Hicks v. United States

United States Supreme Court

150 US 442 (1893)

MR. JUSTICE SHIRAS delivered the opinion of the Court.

In the Circuit Court of the United States for the Western District of Arkansas, John Hicks, an Indian, was jointly indicted with Stand Rowe, also an Indian, for the murder of Andrew J. Colvard, a white man, by shooting him with a gun on the 13th of February, 1892. Rowe was killed by the officers in the attempt to arrest him, and Hicks was tried separately, and found guilty, in March, 1893. We adopt the statement of the facts in the case made in the brief for the government as correct and as sufficient for our purposes:

"It appears that on the night of the 12th of February, 1892, there was a dance at the house of Jim Rowe, in the Cherokee Nation; that Jim Rowe was a brother to Stand Rowe, who was indicted jointly with the defendant; that a large number of men and women were in attendance; that the dance continued until near sunrise the morning of the 13th; that Stand Rowe and the defendant were engaged in what was called 'scouting,' viz., eluding the United States marshals who were in search of them with warrants for their arrest, and were armed for the purpose of resisting arrest. They appeared at the dance, each armed with a Winchester rifle. They were both Cherokee Indians. The deceased, Andrew J. Colvard, was a white man who had married a Cherokee woman. He had been engaged in the mercantile business in the Cherokee country until a few months before the homicide. He came to the dance on horseback on the evening of the 12th. A good deal of whisky was drunk during the night by the persons present, and Colvard appears to have been drunk at some time during the night. Colvard spoke Cherokee fluently, and appears to have been very friendly with Stand Rowe and the defendant Hicks."

"On the morning of the 13th, as the party were dispersing, Colvard invited Stand Rowe and Hicks to go home with him, and repeated frequently this invitation. Finally he offered as an inducement to Stand Rowe, if he would accompany him home, to give him a suit of clothes, and a hat and boots. The urgency of these invitations appears to have excited the suspicion of the defendant in error, who declared openly that if Colvard persisted in his effort to take Stand Rowe away with him, he would shoot him."

"Sometime after sunrise on the morning of the 13th, about 7 o'clock, S. J. Christian, Benjamin F. Christian, Wm. J. Murphy, and Robert Murphy, all of whom had been at the dance the night before and had seen there Colvard, Stand Rowe, and the defendant, were standing on the porch of the house of William J. Murphy, about 414 steps west from the house of Jim Rowe, and saw Stand Rowe, coming on horseback in a moderate walk, with his Winchester rifle lying down in front of him, down a 'trail' which led into the main traveled road. Before Stand Rowe appeared in sight, the men who were on the porch had heard a 'whoop' in the direction from which Stand Rowe came, and this 'whoop' was responded to by one from the main road in the direction of Jim Rowe's house. Stand Rowe halted within five or six feet of the main road, and the men on the porch saw Mr. Colvard and the defendant Hicks riding together down the main road from the direction of Jim Rowe's house."

"As Colvard and Hicks approached the point where Stand Rowe was sitting on his horse, Stand Rowe rode out into the road and halted. Colvard then rode up to him in a lope or canter, leaving Hicks, the defendant, some 30 or 40 feet in his rear. The point where the three men were together on their horses was about 100 yards from where the four witnesses stood on the porch. The conversation between the three men on horseback was not fully heard by the four men on the porch, and all that was heard was not understood, because part of it was carried on in the Cherokee tongue; but some part of this conversation was distinctly heard and clearly understood by these witnesses. They saw Stand Rowe twice raise his rifle and aim it at Colvard, and twice he lowered it. They heard Colvard say, 'I am a friend to both of you.' They saw and heard the defendant Hicks laugh aloud when Rowe directed his rifle towards Colvard. They saw Hicks take off his hat, and hit his horse on the neck or shoulder with it. They heard Hicks say to Colvard, 'Take off your hat, and die like a man'; they saw Stand Rowe raise his rifle for the third time point it at Colvard and fire it; they saw Colvard's horse wheel and run back in the direction of Jim Rowe's house, 115 or 116 steps; they saw Colvard fall from his horse; they went to where he was lying in the road, and found him dead; they saw Stand Rowe and John Hicks ride off together after the shooting."

Hicks testified on his own behalf, denying that he had encouraged Rowe to shoot Colvard, and alleging that he had endeavored to persuade Rowe not to shoot.

The language attributed to Hicks, and which he denied having used, cannot be said to have been entirely free from ambiguity. It was addressed not to Rowe, but to Colvard. Hicks testified that Rowe was in a dangerous mood, and that he did not know whether he would shoot Colvard or Hicks. The remark made -- if made -- accompanied with the gesture of taking off his own hat, may have been an utterance of desperation, occasioned by his belief that Rowe would shoot one or both of them. That Hicks and Rowe rode off together after seeing Colvard fall was used as a fact against Hicks, pointing to a conspiracy between them. Hicks testified that he did it in fear of his life; that Rowe had demanded that he should show him the road which he wished to travel. Hicks further testified -- and in this he was not contradicted -- that he separated from Rowe a few minutes afterwards, on the first opportunity, and that he never afterwards had any intercourse with him, nor had he been in the company of Rowe for several weeks before the night of the fatal occurrence.

Two of the assignments of error are especially relied on by the counsel of the accused. One arises out of that portion of the charge wherein the judge sought to instruct the jury as to the evidence relied on as showing that Hicks aided and abetted Rowe in the commission of the crime.

We agree with the counsel for the plaintiff in error in thinking that this instruction was erroneous in two particulars. It omitted to instruct the jury that the acts or words of encouragement and abetting must have been used by the accused with the intention of encouraging and abetting Rowe. So far as the instruction goes, the words may have been used for a different purpose, and yet have had the actual effect of inciting Rowe to commit the murderous act. Hicks, indeed, testified that the expressions used by him were intended to dissuade Rowe from shooting. But the jury were left to find Hicks guilty as a principal because the effect of his words may have had the result of encouraging Rowe to shoot, regardless of Hicks' intention. In another part of the charge, the learned judge did make an observation as to the question of intention in the use of the words, saying:

"If the deliberate and intentional use of words has the effect to encourage one man to kill another, he who uttered these words is presumed by the law to have intended that effect, and is responsible therefor."

This statement is itself defective in confounding the intentional use of the words with the intention as respects the effect to be produced. Hicks no doubt intended to use the words he did use, but did he thereby intend that they were to be understood by Rowe as an encouragement to act? However this may be, we do not think this expression of the learned judge availed to cure the defect already noticed in his charge -- that the mere use of certain words would suffice to warrant the jury in finding Hicks guilty, regardless of the intention with which they were used.

Another error is contained in that portion of the charge now under review, and that is the statement:

"that, if Hicks was actually present at that place at the time of the firing by Stand Rowe, and he was there for the purpose of either aiding, abetting, advising, or encouraging the shooting of Andrew J. Colvard by Stand Rowe, and that, as a matter of fact, he did not do it, but was present for the purpose of aiding or abetting or advising or encouraging his shooting, but he did not do it because it was not necessary, it was done without his assistance, the law says there is a third condition where guilt is fastened to his act in that regard."

We understand this language to mean that where an accomplice is present for the purpose of aiding and abetting in a murder, but refrains from so aiding and abetting because it turned out not to be necessary for the accomplishment of the common purpose, he is equally guilty as if he had actively participated by words or acts of encouragement. Thus understood, the statement might in some instances be a correct instruction. Thus, if there had been evidence sufficient to show that there had been a previous conspiracy between Rowe and Hicks to waylay and kill Colvard, Hicks, if present at the time of the killing, would be guilty even if it was found unnecessary for him to act. But the error of such an instruction in the present case is in the fact that there was no evidence on which to base it. The evidence, so far as we are permitted to notice it, as contained in the bills of exception and set forth in the charge shows no facts from which the jury could have properly found that the encounter was the result of any previous conspiracy or arrangement. The jury might well therefore have thought that they were following the court's instructions in finding the accused guilty because he was present at the time and place of the murder, although he contributed neither by word nor action to the crime, and although there was no substantial evidence of any conspiracy or prior arrangement between him and Rowe.

The judgment of the court below is reversed, and the cause remanded, with directions to set aside the verdict and award a new trial.

Section 2.06. Liability for Conduct of Another; Complicity

(1)   A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

(2)   A person is legally accountable for the conduct of another person when:

a.       Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or

b.      He is made accountable for the conduct of such other person by the Code or by the law defining the offense; or

c.       He is an accomplice of such other person in the commission of the offense.

(3)   A person is an accomplice of another person in the commission of an offense if;

a.       With the purpose of promoting or facilitating the commission fo the offense, he

i.      solicits such other person to commit it, or

ii.      aids or agrees or attempts to aid such other person in planning or committing it, or

iii.      having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

b.      his conduct is expressly declared by law to establish his complicity.

