What Counts as an Overt Act

What Counts as an Overt Act

Once a jurisdiction requires an overt act, three further questions arise: how much the act must amount to, whether any jurisdictions demand more than the usual minimum, and whose act counts when several people are involved. Each question has its own answer, but all three answers come from one premise about what the act is for. In Yates v. United States, the Supreme Court described the function of the overt act as "simply to manifest 'that the conspiracy is at work,'" which shows that the plan is neither a project still resting solely in the conspirators' minds nor a fully completed operation no longer in existence.¹

That function is a modest one, and its modesty explains the shape of the rules that follow. The agreement has already supplied the criminal intent and the group commitment that make a conspiracy worth punishing, so a legislature that adds an act is judging only that an agreement with nothing behind it is too thin a basis for prosecution.² The act therefore has to supply one thing, visible evidence that the conspirators have moved from planning into implementation. Evidence of that kind does not depend on how dangerous the act is, and it does not depend on which conspirator performed it, because the act shows that the enterprise as a whole is operating.

The same premise accounts for a definitional problem that courts have created. Judicial formulations describe the overt act as a step toward executing the conspiracy, an act tending to carry it out, or a step in preparation for the object, and those phrases have sometimes led courts to demand that the act commence the object crime or be criminal itself. Those decisions are mistaken, because they inflate the act's role beyond showing that the conspiracy is at work, and confusing the overt act with the object crime misstates the requirement.³

The three sections below take the questions in the order they were posed. The first shows that in an overt-act jurisdiction virtually any act in furtherance of the plan suffices, even a lawful or merely preparatory one.⁴ The second covers the minority of states that raise the bar and require a substantial step toward the object crime.⁵ The third establishes that the statutes uniformly require an act by only one conspirator, and that the act is attributed to every member of the conspiracy.⁶

Any Act in Furtherance

In a jurisdiction that requires an overt act, the governing standard is any act in furtherance of the plan. Once the agreement is established, virtually any step that advances the conspiracy satisfies the requirement, and the decided cases show how little is demanded. Unexplained possession of a large quantity of dynamite, an interview with a lawyer, attending a lawful meeting, picking a lock, making a phone call, delivering goods without the proper invoices, distributing handbills in violation of an injunction, and giving a co-conspirator money to deliver to another have each been held to be an overt act in the context of the criminal object alleged.⁸ The list mixes conduct that looks sinister with conduct that looks entirely ordinary, and that mixture is the lesson. What qualifies an act is its connection to the plan, whatever its own character.

The reason so little is asked lies in what the agreement has already accomplished. The law of attempt insists on a substantial or unequivocal step because, in an attempt prosecution, the actor's conduct alone must show that the purpose is firm, and buying rope or renting a van might mean anything. A conspiracy prosecution starts from a stronger position. The act of agreeing with another person to commit a crime is concrete and unambiguous, it reduces the equivocal nature of the intent, and it makes the object crime more likely to be committed.⁹ The overt act therefore carries a lighter burden, which is to provide additional proof that the agreement exists and that the parties are willing to adhere to it, and that evidentiary role makes the requirement more procedural than substantive.¹⁰ Because the act is only corroboration, it need not be unequivocal or especially significant so long as it actually furthers the conspiracy, and it may be lawful and innocent in itself, such as renting a van or buying a ladder.¹¹ A federal court of appeals applied that principle when it held that an interview with a lawyer was enough to sustain a conviction for conspiracy to violate the Bankruptcy Act.¹²

The act can take forms that surprise students who assume it must resemble a crime. It need not be criminal or unlawful in itself, and under the general federal statute, 18 U.S.C. § 371, an overt act is required but does not have to be a crime.¹³ It may be an omission, and it may be the commission of some crime other than the object of the conspiracy.¹⁴ It may even be the object crime itself, because an act is not disqualified for having gone too far.¹⁵ This variety follows from the act's job. Whatever the conspirators do or deliberately leave undone, the question is whether the conduct shows the conspiracy at work, so a defendant who argues that his lawful conduct cannot count has misread a requirement that cares about whether the act furthers the plan and has no interest in its legality.

Two limits keep the phrase any act from meaning anything at all. The first is that the act must actually be in furtherance of the conspiracy. Each item in the catalog above was held sufficient in the context of the criminal object alleged, which shows that the act's tie to the plan is what gives it significance.¹⁶ Without that tie, conduct says nothing about whether the conspiracy is at work, and an ordinary errand that merely happens to follow the agreement in time supplies no evidence of it.

The second limit is that the act cannot be simply part of the act of agreeing.¹⁷ The reason is structural. If restating or reaffirming the deal counted, every prosecution that proved an agreement would automatically prove an overt act, and the requirement would filter nothing. The act earns its evidentiary value by being something more than the agreement it is meant to corroborate. The line depends on what the conduct is, whatever its timing. In United States v. Bertling, two brothers discussed in a single telephone call the need to murder a potential witness and then, in the rest of the same call, how to find the witness, and the Eighth Circuit concluded that those plans and arrangements could be overt acts even though they occurred in the conversation that established the conspiracy.¹⁸ The words that formed the bargain were the agreement, and the words that worked out how to carry it out were implementation. That result is the harder pole, because the act and the agreement arrive together, while a distinct later step such as the car rental raises no such question.

