Conspiracy

Conspiracy is:

i) An agreement;
ii) Between two or more persons;
iii) To accomplish an unlawful purpose;
iv) With the intent to accomplish that
purpose.
The majority rule and federal law, as well as
the MPC, now require the commission of an
overt act, which can be legal or illegal, in
furtherance of the conspiracy to complete
the formation of the conspiracy. At common
law, no overt act was required for the
conspiracy to be complete.

Perence alone is not unless prior agreement

assist if needed. That is active then we is an
accomplice

No mens rea no libality, what about the other they are guilty prepatory by mines
1.

2.

3.

Agreement
a. Two persons simply agreeing that they would commit a crime was the
necessary actus reus at the common law
b. In most jurisdictions nowadays, the prosecutor has to prove an agreement
PLUS at least one overt act. But this overt act is not like substantial step or
dangerous proximity. The overt act is a minimalist concept. Once the
agreement is shown, the overt act can by very minimal.
Specific Intent to Commit The Target Crime
a. the same as in attempt
b. we cant have conspiracies to commit crimes like involuntary manslaughter
or felony murdercrimes defined by some other means besides a specific
mens rea cant be conspiracy crimes
Plurality
a. Conspiracy is, by definition, a group crime. It is the nature of the group
activity that gives the crime its place in the law.
b. Under pure common law, must have at least two people with the proper
mens rea, guilty mindif one of two people is faking it, then the one not
faking it is not guilty of conspiracy because you cant conspire alone.

Why punish conspiracy?

1.

Success is more likely with a large group of people.

a. strength in numbers
b. more brain power
c. division of labor/division of talent
d. a person acting alone may be more likely to think better of their activities;
once youre a part of a group whos committed to an activity, then the
individuals are less likely to change their mind and get out of the group
think about the culture of organized crime

Conspiracy does NOT merge upwards into attempt or into the completed crime. So
if A + B agree to rob a bank and do so, they can be convicted of robbery and
conspiracy to commit robbery; that isnt viewed as double jeopardy.

If the only thing we can identify wrong with conspiracy is that it makes the target
crime more likely to occur, why doesnt it go away once the target crime is
completed? Why does conspiracy survive the completion of the crime?

The purpose of a group almost never disappears after the crime completes; the
group doesnt just disband. The purpose of the group goes way beyond the
currently planned crime. Thus, there is the notion that the group is dangerous
beyond the crime being planned. The group will stay together and commit other
crimes down the road. So there is a punishment additional to the target crime
punishment.
People v. Lauria, 1967

Laurias phone services provided to people who were using them for prostitution.
Lauria knew about it, but did he intend to further the criminal purpose? (1) The
defendant must be a seller with motivation to make the transaction without
knowledge of what the goods are used for, and (2) the seller must have knowledge
of the intended illegitimate use. Then you must determine if intent can be inferred
from knowledge. Intent can be inferred from knowledge if:
1. the purveyor of legal goods for illegal use has acquired a stake in the venture
a. the purveyor somehow promotes the services for the illegal use
b. the purveyor charges some additional fee to those using the services for
illegal use (quiet money)
2. there was no legitimate use for the services
3. 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 sellers total business
4. the supplier furnishes equipment which he knows will be used to commit a
serious crime
5. the item is heavily regulated (like guns)
CHAPTER 29- CONSPIRACY
I. Conspiracy in General
A. Common Law
a. At common law, a conspiracy is an agreement by two or more people to
commit a criminal act or series of criminal acts, or to accomplish a legal
act by unlawful means
b. Three criticisms of the crime:
i. Too vague