(4)   When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

Wilcox v. Jeffery

High Court of Justice, King’s Bench Division

1 All ER 454 (1951)

LORD GODDARD, C.J.: This is a case stated by the metropolitan magistrate at Bow Street Magistrate’s Court before whom the appellant, Herbert William Wilcox, the proprietor of a periodical called "Jazz Illustrated,” was charged on an information that “on Dec. 11, 1949, he did unlawfully aid and abet one Coleman Hawkins in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land, to wit, that the said Coleman Hawkins should take no employment paid or unpaid while in the United Kingdom, contrary to art. 18 (2) of the Aliens Order, 1920.”

The case is concerned with the visit of a celebrated professor of the saxophone, a gentleman by the name of Hawkins who was a citizen of the United States. He came here at the invitation of two gentlemen of the name of Curtis and Hughes, connected with a jazz club which enlivens the neighbourhood of Willesden. They, apparently, had applied for permission for Mr. Hawkins land and it was refused, but, nevertheless, this professor of the saxophone arrived with four French musicians. When they came to the airport, among the people who were there to greet them was the appellant. He had not arranged their visit, but he knew they were coming and he was there to report the arrival of these important musicians for his magazine. So, evidently, he was regarding the visit of Mr. Hawkins as a matter which would be of interest to himself and the magazine which he was editing and selling for profit. Messrs. Curtis and Hughes arranged a concert at the Princes Theatre, London. The appellant attended that concert as a spectator. He paid for his ticket. Mr. Hawkins went on the stage and delighted the audience by playing the saxophone. The appellant did not get up and protest in the name of the musicians of England that Mr. Hawkins ought not to be here competing with them and taking the bread out of their mouths or the wind out of their instruments. It is not found that he actually applauded, but he was there having paid to go in, and, no doubt, enjoying the performance, and then, lo and behold, out comes his magazine with a most, laudatory description, fully illustrated, of this concert. On those facts the magistrate has found that he aided and abetted.

Reliance is placed by the prosecution on R. v. Coney (1) which dealt with a prize fight. This case relates to a jazz band concert, but the particular nature of the entertainment provided, whether by fighting with bare fists or playing on saxophones, does not seem to me to make any difference to the question which we have to decide. The fact is that a man is charged with aiding and abetting an illegal act, and I can find no authority for saying that it matters what that illegal act is, provided that the aider and abettor knows the facts sufficiently well to know that they would constitute an offence in the principal. In R. v. Coney (1) the prize fight took place in the neighbourhood of Ascot, and four or five men were convicted of aiding and abetting the fight. The conviction was quashed on the ground that the chairman had not given a correct direction to the jury when he told them that, as the prisoners were physically present at the fight, they must be held to have aided and abetted. That direction, the court held, was wrong, it being too wide. The matter was very concisely put by CAVE, J., whose judgment was fully concurred in by that great master of the criminal law, STEPHEN, J. CAVE, J., said (8 Q.B.D. 540):

"Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.”

There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get "copy" for his newspaper. It might have been entirely different, as I say, if he had gone there and protested, saying: “The musicians’ union do not like you foreigners coming here and playing and you ought to get off the stage." If he had booed, it might have been some evidence that he was not aiding and abetting. If he had gone as a member of a claque to try to drown the noise of the saxophone, he might very likely be found not guilty of aiding and abetting. In this case it seems clear that he was there, not only to approve and encourage what was done, but to take advantage of it by getting "copy" for his paper. In those circumstances there was evidence on which the magistrate could find that the appellant aided and abetted, and for these reasons I am of opinion that the appeal fails. 

Wilcox is an odd case, but one that makes some important points. First, do you even understand what it is that Coleman Hawkins did wrong? What law did he break?

Second, what was it that Wilcox did that made him responsible for Hawkins' lawbreaking. Doesn't this look a lot like the "mere presence" that the Hicks court told us was insufficient to make one actor responsible for another actor's conduct.

Third, was everyone in attendance an accomplice? Is that good public policy? Does it serve the goals of punishment?

Finally, this case raises the possibility of liability for an ommission. The court seems to imply that Wilcox wouldn’t have been liable if he had gone to the show and booed Hawkins for taking the jobs of hardworking English jazz musicians. So is he liable for not booing? Did he have a legal obligation to boo?

Finally, what if Hawkins had committed a more serious offense? Consider the horrific sex assault that occurred in New Bedford, Massachusetts in 1983 and formed the basis of the 1988 movie the Accused. The assault happened in a bar that consisted of a single large room; the bar remained open during the entirety of the assault, which went on for some time. Should there be liability for those who were present and didn't do anything to prevent the attack? For those present who did nothing to encourage it but also did not report it? Only for those who actively encouraged it? Is accomplice liability the right way to think about liability in this context?

State ex rel. Attorney General v. Tally, Judge, 15 So. 722 (Ala. 1894) was an action brought against an Alabama judge for facilitating the four Skelton brothers in pursuing and ultimately killing a man named Ross after Ross ran off with their sister (Tally’s sister-in-law). The brothers pursued Ross to a neighboring town intending to kill him and, upon learning this, a friend of Ross’ tried to warn Ross by telegram. Tally then sent his own telegram to the telegraph operator, asking him not to deliver the warning message to Ross. The operator in fact did not deliver the message; the Skeltons caught up with Ross and killed him.

Tally was charged with aiding and abetting the killing of Ross and the Alabama High Court upheld the conviction. The Court held that it was not necessary to show that Tally’s telegram was even the but-for cause of Ross’s death:

The assistance given… need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely renders it easier for the principal actor to accomplish the end intend by him and the aider and abettor, though in all human probability the end would have been attained without it.

Is this result consistent with the court’s opinion in Wilcox v. Jeffery?

With these results in mind, consider the following variations on the facts of Tally. What result would we get under the traditional common law approach? Under MPC §2.06?

1. Due to a technical glitch, the judge’s telegram never reached the nearby town and the telegraph operator tried in vain to deliver the warning to Ross. However, by the time he found Ross, the Skeltons had already found and killed him.
2. The telegraph operator received Tally’s request and did not deliver the warning telegram, but the Skeltons never found Ross and he escaped town without incident.
3. Same as 2), above, except that the Skeltons did find Ross who managed to fight them off and escape town unscathed.

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.

Similarly, the same principle was declared in Johnson v. United States, 195 F.2d 673 (8th Cir. 1952):

Generally speaking, to find one guilty as a principal on the ground that he was an aider and abetter, it must be proven that he shared in the criminal intent of the principal and there must be a community of unlawful purpose at the time the act is committed. As the term "aiding and abetting" implies, it assumes some participation in the criminal act in furtherance of the common design, either before or at the time the criminal act is committed.

It would be a dangerous precedent indeed to hold that mere communications to the effect that another might or probably would commit a criminal offense amount to an aiding and abetting of the offense should it ultimately be committed.

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.

On first reading, the result in Gladstone seems absurd. What was Gladstone doing, if not facilitating a drug deal? It is true, of course, that Gladstone knew that he was facilitating such a transaction. But did he intend to? Citing the classic Peoni case, the court concluded that Gladstone had done nothing to associate himself with the transaction as something that he hoped to bring about. Is that true? Should his indifference to the result save him? What if the crime he was indifferent to were the sex assault discussed in the previous note?

As we shall see when we get to conspiracy, the law generally requires a true intent to facilitate the principal's conduct before it will convict a defendant of most crimes, but sometimes relaxes this rule for more serious ones.

Does this relaxation of the requirements for serious criminal responsibility make sense? If anything, shouldn't it be harder (rather than easier) to convict someone as an accomplice to a less serious crime than to a more serious one?

State v. McVay

Supreme Court of Rhode Island

132 A. 436 (R.I. 1926)

BARROWS, J.

Heard on a certification of a question of law before trial. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer of the Steamer Mackinac as principals and against Kelley as accessory before the fact. The steamer carried several hundred passengers from Pawtucket to Newport via Narragansett Bay. The boiler producing the steam by which the vessel was propelled, burst near Newport and many lives were lost. The present indictments are for causing the deaths of three persons killed by escaping steam after the explosion of the boiler.

The same question is raised upon each indictment. That question is:

“May a defendant be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence as set forth in the indictment?”

In the first count the negligence charged is the “wanton and willful” creation of any steam in a boiler known to be worn, corroded, defective and unsafe, as a result whereof an explosion occurred killing a passenger; the charge against Kelley as accessory is that “before said felony and manslaughter was committed,” . . . he did at Pawtucket “feloniously and maliciously aid, assist, abet, counsel, hire, command and procure the said George W. McVay and John A. Grant, the said felony and manslaughter in manner and form aforesaid to do and commit.”

[The facts of the case are slightly opaque in the court's opinion. You may assume that Kelley, a steamship executive who was not present on the ferry, ordered McVay and Grant, the captain and engineer of the ship, to make steam in a boiler that all three men knew was cracked and unsafe.]

Because the manslaughter charge is “[w]ithout malice and “involuntary” Kelley contends that he can not be indicted legally as an accessory before the fact. The argument is that manslaughter being a sudden and unpremeditated crime inadvertent and unintentional by its very nature can not be “maliciously” incited before the crime is committed.

