ASSIGNMENT TWENTY-TWO - Larceny (Possession/Custody; Larceny & Embezzlement; Trespassory Taking & Asportation; Intent to Deprive; Concurrence of Conduct & Culpable Mental State) :

Today we changed topics. The new subject is property crimes (1 -investigation), (2 - 9,080,788 of 'em in 2006). Property is in our blood here in America. Our economy is a jungle where the law is eat or be eaten, a place where you have to move fast just to stand still, a place with an insatiable appetite for tomorrow and the pursuit of happiness, a place where the American dream is the dream of accumulating more material possessions than the guy next door, a place where we don't own things and they do own us. Greed seems to be the operative moral value. The Enron &  World Com crowd capitalized on that human trait.  American crooks have matured with the society. Now we have crimes like telemarketing fraud, money laundering, insurance fraud, computer crimes, elder fraud, identity theft, bank and credit card fraud, etc. Check out cybercrime. Sometimes I wonder if life in a small seaside village, e,g., Matagorda, Texas, wouldn't be preferable. Maybe I'll pack it in and move to a Gulf Coast beach shack or maybe a swankienda in La Jolla. Ah well, life isn't supposed to be fair. If it was, Elvis would be alive and all the impersonators would be dead.

The major emphasis in our readings was on the C/L crime of larceny (The FBI reports 5,971,647 cases of larceny/theft in 2006.), the legislatively enacted extensions of property crimes in the C/L days, and the  modern day derivations of those property crimes from the C/L days, e.g., TPC Sec. 31.03 and  MPC Article 223. From the historical standpoint, in the ages prior to the rise of the English C/L, advanced societies, such as the Romans and Greeks, apparently treated interference or infringement with most property rights (theft at night and stealing of livestock were two notable exceptions) as civil torts with civil damages as the remedy. The English judges changed the equation when they created larceny and made it a  capital offense with death as the only punishment. 

The professor gave us ten short-answer questions re property crimes in the sample TF section of his sample exam questions page. Here's my take on them. The first question involves A borrowing B's car with permission and subsequently deciding to permanently keep the car. Is it C/L larceny? I say "No." In the original taking, there was no trespass to B's possession. The taking was done consensually and without any fraud and, thus, was done by legal right. Remember, larceny is the trespassory taking and carrying away of personal property of another with intent to steal. A trespassory taking means a wrongful taking or a taking without legal right. A taking may be trespassory even though it was done with innocent intent, e.g., the old bromide of mistakenly taking someone else's umbrella.  In the hypo, the crime might be embezzlement - the unlawful conversion of another's property by one in lawful possession. The second  question about the renting of the car is C/L larceny, in my opinion. It seems like it would be larceny by trick under the approach first recognized by the old English C/L Pears case; consensual possession does not pass. The C/L courts said that the possession that A got was trespassory. On the third question, I say there probably wouldn't be C/L larceny because the object is too heavy to be moved. Since asportation is an element of C/L larceny, it would be virtually impossible to prove that element. Asportation is the core concept of the "carrying away" requirement. Personal property needs to be movable. Also, one might even argue the the statue is real property in the sense that it is permanently affixed to the land. Even if you could budge it - you cannot exercise dominion and control over it. Real property, of course, could not be the subject of C/L larceny. (We saw that real property can be the subject of theft under TPC 31.03.) On the fourth question, about the car wash and tire rotation, I say that would not be C/L larceny. My reason is that UCL says that services were not considered to be subject to larceny at C/L. Personal property had to be tangible. Legal documents and choses-in-action such as contracts, deeds and legal causes in action, were not tangible property; they were merely evidence of property rights. Taking advantage of services (a taxi-ride or a wild night in a Motel Six) was not considered taking personal propertyunder the C/L.  The fifth and sixth questions, about larceny of animals, take us again into the issue of what is personal property. I had to look this one up in UCL. My answer is "Yes" to the cow and "No" to the dog. Property is typically of two types - (1) Real and (2) Personal.  It seems that, normally, personal property is anything of value which is movable and capable of being carried away. At C/L, this would include animals, but not wild animals (those which belong to no one) or animals of a base nature. Base animals such as dogs and cats (household pets) and wild animals, such as foxes, fall into the non-personal property category. [I wonder what those C/L folks thought about a law that said the family dog was an animal of base nature. I'd be mighty upset at anyone who tried to steal my dog Merle.] My answer to the seventh questionabout theft from a thief  is "Yes."  There is still a trespass to possession when a thief steals stolen property from another thief. [Note that the definition of owner under TPC Section 1.07(35)(A) includes a person in unlawful possession of property.] I noticed that stolen property and contraband (drugs) were also considered as personal property for purposes of larceny. The eighth question about the borrowing of the car without permission seems to be the trickiest. Unlike the first question, I think this is larceny. Under the C/L doctrine of "continuing trespass," borrowing the car without permission was a trespassory taking (unlawful interference with the right to possession) even though it wasn't larceny at the time the car was borrowed without permission. Under this continuing trespass doctrine, the trespass to the property (the car) was deemed to continue as long as the trespasser had the property without permission. Thus, when A subsequently decided to keep the car permanently, a required element of C/L larceny, his intent to permanently deprive, i.e., intent to steal, was deemed to be contemporaneous with the trespass. Voila, you have larceny! Remember that the C/L required the mens rea (intent to permanently deprive) to occur contemporaneously with the actus reus (the trespassory taking). The ninth question about finding the lost wallet was not C/L larceny in my opinion. My reason is that for the finder of lost property to be liable for C/L larceny, the finder, must have formed the intent to keep (and thus deprive the owner of) the lost property when he found it. [Remember that UCL tells us that in the case of lost, as opposed to mislaid, property there's got to be some indicia of ownership that would help the finder trace down the owner.] On the tenth question, I concluded that it was not C/L larceny because B intended to transfer title and possession to his money to A, rather just possession. So, A obtained title and possession to the money. At C/L, the victim of the crime of false pretenses must intend to pass title or both title and possession for false pretenses to exist. The professor told us that C/L courts held that there was no larceny when both title and possession or just title to the property was obtained by the con-man based on a material misrepresentation of a presetnly existing fact of monetary significance. Instead, this was deemed to be the statutory offense of obtaining property by false pretenses. However, looking forward the case of the crooked lawyer Graham in the casebook, if A had induced B to part with the property, e.g. $, for a specific purpose, e.g., to bribe another particular person (C), it might be held to be C/L (trespass to possession) larceny rather than false pretenses because title to the property was intended by B to pass only if the purported and conditional goal, e.g., the actual bribing of C, was actually achieved.