ii. A person may be convicted of the offense well before she

commits any act in perpetration of a substantive crime
iii. The crime is always predominantly mental in composition
because it consists primarily of the meeting of the minds and an
intent.
iv. Since it focuses so much on mens rea and has a de-emphasis on
conduct, there exists a greater risk of punishing people for what
they say rather than for what they do or for associating with
others who are found guilty.
B. Model Penal Code
a. 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:
i. 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
ii. Agrees to aid such other person or person in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime
Unilateral whoever agrees with the other. Unilateral theory
II. Why punish conspiracies?
A. At common law, no conduct in furtherance of the conspiracy is required. Even
when an overt act in furtherance of the conspiracy is statutorily required, the act
may be wholly preparatory to the commission of the target offense. So, this
allows police to get people for something that doesnt qualify yet as attempt but
they know it will be done.
a. When there is a concrete and unambiguous conspiracy, the
dangerousness and firmness of the criminal intention is obvious.
b. Some criticize this and say this does not give conspirators an
opportunity to renounce their intention, or if their intention was not
strong when the conspiracy was formed will be convicted.
B. Special Dangers of a Group
a. For punishing conspiracy
i. Loyalty to the group, enhanced morale so they are less likely to
abandon
ii. Collectivism promotes efficiency through division of labor
iii. More elaborate crimes are obtainable through conspiracy
b. Against punishing conspiracy
i. It is more likely someone will leak information, turn others in, or
try to dissuade people from performing
ii. Conspiracies may frustrate based on the number of people relied
upon
III.How much should conspiracies be punished?
A. In General
a. Common Law and Non-Model Penal Code Statutes
i. A conspiracy to commit a felony is a felony and a conspiracy to
commit a misdemeanor is a misdemeanor
ii. Few states treat all conspiracies as misdemeanors
b. Model Penal Code

i. Conspiracy to commit any crime other than a felony of the first

degree is graded at the same level as the object of the conspiracy
ii. If a conspiracy has multiple objectives, the conspiracy is graded
on the most serious objective
B. Punishment when the target offense is committed
a. Common Law
i. Conspiracy does NOT merge into the attempted or completed
offense that was the object of the conspiracy
b. Model Penal Code
i. A person may NOT be convicted of both the conspiracy and for
the object of conspiracy or attempt to commit the target offense
ii. If the offense is followed through, then the conviction of
conspiracy falls.
iii. If the offense was not committed, conspiracy conviction holds
IV. Conspiracy- The agreement
A. An express agreement or physical act of communication of an agreement are not
necessary
a. All of the parties do not have to know every detail of the agreement for
an agreement to exist, each party just must be aware of its essential
nature
b. Each person only has to agree to commit or facilitate some of the accts
leading to the crime
c. The agreement is externalized in that each conspirator has a communion
with a mind and will outside himself. There is a shared intent and goal.
d. The agreement can be established directly or through entirely
circumstantial evidence.
e. A conspiracy may be inferred through a collection of circumstantial
evidence- if the crime looks choreographed, it is easier to prove
B. Distinguishing the agreement from the group that agrees
a. Conspiracy describes the agreement, not the group
C. Object of the Agreement
a. At common law, the agreement need not constitute a crime; it is enough
if the acts contemplated are corrupt, dishonest, fraudulent, or immoral
b. This is criticized because people are entitled to fair notice that their
planned conduct is liable to criminal sanction and it is unfair to surprise
people that their agreement to do something noncriminal is criminal.
c. Many states have not followed this unfair common law rule
D. Overt Act
a. At common law, there need not be an overt act for conspiracy.
b. Many states diverge from this and require an overt act in furtherance of
the conspiracy as well as the agreement to find conspiracy- the overt act
shows the crime has moved beyond the talk stage to being carried out- it
takes out the danger of convicting for a mere agreement. Some items
about overt acts:
i. The act need not be an attempt to commit the target offense
ii. ANY act, and perhaps an omission, no matter how trivial is
sufficient, if performed in pursuance of the conspiracy
iii. The overt act does not have to be illegal