A further mistake comes from the way courts describe the act. Formulations such as a step toward executing the conspiracy or a step in preparation for its object have led some decisions to require that the act commence the consummation of the object crime, be criminal, or be an element of the object offense.¹⁹ Those decisions are wrong, and the policy reason shows why. Conspiracy reaches further back into the planning stage than attempt does, and that earlier reach is the reason the offense exists as a separate crime.²⁰ An overt act that had to begin the object crime would move liability up to the point of attempt, and conspiracy would then add nothing the law of attempt did not already cover. The error to avoid on an exam is requiring the act to be criminal or close to an attempt, since the correct inquiry asks only whether some conspirator did something that furthers the plan and goes beyond the agreeing. A minority of states do raise the bar above this low threshold, and the next section takes up their substantial-step rule.

The Substantial Step Variant

A minority of states set the bar above any act in furtherance. In those jurisdictions at least one conspirator must take a substantial step toward commission of the object crime before the conspiracy is complete.²² The phrase usually carries the meaning it has in the law of attempt, conduct that strongly corroborates the actor's criminal purpose, and the attempt materials supply the detailed content of that standard, so this chapter does not repeat it.²³ Only a few states take this route, which makes the variant an exception to hold in reserve and to apply when a statute or an exam stem names the requirement in terms.

Two state statutes show how the requirement is written. Ohio requires an overt act that is "substantial," defined as one "of a character that manifests a purpose on the part of the actor that the object of the conspiracy should be completed."²⁴ Maine borrows the attempt formulation directly: its statute requires a "substantial step," meaning "conduct which, under the circumstances in which it occurs, is strongly corroborative of the firmness of the actor's intent to complete commission of the crime," and it adds that "speech alone may not constitute a substantial step."²⁵ The speech clause matters because an agreement is usually reached in words, and a rule that speech alone cannot qualify keeps the agreement from doubling as the required step. In United States v. Bertling, applying an ordinary overt-act requirement, the Eighth Circuit let the part of a phone call spent on how to find a witness count as an overt act even though the same call formed the agreement.²⁶ Under Maine's text, that conversation would not complete the conspiracy without more.

The two regimes differ in what the extra conduct is asked to prove. In an ordinary overt-act state the agreement itself is concrete and unambiguous, and the parties' purpose has to be relatively firm before they take on the commitment that agreeing involves.²⁷ The act therefore needs only to show that the conspiracy is at work, and even an innocent purchase such as a ladder will do.²⁸ A legislature that demands a substantial step declines to rest on the agreement that heavily. It wants outward conduct that strongly corroborates the criminal purpose, so conspiracy liability attaches later and on firmer proof of intent. The structural consequence is that conspiracy begins to resemble attempt, since the prosecution must show an agreement and also an attempt-grade act by a conspirator. What still separates the two offenses is the agreement with another person, which an attempt charge does not require.

On an exam stem, the first move is to read what the governing statute demands. When it says only "overt act," any act in furtherance suffices, and a ladder purchase or a van rental completes the offense. When it says "substantial step," or defines the act by how strongly it corroborates intent, the attempt standard applies and innocent preparation falls short. Whether particular conduct clears that line is answered by the attempt analysis rather than by any conspiracy-specific rule. The common error is treating every overt-act state as a substantial-step state, when only a few states require the higher showing.²⁹

Acts by Any Conspirator

The last question about the overt act is whose conduct counts. The two sections above asked how much the act must be, and this one asks who must perform it. The statutes uniformly require an overt act by only one of the conspirators, and once one member has acted, that act is attributed to every member of the conspiracy.³¹ No member has to have performed an act personally. The Model Penal Code writes the principle into its text by requiring that an overt act be "alleged and proved to have been done by him or by a person with whom he conspired."³² The phrase "a person with whom he conspired" is what turns a co-conspirator's act into the defendant's own for purposes of the requirement. It also marks the outer edge of the rule, because the act must come from someone who is a party to the agreement.

The reason for attribution lies in what a conspiracy is. People who agree to an unlawful end become agents for one another, so that what one does in pursuit of the common purpose is done on behalf of all.³³ The federal law of conspiracy applies the same idea to the overt act: so long as the partnership in crime continues, the overt act of one partner may be the act of all without any new agreement directed to that act.³⁴ That fits the function of the act identified earlier in this chapter. The act exists to show that the conspiracy is at work, and a conspiracy is at work whenever any member moves it forward. A contrary rule would also create an incentive problem. If every defendant had to perform a personal act, the member who designs the scheme, recruits the others, and stays in the background would escape liability for a plan that the member set in motion, and the most culpable participant would be the one the law could not reach.

The jail example shows why the most common error here is requiring every member to perform a personal act. The requirement is met once any one conspirator acts, and the others need do nothing further. The rule does have a limit, which comes from the reason behind it. Attribution flows through the agreement, so it reaches only people who joined the plan. A defendant who never agreed to the plan cannot be convicted by borrowing the conduct of others, because no partnership exists between them and nothing makes the other person's act the defendant's own.³⁵ The same logic cuts the other way when nobody has acted at all.

Attribution also has a flip side when the prosecution's proof of the act depends on a single person. If the defendant charged with committing the only overt act is acquitted, the other alleged members of the conspiracy must also be acquitted.³⁶ The proof that the conspiracy was at work then consists of that one act, and an act that has failed as to the person said to have done it cannot support the conviction of anyone else. The rule is framed around the case where that act is the only one alleged, so the analysis changes if other conspirators are also shown to have acted.