While everyone must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, we do not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor Vehicle laws or administration of drugs to procure an abortion. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. There is no inherent reason why, prior to the commission of such a crime, one may not aid, abet, counsel, command or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides.

[T]he present indictment for involuntary manslaughter is not self-contradictory when it charges Kelley to be an accessory before the fact. It was possible for him at Pawtucket to intentionally direct and counsel the grossly negligent act which the indictment charges resulted in the crime. Involuntary manslaughter, as set forth in this indictment means that defendants exercised no conscious volition to take life but their negligence was of such a character that criminal intention can be presumed. The crime was consummated when the explosion occurred. The volition of the principals was exercised when they chose negligently to create steam which the boiler could not carry. The doing of the act charged or failure to perform the duty charged was voluntary and intentional in the sense that defendants exercised a choice among courses of conduct. It is obvious that Kelley could participate and is charged with participating in procuring defendants to act in a grossly negligent manner prior to the explosion. Legal precedents based upon facts unlike the present ones do not convince us that he could not have been an accessory before the fact.

We are convinced that in some types of manslaughter there may be an accessory before the fact and from our study of the present indictments we believe they aver such cases. Specific duties are stated to have been laid upon the captain and engineer. Defendant is charged with full knowledge of those duties and of the fact that the boiler was unsafe. He is charged with counseling and procuring the principals at Pawtucket to disregard their duties and negligently create steam. Until the explosion no crime was committed. Defendant was not present when the negligence resulted in a criminal act. The advice at Pawtucket was not continuing negligence on Kelley’s part. The facts set forth in these indictments, if existent, are such that a jury might find that defendant Kelley, with full knowledge of the possible danger to human life, recklessly and willfully advised, counseled and commanded the captain and engineer to take a chance by negligent action or failure to act.

We therefore answer the question certified on each indictment in the affirmative. The papers in each case, with this decision certified thereon, are sent back to the Superior Court for further proceedings.

McVay is complicated, but revealing.

Kelley intended to encourage the principals conduct and did encourage it. As a result of the conduct he encouraged, four people died.

But it's also true that, as an executive of the company, he did not want anyone to die. His culpability is not that of an intentional killer, but of a reckless one. If he had not known that the boiler was cracked and dangerous, but should have, his crime would be one of negligence. On those facts, McVay and Grant could be charged with recklessly causing four deaths, Kelley guilty of four counts of negligent homicide as an accomplice.

What if the accomplice's liability is greater than that of the principal? So what if, for example, a defendant who has been adequately provokes pays another to kill his provoker? The principal, who acted without provocation, is guilty of first degree murder. Of what crime should the accomplice be convicted?

People v. Russell

Court of Appeals of New York

693 N.E.2d 193 (1998)

KAYE, Chief Judge.

Shortly before noon on December 17, 1992, Shamel Burroughs engaged in a gun battle with Jermaine Russell and Khary Bekka on Centre Mall of the Red Hook Housing Project in Brooklyn. During the course of the battle, Patrick Daly, a public school principal looking for a child who had left school, was fatally wounded by a single stray nine-millimeter bullet that struck him in the chest. Burroughs, Bekka and Russell-defendants on this appeal were all charged with second degree murder (Penal Law § 125.25 [1], [2] ).

Two separate juries, one for Burroughs and another for Russell and Bekka, were impanelled contemporaneously and heard the evidence presented at trial. Although ballistics tests were inconclusive in determining which defendant actually fired the bullet that killed Daly, the theory of the prosecution was that each of them acted with the mental culpability required for commission of the crime, and that each “intentionally aided” the defendant who fired the fatal shot (Penal Law § 20.00). Both juries convicted defendants of second degree, depraved indifference murder (Penal Law § 125.25[2] ).

A depraved indifference murder conviction requires proof that defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct creating a grave risk of death to another person, and thereby caused the death of another person (Penal Law § 125.25[2] ). Reckless conduct requires awareness and conscious disregard of a substantial and unjustifiable risk that such result will occur or that such circumstance exists (Penal Law § 15.05[3] ). “The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Id.). To constitute “depraved indifference,” conduct must be “ ‘so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another’ ” Although defendants underscore that only one bullet killed Patrick Daly and it is uncertain which of them fired that bullet, the prosecution was not required to prove which defendant fired the fatal shot when the evidence was sufficient to establish that each defendant acted with the mental culpability required for the commission of depraved indifference murder, and each defendant “intentionally aided” the defendant who fired the fatal shot. Defendants urge, however, that the evidence adduced at trial did not support a finding that they-as adversaries in a deadly gun battle-shared the “community of purpose” necessary for accomplice liability. We disagree. The fact that defendants set out to injure or kill one another does not rationally preclude a finding that they intentionally aided each other to engage in the mutual combat that caused Daly's death.

People v. Abbott, 84 A.D.2d 11 provides an apt illustration. That case involved two defendants-Abbott and Moon-who were engaged in a “drag race” on a residential street when Abbott lost control and smashed into another automobile, killing the driver and two passengers. Both defendants were convicted of criminally negligent homicide, but Moon asserted that he was not responsible for Abbott's actions and that his conviction should be set aside. Rejecting this argument, the court found that, although Moon did not strike the victim's car and was Abbott's adversary in a competitive race, he intentionally participated with Abbott in an inherently dangerous and unlawful activity and therefore shared Abbott's culpability. Moon's “conduct made the race possible” in the first place, as there would not have been a race had Moon not “accepted Abbott's challenge” In the present case, the jurors were instructed:

“If you find that the People have proven beyond a reasonable doubt that [defendants] took up each other's challenge, shared in the venture and unjustifiably, voluntarily and jointly created a zone of danger, then each is responsible for his own acts and the acts of the others . . . [and] it makes no difference whether it was a bullet from Mr. Bekka's gun, Mr. Russell's gun or Mr. Burrough's gun that penetrated Mr. Daly and caused his death” (emphasis added).

The trial evidence was sufficient to support each jury's findings in accordance with this charge. Although Burroughs was shooting at Russell and Bekka, and Russell and Bekka were shooting at Burroughs, there was adequate proof to justify the finding that the three defendants tacitly agreed to engage in the gun battle that placed the life of any innocent bystander at grave risk and ultimately killed Daly. Indeed, unlike an unanticipated ambush or spontaneous attack that might have taken defendants by surprise, the gunfight in this case only began after defendants acknowledged and accepted each others' challenge to engage in a deadly battle on a public concourse.

As defendants approached one another on Centre Mall, a grassy open area that serves as a thoroughfare for the 7,000 residents of the 28-building housing complex, it was evident that an encounter between them would be violent and would endanger others. There was trial evidence that when Burroughs first saw Bekka and Russell walking toward him, he immediately recognized the danger, instructing the two female friends accompanying him, one of them pregnant, to “run” or “go.” They too plainly sensed the danger because, without hesitation, they turned and ran.

Despite the palpable threat, Burroughs, armed with a nine-millimeter Glock, did not flee with his friends. Rather, he continued toward Russell and Bekka, tacitly accepting their invitation and issuing one of his own. In turn, Russell and Bekka, also armed with automatic weapons, continued walking toward Burroughs, challenging him and accepting his challenge. As they drew nearer, defendants each began firing their high-powered guns, capable of shooting bullets at an average rate of 1,100 feet per second, across the pedestrian thoroughfare. The dozen or more people in the area, as well as those with windows overlooking the Mall, were put at grave risk as defendants unleashed a hail of bullets. Witnesses testified that the battle sounded “like a war” and that anywhere from nine to 20 shots were fired.

Although Centre Mall is surrounded by buildings affording refuge, defendants chose instead to run through the area aggressively pursuing one another. Indeed, even after exchanging an initial volley of shots, they continued to wage their private war, issuing taunts and ducking back and forth behind buildings and trees, seeking tactical advantage. As a result of defendants' deadly gun battle, Patrick Daly was shot in the chest and killed almost instantly.

The evidence adduced at trial was also sufficient for the jury to determine that all three defendants acted with the mental culpability required for depraved indifference murder, and that they intentionally aided and encouraged each other to create the lethal crossfire that caused the death of Patrick Daly.

Accordingly, in each case the order of the Appellate Division should be affirmed.

People v. Luparello

California Court of Appeal

187 Cal.App.3d 410 (Cal. 1986)

[Luparello’s girlfriend Teri moved out of the house they shared. Luparello became obsessed and began searching for her, enlisting some of his associates in the enterprise.]

[Luparello] hoped to elicit information from Mark Martin, a good friend of Terri's husband and best man at Terri and Ed's wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as “Spooky” gathered at Luparello's house. In talking to Luparello and Orduna, Salmon stated they were going to “thump” the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and “Spooky” left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin's house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin's house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri's whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.

On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin's house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna's car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martin and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.

[Luparello was convicted of Martin’s murder under both co-conspirator and accomplice liability theories and appealed both.]

