Absent and Unknown Partners

Absent and Unknown Partners

The Code counts conspiracies from the vantage point of each defendant. It asks what that defendant purposely sought to promote and with whom the defendant agreed, and all three scope provisions focus on the culpability of the individual actor.¹ That vantage point also decides what follows when some partners cannot be found in the courtroom. The drafters saw a person who enters a conspiracy as having shown a firm commitment to criminal activity, and that commitment is a fact about the defendant.² What the prosecution must prove is that this defendant agreed, with the purpose of promoting or facilitating a crime.³ Whether the partners have been arrested, charged, or even identified says something about the investigation and the prosecutor's choices. It adds nothing to what the defendant agreed to, and it subtracts nothing. Section 5.03(2) builds the same idea into its text, since a defendant who knows a partner has conspired with others to commit the same crime is guilty of conspiring with them "whether or not he knows their identity."⁴

Courts accordingly treat most kinds of absence as irrelevant. A convicted conspirator is not entitled to relief because the others charged have not yet been tried, because the prosecutor dropped the charges against some or all of them, or because the only other conspirators were granted immunity and cannot be tried.⁵ The same is true when the other alleged conspirators are unapprehended, unindicted, dead, or in some instances unknown.⁶ Each of these circumstances keeps a partner out of the case for a reason that has nothing to do with whether the partner and the defendant ever agreed, so none of them undermines the proof against the defendant. The next section takes up these absent partners one category at a time.

Acquittal of the other alleged conspirators is the one situation the cases still describe as open to debate.⁷ An acquittal looks like a finding that no agreement existed, and that appearance is why it troubles the remaining conviction in a way that a partner's death or immunity does not. The appearance is misleading, because an acquittal signifies only that the prosecution did not prove its case to the satisfaction of that jury. Two verdicts can differ because the juries were composed differently, because the proof offered at the two trials differed, or because one jury showed lenity.⁸ The traditional rule in jurisdictions that require two genuine parties is that a single conspirator's conviction cannot stand if all the alleged co-conspirators are acquitted at the same trial.⁹ That rule began as a rule of verdict consistency, because one jury hearing one body of evidence should not find an agreement that includes only one of the people charged with it. Once the trials are separate, different juries are returning the verdicts, so the consistency reason loses much or all of its force.¹⁰

Whether the Code requires a genuine second party at all is the plurality question, which is treated separately from this chapter's scope rules. The point here is narrower: what a verdict on someone else's guilt can and cannot tell a court about the defendant's own agreement. The two sections that follow take each half in turn, first the partners who are missing for reasons other than acquittal, and then the partners who have been acquitted.

Unknown and Unindicted Partners

The partners who go missing from a conspiracy trial usually go missing for reasons that belong to the investigation rather than to the agreement. Some are never found, some are never charged, some die before trial, some receive immunity in exchange for testimony, and some are never identified at all. A conviction rests on proof that this defendant agreed, with the purpose of promoting or facilitating a crime. Where that proof exists, the courts find no basis to disturb the conviction merely because the other alleged conspirators are unapprehended, unindicted, dead, or in some instances unknown.¹²

The reason follows from what the offense contains. Section 5.03(1) makes the defendant's own agreement and purpose the core of the crime, and none of the circumstances above changes either one.¹³ A partner who dies after the agreement is formed leaves the agreement exactly as it was, and a partner who flees does not reduce the defendant's purpose by any amount. The incentives point the same way. If liability depended on the other conspirators being available for trial, a defendant could be freed by a partner's escape, and a prosecutor who immunized an insider to obtain testimony would undermine the very case the immunity was meant to build. Charging decisions also turn on matters such as the strength of the evidence against each participant or the value of a cooperating witness, and a defendant has no claim to profit from them.

Anonymity receives express treatment in § 5.03(2). A defendant who is already guilty under subsection (1), and who knows that a partner has conspired with others to commit the same crime, is guilty of conspiring with those others "whether or not he knows their identity."¹⁴ That clause shows that the Code does not treat a partner's name as part of the offense. It reaches people the defendant has never met and cannot name, so long as the defendant's own purpose and knowledge are established. The same logic applies on the prosecution's side of the courtroom. A name is one way of proving that someone exists and agreed, but it is not an element, so a conspirator known only by an alias or a role can still be a real party to the agreement.

