Common Law Conspiracy: Mens Rea

Common law conspiracy required two different mens rea: (1) the conspirators had to intend to agree, and (2) the conspirators had to specifically intend the occurrence of the objective of the agreement (the crime or lawful act through unlawful means).

Common law “intent” could mean either purpose or knowledge. Courts today are divided as to whether conspiracy requires purpose for the objective of the crime to occur or simply knowledge that it will occur. But even in jurisdictions where purpose is required, purpose can sometimes be inferred from knowledge (see People v. Lauria).

Although it rarely arises, some jurisdictions impose a third mens rea requirement, called “the corrupt motive” doctrine.  Under this doctrine, the parties must have a corrupt or wrongful motive in addition to the intent to agree and the intent for the objective of the agreement to be successful. Essentially, the corrupt motive doctrine makes ignorance of the law an excuse when the act is morally innocent. The modern trend rejects the corrupt motive requirement.

The mens rea for attendant circumstances varies by jurisdiction. Some jurisdictions require purpose or knowledge as to the attendant circumstances, while others (including federal conspiracy) require that the mens rea as to the attendant circumstances be the same as the mens rea required for the attendant circumstances in the offense.

At common law, conspiracy was a bilateral offense, which meant that if one party lacked the requisite mens rea, then neither party was guilty of conspiracy. The requirement that at least two parties had to agree in order for there to be a common law conspiracy was also called the plurality rule. The plurality rule did not require that a co-conspirator be prosecuted or convicted of conspiracy, unless both co-conspirators were prosecuted during the same trial (in which case, if one was acquitted, the other must be as well).

At common law, one could only be guilty of a conspiracy if he specifically intended the target offense.  For example, one could not conspire to commit “reckless arson,” because the mens rea of the target offense requires only recklessness as to the result of burning down a building, but in order to be guilty of conspiracy, the offender would have to possess the specific intent (purpose or knowledge) as to the result of burning down the building.

Some common law jurisdictions required purpose and not just mere knowledge as to the target offense. However, even in these jurisdictions, purpose could sometimes be inferred from knowledge. Lauria suggests three circumstances in which purpose can be inferred from knowledge: (1) when the provider of legal goods or services has a stake in the venture (e.g. because the provider is selling goods at an inflated price to criminals), (2) when there is no legitimate use for goods or services, and (3) when the provider of goods or services does a grossly disproportionate amount of business with criminals.

MPC Mens Rea

Like at common law, MPC 5.03(1) requires two mens rea states to be guilty of conspiracy: the actor must intend to agree and the actor must intend for the result or conduct of the offense that is the object of the conspiracy to occur.

Unlike some common law jurisdictions, “intent” under the MPC for conspiracy can only be satisfied by purpose, not knowledge. The mens rea as to the prohibited result or conduct is purpose, even if the target offense requires a lesser mens rea. For example, if an actor conspired to commit arson and killed an occupant of the building by setting it on fire, the actor could be found guilty of conspiring to recklessly endanger the occupants of a building, since the actor purposefully intended to engage in conduct that constituted reckless endangerment.

The MPC does not recognize the so-called third mens rea for conspiracy (the corrupt motive doctrine). There is no mens rea requirement under MPC 5.03(1) that the actor knows that the criminal objective agreed to is illegal or immoral.

The MPC is purposefully silent as to the mens rea requirement for the attendant circumstances of the offense.

The MPC only requires a unilateral agreement, so only one party needs the requisite mens rea (and therefore the plurality rule does not apply).

Structure of a Conspiracy

Conspiracies can be conceptualized in three ways: wheel conspiracies, chain conspiracies, and chain-wheel hybrid conspiracies.

A wheel conspiracy has one person (or group) in the center, called the hub, and other people (or groups) coming off as spokes from the hub. To constitute a wheel conspiracy, the spokes connect to each other, forming the “rim” of the wheel; otherwise, the structure is considered one of multiple chain conspiracies. In order to connect the spokes, the individuals must share a “community of interest” (common law) or know of each other’s involvement (MPC).

A chain conspiracy consists of multiple actors (or groups) linked in a chain, forming a criminal hierarchy. Chain conspiracies often occur in business-like criminal activity, since there is a division of labor, with each level of the chain specializing in certain conduct.

Chain-wheel hybrid conspiracies are a combination of a wheel and chain conspiracy.

Why Structure Matters

The structure of a conspiracy plays an important role in criminal prosecution. For example, it will affect the number of conspiracy counts with which a defendant can be charged. Prosecutors often want to include as many conspirators as possible in one conspiracy. Since co-conspirators are liable for the substantive offenses committed in furtherance of the criminal objective, the larger the conspiracy, the more crimes for which the defendant will be subject to liability.

The structure of a conspiracy also affects matters of evidence, proof requirements, and venue.  Hearsay statements made by co-conspirators during the life of the conspiracy can be admitted at trial, providing another incentive for prosecutors to charge as many members as possible as part of one conspiracy. The overt act requirement is also easier to satisfy when a conspiracy is charged as one conspiracy as opposed to several little ones, because the overt act of any member of the conspiracy satisfies the requirement. Co-conspirators can also be tried jointly, making it hard for a jury to acquit a co-conspirator when they think other co-conspirators are guilty, since evidence that only pertains to certain defendants will be hard to separate from the other defendants. Finally, the structure of the conspiracy affects venue, since a conspiracy can be prosecuted in any jurisdiction where a co-conspirator acted to further the conspiracy.

Connecting the Conspirators

At common law, a defendant does not have to know the identity or existence of other co-conspirators in order to be liable for their acts. Instead, there need only be a “community of interest” among the co-conspirators or, in some cases, mere reason to know of each other’s existence.

To determine the number of conspiracies, different jurisdictions took different approaches at common law. The United States Supreme Court, however, has held that for purposes of federal conspiracy, the number of conspiracies would be based on the number of agreements. For example, in Braverman, the defendants operated a business manufacturing, transporting, and distributing alcohol across state lines in violation of seven different federal statutes. Although the defendants contemplated that their conduct would violate more than one statute, they did not make several different agreements to violate each statute separately. Rather, they agreed on a course of conduct for their business that would violate seven statutes. Since there was only one agreement, there was only one conspiracy, and the number of statutes violated was irrelevant.

MPC 5.03(2) requires that a defendant know of the existence of other co-conspirators in order to be in a conspiracy with them.  However, a defendant does not have to know the identities of the other co-conspirators. MPC 5.03(3) dictates that one conspiracy exists if: (1) there is only one agreement, or (2) multiple criminal objectives are part of a continuous conspiratorial relationship.

Because the MPC only requires a unilateral agreement, it is possible for one conspirator to be guilty of conspiring with another, but not vice versa. For example, suppose X imports drugs and gives them to Y, a middle man, to distribute to retailers. The retailers think Y imports the drugs and do not know of X’s existence. Under the MPC, X would be guilty of conspiring with the retailers, but the retailers would not be guilty of conspiring with X.