I noticed a couple of other things that might come up. As the  C/L  developed, if the value of the stolen property was less than 30 pence (the value of a sheep), no death penalty could be imposed for larceny. Otherwise, death was the punishment for larceny. Wow! On the question of the punishment level for the modern day offense of theft, in most states the actual or replacement value of the stolen property is used to determine the grade of punishment. If I am understanding the reading correctly, in Texas and under the C/L, it is not what the thief  thinks the value of the property is, but what its actual value is that counts. Under the MPC, it looks like mistake of fact can work to the benefit of the thief when the thief thinks he is getting something worth less than it actually is, because the thief is liable for the value of what he thinks he is taking.

The reading for this time centered on larceny. It looks to me like larceny at C/L focused on the concept of a trespassory taking of personal property out of the possession of another with intent to permanently deprive the owner of the use or benefit (value or enjoyment) of the property. Apparently, if the D has obtained lawful possession of V's property, D's later use or conversion of the property can't be a trespass to V's possession and, thus, cannot be C/L larceny. We talk more about embezzlement in the next assignment, but this statutory crime created back in the C/L days seems to involve the conversion to the defendant's use of another person's (the owner's) property, possession of which has been lawfully obtained by the defendant. The reading also drew a distinction between C/L larceny by trick and a third crime, false pretenses, which was also created by statute back in the old C/L days; false pretenses appears to be a property crime involving the obtaining of property by deceit. I got the impression that false pretenses differs from larceny by trick in that in cases of false pretenses the owner intends to give up title or title and possession; whereas, in cases of larceny by trick the owner intends to give up only possession of the property.

As to C/L larceny, the reading involved some fictions that C/L judges entered into  to stretch the concept of larceny. One was the so-called "breaking bulk" doctrine which seems to a special rule employed against carriers (freight haulers, modern day truckers ??); the doctrine said that if the carrier broke into packages that had been delivered to the carrier for shipment, this breaking would be considered as a trespass for purposes of larceny. Whereas, if the carrier took the whole unopened package and sold it unopened, it was not within this doctrine of breaking bulk. Another concept has to do with servants (employees); servants were viewed as having only custody of property entrusted to them by the master (owner); "constructive possession" remained with the master (owner); so, a taking of the master's property by the servant was also viewed as a trespass to the master's possession. This is why larceny by servant was one of the ways C/L larceny could happen. [Note that when the servant received possession property from a third person and kept it for his own use, it was not considered larceny by the C/L judges; this was the reason why the Parliament passed the early embezzlement statute to plug the gap in larceny law; note that embezzslement was a misdemeanor in those days.] The so-called larceny by trick was another of the ways one could commit C/L larceny. This is where the larcenist uses trickery (fraud) in obtaining possession (only possession, not title) of the property; the trick (fraudulent  misrepresentation) is used to induce the owner to consent to the transfer of possession to the larcenist, but the consent is ineffective because it is based on fraud. Since, the initial taking based on trickery is based on ineffective consent, C/L viewed the taking as a trespass to possession for purposes of larceny.

There is some material in UCL that I must read about lost, mislaid and misdelivered property. If the finder of lost property knew or could reasonably determine who the owner of the property was and intended at the time of the finding to take the property and permanently deprive the owner of it, the taking was trespassory and the finder did not get lawful possession. Basically, the C/L viewed the owner in this situation to still have constructive possession of the lost property. On the other hand, if there was no indicia of ownership of the found property, the finder/taker of the lost property was not guilty of larceny (finders keepers). Also, even if there was evidence as to the identity of the owner, there was no larceny if the finder took the found property, intending at the time of the finding/taking to restore the property to the owner. This was true, even if the finder later decided to keep the found property and deprive the owner of it. Apparently, mislaid (misplaced) property is treated a bit differently. Since by definition the owner will come back for mislaid or misplaced property when he recognizes it is missing, the only issue is the taker's state of mind.

The concept taking in C/L larceny required so-called "asportation," which seems to simply mean some movement of the property. I also read about something known as "caption," which seems be part of this concept of taking at C/L and  means to exercise of control and dominion over property. [From what I can determine, the MPC does away with the requirement of asportation; it requires proof that D "exercise unlawful control" over the property. See Section 223.2(1) MPC. The TPC also seems to have eliminated the requirement of asportation; it substitutes the requirement that D "unlawfully appropriate" property. See Section 31.03(a)TPC.]

On the element of larceny that requires taking of "property of another," it looks like a person could actually be guilty of larceny of property that he owns if someone other than the owner has lawful possession of the property and the owner has no right to possession at the time. I must remember that larceny is a crime that involves trespass to possession. So, if the law gives a mechanic the right to possession of my car (mechanics lien) until I pay for the mechanical work that she has done on it and I sneak in after closing time and take (trespass to possession of the mechanic) the car (the one I own) without paying the repair bill, I may be guilty of larceny of my own car. Also, since larceny is a trespass to possession and not ownership, it is possible to be guilty of larceny even if the trespassory taking is from a thief, i.e., a person without title to the property who herself stole the property in question.

Here's one I thought up. Suppose there is a bailment where D comes into possession of property by fraudulently representing the use that he is going to make of the property, but D does not intend at the time to permanently deprive the owner of the property. I'm thinking of a situation where D goes next door and asks his elderly next door neighbor if she wants him to take her car and change the oil in it. Assume, at the time, that D really intends not to change the oil but to use the car for a trip to the lake and then to return it to the elderly neighbor. After taking the car based on the fraudulent promise, D decides to keep the car permanently and does not return it. I think this would be C/L larceny, even though D did not intend to permanently deprive the neighbor of the car at the time of the original taking. I think it would be larceny because of the "continuing trespass doctrine." D, the bailee, obtained the property by trespass, i.e., the fraudulent misrepresentation re the use he was going to make of the car. Thereafter, he formed the mens rea of intent to steal, i.e., permanently deprive the neighbor of her car. The "continuing trespass doctrine" seems to say that the original trespass continues until the intent to steal occurs, and, thus, you could have larceny, even though D at first intended to return the car.

This assignment also involved misdelivery of property, like the Rogers case on p. 700 where the teller mistakenly gave the D too much money. This is not the same as finding lost property but there are some things in common. The reading I've done indicates that at C/L if too much property or the wrong property is delivered by mistake, the recipient (D) can be guilty of larceny if, at the time of the misdelivery, D knew of the mistake as to the misdelivery, i.e, the property is being delivered to the wrong person (recipient) or too much of it is being delivered (amount too much). But the person was not guilty of C/L larceny if the person received the property without this knowledge, and hence without trespass,  even if he later discovered the mistake and kept the property with intent to permanently deprive the owner.  Suppose the I go to the drive-in bank and send the teller a $100 check asking for 100 $1 bills. She sends me an envelope  indicating that the package contains the 100 $1 bills.  When I get home , I open the envelope and find that it contains 100 $100 bills. The teller mistakenly picked up a packet of $100 bills rather than $1 bills. If I keep the $10,000, am I guilty of C/L larceny? The mistake was the banks. I didn't know about it at the time the teller sent me the envelope. It looks like this wasn't C/L larceny.  If I had known about the mistake at the time, it looks like it would have been C/L larceny.  

