Applying the Rules Together

Applying the Rules Together

The earlier sections gave three answers to one question, which is whether an agreement by itself completes a conspiracy, and each answer comes from a different source of law. At common law the conspiracy is complete once the parties agree with the requisite criminal intent, and no overt act is needed.¹ Many American statutes add an act requirement, and the general federal statute, 18 U.S.C. § 371, is the standard example, because it reaches a conspiracy only where one or more of the conspirators do an act to effect its object.² The Model Penal Code sorts by the seriousness of the object, excusing the act for first- and second-degree felonies and demanding it for everything else.³ A fact pattern in which the conspirators agreed and did little more therefore cannot be answered until the right regime is chosen. Choosing in the wrong order produces the two usual errors: demanding an act where none is required, and treating a bare agreement as complete where an act is required.

The first sorting step has a trap built into it, because a statute is not automatically an overt-act statute. Section 371 states the requirement in its text, but many statutes say nothing on the subject. In Whitfield v. United States the Supreme Court held that the federal money laundering statute, which is silent, requires no overt act, reasoning that absent contrary indications Congress intends to adopt the common-law definition of the terms it uses, and the Seventh Circuit applied the same approach to conspiracy under the Hobbs Act in United States v. Jett.⁴ A silent statute therefore falls back on the common-law rule, so the agreement alone completes the offense. The label on the charge settles nothing until the text of the governing provision has been read.

The first two steps do the sorting, and the last three are comparatively mechanical because the bar for an act is low. The act may come from any member of the group, since one partner's act in carrying the plan forward counts as the act of all.⁵ It may also fall well short of the conduct that would amount to an attempt.⁶ The order matters because the early steps decide whether the act question exists at all. A reader who hunts for an act before knowing the regime wastes effort on a common-law stem and may wrongly reject a murder conspiracy under the Code for want of an act that the Code never required.

The three results in that scenario come from three different rules. The common-law result rests on the rule that agreement with criminal intent completes the offense.⁷ The Code's result rests on its exception for first- and second-degree felonies, which makes the act unnecessary for a murder conspiracy.⁸ The act statute flips when Moss buys the handgun because the purchase is attributed to every member of the conspiracy, and Vega never has to do anything personally.⁹ Only the act statute needed the purchase. The other two regimes were already satisfied by the agreement.

The misdemeanor variation isolates the Code's grading rule. The agreement is the same in kind and the arrest comes at the same moment, so the only changed fact is the grade of the object, yet the answer reverses, because the act requirement attaches to every object other than a first- or second-degree felony.¹⁰ That is the reason the method grades the object before it searches for conduct. The sorting also has a useful consequence when the stem already supplies an act. In a published illustration, Lonny agrees to help his brother John murder Judge Smith, and Lonny later contacts a third person, Emma, and offers to pay for the judge's personal items. Murder is a first- or second-degree felony, so the Code would convict on the agreement alone, and the contact with Emma is an overt act in any event, so both brothers can be convicted whether or not the jurisdiction requires an act.¹¹ The sorting step still comes first, but when an act appears on the facts its outcome may not change the result.

The method closes by keeping apart two questions that a stem tends to blur. The overt-act question asks whether the conspiracy offense has come into being, and the answer depends on the agreement together with an act where the regime demands one. The object-crime question asks whether the planned offense was attempted or completed, and it has no bearing on whether the conspiracy is complete. The act marks the plan as active and need not approach an attempt, so a conspiracy can be complete long before anything resembling the object crime occurs.¹³ In one published illustration, Courtney agrees with Anna to sell prescription drugs, and Anna then fails to follow through, so the sale never happens. The conspiracy charge against Courtney remains available, because the analysis centers on the agreement and not on whether the parties followed through or the crime was finished.¹⁴ Students lose points by treating the failure of the plan as a failure of the conspiracy. A conspiracy that was foiled, shelved, or never attempted is complete in exactly the same way as one whose plan succeeded, because completion was fixed earlier, when the agreement and any required act existed.