Conspiracy

CONSPIRACY

CONSPIRACY. A conspiracy is an agreement between two or more persons to commit an illegal act or to achieve a legal objective through illegal means. The essence of a conspiracy is the agreement; and the perceived harm is the increased danger from concerted action. An overt act in furtherance of the agreement is sometimes required by statute to complete a conspiracy, but the purpose of this requirement is merely to demonstrate an active agreement. Conspiracy may be prosecuted as a crime or as a civil cause of action. The presence of conspiracy expands the rules of evidence and procedure.

The crime of conspiracy originated as a series of statutes in fourteenth-century England prohibiting agreements to support false accusations in legal proceedings. Very soon thereafter, liability for an illegal agreement was also found for "confederacies" to evade taxes, commit treason, cheat, or evade just price, wage, and guild regulations. By the beginning of the eighteenth century, confederacy and conspiracy merged into the common law crime of conspiracy as it is now understood. Whether or not a criminal conspiracy was alleged or proved, a party who suffered harm as a result of a conspiracy could bring a civil suit in law or equity. In the United States, early conspiracy cases in the state courts included claims that workers unlawfully conspired to raise wages by concerted action.

Federal courts did not recognize common law crimes against the United States, and early efforts to prosecute conspiracies proved difficult. For example, Aaron Burr was acquitted of treason in 1807 despite recruiting an army in order to secure the secession of Louisiana. Burr was not shown to have personally participated in conduct considered "levying war" as charged in his indictment, but only in procuring and advising "levying war." Conspiracy to commit treason was not treason except by operation of the common law. On the other hand, John Mitchell was convicted of treason in 1795 for participation in the Whiskey Rebellion. Although Mitchell had not actually carried arms against the United States, he was present and participated in the insurrection, and was held responsible for all acts performed in its course. The Sedition Act of 1798 made a conspiracy "with intent to oppose any measure or measures of the government…or to impede the operation of any law" a crime, but it expired in 1801.

The general federal conspiracy statute, Title 18 U.S. Code Section 371, originally enacted in 1867, made it a crime to conspire to commit an offense against the United States, or to defraud the United States in any manner. The prototypical political conspiracy, Watergate, was a conspiracy to commit an offense (obstruct justice) by "covering up" the burglary of the Democratic Party's 1972 presidential campaign headquarters. Conspiracy "to defraud" has been interpreted broadly to include any conduct that "impaired or obstructed the lawful function of any government agency." In United States v. Dennis (1966), the Supreme Court found sufficient an indictment that charged labor leaders with conspiracy to defraud the National Labor Relations Board by falsely claiming to have resigned from the Communist Party, even though requiring noncommunist affidavits was unconstitutional. In addition to the general conspiracy statute, there are more than twenty specific prohibitions against conspiracy attached to substantive offenses in the United States Code.

Conspiracy cases have substantial procedural advantages for prosecutors and are among the most frequently charged federal crimes. Conspiracy is a separate offense from the substantive crime that it intends, enabling multiple prosecutions for the same conduct without double jeopardy attaching. Conspiracy can exist where the substantive crime cannot be proved, and even where its commission is impossible. All coconspirators can be charged together in one indictment, and crimes pertaining solely to individual conspirators are often included in the indictment despite prejudice to codefendants. All coconspirators are responsible for all conduct engaged in by any coconspirator during the course of the conspiracy, and the statute of limitations on the conspiracy runs from the last act of any of the coconspirators. The statements of coconspirators during the course of the conspiracy are not "hearsay" and may be admitted into evidence against all coconspirators.

The influence of federal criminal law enforcement increased dramatically in the last half of the twentieth century because of the threat of international criminal conspiracies. The Kefauver Committee's investigation into organized crime in 1950 and 1951 spurred the enactment in 1970 of the Racketeer Influenced and Corrupt Organization Act (RICO) and the organization of the Department of Justice's Strike Force Against Organized Crime. The Comprehensive Drug Abuse Prevention and Control Act of 1970 created a comprehensive regulatory and law enforcement apparatus based on a conspiracy model of crime. These initiatives were responsible for extending federal criminal jurisdiction to legitimate business enterprises and traditional state court crimes.

Popular belief in vast unsubstantiated conspiracies is a recurring theme in American history. For example, the Red Scare of 1919 and 1920 (thirty-six bombs simultaneously mailed to prominent citizens) instigated a nationwide search for a Bolshevik conspiracy. Similarly, Senator Joseph McCarthy's 1950 allegation that communists had infiltrated the State Department precipitated wholesale investigations unjustifiably stigmatizing many individuals and organizations. Conspiracy theories can persist in the absence of credible supporting evidence. For example, many people believe that the 1963 assassination of President John Kennedy was the act of a broad conspiracy despite extensive investigation and the Warren Commission's contrary conclusion.

BIBLIOGRAPHY

Bassano, Joseph J. Conspiracy. Vol. 16 of American Jurisprudence. 2d ed. Rochester, N.Y.: Lawyers Co-operative Publishing, 1998.

Davis, Beth Allison, and Josh Vitullo. "Federal Criminal Conspiracy." American Criminal Law Review 38 (2001): 777–817. An annual survey of the state of the law.

Fenster, Mark. Conspiracy Theories: Secrecy and Power in American Culture. Minneapolis: University of Minnesota Press, 1999.

Forkosch, Morris D. "The Doctrine of Criminal Conspiracy and Its Modern Application to Labor." Texas Law Review 40 (1962): 303–338, 473–508.

Goldstein, Abraham S. "Conspiracy to Defraud the United States." Yale Law Journal 68 (1959): 405–463.

Selz, Shirley A. "Conspiracy Law in Theory and in Practice: Federal Conspiracy Prosecutions in Chicago." American Journal of Criminal Law 5 (1977): 35–71.

M. Susan Murnane

See also Alien and Sedition Laws ; Crime ; Justice, Department of ; Racketeer Influenced and Corrupt Organization Act ; Warren Commission ; Watergate ; Whiskey Rebellion .