[alt.censorship] Conspiracy law.

mingo@well.sf.ca.us (Charles Hawkins Mingo) (11/20/90)

mnemonic@eff.org (Mike Godwin) writes:
>Mere advocacy of an illegal activity is not conspiracy. Under federal
>law, a conspiracy requires two or more people who plan to commit a crime,
>plus an overt act by one of the people that furthers the plan.

	This may be expressed a little too broadly.  Under federal law,
	a "unilateral conspiracy" occurs when an individual "conspires" with
	someone (such as a police agent or informant) who has not actually
	"agreed" to the plan.

	Also, the "overt act" requirement can be overstated.  Virtually *any*
	act qualifies, even an inherently innocent one.

>Thus, an isolated individual never can be convicted of conspiracy under
>federal law, even if he creates a plan and acts in furtherance of it.

	I'm not sure what you mean by "an isolated individual cannot be
	convicted."  An "isolated individual" *can* be convicted even if the
	coconspiritor is never brought to justice; on the other hand, it is
	true that the coconspiritor must exist.

	Note that a person who "creates a [criminal] plan and acts in further-
	ance of it" is usually guilty of *attempting* the crime in question.

wcs) (11/24/90)

In article <1990Nov20.131334.21651@eff.org>, mnemonic@eff.org (Mike Godwin) writes:
> >	Also, the "overt act" requirement can be overstated.  Virtually *any*
> >	act qualifies, even an inherently innocent one.
> It is certainly clear that any completed act is an "overt act"--but
> merely talking about the conspiracy is not an "overt act," and it
> was this latter issue that was raised in the previous discussion.

What about an overt act like "making a telephone call about the
cnspiracy to your co-conspirator", or "going to the cash machine,
while knowing you have to pay freeway toll on the way to the crime"?
					Thanks; Bill
# Bill Stewart 908-949-0705 erebus.att.com!wcs AT&T Bell Labs 4M-312 Holmdel NJ
Government is like an elephant on drugs: It's very confused, makes lots of noise,
can't do anything well, stomps on anyone in its way, and it sure eats a lot.

mnemonic@eff.org (Mike Godwin) (12/03/90)

In article <21904@well.sf.ca.us> mingo@well.sf.ca.us (Charles Hawkins Mingo) writes:
>	For example, mere talk is good enough.  In US v. Amore, 363 F.2d 385
>(2nd Cir. 1966) cert den. 385 U.S. 957, the act of warning a co-conspiritor
>of the risks attendant in carrying out the contemplated criminal act (distrib-
>uting counterfeit currency) was deemed sufficient.  Accord, US v. Smith, 92
>F.2d 460 (9th Cir. 1937)(placing telephone calls sufficient).

But this is a different kind of talk. It is talk that is not discussion
of the conspiracy, but talk that is an act in furtherance of the conspiracy.

I do not dispute, of course, that talk can be an act. But these cases don't
support the thesis that the discussion of the conspiracy is itself the 
overt act.

I hope it was clear in my earlier discussion that, while many things
qualify as an overt act, there are still some limits on the scope
of conspiracy law. Just barely.

>	I only mention this to rebut the notion that, somehow, because you
>have only discussed something, you cannot be found to have conspired.

I don't think you have rebutted this notion, actually. A "warning" is
not a discussion, nor is the "placing of a phone call." One can imagine
warnings that involve no language at all; clearly, it was the act of
warning that constituted the overt act, not the fact that words were
used. Similarly, the placing of phone calls would be an overt act for
conspiracy purposes even if the calls were not completed, or if no
one was home on the other end of the line.

The cases you cite are not cases of "mere discussion."

A good treatment of the distinctions required for proper analysis
of the "overt act" requirement appears in CRIMINAL LAW 2d, LaFave
and Scott (1986), pp. 547-549. In that section, they quote the
following instructive language:

       "The function of the overt act in a conspiracy prosecution
       is simply to manifest 'that the conspiracy is at work,'
       * * * and is neither a project still resting solely in the
       minds of the conspirators nor a fully completed operation
       no longer in existence." Yates v. United States, 354 U.S. 298,
       77 S.Ct. 1064 (1957).

Professor LaFave then states explicitly, "Thus the overt act may
be the substantive offense which was the object of the conspiracy,
but may not be simply a part of the act of agreement." CRIMINAL LAW 2d,
page 548.

I'm sure you don't mean to dispute Professor LaFave's statement of the
law, do you, Charles?

I have found that it helps clarify one's thinking on the elements
of a conspiracy to read some philosophy of language: John Searle's
SPEECH ACTS is a good analysis of the kinds of ways language can
be used above and beyond the act of communication

Similarly, one finds in the law evidence extensive discussion of 
linguistic acts (particularly in the discussions of exceptions to
the hearsay rule).

>	BTW:  I stand corrected: "unilateral conspiracy" is exclusively a state
>law concept (although it has been included in proposals for a Federal 
>Conspiracy Statute).

One can only hope that the federal law of conspiracy, already overbroad
(See Jackson, Krulewitch v. U.S., 336 U.S. 440,
69 S.Ct. 716), is not further expanded by such an amendment to 
18 USC 371.


Mike Godwin, (617) 864-0665 |"If the doors of perception were cleansed
mnemonic@eff.org            | every thing would appear to man as it is,
Electronic Frontier         | infinite."
Foundation                  |                 --Blake