§ 29.07 Parties to a Conspiracy
[A] The Issue
Frequently, the facts surrounding an incident demonstrate that a conspiracy is afoot, but what is unclear is whether there is a single conspiracy involving many defendants, or multiple conspiracies involving fewer persons in each group. Four cases illustrate the issue. They will be discussed throughout this section.
[1] Kotteakos v. United States131
Brown served as a broker for 31 persons in obtaining fraudulent loans from the government. He and the loan recipients were indicted on one count of conspiracy. The evidence at trial demonstrated that the loan recipients were part of eight or more independent groups, none of which had any connection with any other group except that each used Brown as its broker.
The issue in the case was whether the 32 defendants were parties to a single conspiracy (as the prosecutor contended), or whether there existed eight or more smaller conspiracies, each consisting of a different group of loan recipients and Brown (as the loan recipients asserted).
[2] Blumenthal v. United States132
In Blumenthal, the unnamed owner of a liquor wholesale agency distributed whiskey through two men, Weiss and Goldsmith, who arranged with Feigenbaum and Blumenthal to sell the whiskey to local tavern owners at a price in violation of the law.
The prosecutor alleged one conspiracy, the parties being the unidentified owner, the two distributors, and the salesmen. The salesmen claimed, however, that they never dealt with the owner or knew his identity. If they participated in a conspiracy, they asserted, it was one with the distributors alone; in turn the distributors were supposedly in a separate conspiracy with the owner.
[3] United States v. Peoni133
Peoni sold a small quantity of counterfeit money to Regno, who in turn sold the money to Dorsey, who passed the money in commerce to innocent persons. The prosecutor alleged that the three men were parties to a single conspiracy. Peoni contended that if he was a party to any conspiracy it was with Regno alone, who in turn conspired with Dorsey.
[4] United States v. Bruno134
Bruno and 87 others were prosecuted for conspiracy to import, sell, and possess narcotics. The evidence showed that a group of persons whose object it was to smuggle narcotics into the country through the Port of New York, distributed the drugs through middlemen to retailers in New York and other retailers serving the Texas-Louisiana region. The retailers distributed the drugs to individual addicts.
No communication between the importers and any of the retailers or between the New York retailers and the Texas-Louisiana retailers was proved. The importers did know, however, that the middlemen dealt with retailers, and the retailers knew that the middlemen obtained their drugs from importers.
On appeal, the petitioners claimed that instead of a single conspiracy, there were at least three conspiracies—one between the importers and the middlemen; a second between the middlemen and the New York retailers; and a third between the middlemen and the Texas-Louisiana retailers.
[B] Why the Issue Matters
[1] Liability for Conspiracy
The most obvious reason why the structure of a conspiracy is important is that it will affect the number of counts of conspiracy for which a particular person may be prosecuted and convicted. For example, in Kotteakos, as the prosecutor conceived of the case, Brown was guilty of one count of conspiracy with 31 loan recipients; alternatively, Brown was potentially guilty of eight or more counts of conspiracy, each involving a smaller number of parties.
[2] Liability of Parties for Substantive Offenses
As is discussed more fully elsewhere,135 a conspirator is guilty of every offense committed by every other conspirator in furtherance of the unlawful agreement. The structure of the conspiracy, therefore, may dramatically affect an individual conspirator's liability for the substantive crimes of others.
For example, if the prosecutor in Kotteakos was correct in treating the 32 defendants as parties to a single conspiracy, each party could be convicted of 31 separate counts of fraud (assuming that the fraudulent loans were obtained); if the loan recipients' theory was correct, however, each of them was guilty of only a few fraudulently obtained loans, namely those obtained by the group composing the smaller conspiracy.
Similarly, in Bruno the prosecutor's theory could result in New York retailers being held accountable for every drug sale on the Texas-Louisiana streets (and vice-versa); their liability would be considerably less if the defense theory of the structure of the conspiracy was correct.
[3] Use of Hearsay Evidence
"Hearsay evidence" is evidence of a statement made other than by a witness while testifying at the hearing, which is offered to prove the truth of the matter stated. Subject to many exceptions, hearsay testimony is inadmissible at trial. Thus, under this rule, W, a witness, may not testify that X told her that she (X) saw D commit an offense.136
The hearsay rule is subject to two exceptions relevant here. First, an out-of-court admission by a defendant, e.g., an assertion by D1 that she killed V, may be introduced at D1's trial through the hearsay testimony of W, someone to whom D1 made the statement or who overheard the remarks. Second, an out-of-court statement of a conspirator made while participating in the conspiracy may be introduced in evidence against any or all of her co-conspirators. Thus, a statement by D1 to W that she and D2 murdered V may be introduced against both D1 and D2 and any other co-conspirators.
The structure of the alleged conspiracy, therefore, is critical to determination of the admissibility of hearsay testimony. For example, under the prosecutor's theory of the conspiracy in Bruno, an out-of-court statement made by a New York retailer that "we and the Texans and Louisianans are getting a rotten deal from the importers and middlemen," could be used against the importers, middlemen, Texas and Louisiana retailers, and every other New York retailer. Applying the retailers' theory of the conspiracy, however, the New York retailer's remarks would be inadmissible against the Texas-Louisiana retailers, because they were not parties to the New York conspiracy.
[4] Joint Trial
Generally speaking, prosecutors prefer to bring every member of an alleged conspiracy to trial in a single proceeding, rather than to prosecute the conspirators in separate trials. Joint trials are more efficient (e.g., all of the evidence may be introduced once to a single jury). Perhaps equally importantly, a joint trial makes it more...
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