Luparello first faults both theories for “imposing” the mens rea of the perpetrator upon him. As Luparello views it, both theories work to presume conclusively the accomplice shares the perpetrator's intent. Luparello errs, [however] when he concludes the perpetrator and accomplice must “share” an identical intent to be found criminally responsible for the same crime. Technically, only the perpetrator can (and must) manifest the mens rea of the crime committed. Accomplice liability is premised on a different or, more appropriately, an equivalent mens rea. Thus, to be a principal to a crime, the aider and abettor must intend to commit the offense or to encourage or facilitate its commission. Liability is extended to reach the actual, rather than the planned or “intended” crime, committed on the policy [that] aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.

The California Supreme Court [held] in the recent case of People v. Croy, supra., 41 Cal.3d 1:

The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . 

It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which … must be found by the jury ....”

[Following Croy, the court concluded that Luparello could be convicted for the death of Martin on an aiding and abetting theory.]

Wiener, J., concurring

The major fallacy I see in the “foreseeable consequence” doctrine is not so much that it attributes an unintended act to the accomplice/coconspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. The present case provides an appropriate example. The assault on Mark Martin contemplated by the conspiracy involved a foreseeable risk of death or serious injury. We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk. Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter. Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello's participation were exactly the same but the shooter did not “lie in wait,” Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin's homicide.

The drafters of the Model Penal Code reached a similar conclusion. Section 2.06(3)(a) establishes a standard for accomplice liability which… requires that the accomplice act “with the purpose of promoting or facilitating the commission of the offense . . . ” Missing from the Model Penal Code, however, is any reference to the “foreseeable consequence” doctrine. The Comment to the section addresses the issue as follows:

“[The accomplice] must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose.

This does not mean, of course, that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it”

In our means-oriented society, to have the end alone justify the punishment is unconscionable. The artificial imputation of stepped-up intent, inherent in both the felony-murder rule and the “foreseeable consequence” doctrine, is inconsistent with the “universal and persistent” notion that criminal punishment must be proportional to the defendant's culpable mental state. (See Morissette v. United States (1952) 342 U.S. 246. Justice Mosk's dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 expressed it well: “Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination.” The fact that the accomplice or coconspirator intended to facilitate some less serious criminal act does not render these fundamental principles inapplicable. As the United States Supreme Court has explained, “The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar.” (Jackson v. Virginia (1979) 443 U.S. 307, 323-324.)

Commonwealth v. Roebuck,
612 Pa. 642 (2011)

Supreme Court of Pennsylvania

Justice SAYLOR.

In this appeal, we consider whether it is possible, as a matter of law, to be convicted as an accomplice to third-degree murder.
 
The complete factual background is somewhat cumbersome. For present purposes, it is enough to say the Commonwealth presented evidence that the victim was lured to an apartment complex, where he was ambushed, shot, and mortally wounded. Appellant participated, with others, in orchestrating the events, but he did not shoot the victim.
 
For his role, Appellant was charged with, among other offenses, murder of the third degree. As he did not physically perpetrate the homicide, the Commonwealth relied upon accomplice theory, which is codified in Section 306 of the Crimes Code along with other complicity-based accountability principles. The matter proceeded to a bench trial, and a verdict of guilt ensued.
 
On appeal, Appellant argued that there is no rational legal theory to support accomplice liability for third-degree murder. He rested his position on the following syllogism: accomplice liability attaches only where the defendant intends to facilitate or promote an underlying offense; third-degree murder is an unintentional killing committed with malice; therefore, to adjudge a criminal defendant guilty of third-degree murder as an accomplice would be to accept that the accused intended to aid an unintentional act, which is a logical impossibility.
 
The Superior Court did not directly refute either of the two premises underlying Appellant’s argument, but it differed with the conclusion. Initially, the court recognized that the complicity statute defines “accomplice” in terms of intentional promotion or facilitation of “the commission of the offense.” Nevertheless, the court highlighted the following statutory prescription pertaining to the requisite mens rea (or mental state):

When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

As the “kind of culpability” predicate to third-degree murder entails malice, the court reasoned that, “[i]f one participates in a criminal act, which also demonstrates malice, and if a life is taken, one can be convicted of ... third-degree murder vicariously.” In effect, the intermediate court held that complicity theory applies in third-degree murder scenarios—even if homicide was not the intended underlying crime—where the intentional acts demonstrate a disregard for human life amounting to malice. Upon the appellate review of this and other claims, the judgment of sentence was affirmed.
 
At the outset, it certainly is possible for a state legislature to employ complicity theory to establish legal accountability on the part of an accomplice for foreseeable but unintended results caused by a principal. Indeed, this was the express design of the American Law Institute’s widely influential Model Penal Code.
 
To provide appropriate context in considering the MPC’s treatment of complicity theory, it is helpful to review some of the Code’s core theoretical underpinnings. Also impacting on this discussion, the MPC does not employ the term “malice” in its treatment of the crime of murder, but rather, expresses the concept as “reckless[ness] under circumstances manifesting extreme indifference to the value of human life.” Model Penal Code § 210.2(1)(b). To streamline the discourse, and particularly since Appellant’s impossibility logic is grounded on the presence of unintended consequences flowing from an intentional act—and thus extends to any crime in which the mens rea pertaining to a necessary result is recklessness—much of the discussion below is framed in terms of recklessness.
 
I. The Model Penal Code

A. The Code Generally

In addressing the terms of the Model Penal Code, it is important to bear in mind that the Code employs an elements approach to substantive criminal law, which recognizes that a single offense definition may require different culpable mental states for each objective offense element. The MPC further narrows mens rea analysis by pruning from the lexicon a plethora of common-law culpability terms, leaving four core terms. 

B. MPC Treatment of Accomplice Liability

The legal accountability of accomplices for the conduct of others is treated in 2.06 of the Code. See Model Penal Code § 2.06(2)(c) (“A person is legally accountable for the conduct of another person when ... he is an accomplice of such other person in the commission of the offense.”). Two material passages follow, developing the meaning of the term “accomplice” and the requisite mens rea, as relevant to the present case:
(3) A person is an accomplice of another person in the commission of an offense if ... with the purpose of promoting or facilitating the commission of the offense, he ... aids or agrees or attempts to aid such other person in planning or committing it[.]
(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

Section 206(4) thus prescribes that an accomplice may be held legally accountable where he is an “accomplice in the conduct”—or, in other words, aids another in planning or committing the conduct with the purpose of promoting or facilitating it—and acts with recklessness (i.e., the “kind of culpability ... sufficient for the commission of” a reckless-result offense).

The interconnection between accomplice mens rea and the mental state required of a principal actor represents an important restraint on accountability. In terms of such limiting principles, it is also necessary to determine whether the principal has taken actions beyond those that the accomplice intended. In such instances, it cannot be said that the accomplice intended to bring about the conduct, and therefore, any criminal liability for the result would have to rest on some other ground.

To the extent any aspect of this accountability scheme is unclear, ample clarification is provided in the explanatory note and commentary. As a threshold matter, the commentary explains that the term “commission of the offense,” as used in Section 2.06(3), focuses on the conduct, not the result. See id. § 2.06, cmt. 6(b), at 310 (“Subsection 3(a) requires that the actor have the purpose of promoting or facilitating the commission of the offense, i.e., that he have as his conscious objective the bringing about of conduct that that the Code has declared to be criminal[.]” (emphasis added)).This diffuses any impression that an accomplice must always intend results essential to the completed crime. The commentary then points to the fourth subsection as supplying the essential culpability requirement, as follows:

One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it unless the case falls within the specific terms of Subsection (4).

Model Penal Code § 2.06, cmt. 6(b), at 311 (emphasis added). According to the commentary, the purport of the fourth subsection is to hold the accomplice accountable for contributing to the conduct to the degree his culpability equals what is required to support liability of a principal actor.

For the above reasons, at least under the regime of the Model Penal Code, holding an accomplice criminally liable for a result requiring a mental state of recklessness is not theoretically impossible, as Appellant asserts. To the contrary, it is precisely the norm. 

II. The Pennsylvania Crimes Code

As Appellant indicates (albeit lacking the above elaboration), Section 306 of the Pennsylvania Crimes Code derives from the Model Penal Code. Furthermore, the provisions of the Crimes Code establishing legal accountability for accomplice conduct are materially identical to the corresponding terms of Section 206 of the MPC in all relevant respects. 
 
We recognize that the Crimes Code does not contain the wealth of collateral explanatory material which accompanies the Model Penal Code, including the latter’s extensive notes and commentaries. Nevertheless, we believe the text of the Pennsylvania statute is clear enough. In terms identical to those of Section 206 of the MPC, Section 306(d) of the Crimes Code directs the focus, for result-based elements, to the level of culpability required of a principal. In the present factual scenario, the purport is to avoid elevating a recklessness-oriented culpability requirement to a purposeful one relative to an accomplice. The policy basis for such treatment is readily discernable, and a homicide committed with the degree of recklessness predicate to murder provides a paradigmatic example.
 
