A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.

An attempt to commit a crime is a:

1. Class A-I felony when the crime attempted is the A-I felony of murder in the first degree, aggravated murder as defined in subdivision one of section 125.26 of this chapter, criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, criminal possession of a chemical or biological weapon in the first degree or criminal use of a chemical or biological weapon in the first degree;

2. Class A-II felony when the crime attempted is a class A-II felony;

3. Class B felony when the crime attempted is a class A-I felony except as provided in subdivision one hereof;

4. Class C felony when the crime attempted is a class B felony;

5. Class D felony when the crime attempted is a class C felony;

6. Class E felony when the crime attempted is a class D felony;

7. Class A misdemeanor when the crime attempted is a class E felony;

8. Class B misdemeanor when the crime attempted is a misdemeanor.

If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

State v. Gladstone

Supreme Court of Washington

474 P.2d 274 (Wash. 1970)

ALE, J.

A jury found defendant Bruce Gladstone guilty of aiding and abetting one Robert Kent in the unlawful sale of marijuana. Deferring imposition of sentence, the court placed defendant on probation. He appeals the order deferring sentencing contending that the evidence as a matter of law was insufficient to sustain a verdict of guilty. His point, we think, is well taken.

One who aids or abets another in the commission of a crime is guilty as a principal under RCW 9.01.030, which says:

Every person concerned in the commission of a felony, gross misdemeanor or misdemeanor, whether he directly commits the act constituting the offense, or aids or abets in its commission, and whether present or absent; and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a principal, and shall be proceeded against and punished as such. The fact that the person aided, abetted, counseled, encouraged, hired, commanded, induced or procured, could not or did not entertain a criminal intent, shall not be a defense to any person aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.

Gladstone's guilt as an aider and abettor in this case rests solely on evidence of a conversation between him and one Douglas MacArthur Thompson concerning the possible purchase of marijuana from one Robert Kent. There is no other evidence to connect the accused with Kent who ultimately sold some marijuana to Thompson.

When asked by Thompson an agent of the police where marijuana could be bought, the defendant did no more than name Kent as an individual who might be willing to sell some and draw a sketch of his location. There was no evidence whatever that the defendant had any association, understanding, agreement or arrangement, direct or indirect, tacit or express with Kent to aid or persuade him in any way in the sale of marijuana.

The conversation between defendant and Thompson occurred at defendant's residence. Douglas MacArthur Thompson, a 25-year-old student at the University of Puget Sound in Tacoma and an employee of the Internal Revenue Service of the United States, had done some investigative work for the government. From time to time, the Tacoma Police Department engaged him to investigate the use, possession and sale of narcotics, principally marijuana, among college students. When working for the Tacoma Police Department, he operated under the control and direction of the department's narcotics detail.

Thompson testified that Lieutenant Seymour and Detective Gallwas of the narcotics detail asked him to attempt purchase of marijuana from Gladstone. During the evening of April 10, 1967 between 10 and 11 o'clock the two officers and Thompson drove in a police car to the vicinity of defendant's apartment. Thompson went to Gladstone's door alone, beyond the hearing and out of the sight of the two officers. He knocked at the door and Gladstone responded. Thompson asked Gladstone if he would sell him some marijuana. Describing this incident, Thompson testified as follows:

Well, I asked at the time Gladstone told me that he was he did not have enough marijuana on hand to sell me any, but he did know an individual who had quite a sufficient quantity and that was very willing to sell and he named the individual as Robert Kent, or Bob Kent as he put it, and he gave me directions to the residence and he due to the directions I asked him if, you know, if he could draw me a map and he did.

When Thompson said he asked Gladstone to draw the map for him, he added, "I'm not sure whether he did give me the exact address or not, he told me where the residence was." He said that Gladstone then with pencil and paper sketched the location of Kent's place of residence. Thompson had no prior knowledge of where Kent lived, and did not know if he might have marijuana or that he had ever possessed it.

The two officers then took Thompson to Kent's residence where marijuana was purchased. The actual purchase was made by Thompson directly from Kent while Officer Gallwas and Lieutenant Seymour stayed in the police car. Kent was subsequently arrested and convicted of selling Thompson approximately 8 ounces of marijuana the very sale which defendant here was convicted of aiding and abetting.

That ended the prosecution's case. Even if it were accorded all favorable inferences, there appears at this point a gap in the evidence which we feel as a matter of law is fatal to the prosecution's cause. Neither on direct examination nor under cross-examination did Thompson testify that he knew of any prior conduct, arrangements or communications between Gladstone and Kent from which it could be even remotely inferred that the defendant had any understanding, agreement, purpose, intention or design to participate or engage in or aid or abet any sale of marijuana by Kent. Other than to obtain a simple map from Gladstone and to say that Gladstone told him Kent might have some marijuana available, Thompson did not even establish that Kent and the defendant were acquainted with each other. Testimony of the brief conversation and Gladstone's very crude drawing consisting of 8 penciled lines indicating where Kent lived constitute the whole proof of the aiding and abetting presented.

If all reasonable inferences favorable to the state are accorded the evidence, it does not, in our opinion, establish the commission of the crime charged. That vital element a nexus between the accused and the party whom he is charged with aiding and abetting in the commission of a crime is missing. The record contains no evidence whatever that Gladstone had any communication by word, gesture or sign, before or after he drew the map, from which it could be inferred that he counseled, encouraged, hired, commanded, induced or procured Kent to sell marijuana to Douglas Thompson as charged, or took any steps to further the commission of the crime charged. He was not charged with aiding and abetting Thompson in the purchase of marijuana, but with Kent's sale of it.

Gladstone's culpability, if at all, must be brought within RCW 9.01.030, which makes a principal of one who aids and abets another in the commission of the crime. Although an aider and abettor need not be physically present at the commission of the crime to be held guilty as a principal, his conviction depends on proof that he did something in association or connection with the principal to accomplish the crime. Learned Hand, J., we think, hit the nail squarely when, in United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), he wrote that, in order to aid and abet another to commit a crime, it is necessary that a defendant

. . . in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used even the most colorless, "abet" carry an implication of purposive attitude towards it. . .

There being no evidence whatever that the defendant ever communicated to Kent the idea that he would in any way aid him in the sale of any marijuana, or said anything to Kent to encourage or induce him or direct him to do so, or counseled Kent in the sale of marijuana, or did anything more than describe Kent to another person as an individual who might sell some marijuana, or would derive any benefit, consideration or reward from such a sale, there was no proof of an aiding and abetting, and the conviction should, therefore, be reversed as a matter of law.