iv. An overt act done by ANY party of the conspiracy is sufficient to

convict EVERY member of the conspiracy, including those who
may have joined after the act was committed.
E. Model Penal Code
a. In the attempt you .you must tort the success of the consiparc. Make
sue the consiparcy the commiting.
b. In General
i. Four types of agreement fall within conspiracy- a person is guilty
of conspiracy if she agrees to:
1. Commit an offense
2. Attempt to commit an offense
3. Solicit another to commit an offense, or
4. Aid another person in the planning or commission of the
offense
c. Object of the Agreement- the object of the agreement must be a criminal
offense
d. Overt Acti. With felonies of the 1st or 2nd degree, no overt act is required
ii. With misdemeanors or a felon of the 3rd degree, there needs to
be an overt act in pursuance of the conspiracy
V. Conspiracy- Mens Rea
A. In General
a. Common law conspiracy is a specific intent offense. Two or more
persons must:
i. Intend to agree AND
ii. Intend that the object of their agreement be achieved
-This means that if an undercover cop is involved, the other person
is not guilty of conspiracy
b. At times, the specific intent nature of conspiracy makes it culpability
required higher than for conviction of the object agreement
B. Special Issues
a. Purpose v. Knowledge- The meaning of intent
i. Intent according to the MPC usually entails purpose and
knowledge. Should both be present for conspiracy convictions
or is knowledge enough?
1. Knowledge is not enough, you need purpose- Since it is
an inchoate crime, the purpose is necessary to show the
objectives of the crime
2. Knowledge is enough- Society has an interest to deter
people from selling their products or using their skills to
help people who they know will use it unlawfully
3. Case law is split but many say that even if purpose is
required, it can usually be inferred in a persons
knowledge- if a person has a stake in the outcome by
charging higher prices or if a disproportionate amount of
their business comes from the illegal parties (both of
these show knowledge and purpose is present)
b. Mens Rea Regarding Attendant Circumstances
i. What mental state is required for attendant circumstances?

1. Some say it is enough to intend to commit assault and

you did not have to know it was a federal officer
2. Others say how could you have intended to assault a
federal officer if you didnt know he was one?
c. Corrupt Motive Doctrine
i. This doctrine says that in addition to the usual mens rea
requirements of conspiracy, the parties to a conspiracy must also
have a corrupt of wrongful motive for their actions.
ii. It doesnt matter if you know he was an undercover cop because
you had the wrongful motive to assault someone
iii. If something is wrong only by law but is not immoral, people
cannot be convicted of conspiracy if they honestly did not know
the act was wrong
iv. Does the promise have to encopass all the . sub note,
C. Model Penal Code
a. Does not recognize the corrupt motive doctrine
b. The Code does not determine what culpability if any an attendant
circumstance of an offense is required to convict for conspiracy
c. Conspiracy involves both purpose and knowledge
VI. Plurality Requirement
A. Common Law
a. Unless two or more people form an agreement, no one does, and both
people had to have the mens rea- no conspiracy with an undercover
agent. Criticism
i. People are not less dangerous because they were conspiring with
an undercover agent when they though it was a fellow
conspirator
ii. The rule undermines the law enforcement purpose of conspiracy
b. The plurality rule does not require two people be convicted- a
conspirator is not entitled to relief just because his co-conspirators were
acquitted at a separate trial
B. Model Penal Code
a. Takes a unilateral approach- can have conspiracy with undercover cop
b. This approach adopted in most states
VII. Parties to a Conspiracy
A. Why it matters:
a. Liability for conspiracy- It will affect the number of counts of conspiracy
of which a particular person will be prosecuted
b. Liability of parties for substantive offense- A conspirator is guilty of
every offense committed by every other conspirator in furtherance of
the unlawful agreement. Therefore, the structure of the conspiracy may
significantly affect how liable one is
c. Use of hearsay evidence- inadmissible at trial, two exceptions:
i. Out of court admission by defendant can be introduced
ii. An out of court statement of a conspirator made by her while
participating in the conspiracy may be introduced in evidence
against her participating co-conspirators
d. Joint trial- Prosecutors prefer these because:
i. It is harder for the innocent or barely culpable conspirators to
distinguish themselves from the group