Appellant’s position garners its only ostensible strength from his attempt to read Section 306(c) in isolation. We are obliged, however, to read statutes in a manner giving effect to all of their provisions, which, in the present case, includes Section 306(d). Moreover, to the extent there is any tension between Sections 306(c) and (d), the latter is the more specific term relative to offenses containing result-based elements; therefore, it controls. 

Contrary to the [appellant’s] assertions, and unlike attempt or conspiratorial liability, accessorial liability does not require that a defendant act with the conscious objective to cause the result described by a statute.
* * *
[The accomplice statute] merely requires that a defendant have the mental state required for the commission of a crime while intentionally aiding another. 

Consistent with the Model Penal Code, the Pennsylvania Crimes Code, and the weight of the authorities, the court thus held that a defendant may be held liable for a criminally negligent act under complicity theory “if he has the requisite culpable mental state for the commission of the substantive offense, and he intentionally aids another in the crime.”
 
In light of the above, it is apparent that the first premise of Appellant’s impossibility syllogism embodies the erroneous proposition that the culpability requirement for accomplice liability is necessarily tied to a result (here, the killing). Again, Section 306(d) provides differently. The statute’s reach simply is not confined to substantive crimes requiring a specific intention to bring about a particular result. Accord id. at 282. For offenses where a principal actor need not intend the result, it is also not necessary for the accomplice to do so.

The judgment of the Superior Court is affirmed and jurisdiction is relinquished.

Justice EAKIN, concurring.

I agree with the majority that, as a matter of law, one can be convicted of being an accomplice to third degree murder. 

Suppose an accomplice hands a gun to the principal and says “shoot that victim—I don’t care if he dies or not, but shoot him.” The principal shoots the victim in the leg, but the victim dies—it is classic third degree murder, there being no proof of specific intent to kill, but a clearly malicious act regardless of the consequences. The same logic that enables a murder charge against the principal binds the accomplice as well—both committed an intentional malicious act that resulted in the death of another, and both are guilty of the murder charge that follows.
 
Accordingly, I respectfully concur in result.

The facts of Luparello and Roebuck are surprisingly similar. In both, the defendant participated in a scheme that predictably but unintentionally led to the death of a victim. In both, the defendant was charged as an accomplice to the fatal act. In both, the appellate court upheld the charge.

But it is important to see the difference in the reasoning that the two courts used to arrive at these results. The Luparello court applied the natural and probable consequences doctrine; the Roebuck court, following the MPC approach, found that Roebuck could be charged as the accomplice to an accidental killing if he encouraged the conduct and had a sufficiently culpable mental state (recklessness) with regard to the death.

It is also important to see that, not surprisingly, the MPC rejects the natural and probable consequences doctrine. Can you find that result in the Court's opinion? What, then, is the import of Roebuck?

Section 5.03. Criminal Conspiracy.

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or

(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.

(3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

(4) Joinder and Venue in Conspiracy Prosecutions.

[omitted]

(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

(6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

(7) Duration of Conspiracy.

[omitted]

Colorado Revised Statutes § 18-2-201

(1) A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.

(2) No person may be convicted of conspiracy to commit a crime, unless an overt act in pursuance of that conspiracy is proved to have been done by him or by a person with whom he conspired.

(3) If a person knows that one with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit a crime with the other person or persons, whether or not he knows their identity.

(4) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are part of a single criminal episode.

(4.5) Conspiracy to commit any crime for which a court is required to sentence a defendant for a crime of violence in accordance with section 18-1.3-406 is itself a crime of violence for the purposes of that section.

(5) If a person conspires to commit a felony which is defined by any statute other than one contained in this title and for which conspiracy no penalty is specifically provided, he is guilty of a class 6 felony. If a person conspires to commit a misdemeanor which is defined by any statute other than one contained in this title and for which conspiracy no penalty is specifically provided, he is guilty of a class 3 misdemeanor.

United States v. Garcia

United States Court of Appeals

151 F.3d 1243 (9th Cir. 1998)

Reinhardt, J.

In this case, we consider whether testimony regarding the existence of an implicit, general agreement among gang members to support one another in fights against rival gangs can constitute sufficient evidence to support a conviction of conspiracy to commit assault when the conduct of the alleged conspirators is otherwise insufficient.

One evening, a confrontation broke out between rival gangs at a party on the Pasqua Yaqui Indian reservation. The resultant gunfire injured four young people, including appellant Cody Garcia. Two young men involved in the shooting, Garcia and Noah Humo, were charged with conspiracy to assault three named individuals with dangerous weapons. A jury acquitted Humo but convicted Garcia. Because there is no direct evidence of an agreement to commit the criminal act which was the alleged object of the conspiracy, and because the circumstances of the shootings do not support the existence of an agreement, implicit or explicit, the government relied heavily on the gang affiliation of the participants to show the existence of such an agreement. We hold that gang membership itself cannot establish guilt of a crime, and a general agreement, implicit or explicit, to support one another in gang fights does not provide substantial proof of the specific agreement required for a conviction of conspiracy to commit assault. The defendant's conviction therefore rests on insufficient evidence, and we reverse.

Background

The party at which the shootings occurred was held in territory controlled by the Crips gang. The participants were apparently mainly young Native Americans. While many of the attendees were associated with the Crips, some members of the Bloods gang were also present. Appellant Cody Garcia arrived at the party in a truck driven by his uncle, waving a red bandanna out the truck window and calling out his gang affiliation: "ESPB Blood!" Upon arrival, Garcia began "talking smack" to (insulting) several Crips members. Prosecution witnesses testified that Garcia's actions suggested that he was looking for trouble and issuing a challenge to fight to the Crips at the party.

Meanwhile, Garcia's fellow Bloods member Julio Baltazar was also "talking smack" to Crips members, and Blood Noah Humo bumped shoulders with one Crips member and called another by a derogatory Spanish term. Neither Baltazar nor Humo had arrived with Garcia, nor is there any indication that they had met before the party to discuss plans or that they were seen talking together during the party.

At some point, shooting broke out. Witnesses saw both Bloods and Crips, including Garcia and Humo, shooting at one another. Baltazar was seen waving a knife or trying to stab a Crip. The testimony at trial does not shed light on what took place immediately prior to the shooting, other than the fact that one witness heard Garcia ask, "Who has the gun?" There is some indication that members of the two gangs may have "squared off" before the shooting began. No testimony establishes whether the shooting followed a provocation or verbal or physical confrontation.

Four individuals were injured by the gunfire: the defendant, Stacy Romero, Gabriel Valenzuela, and Gilbert Baumea. Stacy Romero who at the time was twelve years old was the cousin both of Garcia's co-defendant Humo and his fellow Blood, Baltazar. No evidence presented at trial established that any of the injured persons was shot by Garcia, and he was charged only with conspiracy. The government charged both Garcia and Humo with conspiracy to assault Romero, Valenzuela, and Baumea with dangerous weapons under 18 U.S.C. §§ 371, 113(a) (3) and 1153; Humo alone was charged with two counts of assault resulting in serious bodily injury under 18 U.S.C. §§ 113(a) (6) and 1153.

After a jury trial, Humo was acquitted on all counts. Garcia was convicted of conspiracy to assault with a dangerous weapon and sentenced to 60 months in prison. He appeals on the ground that there was insufficient evidence to support his conviction.

Sufficiency of the Evidence

In order to prove a conspiracy, the government must present sufficient evidence to demonstrate both an overt act and an agreement to engage in the specific criminal activity charged in the indictment. While an implicit agreement may be inferred from circumstantial evidence, proof that an individual engaged in illegal acts with others is not sufficient to demonstrate the existence of a conspiracy. Both the existence of and the individual's connection to the conspiracy must be proven beyond a reasonable doubt.

The government claims that it can establish the agreement to assault in two ways: first, that the concerted provocative and violent acts by Garcia, Humo and Baltazar are sufficient to show the existence of a prior agreement; and second, that by agreeing to become a member of the gang, Garcia implicitly agreed to support his fellow gang members in violent confrontations.

However, no inference of the existence of any agreement could reasonably be drawn from the actions of Garcia and other Bloods members on the night of the shooting. An inference of an agreement is permissible only when the nature of the acts would logically require coordination and planning. The government presented no witnesses who could explain the series of events immediately preceding the shooting, so there is nothing to suggest that the violence began in accordance with some prearrangement. The facts establish only that perceived insults escalated tensions between members of rival gangs and that an ongoing gang-related dispute erupted into shooting. Testimony presented at trial suggest more chaos than concert. Such evidence does not establish that parties to a conspiracy "work [ed] together understandingly, with a single design for the accomplishment of a common purpose." United States v. Melchor-Lopez, 627 F.2d 886, 890 (9th Cir. 1980).

Given that this circumstantial evidence fails to suggest the existence of an agreement, we are left only with gang membership as proof that Garcia conspired with fellow Bloods to shoot the three named individuals. The government points to expert testimony at the trial by a local gang unit detective, who stated that generally gang members have a "basic agreement" to back one another up in fights, an agreement which requires no advance planning or coordination. This testimony, which at most establishes one of the characteristics of gangs but not a specific objective of a particular gang--let alone a specific agreement on the part of its members to accomplish an illegal objective--is insufficient to provide proof of a conspiracy to commit assault or other illegal acts.

