crimes committed pursuant to an agreement may be properly charged to the

Crimes committed pursuant to an agreement may be

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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).
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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.
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