There seems to be a different issue when the mistake relates to the deliverer being mistaken about how much he is supposed to deliver. Suppose I actually owe you $20 but I mistakenly think I owe you $25 and give (deliver) you $25. If I give you $25 instead of the $20 I actually owe,  the C/L seems to say that you wouldn't be guilty of larceny if you took the $25, even though you knew I only owed you $20. Why? Because I actually intend to give you the $25, even though I'm mistaken as to the amount of the debt. There's no trespassory taking. On the other hand, if the deliverer is mistaken about what he is delivering, as where two $20's are stuck together,  the C/L said that it would be larceny if you take the two $20's knowing that you were only supposed to receive one. (If this is right, in real life it could be a close question as to whether a deliverer was mistaken about how much he was supposed to deliver or whether he was mistaken about what was being delivered. I need to double check this with the Dressler hornbook.)

I like what the MPC says about how the finder of lost or mislaid property or property that has been delivered under a mistake as to the nature or amount of the property or the identity of the recipient (misdelivered). Section 223.5 MPC says the person who knowingly comes into control of such property and who with the purpose of depriving the owner of it fails to take reasonable measures to restore the property to the person entitled to have it is guilty of theft. So, under the MPC, D may be convicted of theft even when the original taking was honest in that D then intended to restore the property, if D later changes his mind and decides to keep the property. 

We've got a couple of more classes on property crimes. So, I'm sure there will be more to learn - more feathers to catch in the tornado.  For now though, I don't have anything more to say to myself. 86

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Assignment Twenty-One - Racketeer Influenced and Corrupt Organizations (RICO)

If God is inside me, I hope s/he likes spaghetti. Cause that's what s/he's getting when todays class is over. Roberto's on West Gray is my Italian foster home.

[UCL doesn't have anything to say about RICO. I looked at a bit of RICO material on  the Internet, e.g.,  (1 - a home-cooked web site with some useful info), (2 - an anti-RICO article) I also looked at the stuff about RICO enforcement that the feds had to release under the FOIA.  This is briefly what I got out of it.]

This assignment is partially about the federal RICO statutes (18 USC Sections 1961-196). I'm not absolutely sure why a RICO conspiracy is different from traditional conspiracy, but it does seem like the only glue you need to link folks to the RICO conspiracy is participation in the activities of an "enterprise" (just about any group or organization, legitimate or illegitimate,  whose members act together) through a so-called "pattern of racketeering activity" ( a couple of the crimes from a  list of 9 state crimes and about 30 federal crimes, including conspiracy to commit such crimes, occurring over a long period of time).  In other words, you are punishing so-called racketeers for what they do or conspire to do with their ill-gotten gains. As I look at the statute, it looks like some of the traditional requirements of a conspiracy like knowing of each other's existence and agreeing to commit a crime (or felony under the TPC) are not required for RICO conspiracy liability. It seems like the issues of wheel and chain conspiracies are not of much importance in RICO, since you can charge people who are involved in different criminal activities, so long as they are hooked up for the purpose of enrichment through a legitimate or illegitimate "enterprise," either in the form of using or investing racketeering income in the enterprise or acquiring or maintaining an interest in the enterprise through racketeering activity, or conducting the affairs of the enterprise through racketeering activity. The kicker is that it is also a RICO crime to agree (conspire) to do any of the above acts.

The RICO law and cases are relatively complex, including things like treble damages for civil RCO cases filed by private parties without having an antecedent criminal RICO conviction, criminal forfeiture of the interests in enterprises infused with the proceeds of the racketeering activity, as well as the RICO proceeds, injunctive relief to order divestiture of the violator's interest in the enterprise and/or dissolution of the enterprise. Any coverage in a first year crimes course will be superficial. The professor told us that the upper-crust layer of criminal defense lawyers and career justice department prosecutors spend years master the scope and nuances of this broad and ambiguous federal statute.

Note: I got the impression from the professor that the thing that may be most important to us on the exam is the Texas version of RICO that is found in Chapter 71 of the TPC under the title "Organized Crime."  Obviously, it's not in the casebook, but the professor seems to think it is important, particularly on the essay portion of the exam, to spot the possible applicability of the Texas Organized Criminal Activity (OCA) crime in situations that involve multiple parties. OCA requires a "combination,"  which is three or more persons who collaborate in carrying on criminal activities. RICO requires a pattern of racketeering activities. Organized criminal activity requires proof that the members of the combination collaborated in carrying on criminal activities (plural). It's clear from the face of the OCA definition of a "combination" in Sec. 71.01(a) TPC that the members of the combination don't have to know each other's identity, but inferentially the statute suggests to me that they may have to know of each other's existence. Membership in the combo may also change from time to time. There is a long list of target offenses (including conspiracy to commit any of them) that qualify  as organized criminal activity (OCA), so long as you've got the members of the combination committing one of them.  Sec. 71.02 says that it is a crime, with intent to establish, maintain, or  participate in a combination or in the profits of a combination or as a member of a "criminal street gang" for a person to commit  or conspire to commit one of the listed target crimes. The professor told us to look at the definition of "conspire" in  Sec. 71.01 ((b) and notice that the legislature put in a goofy requirement that the D and one of the other members of the combo have to each commit an overt act (as a lady in the  class pointed out this would seem to include  the two jointly committing  a single overt act) in furtherance (pursuance) of the conspiratorial agreement.  That makes no sense! But the prof said it has been in the statute since its inception. The Guns material discusses this Chapter 71 Texas Organized Crime law.

Under Sec. 71.02(b) TPC, the punishment for the offense of OCA  when the target crime is committed  seems generally to be one higher category than the target crime, except in the case of first degree felonies. The OCA punishment for conspiracy to commit the target offense, under Sec. 71.02 (c), is  the same as the most serious offense that is the target of the conspiracy. [I'm wondering, what if the OCA conspiracy is to commit capital murder? Would OCA then become a capital crime? If so, one could get death for conspiring to do something without doing it.] There's a mitigating factor in Sec. 71.02 (d) TPC for the OCA defendant who renunciates and makes an effort to withdraw from the the combination before the target offense is committed, if the D made a substantial  (thought unsuccessful) effort to prevent commission of the target offense. If the D proves this mitigating renunciation by a POE, the punishment level is the same as the target offense or one punishment level lower in the case of an OCA conspiracy. There's also a complete affirmative renunciation defense to OCA under Sec. 71.05 TPC  where a member of the combination voluntarily and completely withdraws from the combo before certain of the target offenses (but not all of them) occur and takes action that prevents the commission of that offense. Sec. 71.05 (c) and 71.02 (d) seem redundant. [Thank goodness the Texas Legislature hasn't been as clumsy in drafting other criminal statutes as they seem to have been in writing this one.] Here's a brief discussion of organized crime (1) from the law enforcement perspective.

Gotta go saw some wood.