Recent authority in this circuit establishes that “[m]embership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting." Mitchell v. Prunty, 107 F.3d 1337, 1342 (9th Cir. 1997). In overturning the state conviction of a gang member that rested on the theory that the defendant aided and abetted a murder by "fanning the fires of gang warfare," the Mitchell opinion expressed concern that allowing a conviction on this basis would "smack ... of guilt by association." The same concern is implicated when a conspiracy conviction is based on evidence that an individual is affiliated with a gang which has a general rivalry with other gangs, and that this rivalry sometimes escalates into violent confrontations.

The Mitchell court reasoned that the conviction in that case necessarily rested on the faulty assumption that gang members typically act in a concerted fashion. Such an assumption would be particularly inappropriate here. Acts of provocation such as "talking smack" or bumping into rival gang members certainly does not prove a high level of planning or coordination. Rather, it may be fairly typical behavior in a situation in which individuals who belong to rival gangs attend the same events. At most, it indicates that members of a particular gang may be looking for trouble, or ready to fight. It does not demonstrate a coordinated effort with a specific illegal objective in mind. The fact that gang members attend a function armed with weapons may prove that they are prepared for violence, but without other evidence it does not establish that they have made plans to initiate it. And the fact that more than one member of the Bloods was shooting at rival gang members also does not prove a prearrangement--the Crips, too, were able to pull out their guns almost immediately, suggesting that readiness for a gunfight requires no prior agreement. Such readiness may be a sad commentary on the state of mind of many of the nation's youth, but it is not indicative of a criminal conspiracy.

Finally, as the Mitchell panel warned, allowing gang membership to serve as evidence of aiding and abetting "would invite absurd results. Any gang member could be held liable for any other gang member's act at any time so long as the act was predicated on 'the common purpose of fighting the enemy.’” Similarly, allowing a general agreement among gang members to back each other up to serve as sufficient evidence of a conspiracy would mean that any time more than one gang member was involved in a fight it would constitute an act in furtherance of the conspiracy and all gang members could be held criminally responsible--whether they participated in or had knowledge of the particular criminal act, and whether or not they were present when the act occurred. Indeed, were we to accept "fighting the enemy" as an illegal objective, all gang members would probably be subject to felony prosecutions sooner rather than later, even though they had never personally committed an improper act. This is contrary to fundamental principles of our justice system. "[T]here can be no conviction for guilt by association."

Because of these concerns, evidence of gang membership cannot itself prove that an individual has entered a criminal agreement to attack members of rival gangs. Moreover, here the conspiracy allegation was even more specific: the state charged Garcia with conspiracy to assault three specific individuals--Romero, Baumea and Valenzuela--with deadly weapons. Even if the testimony presented by the state had sufficed to establish a general conspiracy to assault Crips, it certainly did not even hint at a conspiracy to assault the three individuals listed in the indictment. Of course, a more general indictment would not have solved the state's problems in this case. In some cases, when evidence establishes that a particular gang has a specific illegal objective such as selling drugs, evidence of gang membership may help to link gang members to that objective. However, a general practice of supporting one another in fights, which is one of the ordinary characteristics of gangs, does not constitute the type of illegal objective that can form the predicate for a conspiracy charge.

Conclusion

Because the government introduced no evidence from which a jury could reasonably have found the existence of an agreement to engage in any unlawful conduct, the evidence of conspiracy was insufficient as a matter of law. A contrary result would allow courts to assume an ongoing conspiracy, universal among gangs and gang members, to commit any number of violent acts, rendering gang members automatically guilty of conspiracy for any improper conduct by any member. We therefore reverse Garcia's conviction and remand to the district court to order his immediate release.

REVERSED AND REMANDED

People v. Lauria

California District Court of Appeals

59 Cal. Rptr. 628 (1967)

FLEMING, Associate Justice.

In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria's telephone answering service, presumably for business purposes.

On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria's answering service. Mrs. Weeks, in the course of her conversation with Lauria's office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and ‘about as safe as you can get.’ It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.

On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modeling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks' hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said ‘his business was taking messages.’

On February 15, Mrs. Weeks talked on the telephone to Lauria's office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.

On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't ‘arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them.’ In a subsequent voluntary appearance before the Grand Jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.

Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently, the trial court set aside the indictment as having been brought without reasonable or probable cause. The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.

To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another's criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes?

The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 (1940), the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moonshining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 (1943), a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than are distributors of innocuous substances like sugar and yeast.

In the earlier case, Falcone, the sellers' knowledge of the illegal use of the goods was insufficient by itself to make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.

In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold codefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: "All articles of commerce may be put to illegal ends," said the court. "But all do not have inherently the same susceptibility to harmful and illegal use. . . This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action, it is not unrelated to such knowledge. . . The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a ‘stake in the venture’ which, even if it may not be essential, is not irrelevant to the question of conspiracy.'"

While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.

Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of position.

The more perplexing issue in the case is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier's express or tacit agreement to join the conspiracy.

In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of his telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.

In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.

Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 2 Cir. 109 F.2d 579, 581.) For example, in Regina v. Thomas, (1957), 2 All.E.R. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of $3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.

In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.

Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal.App.2d 781, 245 P.2d 1076, in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wireservice information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.

In Shaw v. Director of Public Prosecutions, (1962) A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.

Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.

However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and freelance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.

Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller's total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found significant the fact that the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, (1962) A.C. 220, almost the entire business of the directory came from prostitutes.

No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.

Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.

Yet there are cases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959), 3 W.L.R. 656 (CCA 6), a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. It seems apparent from these cases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that this service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to pass counterfeit money. The same result would follow the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.

Logically, the same reasoning could be extended to crimes of every description. Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law as far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor.

With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz. that in all cases of felony knowledge of criminal use alone may justify an inference of supplier's intent to participate in the crime.

From this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.

When we review Lauria's activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstances from which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria's knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria's telephone answering service, the charges against his codefendants likewise fail for want of proof.

In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world's oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.

The order is affirmed.

Garcia and Lauria raise questions about when (and how) a conspiracy is proven.

Garcia makes the relatively intuitive point that we rarely have direct proof of a criminal conspiracy; proof in conspiracy cases will almost always be circumstantial. Why is the evidence of a conspiracy not sufficient on the facts of Garcia? The court explains: "While an implicit agreement may be inferred from circumstantial evidence, proof that an individual engaged in illegal acts with others is not sufficient to demonstrate the existence of a conspiracy." Why is the fact that Garcia and his fellow Bloods were shooting, at the same time, at a rival gang not sufficient proof that there was an agreement among them to shoot at a rival gang? What else could explain such concerted effort?

Lauria raises an issue that we have seen before. When we discussed accomplice liability we talked about whether knowledge that one is aiding a crime will suffice or whether a proper intent is required. Surely Lauria knew that he was agreeing with sex workers and facilitating their illegal activity.

But from Lauria's point of view, that grossly mischaracterizes his intentions. He would argue that he offered his service to anyone with money to pay for it and that he was indifferent who used it. The court catalogues some of the ways that knowledge that one's services will be used for criminal purposes can suffice to demonstrate an intent to join a criminal association -- profitting from the illegal use, producing a product that can only be used illegally, etc.

As a matter of English language, which makes more sense in a case like Lauria's: That he intended to assist criminals in their commission of an offense or that he intentionally joined with them in a criminal enterprise? Should that matter when determining whether accomplice liability, conspiracy liability, or neither should apply on a given set of facts?

Pinkerton v. United States

United States Supreme Court

328 U.S. 640 (1946)

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. 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 (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 conpsiracy 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 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. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy, has little vitality in this country. 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. A conviction for the conspiracy may be had though the substantive offense was completed.

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, 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.

Daniel relies on United States v. Sall. 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.’ 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 any new agreement specifically directed to that act.’ Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Yet all members are responsible, though only one did the mailing. 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, 9 Cir., 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, 18 U.S.C.A. § 88. If that can be supplied by the act of one conspirator, we 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 Rutledge, dissenting in part

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; (2) aiding, abetting or counseling another to commit them; and (3) conspiracy to commit them. 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. Nor are their differences merely verbal. 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 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.

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. 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 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.

United States v. Alvarez

United States Court of Appeals

755 F.2d 830 (11^th Cir. 1985)

Appellants Portal, Concepcion, and Hernandez contend that their murder convictions under Count III were based on an unprecedented and improper extension of Pinkerton v. United States, 328 U.S. 640 (1946). Under Pinkerton, each member of a conspiracy is criminally liable for any crime committed by a coconspirator during the course and in furtherance of the conspiracy, unless the crime “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.” The three appellants argue that murder is not a reasonably foreseeable consequence of a drug conspiracy, and that their murder convictions therefore should be reversed. We conclude that, although the murder convictions of the three appellants may represent an unprecedented application of Pinkerton, such an application is not improper.

