime

The intent to accomplish a conspiracy's objective takes its content from the offense the conspirators are aiming at. When the objective is itself a substantive crime, a conspiracy to commit it cannot exist without at least the degree of criminal intent that the substantive offense requires.³⁸ The reason follows from what the second intent described earlier actually is. To intend that a crime be accomplished is to intend what the definition of the crime describes, mental state included, so participants who lack that mental state are agreeing to do something other than the crime. Conspiracy also punishes the aim before any harm occurs, which makes the aim the whole case against the defendant, and a person cannot aim at a result without knowing that it is the result being pursued. The target offense therefore has to be consulted before the second intent has any content.

Two short illustrations show the carry-over at work. If A and B agree to take C's property, they are not conspiring to commit larceny unless they intend to deprive the owner permanently, because that intent is part of larceny itself.³⁹ If D and E agree to conceal F, they are not conspiring to violate a statute that forbids concealing a person against whom a federal warrant has issued unless they know of the warrant, because the statute makes that knowledge part of the offense.⁴⁰ The same carry-over appears in federal fraud prosecutions. In Carpenter v. United States the Court affirmed convictions for conspiracy to commit mail and wire fraud, relying on the finding, strongly supported by the evidence, that each defendant acted with the specific intent to defraud that those offenses require.⁴¹

The rule has its sharpest effect on crimes defined by a result, because the completed offense can often be committed with less than purpose as to that result while the conspiracy cannot. Murder is the standard example. In People v. Swain the California Supreme Court held that intent to kill is an element of conspiracy to commit murder, and it reversed the conspiracy convictions because the general verdicts left open whether the jury had found that intent.⁴² In State v. Borner the North Dakota Supreme Court, agreeing with a majority of jurisdictions, held that conspiracy to commit murder requires intent to cause death and cannot rest on a theory of extreme indifference to human life.⁴³ The Model Penal Code points the same way, since it requires purpose as to the conduct or result a conspiracy targets, whatever mental state the substantive crime itself demands, and the Code's own definition receives fuller treatment later in this chapter.⁴⁴

A planned explosion shows how the gap between the completed crime and the conspiracy opens. Two people who plan to destroy a building with a bomb, knowing and believing that inhabitants will die in the blast, are guilty of murder if the building is destroyed and the inhabitants are killed, because murder can be committed without an intent to kill. Their plan, however, is a conspiracy to destroy the building and not a conspiracy to kill the inhabitants, since they did not intend that result.⁴⁵ The completed offense reaches deaths the participants merely foresaw, whereas the agreement reaches only the results they wanted. It follows that there is no conspiracy to commit a crime defined in terms of recklessly or negligently causing a result.⁴⁶

A strict-liability target raises the same issue in a different form. Statutory rape is the usual example, because in many jurisdictions the offense is complete when the actor has intercourse with a person under the statutory age, and a mistake about that age is no defense. The completed offense ignores belief about age because it punishes an act that has already occurred, and the legislature has placed the risk of misjudging age on the actor. A conspiracy punishes an agreement, and an agreement is an aim, so participants who think the planned act is lawful are not aiming at the crime. Most jurisdictions therefore still require intent for the conspiracy even when the target offense is strict liability.⁴⁷ In Ocasio v. United States the Supreme Court described the federal requirement element by element: each conspirator must have specifically intended that some conspirator commit each element of the substantive offense.⁴⁸

The two scenes differ only in what A and B believe about C's age, so that belief is the fact that moved the answer. The completed offense would be complete in both versions if carried out, yet only the first pair is aiming at what the offense forbids. On an exam, a stem that says mistake of age is no defense is describing the completed crime. For the conspiracy charge the question to ask is what each defendant knew or intended about the element, and strict liability for the completed offense does not make the conspiracy strict liability.

Corrupt Motive Doctrine

The sections above established that each conspirator must intend the objective of the agreement and must hold whatever mental state the target crime demands. A narrower question remains at the edge of that element: must the conspirators also know that their objective is illegal? The majority rule answers no. A conspirator must intend the objective and must know the facts that make it criminal, but need not know that the law forbids it.⁵⁰ This answer follows the general principle that ignorance of the law is no excuse. A person who commits a regulatory offense without knowing the regulation exists is still guilty of it, and it would make little sense to let two people escape liability for agreeing to commit that same offense merely because they were unaware of the prohibition. The mental-state element is aimed at what the parties set out to accomplish, and the legal label for that objective falls outside it.

A minority of courts follow the corrupt-motive doctrine, under which a conspiracy is punishable only if the agreement was made with an evil purpose, and an intent to do the illegal act is not enough by itself. The doctrine, also called the Powell doctrine, originated in the New York decision People v. Powell in 1875, and the Model Penal Code rejects it.⁵¹ In practice the evil purpose is usually treated as knowledge that the objective was criminal. The reasoning behind the doctrine is that wrongful purpose is built into the idea of conspiracy, so the offense should reach only people who knew they were doing wrong. That reasoning protects a person who joins a venture, such as a regulated business arrangement, without realizing that the law prohibits it.

The minority doctrine is usually confined to offenses that are malum prohibitum, meaning conduct that is wrong only because a statute or regulation forbids it, as opposed to malum in se, conduct that is wrong in itself, such as murder or robbery. The limit follows from what the doctrine is for. People who agree to rob or kill know that the act is wrong, so an evil purpose is evident from the nature of the objective and the requirement would add nothing. The requirement does real work only where the wrongfulness depends on a rule the parties may never have heard of.

The two scenes differ only in the jurisdiction's rule, so that rule is the fact that moved the answer. On an exam, the default is the majority position, and a stem should be read as applying the minority doctrine only if it says the jurisdiction requires a corrupt motive. The doctrine also needs to be kept apart from the target-crime requirement discussed earlier. A conspirator who is mistaken about a fact the target crime makes essential, such as the age of the person in the statutory-rape illustration, lacks the intent the offense requires. A conspirator who is mistaken only about whether the law prohibits the conduct is in a different position, because ignorance of the law does not defeat a conspiracy in most jurisdictions.⁵²