Remanded with directions to dismiss.

566*566 Office of the Appellate Defender, New York City (Sara Gurwitch and Richard M. Greenberg of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Na Na Park, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.

Chief Judge KAYE and Judges GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

567*567 OPINION OF THE COURT

CIPARICK, J.

The question presented by this appeal is whether a conditional agreement to murder a person in the future can be subject to prosecution under our conspiracy law. In particular, we are asked to determine whether evidence presented at defendant's nonjury trial was legally sufficient to support his conviction for conspiracy in the second degree (see Penal Law § 105.15). We conclude that the evidence presented was sufficient to support the conviction and that the contingencies imposed did not negate the existence of a conspiratorial agreement.

Defendant, while incarcerated at Rikers Island on child endangerment and promotion of prostitution charges, confided in fellow inmate, Martin Mitchell, who, unbeknownst to defendant, was a government informant, that he was willing to pay $5,000 to have the 14-year-old complaining witness in his child endangerment case killed. Mitchell, who was nearing release from Rikers Island, informed a New York City Police Department (NYPD) detective of his conversation with defendant. At the detective's request, Mitchell again met with defendant and told defendant that he knew of a hit man who would kill the intended victim. During this conversation defendant gave Mitchell a telephone number so that he could make contact with defendant's associates once he was released in order to arrange for the contract killing.

On August 23, 2002, Mitchell, who was now released from incarceration, visited defendant at Rikers Island. Their conversation was recorded as Mitchell was wired with a tape recorder at the request of the NYPD. During this meeting, defendant changed the intended victim of the contract killing from the complaining witness to a rival named "Seven," who had months earlier allegedly shot defendant in the head. Defendant also stated that he would now pay $4,000 to have Seven killed and expressed optimism that he would soon be getting out of jail.

A week later, Mitchell and an undercover officer, who posed as a hit man and was equipped with a hidden tape recorder, visited defendant at Rikers Island. Defendant, Mitchell and the undercover discussed that the complaining witness was to be 568*568 left alone and that the now intended target of the killing would be Seven. In the presence of the undercover, Mitchell told defendant that they would charge $4,000 for the hit. Defendant instructed the undercover to telephone coconspirator Crystal Rhodes to obtain information on contacting another of defendant's associates named Kenny so they could discuss the plan for killing Seven. Defendant wrote Rhodes's telephone number on a piece of paper for the undercover.

As defendant instructed, the undercover called Rhodes, who provided two telephone numbers to contact Kenny. The undercover called both numbers and an unidentified female answered and informed him that Kenny was unavailable. During the second call, the undercover discovered that Kenny was currently incarcerated.

On September 9, 2002, the undercover again called Rhodes, who attempted a three-way call with herself, defendant and the undercover, but because of a technical difficulty the three-way call was not established. Rhodes then relayed messages back and forth between the undercover and defendant. The undercover advised defendant that Kenny was presently incarcerated, at which time defendant agreed to have the undercover visit him the following Friday at Rikers Island.

On September 13, 2002, the undercover, who was again equipped with a tape recorder, returned to Rikers Island for another visit with defendant. During that conversation, defendant instructed the undercover to "[j]ust hold the girl" and, in regard to the other intended victim, to "wait [until he] g[o]t out ... because [he wanted to] put [his] hands on some major money." The undercover inquired as to the identity of the intended victim, and defendant replied: "The one that I want done ... [is the one] who got me set up for the shot. I was shot right here in the head ... [His name is] Seven." Defendant further stated that he knew that Seven lived in Manhattan, but did not know the exact address; defendant then gave a general description of the location of Seven's apartment. Defendant also described Seven as being "six-one, six-two, slender build, real dark ... [n]o gold teeth." Defendant continued: "When you [are] in jail, you ain't got nothin[g] ... `[H]ere, take this thousand dollars.' I can't do that in jail, there's no money in my pocket in jail ... all I got is my word." Defendant goes on to state that: "If I say its gonna happen, [you] know, to the best of my abilities, if it didn't happen, it means I got shot again or 569*569 something ... [s]omething to really prevent it from happening... I really want him bad."^[1]

Additionally, during this visit, defendant stated that he will "try to keep a tab on [Seven]" and the undercover stated that he will "open [his] eyes and go out lookin[g]." Defendant further stated that a woman he knows, Rabia Walker, "runs into him every now and then" and that "she could show [the undercover] the building" where Seven lives. The undercover then told defendant that he would take pictures of individuals fitting Seven's description at the building where Seven supposedly lived and show them to Walker for a positive identification. On September 20, 2002, the undercover spoke to Rhodes by telephone. Rhodes indicated that she was aware of the plan to have him take pictures of individuals matching Seven's description and that the pictures would be presented to Walker for identification. Rhodes then gave the undercover Walker's telephone number.

On September 22, 2002, the undercover called Walker, who acknowledged that she too knew of the plan to kill Seven and that she was to identify Seven from pictures that he would show her. The next day, the undercover telephoned Walker, at which time she stated that "there'll be no payments made or anything because [defendant] doesn't want anything done until he comes home." Shortly thereafter, defendant was arrested and charged with conspiracy in the second degree.

After a nonjury trial, Supreme Court decided that defendant and Mitchell entered into an agreement to fulfill defendant's intention to eliminate Seven. Supreme Court also found that "there were overt acts sufficient in this case as to constitute the legal prerequisite for a conspiracy in the second degree." The Appellate Division unanimously affirmed, holding that "the agreement to kill the intended victim remained firm, notwithstanding that defendant wanted the killing postponed [and that] evidence also established numerous overt acts in furtherance of the agreement, including steps taken to enable the hired killer to locate and identify the intended victim" (29 AD3d 362, 362-363 [2006]). A Judge of this Court granted leave to appeal, and we now affirm.

570*570 Analysis

Defendant argues that the evidence against him was legally insufficient to support a finding that he entered into an agreement to kill Seven since he conditioned any action on his release from jail, he did not enter into an agreement to have Seven killed but only found and identified, and that there was no agreement since he and the undercover never discussed price. The People argue that under a sufficiency standard,^[2] there was ample evidence offered at trial that proved that defendant entered into an agreement to kill Seven, overt acts in furtherance of that goal were committed and defendant did not place a condition on the agreement that prevented the formation of the agreement itself to kill Seven.