1. Standard of Review

We note initially that the scope of our review is limited. The application of the Pinkerton doctrine to a particular set of facts ultimately is for the jury to decide. In the instant case, the district court submitted the murder count to the jury with a proper Pinkerton instruction, and the jury found the three appellants guilty of murder. We must determine whether the court erred in deciding to submit the Pinkerton issue to the jury. Our standard of review is whether the evidence was sufficient for a reasonable jury to have concluded, beyond a reasonable doubt, that the murder was a reasonably foreseeable consequence of the drug conspiracy alleged in the indictment. In making this assessment, we must view the evidence in the light most favorable to the government,  and accept all reasonable inferences and credibility choices made by the jury.

2. Reasonable Foreseeability

Upon reviewing the record, we find ample evidence to support the jury's conclusion that the murder was a reasonably foreseeable consequence of the drug conspiracy alleged in the indictment. In making this determination, we rely on two critical factors. First, the evidence clearly established that the drug conspiracy was designed to effectuate the sale of a large quantity of cocaine. The conspirators agreed to sell Agents Rios and D'Atri three kilograms of cocaine for a total price of $147,000. The transaction that led to the murder involved the sale of one kilogram of cocaine for $49,000. In short, the drug conspiracy was no nickel-and-dime operation; under any standards, the amount of drugs and money involved was quite substantial.

Second, based on the amount of drugs and money involved, the jury was entitled to infer that, at the time the cocaine sale was arranged, the conspirators must have been aware of the likelihood (1) that at least some of their number would be carrying weapons, and (2) that deadly force would be used, if necessary, to protect the conspirators' interests. We have previously acknowledged the “nexus” between weapons and drugsand we have also recognized that weapons have become “tools of the trade” for those involved in the distribution of illicit drugs. As the former Fifth Circuit has stated, “Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment, and other narcotic equipment.” In light of these observations, and in view of the amount of drugs and money involved in the instant case, the jury's inference was both reasonable and proper.

In our opinion, these two critical factors provided ample support for the jury's conclusion that the murder was a reasonably foreseeable consequence of the drug conspiracy alleged in the indictment. In addition, we note the evidence at trial indicating that at least two of the conspirators were extremely nervous about the possibility of a rip-off or a drug bust. During a lull in the negotiations, Alvarez observed, “In this business, you have to be careful. It's a dangerous business. You have to watch out for rip-offs and Federal agents.” Alvarez also stated that he would never go back to prison, and that he would rather be dead than go back to prison. Alvarez' statements clearly implied that he contemplated the use of deadly force, if necessary, to avoid a rip-off or apprehension by Federal agents. The evidence also indicated that, immediately prior to the shoot-out, Simon looked nervously out the window while fidgeting with a leather pouch that was suspected to contain a weapon. The jury properly could take this additional evidence into account in reaching its conclusion about the foreseeability of the murder.

Because we find that the evidence in this case was more than sufficient to allow a reasonable jury to conclude that the murder was a reasonably foreseeable consequence of the drug conspiracy alleged in the indictment, we hold that the court did not err by submitting the Pinkerton issue to the jury.

3. Individual Culpability

The three appellants also contend that, even if the murder was reasonably foreseeable, their murder convictions nevertheless should be reversed. The appellants argue that the murder was sufficiently distinct from the intended purposes of the drug conspiracy, and that their individual roles in the conspiracy were sufficiently minor, that they should not be held responsible for the murder. We are not persuaded.

It is well established that, under the Pinkerton doctrine, “[a] co-conspirator is vicariously liable for the acts of another co-conspirator even though he may not have directly participated in those acts, his role in the crime was minor, or the evidence against a co-defendant more damaging.”  Thus, in a typical Pinkerton case, the court need not inquire into the individual culpability of a particular conspirator, so long as the substantive crime was a reasonably foreseeable consequence of the conspiracy.

We acknowledge that the instant case is not a typical Pinkerton case. Here, the murder of Agent Rios was not within the originally intended scope of the conspiracy, but instead occurred as a result of an unintended turn of events. We have not found, nor has the government cited, any authority for the proposition that all conspirators, regardless of individual culpability, may be held responsible under Pinkerton for reasonably foreseeable but originally unintended substantive crimes. Furthermore, we are mindful of the potential due process limitations on the Pinkerton doctrine in cases involving attenuated relationships between the conspirator and the substantive crime.

Nevertheless, these considerations do not require us to reverse the murder convictions of Portal, Concepcion, and Hernandez, for we cannot accept the three appellants' assessment of their individual culpability. All three were more than “minor”  participants in the drug conspiracy. Portal served as a look-out in front of the Hurricane Motel during part of the negotiations that led to the shoot-out, and the evidence indicated that he was armed. Concepcion introduced the agents to Alvarez, the apparent leader of the conspiracy, and was present when the shoot-out started. Finally, Hernandez, the manager of the motel, allowed the drug transactions to take place on the premises and acted as a translator during part of the negotiations that led to the shoot-out.

In addition, all three appellants had actual knowledge of at least some of the circumstances and events leading up to the murder. The evidence that Portal was carrying a weapon demonstrated that he anticipated the possible use of deadly force to protect the conspirators' interests. Moreover, both Concepcion and Hernandez were present when Alvarez stated that he would rather be dead than go back to prison, indicating that they, too, were aware that deadly force might be used to prevent apprehension by Federal agents.

We find the individual culpability of Portal, Concepcion, and Hernandez sufficient to support their murder convictions under Pinkerton, despite the fact that the murder was not within the originally intended scope of the conspiracy. In addition, based on the same evidence, we conclude that the relationship between the three appellants and the murder was not so attenuated as to run afoul of the potential due process limitations on the Pinkerton doctrine. We therefore hold that Pinkerton liability for the murder of Agent Rios properly was imposed on the three appellants, and we decline to reverse their murder convictions on this ground.[27]

It is important to see what happened in Pinkerton and the facts don't really become clear until you get to the dissent. Walter and Daniel Pinkerton agreed to make moonshine on their neighboring properties. Daniel was arrested on separate charges and sent to prison, while Walter carried out the plan. Both men were convicted of the conspiracy to commit the offense as well as the substantive offenses of making moonshine (and not paying the tax on it). The dissent seems pretty certain that Daniel could not be charged as Walter's accomplice in the moonshine operation. (Do you see why?) Should that preclude liability as a co-conspirator? What limits, if any, does the Pinkerton court put on co-conspirator liability?

It is also important to see that Alvarez is a significant expansion of Pinkerton liability. Walter and Daniel agreed to make moonshine, but what did the conspirators in Alvarez agree to? Whatever it was, it certainly did not include killing federal law enforcement officials. Is it fair to hold the (relatively minor) players in that conspiracy responsible for all of the foreseeable crimes committed by co-defendants in furtherance of the conspiracy? Is such liability broader or less broad than the natural and probable consequences doctrine discussed in Luparello, above?

MPC Sec. 2.06, Comment 6(a)

The most important point at which the Model Code formulation diverges from the language of many courts is that it does not make “conspiracy” as such a basis for complicity in substantive offenses committed in furtherance of its aims. It asks, instead, more specific questions about the behavior charged to constitute complicity, such as whether the defendant solicited commission of the particular offense or whether he aided, or agreed or attempted to aid, in its commission.

The reason for this treatment is that there appears to be no better way to confine within reasonable limits, the scope of liability to which conspiracy may theoretically give rise.

[For example,] in United States v. Bruno, eighty-eight defendants were indicted for conspiracy to import, sell, and possess narcotics. The evidence showed a large combination composed of four groups of persons: the smugglers who imported the drugs; the middlemen who paid the smugglers and disturbed to retailers; and two groups of retailers, one in Texas and Louisiana and the other in New York. The Court held that this evidence sustained a verdict that there was one large conspiracy in which the members of each group were criminal participants. That judgment commands support in a prosecution for conspiracy, and is one that would follow from the application of the standards of Section 5.03 of this Code. But should it follow that each retailer in Texas commits the offenses of each retailer in New York, though he has not promoted or facilitated the commission and has no interest in them? Yet if the conspiracy involved one combination, the commission of those crimes was certainly included in its objects, and a traditionally worded inquiry might lead to liability for them all.

Conspiracy may prove solicitation aid, or agreement to aid, etc.; it is evidentially important and may be sufficient for that purpose. But whether it suffices ought to be established by the jurors; they should not be told that it establishes complicity as a matter of law.

By any measure, the MPC approach to vicarious liability is narrower than most common law approaches. It states that a criminal defendant may be guilty for the conduct of one with whom he agrees if the tradtitional principles of accomplice liability are met, but that the act of agreement, without more, is insufficient to impose vicarious liability on a defendant.

Recall that the MPC also rejects the natural and probable consequences doctrine and states that an individual can be held for an attempt, a conspiracy to commit a crime, or the completed offense, but not more than one of these.

Why do you think the MPC is so limiting in its willingness to hold an actor responsible for the conduct of another?