ii. More efficient

e. Overt Act Requirement
f. Venue- a trial may be brought not only where the agreement was
formulated, but also in any jurisdiction in which any member performed
any act in its furtherance
B. Structure of Conspiracies
a. Wheel- The hub is one person who transacts illegal dealings with various
other groups (the spokes). The rim is necessary, he is the one who
draws a line around the wheel connecting the spokes
b. Chain- Several layers of personnel dealing with a single subject matter,
as opposed to a specific person- most usually are business-like crimes
c. Chain-Wheel- A combination
C. Common Law Analysis
a. Wheel- The hub views each spoke as a broader criminal enterprise but
each spoke has a much more narrow view- fraudulent loans- The rim is
necessary to show that all spokes shared an objective, it is not enough
that they had parallel objectives
b. Chain- Unlawful plans that cannot succeed unless each link successfully
performs her job- every chain is not necessarily a single conspiracy
D. Model Penal Code
a. Relevant Provisions
i. Person is guilty of conspiracy unilaterally, with the purpose of
promoting or facilitating the commission of a crime, she agrees
with another to commit an offense
ii. In determining when parties that commit separate crimes may
be linked together: knows that a person with whom he conspires
to commit a crime has conspired with another person to commit
the same crime, he is guilty of conspiring with such other person
whether or not he knows their identity to commit such a crime
b. U.S. v. Bruno
i. Drug sales- neither retailer knows that middleman is dealing
with another retailer, nor do the retailers know the details of the
importer-middleman dealings (there are four agreements)
ii. Importer and middleman were deeply involved so they were
guilty of conspiring with everyone
iii. Retailers only convicted of conspiring with the middleman since
they only cared about their little region and only dealt with the
middleman.
VIII. Objectives of Conspiracy
A. Common Law- Need to know if there was a single agreement or many distinct
ones to figure out how many conspiracies, it does not matter how many statutes
were broken
B. Model Penal Code- Provides person with multiple criminal objectives is guilty of
only one conspiracy if the multiple objectives are part of the same agreement or
part of a continuous conspiratorial relationship
IX. Defenses
A. Impossibility
a. Common Law- Majority rule is that neither factual nor legal impossibility
is a defense-

i. Reasons to not allow impossibility- they say the person is still

dangerous regardless if the crime can be carried out- this is a
mental offense
ii. Reasons to allow impossibility as a defense- Since it is based on a
mental state, there should be broader allowance of defenses- the
risk of punishing innocent people is high
b. Model Penal Code
i. No impossibility defenses
ii. People do not conspire to attempt crimes, they conspire to
commit them so they most likely took into account the
impossibility situations
B. Abandonment
a. Common Law
i. Once an act is completed, abandonment is not a defense
ii. If the act has not yet been committed, a person can withdraw
from a conspiracy and avoid liability for further subsequent
crimes committed in furtherance of the conspiracy by her coconspirators. Once a person withdraws, the statute of limitations
begins- usually courts require the withdrawal is communicated
to all of the co-conspirators and some even require they dissuade
others from pursuing the objectives
b. Model Penal Code
i. Provides an affirmative defense if the conspirator renounces her
criminal purpose and thwarts the success of the conspiracy
under circumstances demonstrating a complete and voluntary
renunciation of her criminal intent.
ii. She may not just withdraw, she must also negate the danger of
the group
c. Whartons Rule
i. Common Law- An agreement by two or more persons to commit
an offense that by definition requires the voluntary concerted
criminal participation of two people cannot be prosecuted as
conspiracy- examples are sale of contraband, adultery, etc.
ii. This is not a bar conspiracy for:
1. Possession of controlled substance with the intent to
deliver
2. Bartering, exchanging, or offering an illegal narcotic to
another
3. Unlawfully receiving or disposing of another persons
property
-These are all possible to be committed without an
agreement
iii. Exceptions:
1. First, third party exception provides that if more than the
minimum number of persons necessary to commit an
offense agree to commit the crime, Whartons rule does
not apply
2. It does not apply if the two persons involved int eh
conspiracy are not the two people involved in
committing the substantive offense