Section 105.15 of the Penal Law provides that "[a] person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." Furthermore, it is well settled that "[a] conspiracy consists of an agreement to commit an underlying substantive crime ..., coupled with an overt act committed by one of the conspirators in furtherance of the conspiracy" (People v Caban, 5 NY3d 143, 149 [2005]).

We are here presented with the question whether conditions placed on an agreement can negate the existence of a conspiracy. The federal circuit courts provide some guidance in this regard since they have considered whether a purported agreement that is conditioned by a defendant can be considered an agreement to commit an unlawful act under conspiracy law. The First and Eighth Circuits have adopted the approach that an agreement with a condition will be effective only if the defendant subjectively believes the condition is likely to be fulfilled (United States v Anello, 765 F2d 253, 262 [1st Cir 1985]; United States v Brown, 946 F2d 58, 61 [8th Cir 1991]). The Appellate Division here relied upon the First Circuit's holding in United States v Palmer (203 F3d 55, 64 [1st Cir 2000]), which followed Anello, where the federal court held that "[l]iability should attach if the defendant reasonably believed that the conditions 571*571 would obtain." In Anello, the defendant had conditioned his purchase of marijuana on its quality. The defendant, however, proceeded with obtaining the funds to purchase the drugs in anticipation that his quality concerns would be met. The court found "that the `quality' condition was unlikely to prove a serious impediment" (Anello, 765 F2d at 263) to the formation of the agreement to purchase the marijuana, since the defendant subjectively believed that the condition would be fulfilled and, as such, proceeded to fulfill his obligations under the agreement.

Three other circuits take a different approach, holding that conditions to an agreement are legally irrelevant (see United States v Grassi, 616 F2d 1295, 1302 [5th Cir 1980]; United States v Prince, 883 F2d 953, 958 [11th Cir 1989]), unless the conditions are so unlikely to be met that the agreement is illusory (United States v Podolsky, 798 F2d 177, 179 [7th Cir 1986]). We need not go as far as this to resolve this case; even under the Anello, Palmer and Brown test, defendant's conviction would be upheld. Defendant reasonably believed the condition to the execution of the planned murder—his release from prison—would occur.

Defendant asks us to reject all the federal cases just cited in favor of United States v Melchor-Lopez (627 F2d 886, 891 [9th Cir 1980]), which he reads as holding that there is no legally effective agreement if conditions are set but not fulfilled. This is a misreading of Melchor-Lopez, which involved not a conditional agreement but the absence of any agreement. In Melchor-Lopez, "government agents produced $80,000 in an effort to induce Melchor-Lopez to bring heroin into the United States for sale, [but] he steadfastly refused to agree to any such transaction, insisting that any transfer would have to be made in San Luis, Mexico" (627 F2d at 889). The Ninth Circuit held that "the evidence fell far short of showing an agreement because [the defendant] firmly insisted on certain conditions unacceptable to his would-be co-conspirators" (627 F2d at 891). Melchor-Lopez thus stands for the proposition that "conditions" demanded by a party which are "unacceptable" to the other party may create an inability for the parties to enter into an agreement.

Here, neither party imposed a condition on entry into the agreement that was unacceptable to the other. Similarly, we have previously held that an "agreement" to murder a victim is effectuated when the coconspirators accept the defendant's 572*572 invitation to kill the victim (see Caban, 5 NY3d at 149). Thus, the determinative factor is whether there was an agreement— not whether agreed-upon conditions made the performance of the agreement contingent upon the happening of an event.

Here, the conditions that defendant imposed on the performance of the agreement—to commit a murder—were that nothing was to happen to Seven until defendant was released from jail and was able to secure money to pay for the hit. These requirements were not "conditions" negating the existence of an agreement to kill Seven—they were terms of the agreement. In other words, defendant's wish to delay the killing and payment until he was released from prison was not a demand in negotiations that prevented the parties from reaching the agreement to kill Seven, but a temporal component of the agreement accepted by both parties.

A conspiratorial agreement will be found where there is a "concrete and unambiguous ... expression of [defendant's] intent to violate the law" (Caban, 5 NY3d at 149, quoting People v Schwimmer, 66 AD2d 91, 95 [2d Dept 1978], affd47 NY2d 1004 [1979] for reasons stated below). Both Mitchell's and the undercover's testimony reveal that defendant entered into an agreement to commit the underlying substantive crime of murder in the first degree, and that there were overt acts committed in furtherance of that goal (see Caban, 5 NY3d at 149).

Defendant also proposes that since the amount to be paid to the undercover was not agreed upon there could be no conspiratorial agreement. Clearly, there was evidence that the parties agreed upon the price. In the initial meeting between defendant and Mitchell, defendant mentioned a $4,000 price, and defendant could not have doubted that Mitchell had passed that number on to the undercover (the supposed hit man). Moreover, at a later meeting in the presence of the undercover, Mitchell repeated that figure to defendant as the price for the hit, and defendant responded, "[y]eah, yeah, yeah." Thereafter, the parties worked out the details of the conspiracy, defendant dispatched the undercover to locate the intended victim, and defendant coordinated with his associates outside of prison to assist in locating and identifying the intended victim. The evidence was therefore sufficient to support the conclusion by the finder of fact that an agreement had been made.

573*573 Therefore, viewing the evidence in a light most favorable to the People and drawing all reasonable inferences in their favor as we must, we conclude that defendant's conviction was supported by the evidence presented at trial.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] Defendant considered having Seven killed while Seven was incarcerated at Rikers Island at the same time as defendant; however, Seven was apparently released on bail before defendant could have him killed. Defendant, while reminiscing with Mitchell about the lost opportunity, stated that "it would be cheaper to get it done in jail anyway ... 5 or 6 hundred [dollars] as opposed to the 4 thousand [dollars] I was gonna pay in the streets."

[2] The standard for determining legal sufficiency "is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt" (People v Rossey, 89 NY2d 970, 971 [1997]; see also People v Bleakley, 69 NY2d 490, 495 [1987]). All reasonable inferences must be drawn in the People's favor (see People v Ford, 66 NY2d 428, 437 [1985]).

Carl A. Vergari, District Attorney (Richard E. Weill, Gerald D. Reilly and Anthony J. Servino of counsel), for appellant.

Candee & Hilbert (Richard S. Candee of counsel), for respondent.

