The Code's Individual Approach

The Code's Individual Approach

Subsections (1), (2), and (3) of § 5.03 are best read as one instrument rather than three separate rules. The Commentary explains that their combined operation delineates the identity and scope of a conspiracy, and that all three provisions focus on the culpability of the individual actor.¹ This individual approach changes where a court begins. Instead of surveying the whole criminal enterprise and then deciding who belongs inside it, the court takes one defendant and asks two questions about him: with whom did he conspire, and to commit which crimes? The first question is the party dimension of his conspiracy. The second is the object dimension, where an object means a particular crime that the conspirators set out to bring about. The Code's method departs from the common law partly because of its unilateral view of conspiracy, which measures what this defendant agreed to and intended.²

On the party dimension, subsections (1) and (2) limit a defendant's conspiracy to those with whom he agreed. The one extension applies when the same crime he conspired to commit is, to his knowledge, also the object of a conspiracy between one of his co-conspirators and another person or persons.³ The agreement therefore remains the default boundary of his circle of partners. Knowledge of a specific link to others, and not membership in a large operation, is what carries him past the people he actually dealt with. The next section takes that extension apart element by element.

On the object dimension, the crimes inside a defendant's conspiracy are those he had the purpose of promoting or facilitating.⁴ Acting with purpose, in the Code's vocabulary, means that engaging in the conduct or causing the result is the person's conscious object.⁵ A crime the defendant merely knew about therefore does not become one of his objects. Conspiracy decisions outside the Code draw a similar line. A telephone company that knows some customers use their lines for drug deals is not thereby a party to a drug conspiracy, because the prosecutor must show that the company intended to advance the venture.⁶ In People v. Lauria a California appellate court held that a supplier's positive knowledge that his services were being used for criminal purposes does not, without more, establish an intent to participate in a misdemeanor, and it left open whether knowledge alone could support that inference for felonies.⁷ Once a defendant's objects are identified, subsection (3) counts them: several crimes that are the object of the same agreement or continuous conspiratorial relationship make up only one conspiracy.⁸ That counting rule has its own section after the party dimension.

The traditional approach supplies the foil. It treats the agreement as a bilateral relationship between each of the parties, congruent in scope on both the party dimension and the object dimension, so that everyone inside the conspiracy shares the same partners and the same goals.⁹ The Commentary uses Bruno to show where that leads. The case involved a narcotics operation in which smugglers imported the drugs and distributors and retailers possessed and sold them, and the court described the objective as the operation's whole sweep: smuggling narcotics into the Port of New York and distributing them to addicts in several states.¹⁰ That description accurately captures what the operation as a whole was trying to do, but it is a poor referent for testing the culpability of any one participant. Once the objective is the entire series of crimes, the court can find only one of two things: no conspiracy at all, or a single conspiracy in which smugglers, middlemen, and retailers each conspired to commit every other link's crimes.¹¹

The Code removes that all-or-nothing choice by treating the objectives as the particular crimes and testing each participant separately against each one. The question for every defendant becomes whether, and with whom, he conspired to commit each separate crime in the operation, namely the importing by the smugglers and the possession and sale by each group.¹² That method permits findings the traditional approach cannot easily reach. The Commentary's own example is a finding that the smugglers conspired to commit the retailers' illegal sales while the retailers did not conspire to commit the smugglers' importing. Such a result is plausible where the smugglers depend on and seek to foster their retail markets and the retailers have many suppliers and are indifferent to the success of any single source.¹³ The same method can show that the smugglers and middlemen conspired to commit the whole series of crimes while a retailer, dealing with the same parties, conspired to achieve fewer criminal objectives.¹⁴

Tying scope to the individual follows from what a conspiracy conviction is supposed to show. The Code's drafters regarded an agreement as worth punishing because it demonstrates a firm commitment to criminal activity and so poses a greater threat of social harm.¹⁵ Commitment is a fact about a particular person's purpose, so the sensible measure of how far a person is committed is what he purposely sought and whom he knowingly joined. A measure fixed by the overall operation misfires in two directions: a participant on the edge of a large enterprise is either found to be in no conspiracy at all or swept into one that covers every crime in the venture, including crimes he never sought to promote. Testing each participant against each crime avoids both errors, and it keeps conspiracy from serving as a device for attributing an entire enterprise to every member.

The mistake this section guards against is assuming that one criminal operation means one conspiracy with one shared objective. On the Code's method, two participants in the same operation can have different partners and different objects. The next section develops the party dimension through § 5.03(2), and the section after it develops the object dimension through § 5.03(3).