ASSIGNMENT TWENTY - Vicarious Liability for Acts of Another - Complicity - Aiding and Abetting - Accomplice Liability - Natural and Probable Consequences Rule - Liability for Acts of  Co-Conspirators - Pinkerton Rule - See Silver Bullets III

Okay, senores y senoras, as they say in the Philippine Islands, "Are you ready to pit your cocks?" This refers, of course, to putting your fighting game roosters in the ring to mix it up. This class was about complicity theory.  This is a concept or theory, not a crime. There are no such crimes as "Complicity,"  "Accomplice," "Aider," or "Abettor." These are simply ways of describing a legal doctrine or set of rules that allow us to determine when someone other than the primary actor who commits the crime can be held criminally liable as a party (accessory) to the crime committed by the primary actor, e.g., the triggerman, bomb thrower, robber, arsonist, rapist, etc. Think about  Messr. bin Laden sitting on his thumbs in a cave in Afghanistan while Mohamed, Waleed, Satam, Abdulaziz, Fayez, Ahmed, Hamza, Saeed, Ziad, Khalid, Hani, Nawaq, and the rest of their Saudi crew guided the hijacked airliners into the World Trade Center and Pentagon, killing almost 3000. If our country could capture the elusive Osama and put him on trial (a concept with a lot of procedural hurdles and, probably to the US military, not the preferred method), could we try him as a party to the substantive crime of murder, aside from the inchoate offense of conspiracy to commit murder and terroristic crimes? If so, we would be using complicity theory to make one person (Osama) liable for the conduct of others because he intentionally aided or encouraged the others (the suicide bombers) with the intent or purpose to assist commission of the murders.  If you don't like that hypo, could we think of it this way: The guy who holds the ladder is liable for the crime committed by the burglar. Probably not, because Osama appears to be more of a mastermind whose aid occurred before the actual commission - thus, making him more like a common law accessory before the fact. Of course, modern penal codes, like TPC 7.01(c),  do away with the distinctions between principals and accessories before the fact (Texas uses the word "accomplices").

The professor showed another clip from old "Fargo" to start a discussion about how the criminal law may hold one person liable for the acts or crimes of others. The video was useful in getting a handle on how the Pinkerton Rule (Texas has a form of it; the MPC rejects it; common law did not have it) can make co-conspirators liable for collateral felonies committed by one of their number, but it also helped me visualize how complicity law encompasses the theories for making people criminally liable for conduct of another person.  They sometimes call this  "vicarious criminal responsibility for the conduct of another."  This is different from what we've been studying up to now, in that most of the cases thus far have involved defendants being accused and held responsible for their own conduct and not for someone else's. We spent most of our class period constructing hypos under the Texas complicity law, which is found in Chapter Seven of the TPC, only half-a-page of material but important stuff. The MPC deals with complicity theory in Sec. 2.06, about a page of material. Dressler explains the important aspects of the MPC complicity law. 

We talked about the Parker case of Larry the law student. It seems that the general rule of complicity theory is that mere presence at the scene of a crime, standing alone, is not enough to make one a party.  I assume that if Parker had by words encouraged his buddies to mug Larry by saying, "Kick his law-studying fanny " or if he had solicited them to roll Larry, Parker would be considered as a complicitor, accomplice, or aider and abettor (all meaning the same thing to me) to his buddies' conduct of rolling Larry.  Parker would also be an aider or accomplice if, with intent or purpose to assist his buddies in rolling Larry, Parker had engaged in conduct that was intended to help them, e.g., supplied them with a pistol to use in the robbery. There may actually be situations where presence of the aider/accomplice at the crime scene is an act meant to encourage the doer. In that case, presence may be a sufficient act for accomplice liability. Look at Dressler UCL, Section 30.04 [3].

As I understand it, there are a several circumstances where you might want to make people vicariously liable under what I call regular complicity theory.  As I look at MPC 2.06, I see four situations that involve complicity. For example,  where D1 uses an innocent person, e.g., one with no mens rea or an irresponsible person (a child or insane person), as a non-accomplice/aider instrument  to commit the crime.  Someone came up with the idea of giving a six-year-old kid (innocent and non-responsible) a stick-up note and sending him into a bank with it. Also, complicity applies when D1 solicits a the doer to commit the offense, aids or attempts to aid another person in the planning or commission of  the offense. (Unlike the common law, this would include an ineffectual effort to aid the doer.)  Complicity also applies under the MPC where D1 has a legal duty to prevent the crime being committed by another person and D1 fails to do so, e.g., a cop who whittles while he watches a robbery transpire or a parent who, with intent or purpose to injure, watches without interfering as his child is abused  (the Rundle case). Another instance where you find complicity under MPC 2.06 is where a law explicitly establishes complicity liability; there may be statutes under which the definition of a crime makes D1 accountable for the acts of the doer crime, e.g. the MPC F/M rule (Section 210.2 (1) (b)) with its complicity feature, making all the accomplices to the felony liable for murder; another example could be where a statute criminalizes the act of aiding, e.g., aiding suicide statutes under the MPC and TPC. 

The MPC Sec. 2.06(3) accomplice law does not make an accomplice (C1) guilty of an offense committed by a doer (C2) in carrying out the plan, unless the accomplice (C1) had the "purpose of promoting or facilitating the commission of the offense."  C1's mere knowledge of the collateral offense that  C2 was going to do would not be sufficient to make C1 liable for the collateral offense C2 did without additional proof of C1's purpose to promote or facilitate the offense committed by C2. What we are looking for is two things: (1) helping the doer to commit the offense by soliciting, aiding, agreeing to aid, or attempting to aid and (2) the intent or purpose to promote the target crime. Obviously, informants and undercover agents who are trying to enforce the law don't act with intent to promote commission the offense. The TPC, Sec. 7.03 (2) indicates that it is no defense that the person for whose conduct the complicitor is responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution. Remember the Alaska game-warden case (Vaden) where the hunting guides (aiders, accomplices) were held liable for hunting violations by the undercover game wardens who themselves had a potential personal public authority defense. [Note: This MPC approach of not making a person a party liable simply because of knowing participation in a crime makes me think of all the "Fargo" movie clips I watched after searching Fargo on YouTube, e.g., (1), (2), and the role that the mechanic, Shep Proudfoot, played in hooking the husband, Jerry (William Macy), up with the two hoodlums, Carl (Steve Buscemi) and Gaer (Peter Stormare), who committed the kidnapping of Jerry's wife. Was Shep an accomplice to kidnapping? Shep obviously helped connect the mastermind with the guys who would do the job. But the issue to me is whether Shep just incidentally provided the information to Jerry in an offhanded way or whether he did it with the purpose or intent of promoting or facilitating or assisting in the commission of the kidnapping. Could one argue that Shep didn't have a "stake in the action"? Is this a situation where someone knowingly helps another person commit a crime without any intent or purpose to promote the commission of the crime. Dressler talks in UCL about purpose v. knowledge and the policy arguments in favor and against liability in connection with both conspiracy on p. 434 and complicity on p. 474. This reminds me of the gunshop owner who sells someone a gun knowing they plan to use it in a robbery. Is the gunshop owner liable as a party to robbery, if he had no purpose to promote the crime?  Was I the only one in class to figure this out as the big issue with Shep? Of course, if Shep was a conspirator (like the husband Jerry) to the felony kidnapping for ransom plan, it would be necessary in a jurisdiction that has some form of the Pinkerton Rule, e.g., Section 7.02(b) TPC, to ask if Shep was liable for one or all of the collateral murders under the theory that they were foreseeable crimes committed in furtherance of the conspiratorial purpose.]  