DAMIANI, J. P., WEINSTEIN and BRACKEN, JJ., concur.

TITONE, J.

The question before us is whether a telephonic conversation may constitute an overt act in furtherance of a conspiracy. We conclude that it may when the conversation is an act independent of the agreement itself and tends to carry out the object of the conspiracy. Because these criteria are lacking here, we affirm the order of dismissal (110 Misc 2d 987).

Defendant, Moises Menache, a physician, was indicted for conspiracy in the sixth degree (Penal Law, § 105.00). It is alleged that he agreed with three other individuals to influence certain unnamed employees of a medical college to accept his son for admission as a student. In pursuit of 336*336 the scheme, defendant allegedly paid the sum of $5,000 to one of the coconspirators who, in turn, was supposed to pass this money to the employees at the medical college.

An indictment charging conspiracy is jurisdictionally defective unless it is alleged that an overt act was committed within the Statute of Limitations (Grunewald v United States, 353 US 391, 396-397; People v Hines, 284 N.Y. 93, 112-114). Since conspiracy in the sixth degree is a class B misdemeanor (Penal Law, § 105.00) the applicable Statute of Limitations is two years (CPL 30.10, subd 2, par [c]).

The indictment before us sets forth five overt acts, the first four of which are clearly outside the two-year limitations period. Our concern is only with the fifth overt act which charges that "[o]n or about and between January 1, 1979 and August 1, 1979, the defendant communicated by telephone with [a named coconspirator] concerning the progress of [the coconspirator's] efforts to secure the admission of the defendant's son into the * * * [m]edical [c]ollege".

The County Court granted defendant's motion to dismiss the indictment.^[1] We now affirm.

To place the issue before us in proper focus, it should be noted that at common law the gist of the offense of conspiracy was the unlawful combination or agreement. No overt act was necessary to complete the crime (see People v Sheldon, 139 N.Y. 251, 265; Clark and Marshall, Law of Crimes [7th ed], § 9.00, pp 550-551). While this remains the rule in some States, New York, as well as the Federal Government and several sister States, have added an overt act requirement by statute (Penal Law, § 105.20; Clark and Marshall, op. cit., pp 552-553; LaFave and Scott, Criminal Law, § 62, pp 476-477).

As observed by the Supreme Court, "[t]he function of the overt act in a conspiracy prosecution is simply to manifest `that the conspiracy is at work,' * * * and is neither a project still resting solely in the minds of the conspirators 337*337 nor a fully completed operation no longer in existence" (Yates v United States, 354 US 298, 334). New York law appears to be in accord (see People v McGee, 49 N.Y.2d 48, 58; People v Hines, 284 N.Y. 93, supra; People v Tavorina, 257 N.Y. 84, 93; People v Sheldon, 139 N.Y. 251, supra). An overt act, therefore, may be committed by any one of the conspirators and, while it need not be unlawful in and of itself, it must be a step towards the execution of the conspiracy and not simply a part of the agreement (People v McGee, supra, p 57; People v Sheldon, supra, pp 265-266; People ex rel. Conte v Flood, 53 Misc 2d 109; People v De Cabia, 10 Misc 2d 923, 924, affd 8 AD2d 825, affd 7 N.Y.2d 823; cf. People v Russo, 57 AD2d 578, mot for lv to app den 42 N.Y.2d 979).

Insofar as some cases might be read as suggesting that the overt act must be the commencement of the criminal act, or an element of the offense which is the object of the conspiracy (see, e.g., People v Bauer, 32 AD2d 463, affd 26 N.Y.2d 915), we agree with LaFave and Scott that they "are incorrect for they are inconsistent with the function of the overt act requirement * * * If the agreement has been established but the object has not been attained, virtually any act will satisfy the overt act requirement" (LaFave and Scott, op. cit., pp 477-478; see People v Sheldon, 139 N.Y. 251, 266, supra).^[2]

It is thus too much of a generalization to state, in a conclusory fashion, that "mere talk", without more, can never constitute an overt act in furtherance of a conspiracy. The more apt question is the content and the context of the conversation (see People v Sher, 68 Misc 2d 917, 925-926; cf. People v Ozarowski, 38 N.Y.2d 481, 488; People v Lakomec, 86 AD2d 77, 78-80; People v Teeter, 86 Misc 2d 532, 535, affd 62 AD2d 1158, affd 47 N.Y.2d 1002).

We have no doubt, for example, that a telephonic conversation in which the implements of the crime are ordered 338*338 would constitute an overt act in furtherance of a conspiracy (see United States v Strickland, 493 F.2d 182, 187, cert dsmd 419 US 801). But other communications may not be that clear cut. Conversation among conspirators may merely be cementing the agreement itself (cf. People v Russo, 57 AD2d 578, supra; People v Wolff, 24 AD2d 828) or may be an overt act in furtherance of the agreement (see People v Sher, supra, pp 925-926; LaFave and Scott, op. cit., p 478). And, conversation which attempts to enlist others may or may not constitute an overt act in furtherance of the conspiracy (cf. People ex rel. Conte v Flood, 53 Misc 2d 109, 110, supra). "The object of the statute [requiring proof of an overt act] is accomplished when it is shown that the parties have proceeded to act upon the unlawful agreement (People v. Sheldon, 139 N.Y. 251)" (People v De Cabia, 10 Misc 2d 923, 924, supra).

The telephonic communications in this case, however, as alleged by the People, simply involve conversations between two coconspirators. Neither singly nor in combination do they constitute sufficiently independent acts "as would tend to flow from the unlawful agreement and tend to carry out the object of the conspiracy" (People v De Cabia, supra, p 924). Consequently, they do not satisfy the overt act requirement.

For the reasons stated, the order of the County Court should be affirmed

Order of the County Court, Westchester County, dated October 1, 1981, affirmed.

[1] We note, parenthetically, that the issue was properly raised by motion to dismiss (CPL 210.20, subd 1, par [f]; see People v Kase, 76 AD2d 532, 535, affd 53 N.Y.2d 989; People v O'Neil, 107 Misc 2d 340, 341). People v Kohut (30 N.Y.2d 183, 192) is not to the contrary, as that case, which did not involve a conspiracy prosecution, was decided prior to the enactment of the CPL and the court observed that the CPL might mandate a different result.