iv. Model Penal Code- Whartons Rule is not recognized

C. Legislative Exemption Rule
a. Common Law- A person may not be convicted of conspiracy to violate an
offense if her conviction would frustrate a legislative purpose to exempt
her from prosecution for the substantive crime
b. Model Penal Code- Unless the legislature otherwise provides, a person
may not be prosecuted for conspiracy to a crime under the MPC if she
would not be guilty of the consummated substantive offense:
i. Under the law defining the crime or
ii. As an accomplice in its commission
-Example, an underage female who had sex cannot be convicted as
an accomplice for her own victimization- no conspiracy either
iii. However, a person who conspires with an immunized party is
still subject to conviction of conspiracy, since the crime is
unilateral
Conspiracy
1. Elements
a. An agreement between at least two people,
i. Wharton rule: Some crimes require at least three people b/c nature of crime
makes two peoples participation necessary. Like adultery, incest or dueling.
ii. May be implied from actions, such as two attacking another simultaneously.
x. Williams v. U.S., 2d. Cir. 1954, liquor law violator bought off police; all
convicted of conspiracy despite argument they acted as individuals,
rather than as a group.
xx. So broad most s who are accomplices are also conspirators.
iii. MPC only requires agreeing. Accepted by very few states. Allows conspiracy
convictions of drunk plotting w/ statue or person plotting w/ undercover
police.
iv. Chain agreements: Everyone connected w/ a criminal enterprise is pulled in
even if didnt know all others in conspiracy or all the crimes involved.
Controversial.
b. with purpose to enter into that agreement, (a bit redundant)
c. an overt act in furtherance of the agreement (majority requires)
i. Any overt act is usually sufficient, even ones that would not constitute an
attempt, such as one person setting an alarm clock to get up for a bank
robbery.
ii. Only one conspirator needs to do an overt act.
d. with the purpose to promote the unlawful act that is the object of the conspiracy
i. Can be unlawful w/o being criminal under federal law and common law as
well as in some states. May be a tort, contract violation or immoral act.
ii. Contractor violated firms ethical policy. U.S. v. Conover, 11th Cir., 1985.
e. and with knowledge that the unlawful act is indeed unlawful.
i. Only required in a very small minority of jurisdictions, including California.
ii. Thus, ignorance of law would be an excuse for conspiracy such as a group of
alumni planning a bingo fund-raiser not realizing such gambling is illegal.
2. Pinkerton doctrine: Co-conspirators are responsible for all foreseeable crimes in
furtherance of conspiracy even if they didnt participate in the specific crime. Some
courts and MPC dont accept or wont stretch it from one end of a chain conspiracy
to other end.