Another thing about the MPC is that it seems to expand vicarious liability of an accomplice by making a person an accomplice under MPC Sec. 2.06(3)(a)(ii) if, acting with intent to promote or facilitate commission of the offense, he attempts to aid another person in planning or committing the offense. That means that there is liability not only for aiding but also for attempting to aid. So, even if D1 is totally unsuccessful in his attempt to aid D2 to commit robbery, if D2 goes forward and commits the robbery, D1 is liable for the robbery as an accomplice. Texas seems to have the same language of "attempts to aid" in Section 7.02 (a)(2). So, the MPC and TPC are the same on this.  Regarding ineffectual aid, the traditional C/L approach is that the aider/accomplice's actions must actually aid the doer in some way, even though it isn't necessary to the doer's success; see Dressler UCL p. 469, which also makes the point that, if there is actual aid, the quantity and quality of the actual aid is irrelevant; the actual aid  suffices as aid no matter how trivial it may be. [This could be a good one for an objective question. See the sample TF MC questions.]

From what I can determine from the general law regarding complicity, it isn't required for complicity that the aider's efforts actually contribute to the commission of the crime in any causal "but for" way.  Also, the law doesn't seem to require that the doer even know about the aider's assistance for the aider to be liable. A lady in the class gave a good hypo about a customer in a bank that is being robbed who, on his own impulse and without the robber's knowledge, throws his coat over the bank video camera with the purpose of promoting the offense by preventing the robbers from being identified. Under this theory, the customer is liable for the robbery as an aider/accomplice even though the robbers never knew about the aid rendered.

What about withdrawal  by an accomplice/aider before the doer commits the offense? It's important to note that the concept of withdrawal or abandonment with regard to liability for the target crime is a completely different concept than the concept of renunciation of an inchoate offense,which is just an affirmative defense to the inchoate offense under the MPC and TPC and not at all under the C/L.  With regard to withdrawal by an accomplice as some sort of defense to being liable for the crime committed by another, it looks like the MPC Sec. 2.06 (6) (c) says that a person is not an accomplice in an offense if she terminates her complicity prior to the commission of the offense and either wholly deprives her complicity of effectiveness in the commission of the offense or gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. Dressler on p. 486 of UCL says that many courts hold that a person who provides aid or assistance to another for the purpose of promoting or facilitating a crime, but who later abandons or withdraws from the criminal endeavor can avoid accountability for the subsequent criminal acts of the primary party.  It seems that the aider has to communicate his withdrawal to the principal and make a good faith effort to neutralize the effect of his prior assistance. The TPC says nothing about the effect of withdrawal on the complicitor's liability.

This class session also involved the issue of whether you can have accomplice liability for crimes of recklessness or negligence. Obviously, the doer doesn't intend such an offense or commit it purposefully.  So, how can an accomplice intend the crime? The approach that seems to be recognized as the best is that there can be accomplice liability for negligent and reckless offenses, if: (1) the accomplice had the intent or purpose to aid the doer in the conduct that forms the basis of the offense and (2) the accomplice had at least the same level of mental culpability required for the offense, i.e., the accomplice was reckless or negligent, as the case may be, concerning the conduct or result. Dressler's book UCL explains this concept on p. 515. The MPC, Sec. 2.06(4), seems similar regarding accomplice liability for result-oriented crimes, i.e, the accomplice in the conduct causing the result is an accomplice in the commission of the offense if he acts with the kind of culpability, if any, with respect to that result  that is sufficient for the commission of the offense. (This mens rea could be recklessness or negligence.) Texas case law also seems to support the view that one can be an accomplice to crimes of recklessness and negligence. See Mendez v. State, 575 S.W.2d 36 (Tex. Crim. App. 1979) holding that one could be vicariously liable as an accomplice to reckless manslaughter.

What about liability of parties for collateral crimes of other parties? The typical approach to complicity is to make a person liable for the offense he aids with the purpose of promoting the offense. But the C/L recognizes something known as the "natural and probable consequences rule." UCL talks about the NPC rule on p. 477. This rule makes an accomplice/aider liable not only for the target crime that he aided but for other collateral crimes that are the natural and probable consequences of the doer's effort to commit the target crime. This is a foreseeability based test. Remember that this C/L rule is based on accomplice liability and not on conspirator laibility. Of course, if the doer is a "wild hare" and goes down paths that are not foreseeable, e.g., the bank robber who sexually assaults customers during the robbery, the aiders/accomplices shouldn't be responsible for rape, unless the rape was foreseeable.

[Note: This is important to understand, because I will need to be on the look-out for a Texas Pinkerton Rule scenario on the essay.] There is another way that many jurisdictions make people liable for what others have done. I think of it as co-conspirator complicity. It is based on one being a conspriator rather than an accomplice.  It is known as the Pinkerton Rule. Dressler talks about the Pinkerton Rule on p. 487 of UCL. The C/L and the MPC don't follow the Pinkerton Rule, but Texas does. The rule casts an enormous net of liability for those who join a conspiracy. The Texas Pinkerton Rule is in Sec. 7.02(b) TPC. The way I understand this Pinkerton approach to complicity is that it is based on the existence of a conspiracy. Of course, we already know that conspiracy is an inchoate crime, but it is also a basis for making each one of the conspirators liable for certain collateral crimes committed by other conspirators. This is in addition to the traditional complicity rules making one an accomplice in Sec. 7.02(a) TPC. Under the Texas version of the Pinkerton Rule, it looks like you can make D1, a party to a conspiracy,  liable for a collateral felony committed by fellow conspirator D2, even though conspirator D1 never did anything at all to encourage, aid and abet, or assist co-conspirator D2 to commit the collateral felony. All that is necessary is that the collateral felony be done by D2 in furtherance of the original target felony and that the collateral felony be one that should have been anticipated by D1 as a consequence of carrying out the original target felony. So, what is different about Pinkerton?  For one thing, D1 can be liable as a conspirator under Pinkerton for the collateral crime by D2 even though D1 did nothing to encourage, aid and abet, or assist the collateral felony other than simply agree to commission of the original target crime. Even more important, D1 is liable for the collateral felony in furtherance of the conspiratorial purpose despite the fact that D1 has no mens rea other than negligence, i.e., he should have anticipated (foreseeability) that  the collateral felony might occur.  If you are trying to use regular complicity theory, you can certainly question whether merely agreeing to enter the conspiracy is sufficient to constitute encouragement; also, even if it is encouragement, under traditional complicity theory, e.g., TPC Sec. 7.02(a)(2), you would still have to also show that  D1 acted with "intent  to promote or assist the commission" of the collateral offense. That's not easy when the collateral felony was never even discussed as part of the conspiracy plan. [The problem I have personally is whether it is a good idea to allow conviction under this broad Pinkerton concept where you might have a collateral life-in-prison felony offense charged against a  co-conspirator based on his negligence in failing to foresee the collateral felony that was done in furtherance of the original target of the conspiracy.  In a way, it's kind of like complicity in C/L F/M where there is strict liability for murder for all the felons. Before the terrorist attacks of 9/11, I would probably have unabashedly opposed it as over-criminalization. Now, the spineless, cowering part of me leans toward having an arsenal of vicarious responsibility laws to use against suspected blood-thirsty critters in any domestic investigations and trials that might be held in connection with terrorist activities. Hey, I went to Home Depot and bought 12 rolls of duct tape and 5 rolls of plastic sheeting after our brilliant director of a secure homeland issued that advice to protect against terrorist gas attacks. Who knows, I may eventually need it if our leader's April 2003 "preemptive war" against Iraq to destroy the Iraqi Army's huge stock of "weapons of mass destruction" doesn't get all the secret supplies of nerve gas!]