[2] We do not view People v Bauer (32 AD2d 463, affd 26 N.Y.2d 915) as a binding precedent. The reversal of the conspiracy conviction in that case was on the law and the facts, thus barring Court of Appeals review at that time (People v Mackell, 40 N.Y.2d 59), and the implication that the overt act must be an element of the offense which is the object of the conspiracy is flatly contracted by People v McGee (49 N.Y.2d 48), People v Ozarowski (38 N.Y.2d 481), People v Sheldon (139 N.Y. 251) and People v Sher (68 Misc 2d 917) (cited in both McGee and Ozarowski). Moreover, the holding in Bauer (supra), that the acquittal of one conspirator requires the acquittal of the other conspirator, was rejected in People v Berkowitz (50 N.Y.2d 333, 342-343).

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Supreme Court of the United States

Pinkerton v. United States

328 U.S. 640, 90 L. Ed. 1489, 66 S. Ct. 1180, SCDB 1945-133, 1946 U.S. LEXIS 3154

No. 719

1946-06-10

328 U.S. 640 (1946)

PINKERTON ET AL.

v.

UNITED STATES.

No. 719.

Supreme Court of United States.

Argued May 1, 1946.

Decided June 10, 1946 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

[641] John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner.

W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.^[1] 151 F.2d [642] 499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United Statesv. Sall, 116 F.2d 745, decided by the Circuit Court of Appeals for the Third Circuit.

A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U.S.C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.

In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one [643] conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.

Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,^[2] has little vitality in this country.^[3]

It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. [644] McClaughry, 183 U.S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342. Cf. Freeman v. United States, 146 F.2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88:

"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."

And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F.2d 521.

Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.^[4]

[645] It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.

There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained, ^[5] although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.[6]

[646] Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.

We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without [647] any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, [W]e fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.

Affirmed.

MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

MR. JUSTICE RUTLEDGE, dissenting in part.

The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.

Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.

There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.

I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;^[1] (2) aiding, abetting or counseling another to commit them;^[2] and (3) conspiracy to commit them.^[3]Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense.

The three types of offense are not identical. Bollenbach v. United States, 326 U.S. 607, 611; United States v. Sall, 116 F.2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.

These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And [650] thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.

The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved,

[T]he almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U.S. 332.

I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.^[4] It should be [651] followed here.

Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.

The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.

Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to [652] repeat, is either to attribute to him Walter's guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.

In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.

But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U.S. 49, 54-55, and decided to revamp the [653] indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.

It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U.S. 85, 87-88. But to sustain Daniel's conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.

For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.

What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor's technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.^[5]

[654] This, of course, should not relieve Walter of the conviction for the substantive offenses. But his sentence for conspiracy should be annulled. So also should Daniel's sentence on all counts.

MR. JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.

[1] The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the demurrer should have been sustained. But each of the remaining substantive counts on which the jury had returned a verdict of guilty carried a maximum penalty of three years' imprisonment and a fine of $5,000. Int. Rev. Code, § 3321, 26 U.S.C. § 3321. Hence the general sentence of fine and imprisonment imposed on each under the substantive counts was valid. It is settled law, as stated in Claassen v. United States, 142 U.S. 140, 146-147, "that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."

The same rule obtains in the case of concurrent sentences. Hirabayashi v. United States, 320 U.S. 81, 85 and cases cited.

[2] See May's Law of Crimes (4th ed. 1938), § 126; 17 Corn. L.Q. (1931) 136; People v. Tavormina,257 N.Y. 84, 89-90, 177 N.E. 317.

[3] The cases are collected in 37 A.L.R. 778, 75 A.L.R. 1411.

[4] The addition of a conspiracy count may at times be abusive and unjust. The Conference of Senior Circuit Judges reported in 1925:

We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.

Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.

But we do not find that practice reflected in this present case.

[5] This question does not arise as to Walter. He was the direct actor in some of the substantive offenses on which his conviction rests. So the general sentence and fine are supportable under any one of those. See note 1, supra.

[6] The trial court charged: ". . . after you gentlemen have considered all the evidence in this case, if you are satisfied from the evidence beyond a reasonable doubt that at the time these particular substantive offenses were committed, that is, the offenses charged in the first ten counts of this indictment if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy, as I have heretofore defined unlawful conspiracy to you, then you would have a right, if you found that to be true to your satisfaction beyond a reasonable doubt, to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful conspiracy or object of the unlawful conspiracy, which you have found from the evidence existed." Daniel was not indicted as an aider or abettor (see Criminal Code, § 332, 18 U.S.C. 550), nor was his case submitted to the jury on that theory.

[1] These of course comprehend the vast variety of offenses prescribed by federal law, conspiracies for accomplishing which may be charged under the catchall conspiracy statute, note 3.

[2] "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." 18 U.S.C. § 550.

[3] "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." 18 U.S.C. § 88.

[4] In the substantially identical situation presented in the Sall case as to the indictment and the proof, the Government argued that the conviction on the substantive counts should stand because the proof that the accused had entered the conspiracy amounted to proof that he had "aided and abetted" the commission of the substantive crimes within the meaning of 18 U.S.C. § 550. The court rejected the idea, apparently now accepted here, that "aiding and abetting" and "conspiring" are, and are intended by Congress to be, the same thing, differing only in the form of the descriptive words. But if that is the only difference, then conviction for both "offenses" on account of the same act is clearly double punishment.

[5] The situation is essentially the same as when crimes are defined with such minute distinction as to make them different only in the most technical sense. See District of Columbia v. Buckley, 128 F.2d 17, concurring opinion at 21; cf. Ex parte Nielsen, 131 U.S. 176; In re Snow, 120 U.S. 274.

Enslavers’ Conspiracy

In his pathbreaking history of slave revolts in the seventeenth and eighteenth centuries, Jason Sharples documents how elites throughout the Atlantic world lived in perpetual fear of plans by enslaved people to secure their freedom. Some of this fear was attributable to large-scale violent uprisings, like the Haitian Revolution. But there emerged local sources of fear as well, and local disputes between White elites about how best to prevent uprisings in their own communities. Would it be more effective to increase supervision of enslaved people and thus make it easier to discover developing plots? Or instead to allow enslaved and freed people to gather with little supervision, thus mitigating racial antagonism?

Sharples finds that testimonies and confessions regarding slave conspiracies in British America were remarkably homogenous. The alleged plots involved general slaughter of White men and rape of White women—precisely what enslavers most feared.Investigators used torture to elicit testimonies and confessions that mapped on well to preexisting White fears.Enslavers then brutally executed alleged plotters, terrifying a subject population into further confessions that began the cycle all over again.[Bernick is referring to this book: Jason Sharples, The World That Fear Made: Slave Revolts and Conspiracy Scares in Early America (2020).]