3. Partial or complete defenses

a. Withdrawal must tell all other conspirators that he has quit the conspiracy.
i. is still guilty of conspiracy if an overt act was committed but is not guilty of
any crimes that occur after he quits.
ii. Withdrawing starts statute of limitations running on conspiracy charges.
Charges cant be brought after a certain number of years after person leaves
conspiracy or it ends. Also no incriminating statements made by coconspirators after persons withdrawal are admissible in evidence.
iii. Pinkerton v. U.S., 1946, brother guilty of other brothers crime even though he
was in jail at the time crime was committed b/c he had not withdrawn from
conspiracy.
iv. Some courts allow withdrawal defense if acts totally inconsistent w/
membership in conspiracy. But an affirmative act is required. Rule wouldnt
have helped Pinkerton.
v. could end up withdrawing from conspiracy but not from being an
accomplice b/c of different requirements for each.
b. Renunciation
i. MPC and many states permit if does it voluntarily (not motivated by fear of
apprehension) AND persuades others not to commit crime before it occurs.
ii. Many states OK if timely notifies cops or substantially tries to thwart crime.
iii. Not allowed under c/l or in other states b/c its rewriting history.
iv. is no longer guilty of conspiracy.
v. People v. Sisselman, N.Y. 1989, can argue renunciation even though he was
not causal agent in preventing crime b/c his co-conspirator was undercover
police agent.
c. Statute of limitations is up. Concealing crime does not keep a conspiracy alive.
4. Punished more severely than attempt and sometimes earlier than attempt. can be
punished both for conspiracy in addition to attempt or addition to a completed
crime, but cumulative sentences dont happen very often in practice. couldnt be
punished for both under c/l and MPC rejects cumulative sentencing.
5. Justifications fears of group crime (division of labor and moral support such
crimes provide) and threats conspiracy presents to justice system (mob killing
witnesses).
IV. Theft Larceny

10 Conspiracy
10.1 Grin v. State
10.1.1 Overview
Grin was involved in a brawl in which multiple assailants injured two police ocers.
10.1.2 Facts
Grin had evidently crashed his car into a ditch. Ocers Vines and Ed-erington were called
to the scene, where a crowd had gathered. After the ocers asked Grin about the
circumstances surrounding the crash,

Grif-n became belligerent and attacked Vines.

Vines tried to subdue Grin with chemical mace and then with physical force, but Grin
kept attacking.
Members of the crowd joined the attack on Vines, assaulting him from all directions.
Forced to the ground and feeling that his life was in jeopardy, Vines shot Grin to halt the
attack and to disperse the crowd.
Meanwhile, other members of the crowd had attacked Ederington, who was ghting o
those attackers when he heard Viness gunshots.
Grin was later convicted of engaging in a conspiracy to attack the ocers.
10.1.3 Issue
May the conviction for conspiracy stand despite the lack of direct evidence that members of
the crowd cooperated in the attack?
10.1.4 Holding
The conviction may stand.
10.1.5 Reasoning
It is not necessary to support a conviction for conspiracy with direct evidenceof cooperation
among multiple perpetrators. In this case, it would be nearlyimpossible to prove that any
two members of the crowd expressly agreed toattack the ocers. All that is necessary is to
show circumstances that allowan inference that two or more people each committed part of
a crime.50
Commonlth the rape whether him snd his brother. There mudt be some type of evidence.
What was important of the court no secery no evidence given rise to that infers . just the
acting together enough must be with a prior agreement . almost at the same time . guilty of
commence
10.2 United States v. Recio
10.2.1 Overview
Recio appealed a conviction for conspiracy on the theory that the object of the conspiracy
had become impossible to attain.
10.2.2 Facts
The police had stopped a truck carrying drugs.
With the help of the trucksdrivers, the police set up a sting operation in which the truck
acted as bait.
When Recio took possession of the truck and started driving it away, thepolice arrested him.
He was later convicted of conspiring to distribute the drugs.
10.2.3 Issue
May the conviction for conspiracy stand even though the object of the con-spiracy had been
rendered impossible to attain because of seizure of thedrugs?
10.2.4 Holding
The conviction may stand.
10.2.5 Reasoning
The court below has erred in holding that a conspiracy is automatically ter-minated because
law enforcement has rendered the object of that conspiracyimpossible to attain. This view
conicts with the Supreme Courts interpre-tation of the crime. The crux of conspiracy is the

agreement to commit anunlawful act. The conspirators are not released from liability
simply becausetheir plans, unbeknownst to them, have already been foiled by the
police.Recios contention that the reasoning behind his conviction would lead
touncontainable liability lacks merit. Improper convictions based on conspir-acy are
already barred by the prohibition of entrapment. To overturn theconviction here would
interfere with many legitimate police operations.51

