§ 29.05 Conspiracy: Mens Rea
[A] In General
Common law conspiracy is a specific-intent offense.81 A criminal conspiracy does not occur unless two or more persons: (1) intend to agree; and (2) intend that the object of their agreement be achieved.82 Absence of either intent renders the defendants' conduct non-conspiratorial. Thus, if O, an undercover police officer, agrees with D to murder V, O has the requisite intent to form an agreement with D (the first intent noted above), but she lacks the specific intent that the murder be consummated. As a result, O is not guilty of conspiracy. And, as discussed more fully elsewhere,83 since O is not guilty of conspiracy, D cannot be convicted, because there are not "two or more persons" with the requisite intent, as required according to the traditional definition of conspiracy.
It follows from the specific-intent nature of conspiracy that the culpability required for conviction of conspiracy at times must be greater than is required for conviction of the object of the agreement. For example, suppose that D1 and D2 agree to set fire to an occupied structure in order to claim the insurance proceeds. If the resulting fire kills occupants, they may be convicted of murder on the ground that the deaths, although unintentional, were recklessly caused. They are not guilty of conspiracy to commit murder, however, because their objective was to destroy the building, rather than to kill someone. Put another away, as a matter of logic, one "cannot agree to accomplish a required specific result unintentionally."84
[B] Special Issues at Common Law
[1] "Purpose" versus "Knowledge": The Meaning of "Intent"
The specific intent of conspiracy is the "intent" that the object of the agreement be achieved. In most cases, the word "intent" suffices to describe the state of mind required. Sometimes, however, it does not.
It will be remembered that the common law term "intent" encompasses two alternative mental states, namely, what the Model Penal Code describes as "purpose" and "knowledge."85 That is, D "intends" a result to occur if it is her conscious object (purpose) to cause the result or, even if it is not her purpose, if she knows that it will almost certainly occur from her conduct. The question that lurks, therefore, is whether the specific mental state of conspiracy is proved if either form of "intent" exists, or whether conspiracy may lawfully only be demonstrated if each party has as her purpose that the conspiratorial objective be achieved.
Usually this issue arises in a narrow context: A person or business furnishes goods or services to another person or group knowing that the goods or services will be used for illegal purposes. For example, consider these cases: F sells sugar to persons whom she knows are producers of illicit whiskey;86 L, the operator of a telephone answering service, provides telephone messages to known prostitutes;87 and D, a drug wholesaler, sells large quantities of legal drugs to X, knowing that X is using them for unlawful purposes.88 In each of these cases, the person furnishing goods or services is aware of the customer's criminal intentions, but may not care whether the crime is committed.
The argument for requiring proof of criminal purpose, rather than mere knowledge—and, thus, potentially letting the defendants in the preceding cases off the criminal conspiracy hook—is that conspiracy laws should be reserved for those with criminal motivations, rather than "seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders."89 In particular, it is argued, the law should not be broadened to punish those whose primary motive is to conduct an otherwise lawful business. Indeed, in extending liability to merchants who know harm will occur from their activities, there is a risk that merchants who only suspect their customers' criminal intentions (and thus are merely reckless in regard to their customers' plans) will also be prosecuted, thereby seriously undermining lawful commerce.
The argument in favor of permitting conviction on the basis of knowledge is that society has a compelling interest in deterring people from furnishing their wares and skills to those whom they know are practically certain to use them unlawfully. Free enterprise should not immunize an actor from criminal responsibility in such circumstances; unmitigated desire for profits or simple moral indifference should not be rewarded at the expense of crime prevention.
Case law is divided on this purpose-versus-knowledge issue.90 However, even in jurisdictions in which purpose is required, the line between "purpose" and "knowledge" is very thin, and purpose may often be inferred from a defendant's knowledge of the customer's plans.91 The requisite purpose may be inferred, for example, if the person furnishing the service or instrumentality promotes the venture and has a "stake in its outcome,"92 such as when she furnishes the goods or services at a grossly inflated price. Similarly, purpose may be inferred from knowledge if a grossly disproportionate share of D's business is with criminal X,93 or with separate customers whose planned conduct is illegal.94 Finally, purpose may be inferred from knowledge if D provides goods or services for which there is no lawful use.
[2] Mens Rea Regarding Attendant Circumstances
The specific-intent element of conspiracy applies to the proscribed conduct or results of conduct that are the object of the agreement, but what mental state is required regarding "attendant circumstance" elements of an offense? For example, consider the essential facts of United States v. Feola:95 D1 and D2, drug dealers, agreed to attack V, a federal officer disguised as a drug customer. Clearly, D1 and D2 intended the prohibited result (battery), but were they guilty of the more serious federal offense of conspiracy to assault a federal officer in the performance of his official duties? That is, does the specific-intent requirement of conspiracy apply to the attendant circumstance of V's status as a federal law...
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