Charging practice reflects this. An indictment may allege that the defendant conspired with an "unindicted co-conspirator," and that person can even be left anonymous.¹⁵ If there is some evidence that the person exists and agreed to the criminal object, the conspiracy charge can be valid even against a single indicted party.¹⁶ The best-known example is Watergate, where President Nixon was secretly referred to as an unindicted co-conspirator in the 1974 grand jury indictment of various aides.¹⁷ The label lets the charge identify the other side of the agreement without forcing the government to prosecute that person, which matters when the person is immune, is cooperating, or is simply not charged for reasons of the prosecutor's own.

The condition attached to that practice is the limit on it. The label supplies no proof, so the prosecution still has to offer evidence that the person exists and agreed to the criminal object, and an unindicted co-conspirator with no evidence behind the label cannot carry a conviction. The inquiry is therefore whether the record shows an agreement with someone, not whether that someone can be produced.

In both versions the other party is missing from the courtroom. What differs is whether the evidence shows an agreement with someone, and that is the question on which the conviction turns.

Acquitted Co-Conspirators

Of all the ways a partner can be missing from a conspiracy trial, acquittal looks the most damaging. A partner who has died or received immunity leaves the case without any verdict about whether an agreement existed, but a jury that acquits has seemingly examined the evidence and declined to find one. The traditional acquittal rule answers that appearance in jurisdictions that insist on two genuine parties to a conspiracy: a single conspirator's conviction cannot stand if all of the alleged co-conspirators are acquitted at the same trial.¹⁹ The rule has two conditions, since every alleged partner must be acquitted and the acquittal must come at the same trial as the conviction. This section previews the plurality and bilateral discussion that a neighboring reading develops, and it keeps its own focus on what a verdict about someone else can tell a court about the defendant's own agreement.

The rule grew up when co-conspirators were tried together, and its logic is easiest to see in that setting.²⁰ A joint jury hears one body of evidence about the alleged agreement, and a bilateral conspiracy needs at least two people who actually agreed. If that jury acquits everyone charged except one defendant, its verdicts read together say that an agreement existed and that only one of the people accused of making it took part. An agreement with a single party is a contradiction, so the convicting verdict could not sit beside the acquitting ones, and the law set the conviction aside.²¹ The acquittal rule was therefore a rule of verdict consistency. Its force came from the need for one jury's findings on one record to fit together, and it never rested on a belief that an acquittal proves no crime occurred.

Separate trials remove the premise on which that reasoning depends. An acquittal at any trial is never a guarantee that no crime has been committed; it signifies only that the prosecution did not prove its case to the satisfaction of that jury.²² Two juries differ in composition, and the proof offered at the two trials can differ as well, so different verdicts may reflect those differences and need not reflect any real conflict about whether an agreement existed.²³ It is a mistake to assume that one jury's failure to convict one conspirator invalidates a verdict won from a different jury at a separate trial, and for that reason the consistency rule loses much if not all of its force when the trials are apart.²⁴ The words "same trial" in the traditional rule therefore do real work, because they confine the rule to the one setting in which a single jury's own findings could contradict each other.

Even the joint-trial version of the rule is giving way. In People v. Palmer a two-person conspiracy trial ended with a 15-year-old acquitted and a 29-year-old convicted of conspiracy to murder.²⁵ The California Supreme Court conceded that the acquittal rule "has deep common law roots," yet declared it "a vestige of the past with no continuing vitality."²⁶ Its reasoning starts from how criminal verdicts are produced. A conviction requires a unanimous finding of guilt beyond a reasonable doubt, which gives every defendant the benefit of the doubt, and a jury has the unreviewable power to acquit whatever the evidence shows.²⁷ Some guilty defendants will therefore go free, and that outcome does not entitle everyone else to the same treatment. The jury in Palmer may have felt sympathy for the 15-year-old because of the age and felt none for the 29-year-old, so the convicted defendant's verdict had to be judged on its own record and not by comparison with the other verdict.²⁸

The Code's individualized approach fits the direction of these cases. The Code's method of fixing the parties and objects of a conspiracy departs from the common law in part because of its unilateral view, and all three of its scope provisions focus on the culpability of the individual actor.²⁹ When the question is what this defendant agreed to and purposely sought, a verdict about a different person answers a different question. It reports how one jury assessed the proof against someone else, and Palmer shows that such an assessment can turn on matters like youth that have nothing to do with whether the defendant made an agreement. Whether the Code requires a genuine second party at all is the plurality question, which stays in the neighboring reading. Here it is enough to see that the less a jurisdiction treats the defendant's conspiracy as a two-sided relationship, the less a partner's acquittal has to say about it.

Step three is where most answers go wrong, because it is tempting to treat any partner's acquittal as a reason to reverse. The partner's acquittal matters only when one jury's findings would contradict each other, and a conviction obtained after a partner was acquitted elsewhere carries no such contradiction.