Introduction

Reach of a Conspiracy

Introduction

Under the Model Penal Code, a person is guilty of conspiracy when, with the purpose of promoting or facilitating a crime, he agrees with one or more others that they or one of them will engage in conduct constituting that crime, or agrees to aid them in planning or committing it.¹ That definition settles who counts as a conspirator, and it does so by looking at the defendant's own purpose and his own agreement. It leaves open two questions that arise as soon as a criminal venture involves more than two people: with whom has this defendant conspired, and how many conspiracies has he joined? Real ventures rarely stop at a pair, because a participant usually deals with one partner while that partner deals with others.

The Code's first answer on the party dimension is § 5.03(2). If a person guilty of conspiracy under subsection (1) knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with those others too, whether or not he knows their identity.² The rule has three triggers, each taken up in its own section later: a predicate conspiracy under subsection (1), knowledge of the partner's link to others, and an identical criminal objective. The knowledge trigger explains why identity does not matter. The Code's drafters treated an agreement as worth punishing because it shows a firm commitment to criminal activity and therefore a greater threat of social harm.³ A defendant who knowingly ties himself to a larger group pursuing the same crime has shown that commitment toward the whole group, so the names of its members add nothing to his culpability. The same knowledge requirement also keeps him from answering for conspiracies he never knew existed.

Both the party rule and the object rule in § 5.03(3), under which a person who conspires to commit several crimes is guilty of only one conspiracy if they are the object of the same agreement or continuous conspiratorial relationship, work from one premise.⁴ The Code measures the reach of a conspiracy from each actor's own culpability, asking what that person agreed to and what that person knew. It does not start from the shape of the whole enterprise and then sweep everyone inside it. That individual-focused approach governs the questions of who the partners are and how many conspiracies exist, and it is the subject of the first section below.