This system encouraged misunderstanding, manipulation, and false incrimination. Suspects could be spared from death by incriminating others, and found that they could do so most persuasively to their interrogators by describing conspiracies of great scope and scale. To avoid violence to their families and friends, they accused acquaintances and enemies. To avoid suspicion, they avoided social gatherings, lest their speech and actions be taken to evince unlawful agreements.

We find in antebellum conspiracy as well a relaxation of evidentiary rules to make it easier to produce convictions. Through the 1720s enslaved people were generally excluded from courts, except in noncapital cases.It was to aid the prosecution of slave conspiracies that enslaving states admitted testimony by enslaved people in the first place, and they did so often in violation of normal common-law rules.Again, the testimony was often produced by torture—and the common law didn’t permit torture.Thus, rules of evidence were bent specifically for slave conspiracies. 

Of course, there did exist conspiracies against slavery. In spring 1800 Gabriel Prosser organized a general uprising involving enslaved artisans, resident aliens, and non-Black workers.Louisiana was the site of a major slave revolt in 1811 that involved about 500 insurgents.Nat Turner instilled panic and terror throughout enslaving states when in 1831 he and his coconspirators killed fifty-five adults and children of the planter class.Maroon communities offered refuge to runaway African and Black slaves and inspiration and material support for nearby slave revolts.Most famously, from 1830 to the Civil War the Underground Railroad conspired to transport an estimated 66,000 enslaved people to freedom.

You might be wondering at this point whether the evils of antebellum conspiracy criminalization are relevant to contemporary conspiracy. Perhaps you’re appalled by the investigation, prosecution, and punishment of conspiracy by enslaved people and their allies because you’re appalled by slavery and torture. Maybe you’re not appalled by the use of surveillance and snitching to discover and thwart agreements to commit crimes.

But I want you to consider the possibility that certain of the ways in which antebellum conspiracy brutalized and fragmented racialized communities are a function of conspiracy itself. That the detection of unlawful agreements will always require surveillance, depend upon informants, and chill social activities in which racialized communities engage. That the possibility of misunderstandings attributable to cultural differences and racial stereotypes will always be present. And that the legacy of rightful conspiracies against laws enacted by conspiring elites continues to shape perceptions of conspiracy criminalization. I’ll explore this possibility soon.

GA Code § 16-14-4: Findings and Intent of General Assembly

(a) The General Assembly finds that a severe problem is posed in this state by the increasing sophistication of various criminal elements and the increasing extent to which the state and its citizens are harmed as a result of the activities of these elements.

(b) The General Assembly declares that the intent of this chapter is to impose sanctions against those who violate this chapter and to provide compensation to persons injured or aggrieved by such violations. It is not the intent of the General Assembly that isolated incidents of misdemeanor conduct or acts of civil disobedience be prosecuted under this chapter. It is the intent of the General Assembly, however, that this chapter apply to an interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury. This chapter shall be liberally construed to effectuate the remedial purposes embodied in its operative provisions.

GA Code § 16-14-4: Prohibited Activities

(a) It shall be unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.

(b) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity.

(c) It shall be unlawful for any person to conspire or endeavor to violate any of the provisions of subsection (a) or (b) of this Code section. A person violates this subsection when: 

(1) He or she together with one or more persons conspires to violate any of the provisions of subsection (a) or (b) of this Code section and any one or more of such persons commits any overt act to effect the object of the conspiracy; or

(2) He or she endeavors to violate any of the provisions of subsection (a) or (b) of this Code section and commits any overt act to effect the object of the endeavor.

GA Code § 16-14-3: Definitions

As used in this chapter, the term:

(3) "Enterprise" means any person, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity; or any unchartered union, association, or group of individuals associated in fact although not a legal entity; and it includes illicit as well as licit enterprises and governmental as well as other entities.

(4) "Pattern of racketeering activity" means:

(A) Engaging in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such acts occurred after July 1, 1980, and that the last of such acts occurred within four years, excluding any periods of imprisonment, after the commission of a prior act of racketeering activity; or

(B) Engaging in any one or more acts of domestic terrorism as described in paragraph (2) of Code Section 16-11-220 or any criminal attempt, criminal solicitation, or criminal conspiracy related thereto.

• (A)"Racketeering activity" means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment under the laws of this state involving: 