At C/L they had defined four categories that described the role of parties participating in a crime, e.g., principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. UCL and the casebook lay out the old C/L division of parties. I'll look at one of those sources to sort that out. Apparently, the modern trend now is to have statutes like MPC 2.06, 18 USC Sec. 2(b), and TPC Sec. 7.01(c) that do away with the old distinctions between common law parties. In effect, folks who would have been principals in the first and second degree and accessories before the fact at common law are now all treated as principals (not "principles"). That means the punishment ranges are the same for all the parties. The punishing authority (judge in most jurisdictions, judge or jury in 8 or 9 jurisdictions like Texas) decides what the precise sentence should be for the particular offender. In some cases, the accomplice/aider and abettor, e.g., mastermind shark, may deserve more punishment than the mullet doer. When you treat all the parties as principals, you don't have to worry about order of trial or who gets charged under what label.  For example, you don't have to convict the "doer" in order to then prosecute the aiders and abettors/accomplices as you had to do under the C/L.  You don't have to worry whether you mischarged a guy as an accessory when the proof shows him to be a principal. With regard to the C/L accessory after the fact, the modern view is to treat them as less blameworthy than the other types of parties and charge them with a specific tailor-made crime such as harboring a fugitive or obstruction of justice or, as in Texas, hindering apprehension of a fugitive. See TPC Sec. 38.05

Notes to myself:

When D coerces (uses duress) to force X to commit a crime, X is considered as an innocent instrumentality. So, on the exam, if  this happens, I've got to remember to talk about the defense of duress re X, but I also have to talk about the liability of D (He'd be a C/L principal in the first degree.) for the crime using X as an instrumentality. UCL p. 463 talks about some problems this raises.

The aider/accomplice/complicitor can be vicariously liable under the C/L even though the doer would have committed the offense anyway, i.e., without the aider's assistance.

I need to check out this web site on the issue of helping a person to commit suicide. Should doctors be allowed to do it under controlled circumstances?   

This stuff is beginning to look like goobledygook. I'm booking it to the local ice house, where I will ponder whether there is ever such a thing as a guilty bystander. If so, would it be unlike a gruntled employee?

ASSIGNMENT NINETEEN - Solicitation - Elements of Conspiracy (Agreement, Procedural Aspects, Scope and Object)  See Silver Bullets III

HERE'S A SAMPLE CONSPIRACY INDICTMENT IN THE 9/11 CASE (MOUSSAOUI) ; FOR EXAMPLES OF TERRORISM THAT INVOLVED CONSPIRACY SEE UNITED STATES V.MCVEIGH, 153 F.3D 1166 (10TH CIR. 1998); UNITED STATES V. SALAMEH, ET AL,  261 F.3D 271 (2ND CIR.  2001), THE FIRST WORLD TRADE CENTER BOMBING; UNITED STATES V. BIN LADEN ET AL, 92 F.SUPP. 2D 225 (S.D.N.Y. 2000), THE U.S. EMBASSY BOMBINGS IN KENYA AND TANZANIA.  FOR A SAMPLE COMPLAINT CHARGING MURDER, SOLICITATION OF MURDER, AND CONSPIRACY TO MURDER, SEE THE COMPLAINT IN THE ROBERT "BARETTA" BLAKE CASE. IT'S INTERESTING TO NOTE THAT ABOUT 25% OF ALL FEDERAL PROSECUTIONS INVOLVE ALLEGATIONS OF CONSPIRACY. THE PROF SAID THAT MOST FEDERAL PROSECUTORS WILL ADD A CONSPIRACY COUNT WHERE THEY CAN, IF FOR NO OTHER REASON THAN TO CREATE A BARGAINING CHIP FOR SETTLEMENT PURPOSES, E.G., DROPPING THE CONSPIRACY COUNT IN RETURN FOR A PLEA OF GUILTY TO THE SUBSTANTIVE COUNT OR VICE VERSA. 

Yo, gumby! Let's set the table. This session, which was a "Fargo" movie day,  focused on conspiracy and solicitation.  These two crimes are different from attempt, but they are like attempt in that they are also inchoate (incomplete) offenses that allow punishment for conduct before any harm results.  However, conspiracy and to a greater extent solicitation are more crimes of words than attempt. Take a look at the Blakecase.

The crime of solicitation is one that can take place in what might be characterized as the early portions of the mere preparation phase. Of course, solicitation requires a second party who is the subject of the solicitation. [Note: If I'm smart, I will probably want to look at the essay exam question for a solicitation that starts the ball rolling. If things start with solicitation, and I start my essay answer off with conspiracy, I will have to double-back to talk about solicitation out of sync. I should try to keep my answer chronological  to avoid looking scatter-brained.] English common law made it a misdemeanor for a person to solicit, incite, request, encourage, recruit, induce, entice, command,  or counsel another to commit a felony or a misdemeanor of an aggravated nature. American C/L limits the target to felonies. Indeed, most statutes typically use solicitation to punish only a few specified serious felonies. Solicitation is a specific intent crime at C/L, just like the other inchoate crimes. Notice the the general solicitation statute in Texas, Sec. 15.03 TPC, only applies to solicitations to commit capital murder and first degree felonies. [I need to remember this for the exam.]