Kotteakos v. United States
Supreme Court of the United States
328 U.S. 750 (1946)

The only question is whether petitioners have suffered substantial prejudice from being convicted of a single general conspiracy by evidence which the Government admits proved not one conspiracy but some eight or more different ones of the same sort executed through a common key figure, Simon Brown. Petitioners were convicted under the general conspiracy section of the Criminal Code, 18 U. S. C. § 88, of conspiring to violate the provisions of the National Housing Act. The judgments were affirmed by the Circuit Court of Appeals. We granted certiorari because of the importance of the question for the administration of criminal justice in the federal courts.

The indictment named thirty-two defendants, including the petitioners. The gist of the conspiracy, as alleged, was that the defendants had sought to induce various financial institutions to grant credit, with the intent that the loans or advances would then be offered to the Federal Housing Administration for insurance upon applications containing false and fraudulent information.

Of the thirty-two persons named in the indictment nineteen were brought to trial and the names of thirteen were submitted to the jury. Two were acquitted; the jury disagreed as to four; and the remaining seven, including petitioners, were found guilty.

The Government’s evidence may be summarized briefly, for the petitioners have not contended that it was insufficient, if considered apart from the alleged errors relating to the proof and the instructions at the trial.

Simon Brown, who pleaded guilty, was the common and key figure in all of the transactions proven. He was president of the Brownie Lumber Company. Having had experience in obtaining loans under the National Housing Act, he undertook to act as broker in placing for others loans for modernization and renovation, charging a five per cent commission for his services. Brown knew, when he obtained the loans, that the proceeds were not to be used for the purposes stated in the applications.

In May, 1939, petitioner Lekacos told Brown that he wished to secure a loan in order to finance opening a law office, to say the least a hardly auspicious professional launching. Brown made out the application, as directed by Lekacos, to state that the purpose of the loan was to modernize a house belonging to the estate of Lekacos’ father. Lekacos obtained the money. Later in the same year Lekacos secured another loan through Brown, the application being in the names of his brother and sister-in-law. Lekacos also received part of the proceeds of a loan for which one Gerakeris, a defendant who pleaded guilty, had applied.

In June, 1939, Lekacos sent Brown an application for a loan signed by petitioner Kotteakos. It contained false statements. Brown placed the loan, and Kotteakos thereafter sent Brown applications on behalf of other persons. Two were made out in the names of fictitious persons. The proceeds were received by Kotteakos and petitioner Regenbogen, his partner in the cigarette and pinball machine business. Regenbogen, together with Kotteakos, had indorsed one of the applications. Kotteakos also sent to Brown an application for a loan in Regenbogen’s name. This was for modernization of property not owned by Regenbogen. The latter, however, repaid the money in about three months after he received it.

The evidence against the other defendants whose cases were submitted to the jury was similar in character. They too had transacted business with Brown relating to National Housing Act loans. But no connection was shown between them, and petitioners, other than that Brown had been the instrument in each instance for obtaining the loans. In many cases the other defendants did not have any relationship with one another, other than Brown’s connection with each transaction. As the Circuit Court of Appeals said, there were “at least eight, and perhaps more, separate and independent groups, none of which had any connection with any other, though all dealt independently with Brown as their agent.” As the Government puts it, the pattern was “that of separate spokes meeting in a common center,” though, we may add, without the rim of the wheel to enclose the spokes.

The proof therefore admittedly made out a case, not of a single conspiracy, but of several, notwithstanding only one was charged in the indictment. The Court of Appeals aptly drew analogy in the comment, “Thieves who dispose of their loot to a single receiver — a single ‘fence’ — do not by that fact alone become confederates: they may, but it takes more than knowledge that he is a ‘fence’ to make them such.” It stated that the trial judge “was plainly wrong in supposing that upon the evidence there could be a single conspiracy; and in the view which he took of the law, he should have dismissed the indictment.” Nevertheless the appellate court held the error not prejudicial, saying among other things that “especially since guilt was so manifest, it was ‘proper’ to join the conspiracies,” and “to reverse the conviction would be a miscarriage of justice.” This is indeed the Government’s entire position. It does not now contend that there was no variance in proof from the single conspiracy charged in the indictment. Admitting that separate and distinct conspiracies were shown, it urges that the variance was not prejudicial to the petitioners.

One difficulty with this is that the trial court itself was confused in the charge which it gave to guide the jury in deliberation. The court instructed:

The indictment charges but one conspiracy, and to convict each of the defendants of a conspiracy the Government would have to prove, and you would have to find, that each of the defendants was a member of that conspiracy. You cannot divide it up. It is one conspiracy, and the question is whether or not each of the defendants, or which of the defendants, are members of that conspiracy.

On its face, as the Court of Appeals said, this portion of the charge was plainly wrong in application to the proof made; and the error pervaded the entire charge, not merely the portion quoted. The jury could not possibly have found, upon the evidence, that there was only one conspiracy. The trial court was of the view that one conspiracy was made out by showing that each defendant was linked to Brown in one or more transactions, and that it was possible on the evidence for the jury to conclude that all were in a common adventure because of this fact and the similarity of purpose presented in the various applications for loans.

On those instructions it was competent not only for the jury to find that all of the defendants were parties to a single common plan, design and scheme, where none was shown by the proof, but also for them to impute to each defendant the acts and statements of the others without reference to whether they related to one of the schemes proven or another, and to find an overt act affecting all in conduct which admittedly could only have affected some. True, the Court of Appeals painstakingly examined the evidence directly relating to each petitioner and concluded he had not been prejudiced in this manner. That judgment was founded largely in the fact that each was clearly shown to have shared in the fraudulent phase of the conspiracy in which he participated. Even so, we do not understand how it can be concluded, in the face of the instruction, that the jury considered and was influenced by nothing else.

Numbers are vitally important in trial, especially in criminal matters. Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of the particular federation, large numbers of persons taking part must be tried together or perhaps not at all, at any rate as respects some. When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass. Wholly different is it with those who join together with only a few, though many others may be doing the same and though some of them may line up with more than one group.

Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. Nor does our system tolerate it. That way lies the drift toward totalitarian institutions. True, this may be inconvenient for prosecution. But our Government is not one of mere convenience or efficiency. It too has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal trials. About them we dare not become careless or complacent when that fashion has become rampant over the earth.

Here toleration went too far.

UNITED STATES v. BRUNO et al.

U.S. Court of Appeals, Second Circuit.
105 F.2d 921 (1939)

Before L.. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

Bruno and Iacono were indicted along with 86 others for a conspiracy to import, sell and possess narcotics; some were acquitted; others, besides these two, were convicted, but they alone appealed. They complain that if the evidence proved anything, it proved a series of separate conspiracies, and not a single one, as alleged in the indictment….

The first point was made at the conclusion of the prosecution’s case: the defendants then moved to dismiss the indictment on the ground that several conspiracies had been proved, and not the one alleged. The evidence allowed the jury to find that there had existed over a substantial period of time a conspiracy embracing a great number of persons, whose object was to smuggle narcotics into the Port of New York and distribute them to addicts both in this city and in Texas and Louisiana. This required the cooperation of four groups of persons; the smugglers who imported the drugs; the middlemen who paid the smugglers and distributed to retailers; and two groups of retailers — one in New York and one in Texas and Louisiana— who supplied the addicts. The defendants assert that there were, therefore, at least three separate conspiracies; one between the smugglers and the middlemen, and one between the middlemen and each group of retailers.

 The evidence did not disclose any cooperation or communication between the smugglers and either group of retailers, or between the two groups of retailers themselves; however, the smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole. That distinguishes the situation from that in United States v. Peoni, 2 Cir., 100 F.2d 401, where Peoni, the accused, did not know that Regno, his buyer, was to sell the counterfeit bills to Dorsey, and had no interest in whether he did, since Regno might equally well have passed them to innocent persons himself. It might still be argued that there were two conspiracies; one including the smugglers, the middlemen and the New York group, and the other, the smugglers, the middlemen and the Texas & Louisiana group, for there was apparently no privity between the two groups of retailers. That too would be fallacious. Clearly, quoad the smugglers, there was but one conspiracy, for it was of no moment to them whether the middlemen sold to one or more groups of retailers, provided they had a market somewhere. So too of any retailer; he knew that he was a necessary link in a scheme of distribution, and the others, whom he knew to be convenient to its execution, were as much parts of a single undertaking or enterprise as two salesmen in the same shop. We think therefore that there was only one conspiracy….

Given the breadth of co-conspirator liability, determining the scope of a criminal conspiracy takes on added significance. If every member of a conspiracy is responsible for every foreseeable act done by his co-conspirators in furtherance of the conspiracy, a relatively minor player will want to be associated with as few others as is possible. Would there ever be a situation where a defendant would want to be part of a single large conspiracy rather than several little ones?

The conspiracy in Bruno is a prime example. As the government describes it, there was a conspiracy to import drugs into the country, move them through middlemen to street dealers who retail the product. How many people might be involved in such a scheme. If one of them, to avoid arrest, kills a law enforcement officer, who is responsible for this foreseeable act done in furtherance of the conspiracy? As you read the Colorado and MPC conspiracy provisions, how well do they help courts define the scope of a conspiracy?