• (i) Unlawful distillation, manufacture, and transportation of alcoholic beverages in violation of Code Section 3-3-27;
• (ii) Records and reports of currency transactions in violation of Article 11 of Chapter 1 of Title 7;
• (iii) The "Georgia Uniform Securities Act of 2008" in violation of Chapter 5 of Title 10;
• (iv) Homicide in violation of Article 1 of Chapter 5 of this title;
• (v) Assault and battery in violation of Article 2 of Chapter 5 of this title;
• (vi) Kidnapping, false imprisonment, and related offenses in violation of Article 3 of Chapter 5 of this title;
• (vii) Prostitution, keeping a place of prostitution, pimping, and pandering in violation of Code Sections 16-6-9 through 16-6-12;
• (viii) Burglary in violation of Code Section 16-7-1;
• (ix) Smash and grab burglary in violation of Code Section 16-7-2;
• (x) Arson and explosives in violation of Article 3 of Chapter 7 of this title;
• (xi) Bombs, explosives, and chemical and biological weapons in violation of Article 4 of Chapter 7 of this title;
• (xii) Theft in violation of Article 1 of Chapter 8 of this title;
• (xiii) Robbery in violation of Article 2 of Chapter 8 of this title;
• (xiv) Criminal reproduction and sale of recorded material in violation of Article 3 of Chapter 8 of this title;
• (xv) The "Georgia Residential Mortgage Fraud Act" in violation of Article 5 of Chapter 8 of this title;
• (xvi) Forgery in any degree in violation of Code Section 16-9-1;
• (xvii) Illegal use of financial transaction cards in violation of Code Sections 16-9-31, 16-9-32, 16-9-33, and 16-9-34;
• (xviii) Use of an article with an altered identification mark in violation of Code Section 16-9-70;
• (xix) The "Georgia Computer Systems Protection Act" in violation of Article 6 of Chapter 9 of this title;
• (xx) Identity fraud in violation of Article 8 of Chapter 9 of this title;
• (xxi) Bribery in violation of Code Section 16-10-2;
• (xxii) False statements and writings or false lien statements against public officers or public employees in violation of Code Section 16-10-20 or 16-10-20.1;
• (xxiii) Impersonating a public officer or employee in violation of Code Section 16-10-23;
• (xxiv) Attempted murder or threatening of witnesses in official proceedings in violation of Code Section 16-10-32;
• (xxv) Perjury and other related offenses in violation of Article 4 of Chapter 10 of this title;
• (xxvi) Embracery in violation of Code Section 16-10-91;
• (xxvii) Influencing witnesses in violation of Code Section 16-10-93;
• (xxviii) Tampering with evidence in violation of Code Section 16-10-94;
• (xxix) Intimidation or injury of grand or trial juror or court officer in violation of Code Section 16-10-97;
• (xxx) Terroristic threats and acts in violation of Code Section 16-11-37;
• (xxxi) The "Georgia Firearms and Weapons Act" in violation of Part 2 of Article 4 of Chapter 11 of this title;
• (xxxii) Commercial gambling in violation of Code Section 16-12-22;
• (xxxiii) Distributing obscene materials in violation of Code Section 16-12-80;
• (xxxiv) The "Georgia Controlled Substances Act" in violation of Article 2 of Chapter 13 of this title;
• (xxxv) The "Dangerous Drug Act" in violation of Article 3 of Chapter 13 of this title;
• (xxxvi) Marijuana in violation of subsection (j) of Code Section 16-13-30;
• (xxxvii) Payday loans in violation of Chapter 17 of this title;
• (xxxviii) Insurance fraud in violation of Code Section 33-1-9;
• (xxxix) Certain felonies involving certificates of title, security interest, or liens in violation of Code Section 40-3-90;
• (xl) Removal or falsification of identification numbers in violation of Code Section 40-4-21;
• (xli) Possession of motor vehicle parts from which the identification has been removed in violation of Code Section 40-4-22;
• (xlii) Article 8 of Chapter 5 of this title, relating to protection of elder persons; or
• (xliii) Offenses enumerated in Code Section 16-12-37.

(B) "Racketeering activity" shall also mean any act or threat involving murder, kidnapping, gambling, arson, robbery, theft, receipt of stolen property, bribery, extortion, obstruction of justice, dealing in narcotic or dangerous drugs, or dealing in securities which is chargeable under the laws of the United States, any territory of the United States, or any state and which is punishable by imprisonment for more than one year.

(C) "Racketeering activity" shall also mean any conduct defined as "racketeering activity" under 18 U.S.C. Section 1961(1), any violation of 18 U.S.C. Section 1028, or any violation of 31 U.S.C. Sections 5

GA Code § 16-4-8, Conspiracy to Commit a Crime

A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he could have been subjected if he had been convicted of such crime, or both. A person convicted of the offense of criminal conspiracy to commit a misdemeanor shall be punished as for a misdemeanor. A person convicted of the offense of criminal conspiracy to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than ten years.

On March 5, 2023, 23 people, including me, were arrested and charged with domestic terrorism. It happened on my second day in the encampment in Atlanta’s Weelaunee (South River) Forest that I had joined to report on the protests against the building of a militarized police training facility known as Cop City. I am now one of 61 people threatened with up to 20 years in state prison in one of the largest state-level racketeering indictments in the history of the United States.

After my arrest, I was held in pretrial detention at DeKalb County Jail for 31 days without a bond, an indictment, or a hearing. Though I still have not been indicted on the domestic terrorism charge, whether I eventually will be could remain an outstanding question for the next few years. An additional 41 Cop City activists face domestic terrorism charges, though only a handful have been indicted so far. My indictment and arraignment on a racketeering charge months later put me in Fulton County Jail for 27 hours. Both jails in Atlanta were terrifying in their own ways.

Though I had been arrested before, I had never been given a significant charge or spent extended time in jail until I arrived in Atlanta. A former Atlanta resident, I had become curious about the Stop Cop City movement when I read about the City Council deciding to ignore the wishes of the people and move forward with building the Atlanta Public Safety Training Center, a.k.a. Cop City, pushed by one of the largest and most well-funded police foundations in the United States. After learning about the murder of Tortuguita, an activist with the Stop Cop City movement who was shot by Georgia state troopers over 50 times, I decided to fly down and document the movement’s efforts on my Instagram. As a street and media activist since the 1990s, I understood how the punishment of activists at the behest of corporations had intensified since I participated in the 2011 encampment of Occupy Wall Street in New York City.

…

People use the terms “prison” and “jail” interchangeably, but prison is where a sentence of longer than a year is served after conviction for a “serious crime” — jails are very different and often much worse because people are meant to move through and out of them quickly. Jails often lack outdoor recreation, and many of the programs, such as libraries, found in the long-term carceral environment of prison.

I hope this guide never becomes relevant to you. But if it does, I want to see you survive the pretrial incarceration experience of jail. You could be placed there for a few hours, a few days, a few weeks, or even a few years without a charge, without hope, and in psychological freefall. You must survive.

Be patient.

When you are arrested, if you survive your initial contact with police, you will be handcuffed. The handcuffs will be very tight, and your body will be twisted painfully. Telling police how they are hurting you will probably not influence how they treat you; still, attorney Mo Meltzer-Cohen advises that you must do it anyway. Asserting your constitutional rights — in this case, the right to be free from excessive force or the right to have your pressing medical needs addressed — does not in itself function to constrain or influence the behavior of the police. What it does is enable your attorney to make certain kinds of arguments on your behalf. Suppose you do not tell the police you are being hurt. In that case, it will be impossible to argue later that they were deliberately indifferent to your serious medical needs or used excessive force against you in a way that violated the Constitution.

In the meantime, patiently waiting is most effective. Breathe deeply if you can. Find a happy memory and let it fill your mind. Shift your body as you can to find comfort. When you feel it is safe not to be fully present, rest your mind inside memory or fantasy.

Notice the people coming out of the jail as you go in. They once stood in your place and are now out. You must believe you, too, will survive and leave incarceration. Believing you will is part of the battle. Every day you are inside, you are closer to being outside. As someone wrote on the wall beside my DeKalb County Jail bed, “One day closer to home.”