The crime of solicitation occurs even though the solicitation is not effective, e.g., the person who is solicited declines the solicitation.  Think about it, this verbal crime occurs even if no further action or effort toward the target takes place. No substantial step is necessary as in attempts, though it is not precluded. Sec. 5.02(1) MPC broadly defines the crime as solicitation to commit any crime (this expands the C/L); the solicitor has to act with the purpose of promoting or facilitating the commission of the crime. Sec. 5.02 (1) also seems to make it an offense to solicit another person to attempt to commit a crime (This would cover a  situation where the solicitor knew the substantive crime was impossible for the solicitee to commit as where the gun was incapable of firing.) So in this instance the MPC makes it possible to have a crime that would be viewed as solicitation to attempt a crime. UCL talks about this on pp. 455-456 and gives the example of D1 soliciting D2 to pick what D1 knows is the empty pocket of V. If D2 does it, D2 is liable for MPC attempted theft (or attempted larceny at C/L), and D1 would be guilty of solicitation of attempted theft under the MPC (but not guilty of solicitation of larceny at C/L because D1 knew that the pocket was empty and did not intend that D2 commit larceny).  It's important to note that the TPC, Sec. 15.05, tracks the C/L's traditional policy of barring use of an inchoate offense as the object offense for another inchoate offense and says you can't have an inchoate crime to commit a inchoate crime, i.e., "Attempt or conspiracy to commit or solicitation of, a preparatory offense defined in this chapter is not an offense." Sec. 5.02 (2) MPC also seems to make a solicitation out of what  might otherwise seem to be an attempt to solicit in that it is immaterial that the solicitor fails to communicate with the person he solicits to commit a crime, if his conduct was designed to effect such communication. That would mean when D1 orally solicits X, who happens to be deaf and doesn't hear the solicitation, you could still have solicitation, even if X didn't hear it. Also, if D1 mailed a letter of solicitation and the letter was never delivered, you could still have a MPC solicitation.

I need to remember the "do-it-for-me-not-with-me" limitation of C/L solicitation.  This is not a limitation under the MPC and TPC. The latter two jurisdictions also provide a renunciation defense in Sec 5.02(3) MPC and Sec. 5.04(b) TPC.

Because solicitation can be a crime of words, we have to be aware of the First Amendment implications of it. The USSC has indicated that free speech will normally protect statements that advocate violence, if the speech is unlikely to incite or threaten imminent lawless harm. This is probably enough info about solicitation.  Silver Bullets and UCL have more precise material about solicitation.

What about the crime of conspiracy? Even when a conspiracy requires an overt act in furtherance of the conspiracy, as it does in Texas, you are still looking at less conduct than is typically required for an attempt, e.g., you never have to have enough to equal what you would have to have for a substantial step or perpetration beyond mere preparation of an attempt. The MPC requires an overt act in furtherance of the  conspiracy, except when the target crime is a 1st degree or 2nd degree felony (the most serious felonies). The overt act can be a legal or illegal act; so long as it is in furtherance of the conspiratorial purpose, it will suffice.  You only need one overt act by any of the conspirators. [ What happens if a conspirator pulls out (withdraws) before any overt act is committed? In overt act jurisdictions, it seems like that person would not be considered as a conspirator, since he was out of the group before the conspiracy came into existence, even though he originally was a party to the agreement.] Of course, the C/L doesn't even require an overt act; the mere preparatory act of agreeing to commit a target crime is sufficient at C/L, wholly  aside from any question as to whether any of the parties commit any overt act. [ In light of the recent terroristic acts against our country, I think I can see why it' may be a good idea to have these preparatory crimes. These incomplete crimes would allow the authorities to step in early-on and arrest and convict a person before the harm was done. If some egg-sucking ferrets are planning to blow up a building, I want the cops to be able to step in and grab them, and I want that to be a crime (conspiracy to commit a terroristic act or to murder or to destroy property) we can take to a jury. And , if one corn-cobbing crotch cricket is taking a substantial step (attempt to murder) to poisoning a public water supply, I want the law to be able to stop the drooling dirtbag before he gets near the water.  On the other hand, the conspiracy and solicitation crimes are basically crimes of words, and I've always believed in free speech.  Ben Franklin said those who "can give up essential liberty to obtain a little temporary safety deserve neither liberty or safety." Maybe it's a good idea to have an overt act requirement, at least when the target crime is not very serious, a la the MPC approach. ] 

Conspiracy to commit a target crime involves an agreement between two or more persons to commit the  crime. In Texas, the target crime has to be a felony. Under the MPC, it just has to be a crime. At modern C/L, the conspiracy crime does not merge with the target crime. So, one can be convicted of and punished for both the target offense and the conspiracy to commit the target offense.  The general rule under the MPC seems to be that the conspiracy and the target merge, in that the D doesn't get double punishment for each; the one exception is when the prosecution proves that the conspiracy involved the commission of other offenses that are not yet attempted or committed. See Sec. 1.07(1)(b) MPC. [Note: I need to remember that any time a problem has two or more persons participating in a planned or perpetrated crime, I should think about solicitation and conspiracy, as well as the target offense. In those multi-party cases, I also need to think about vicarious liability (based on complicity theory) that one actor may have for the crime(s) committed by another, either as an accomplice (aider & abettor) or under the Pinkerton approach as a co-conspirator, but that is for the next assignment, Number Twenty.]

The C/L doesn't recognize renunciation as a defense to a conspiracy charge (or, for that matter, solicitation or attempt either).  Texas, in Sec. 15.04 TPC,  borrowed from the MPC versions of renunciation in Secs. 5.01(4) (attempt), 5.02(2) (solicitation), and 5.03(6) (conspiracy), and does recognize renunciation as an affirmative defense (BOP on the D by a POE) to conspiracy, attempt, and solicitation.  Of course, to have renunciation available as an affirmative defense the accused must make sure the target crime is not achieved. Remember, this sort of renunciation only applies to inchoate offenses.

There is also a concept known as withdrawal that focuses on what a conspirator has to do to be able to bail out of a conspiracy before the other conspirators hit the target and be able to claim the withdrawal as a defense to the subsequent commission of the target offense (not the inchoate offense) by his co-conspirators. The MPC Sec. 5.03(7)(c) indicates that one can either inform his fellow conspirators or notify authorities that he is bailing out, i.e., that he is no longer a member of the conspiracy. When this is done, the withdrawing conspirator is not responsible for the future acts of his co-conspirators, i.e., he won't be responsible for the target offense. The C/L rule seems to be that a conspirator can withdraw from a conspiracy and cut off liability for future criminal acts of his co-conspirators if he notifies his fellow conspirators that he is withdrawing and does so. Of course, the withdrawing conspirator is still liable for the conspiracy crime.

Notice that the law of conspiracy allows an agreement to occur either expressly or by implication (implicitly). So, I can look for an agreement based on what the parties to it do and/or say that is indicative of their intent to agree. Remember the 5th Cir. Alvarez conspiracy case of the guy who loaded the appliances on the empty plane, smiled, and indicated that he would be at the off-loading site. To me, that was a borderline case. Whatever the rule, it seems like it should require unambiguous evidence that the person intended to agree to the conspiratorial purpose before he is considered to be a conspirator.