10.3 People v. Lauria

10.3.1 Overview
The People appealed the decision of the trial court to set aside the indictmentof Lauria for
conspiracy to commit prostitution.
10.3.2 Facts
Lauria operating a call-answering service. The service received phone callsand took
messages for its clients, many of whom were prostitutes. Lauriaknew of these prostitutes
and tolerated their presence. Following a stingoperation that led to his arrest, Lauria
admitted that he had gone so faras to use the services of one of the prostitutes. On appeal,
Lauria arguedthat mere knowledge that his clients included prostitutes was insucient
tosupport a conviction for conspiracy.
10.3.3 Issue
May knowledge of a crime be used to infer intent to conspire in committingthat crime?
10.3.4 Holding
Knowledge of a crime generally should not be used to infer intent to conspirein committing
that crime.
10.3.5 Reasoning
The case law suggests an important boundary between knowledge and in-tent. In
Falcone
, a seller of sugar, yeast, and cans was found not liable forparticipating in the production of
moonshine. In
Direct Sales
, a wholesalerwho had supplied abnormally large amounts of morphine to a physician
wasfound liable for conspiring to deal in drugs. These cases suggest that knowl-edge can
support an inference of intent to further the crime, but only whenthe facts are such as to
permit few other inferences. Thus, manufacturingloaded dice, operating illegal wire services
for bookmaking operations, andpublishing directories listing prostitutes give rise to an
inference of intentbecause these acts can serve no legitimate purpose. Likewise, renting
rooms52
to prostitutes at a grossly inated rate can also amount to implicit intent be-cause the
owner of the premises has thereby acquired a stake in the criminalventure. Furthermore,
doing business primarily with criminals would alsogive rise to an inference of intent.Here,
there is no question that Lauria knew that his service was being usedby prostitutes. His
knowledge, however, is not of the type that would supportan inference of intent. There are
many legitimate uses for call-answeringservices, and there is no evidence to suggest that
Lauria attempted to protfrom its criminal dimension by charging increased rates to
prostitutes. Thereis also no evidence to suggest that prostitutes comprised a signicant
portionof his total clientele. Although the crime of misprision of felony has existedfor a long

time, liability for tolerating criminal behavior should be limitedonly to felonies. It should
not be extended to misdemeanors, as the one thathas been committed here.
10.4 United States v. Diaz
10.4.1 Overview
Diaz appealed a conviction for use of a rearm in connection with conspiracyto commit
another crime.
10.4.2 Facts
An undercover DEA agent had managed to negotiate a deal in which Diazwould sell to the
agent a kilogram of cocaine. Diaz and several accomplices,including one Pereillo, were
present when the deal was executed. As soonas the drugs had been exchanged for money,
the agent gave the signal toarrest the dealers. A shootout then ensued. Although Diaz
himself carriedno rearm during the deal, Pereillos use of a gun was imputed to him.
10.4.3 Issue
May the use of a rearm by one criminal be imputed to a conspirator?
10.4.4 Holding
The use of a rearm may be so imputed.53
10.4.5 Reasoning
The Pinkerton doctrine allows the acts of respective conspirators to be im-puted to one
another. Here, it was foreseeable that a rearm would be used during the drug deal

Attempt Questions pg 683

S committed the attempted murder even though she did not achieve .
Suzy had purpose
Because she acred with the purpose to achieve the result element of the target crime,
And did the last ace nessary to accomplish the result( or took a substantial step under MPC)
Suzy has the necessary mens rear o sommit the murder. She intended to kill another human
being . she also acted on that criminal prupose by purchasing a gun, becoming proficient in
its us, and luring her victim to a scene where she could establish a good cover story
explaining the murder as an accident.
Under the common law, she took the last step; she actually pulled the trigger of what she
thought was a loaded pistol while aiming it at Bobs heart. In addition, her behavior