…

You face unique dangers the moment you enter jail. From 2008 to 2019, Reuters reported more than 7,500 deaths in jails across the United States. You will witness life being threatened. Prepare yourself emotionally to meet the moment when it happens. Do not talk about the reason you were arrested. You are under surveillance at all times while you are locked up. Every phone call is monitored and recorded. The two largest prison phone companies use voice-print technologies funded by the Department of Defense to archive the voices of everyone who speaks on their lines. In every conversation with anyone except your attorney, anything you say can and very much will be used against you.

Check the vibe.

When you walk into the podcage — it may be a large common room with cells nestled into the walls and a glass wall in front, a kind of human terrarium — with your cell assignment, look at everything around you. The layout reminded me of a dingy yellow-beige Broadway set with a staircase down the middle. Notice the words scrawled on the walls and the smells. Look at the faces of the others being held — your comrades in this new unintentional community. Open your heart and be kind but not foolish. Think of your first few hours in the podcage as the first day of school or a job but without freedom of movement, speech, dignity, or humanity.

Watch the guards.

The guards are your only connection to food, water, phones, toilet paper, and other items necessary for a basic level of humanity and survival. They are complicated characters in this reality.

…

Make friends.

People are often sent to jail for the most minor reasons, so the likelihood that you will be in a podcage with others suffering the same confusion and anxiety as you is very high. Introduce yourself — think of it as an underground party with the worst theme possible. You will probably meet someone who has been in the podcage for an extended period. That person will have a lot of advice to help you adjust and become a good community member. Listen and use what makes sense.

My first 24 hours in DeKalb County Jail were spent listening to Raja (all names have been changed) instruct me on how to care for the cell we shared. She had been there for almost two weeks. She managed to make it into an immaculate environment by cleaning it daily, slapping soap on the walls to fight gnat infestations, and saving every unused item. She had saved the little soaps given with rolls of toilet paper and placed them on the cell windowsill, where the sun would bake them and release their scent. Were it not for the scratchy wool blankets, lack of pen and paper, constant hunger, and unrelenting screams from those deemed too mentally ill to roam the podcage freely, I could almost trick myself into thinking I was in an under-resourced dorm room.

In the common area of the podcage, Bible verses and “Dulce is a lunatic” were written everywhere. I asked, “Who is Dulce?” She wound up becoming one of my closest comrades. Held in pretrial detention for a year and a half, she had become the podcage’s mom and mutual-aid hub. People gave her the items they didn’t need to take with them when they left jail. When I was arrested, my glasses were in my bag. I didn’t know I would be held for so long, so I didn’t ask for them — always ask for your glasses. If it had not been for Dulce, who gave me a pair of glasses a former resident of the podcage had left or forgotten, I would not have been able to read or see any details during my time incarcerated. For the first two days, I had to ask the other forest defenders to help me read my jail ID numbers so that I could use the phone and set myself up with commissary orders. Dulce also said, “If the podcage energy seems off, lock yourself in your cell.” Her guidance saved me from violent encounters with people unable to regulate their emotions.

You will have only a tiny area available for movement. Many jails in the United States do not offer access to the outside to exercise, stretch, or simply walk. This was one of the hardest conditions of confinement for me. I typically walk miles daily between work, mothering, and friending to keep my mind clear. I tried to dissipate my anxious energy through bodyweight exercises I could remember: planks, wall pushups, tricep dips, squats, leg lifts, and glute bridges. Others did yoga sessions together. I had fallen and twisted my ankle when I was arrested, causing a recent injury in my knee to swell, so no yoga for me. When in mental distress, exercise, even a little bit, can help.

Jails across the United States are filled with people suffering from mental distress, and that will complicate your effort to connect with others. Be sensitive and aware when people act in unpredictable and abusive ways. Stay calm, and remember you are dealing with someone who probably does not have access to therapies, medications, or tools to self-regulate and is, like you, dealing with inadequate food and sleep deprivation, the perfect storm of life-threatening dysfunction.

Waste nothing.

Every item in jail has multiple purposes. At DeKalb County Jail, the elastic loops from face masks became hair ties and held broken glasses together. Salt, purchased from the commissary in small packets, was used not only as a food seasoning but also as a cleaning agent for surfaces and mouths. Toothpaste served as a putty to stick things on the wall. Dulce taught me how to use threads that had fallen off our uniforms to remove facial hair. We offered to thread anyone who wanted a jail salon session. The plastic bags our lunches were delivered in became water containers to slide under the door for people on 24/7 lockdown in cells without running water.

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Eat.

Even if the food served to you seems inedible, find ways to eat around the edges, avoiding mold and insects. Focus on proteins more than carbs unless the protein is rotten. Eat slowly and drink as much water as possible to curb your hunger. Beware of the cookies. The sugars can upset your digestive system. When you feel hungry and angry, go to sleep, if you can, until it passes. Sleeping will help you conserve energy and avoid taking “hanger” out on your podcage comrades.

If you can afford the food in the jail commissary — the fare of gas stations and rest stops — buy it and share it with others.

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Do. Not. Gossip.

Most jails do not have anything to distract you. Without books, music, or games, people are left with conversations. When talking about life on the outside loses its shine, the focus will shift to those in the podcage. Don’t do it. Do not engage in gossip or hearsay. During moments of boredom, fill the time with meditation.

. . .

Live.

While in jail, you will experience moments that affirm life. For every person who is freed, shout encouragement as they leave. If someone has a birthday, honor it. When good news from the outside comes through, celebrate. Find ways to keep your humanity, even if it is reading and journaling before dawn when the podcage is at its quietest.

The crumbling buildings of jails and prisons are as ineffective in rehabilitation as policing is in keeping people safe. Safety and security begin with a home, food, freedom of movement, and connection to others. A better society is founded on respect for humanity, dignity, and belief in the potential of all. The punishment of incarceration lies in separating people from society, not a total violation of human rights, not cruel and unusual punishment. While jails exist, our responsibility is to spotlight how they fail everyone on every level while demanding their dismantling and decarceration for all. When you find yourself inside, remember your responsibility is to stay sane and alive until you are free and can join the struggle to bring everyone outside. Don’t opt for silence after you are released. There is no shame in getting caught in a system designed to capture people. Remember you are loved, and your mission is to be released alive and able to tell the tale while fighting to close every jail.

Priscilla Grim (she/her) is a Nuyorican, mom, comrade, and activist based in Brooklyn, New York. She has written for Scalawag, the Indypendent, and the forthcoming anthologies No Cop City, No Cop World and World War 3 Now?