crimes committed pursuant to an
agreement may be properly charged to the conspirators.
The conspira-
tors may be charged even if some of them did not specifically discuss the
crimes,
nor
intend that they be committed.
Justice Douglas in
Pinker-
ton v. United States
23
addressed the test
as
one of foreseeability, not
specific intent.
A different case would arise if the substantive offense com-
mitted by one of the conspirators was not in fact done in further-
ance 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
21.
United States
v.
Andolschek, 142 F.2d 503, 507
(2d
Cir. 1944 ).
See also
Weniger
v.
United States, 47 F.2d 692 (9th Cir. 1931).
22.
The
intent here also is to
be
distinguished from the situation present
in
United
States
v.
Micciche, 525 F.2d 544 (8th Cir. 1975).
Micciche was convicted under
18
U.S.C.
§
152 (1970)
of
conspiring to knowingly
and
fraudulently transfer
and
conceal
assets in contemplation
of
a bankruptcy proceeding and with intent to defeat the
bankruptcy law.
The
evidence showed
that
Micciche was a salesman working for a
furniture store.
When the store began to have severe financial troubles, some
of
the
employees concealed assets recognizing that bankruptcy proceedings would be initiated
soon.
Two
other
store employees clearly understood the nature
of
the concealment and
fully intended
to
profit from it.
ld.
at
546.
The
court found that Micciche may well
have known
of
the illegal conspiracy and in fact had aided the conspirators by
purchasing cashiers checks, renting storage space, etc.
ld.
at
547.
This evidence alone,
however, did
not
show his intent to become
part
of
the conspiracy because as an
employee
of
the store he might have known
of
the conspiracy but he never became a
party to it.
The
crucial element missing in
Micciche
was the culpable state
of
mind as to
the agreement,
not
the object.
"There is not evidence in this record from which a jury
could find beyond a reasonable doubt
that
. . . Micciche knowingly and intentionally
entered the conspiracy with the specific intent to defeat the bankruptcy proceedings."
Id.
23.
328
u.s.
640 (1946).
No.3]
CRIMINAL CONSPIRACY
633
could not be reasonably foreseen as a necessary or natural conse-
quence
of
the unlawful agreement.
(emphasis added) .
24
Partners in crime come and go, and one conspirator does not
necessarily know
or
appreciate at any given time what all other conspira-
tors are doing "in furtherance of the conspiracy."
The conspirator's
ignorance plus the
Pinkerton
complicity doctrine has led one commenta-
tor to write that while the state of mind
as
to the object of the offense is
denominated specific intent, "[i]t
is
difficult, in fact, to conceive of any
crime in which the intent
is
less specific."
25
The state of mind require-
ment in complicity matters
is
one of foreseeability.
That
is, wholly
apart from the defendant's intent, did the defendant foresee,
or
should
he have foreseen the crimes actually attempted
or
committed?
If
this
foreseeability
is
present,
Pinkerton
says that a conspirator can be ac-
cused of the completed or attempted crime.