Also, it is not required that all the parties to the conspiracy know each other or meet; it's good enough if they know each other exists. See MPC Sec. 5.03(2) which says you don't have to know their identity as long as you know that the person you have conspired with to commit the crime has conspired with other persons to commit the same crime. So, if D1 conspires with D2 to commit the crime and D1 knows that D2 has conspired with D3 to commit this crime, even though D1 does not know the identity of D3, D1 is viewed as having conspired with D3.

As to a D who tries to join an already existing conspiracy, can a late joiner become a member of the conspiracy? Yes. It appears that additional conspirators can jump on the train (join the conspiracy) after it has left the station, just as long as the object (target) of the conspiracy hasn't been completed when the late joiner comes aboard. One thing concerns me. Suppose D joins late. Is D responsible for earlier crimes committed: (1) by his fellow conspirators under the Pinkerton rule (TPC Sec. 7.02(b)) that makes each conspirator liable for collateral crimes (felony under the TPC) that are committed in furtherance of the conspiracy and that are foreseeable (that he should have anticipated as a result of the target felony being carried out)  and/or (2) for crimes that are "natural and probable consequences" of the offense to which he is a complicitor ( an accomplice).  The prevailing (majority) rule is that the late joiner is liable for these other crimes that were committed before he joined the conspiracy or became an accomplice. [On this issue joining a conspiracy, it looks like you can be liable in one of three ways: (1) being part of the original conspiracy, (2) being a late joiner, and (3) being and aider and abettor of a conspiracy without being an actual conspirator.]

Texas in Sec. 15.01 (a) requires that the conspirator act with intent that a felony be committed. The MPC Sec. 5.03 (1) requires that the conspirator act with the purpose of promoting or facilitating the crime.  This seems to be the approach taken by most jurisdictions.  When intent or purpose is required by the law, knowledge alone would not seem to be sufficient to establish the mens rea of conspiracy. Remember the case of the guy, Lauria, who ran the answering service for whores.  [I think you can make a pretty good argument that the law should not make such a person liable for conspiracy just because he knows that some of his customers are putting his business services to an unlawful use. But some of the reading I have done suggests that, when the crime is of such a serious nature as to be a very significant threat to society, mere knowledge of the intended use of the property is sufficient to taint the accused with guilt, as when a drug company is selling enormous amounts of a dangerous drug to a country doctor.  The dividing line may be unclear as to when something more than knowledge is necessary. Lauria suggests it might be felony/misdemeanor; if so, when the seller knows the buyer intends a felony, mere knowledge may be enough; whereas, if the seller knows the buyer intends a misdemeanor, intent to promote or facilitate the misdemeanor is required. To me, it seems like it will be only in rare cases that we will hold that mere knowledge by a seller of the intended use of the product will be sufficient  to make the seller a party to the substantive offense, and even more rare when we would use that mere knowledge alone to make the seller a party to the conspiracy to commit the substantive case based on an implied agreement or an aiding and abetting a conspiracy theory. Suppose D1 provides D2 with a pistol that D1 knows D2 will use to murder V. If D2 commits the murder, is D1 liable as a party to murder? It seems like D1 would be an aider and abettor of murder? But suppose D1 works in a gunshop and the sole purpose of the sale of the pistol to D2 was for profit and that D2 was legally qualified to buy a pistol and the gun was sold for exactly the same price that any other customer could buy it for. Is the gunshop employee, who knows that D2 is planning to use the gun to kill V1, liable as a party for murder committed by D2 with the pistol? This last one is tough, but it seems clear under MPC Sec. 2.06 that D1 (the gunshop guy) wouldn't be liable as an accomplice to murder unless he had the purpose of promoting or facilitating  the murder. D1 didn't. Therefore, he's not a party to the substantive murder V.]

I got the impression from the Feola case (p. 603) that if knowledge of the so-called attendant circumstances ,e.g., a jurisdictional element, is not required to be proved in order to prove the target offense of a conspiracy, such knowledge is not required as proof of the conspiracy to commit the target offense.

Also, there may be certain situations in which a person cannot be a conspirator and thus does not qualify when you are counting heads to see if you have an agreement; one such is shown by the Gebardi case (p. 608) which says that when the target crime is designed to protect a certain class as victims, members of that class can't be counted as conspirators; this is the "legislatively protected party rule"; another is the so-called Wharton Rule that says: when the target crime requires cooperative action of two people, e.g. incest, adultery, bigamy, receiving stolen goods, sale of contraband, bribery, you can't use the second person when counting heads to determine whether you have a conspiracy. In effect, if two are needed for the substantive crime, three are needed for the conspiracy. For example, if seller (D1) agrees to sell heroin to buyer (D2), the agreement between the two is a necessary element of the crime of sale of heroin; thus, the transaction does not qualify as a conspiracy to sell heroin under the Wharton Rule, assuming there are no other actors involved in the target offense.  If there are more, the Wharton Rule does not apply.  In jurisdictions, such as the MPC,  that statutorily prohibit double punishment for the conspiracy to commit the target offense and the target offense,  the result may be somewhat similar to the outcome under the Wharton Rule.   The commentary to the MPC says that the MPC does not recognize the Wharton Rule. UCL says the same thing.   

There is also the question with conspiracy as to whether you have one or multiple conspiracies. This matters because you don't want to charge a person with a conspiracy that he's not a part of. Also, it's important to prosecutors who are trying to introduce the acts and statements (what would otherwise be hearsay and irrelevant if the speaker and/or the accused are not in the same conspiracy) of one conspirator, in furtherance of the conspiracy and prior to its completion, as evidence against all of them. It's important for purposes of venue (allowing the situs of the trial to take place anywhere the conspiratorial acts took place). In determining the number of conspiracies , the types of conspiracies we looked at in the cases were chains, e.g., a drug operation with growers, refiners, transporters, wholesalers and retailers,  wheels with a hub and spokes and no rim, e.g., a receiver of stolen property who buys stolen goods from many thieves operating separately from one another, and wheels with hubs, spokes,  and rims , e.g., a terrorist mastermind who oversees five cells of five persons each with each cell working directly with the others and indirectly through the mastermind in sharing information in support of  their common goal of murdering persons of a certain nationality. [I'm not sure it's so easy to decide if you have a chain or a wheel; in some cases, I can envision a wheel at the end of a chain or a wheel with a chain hanging down from one spoke or the rim . But I suppose this is one way of trying to determine whether you have a single or multiple conspiracies.]

When the legislature defines conspiracy, it is faced with deciding whether conspiracy should be looked at through the eyes of the accused conspirator (unilateral approach) or from a bird's-eye view (bilateral approach). The C/L looked at conspiracy as requir