§ 29.08 Objectives of a Conspiracy

§ 29.08 Objectives of a Conspiracy

[A] The Issue

Suppose that D1 and D2 rob V1 on Day 1, rob V2 on Day 2, and rob and rape V3 on Day 3. Assuming that these crimes were committed as the result of a conspiratorial relationship between D1 and D2, a critical question remains: How many conspiracies were there? That is, do we say that there were four conspiracies, one for each crime (to rob V1, to rob V2, to rob V3, and to rape V3)? Or were there three conspiracies, one for each victim? Are there two conspiracies based on the statutes violated (robbery and rape)? Or is there just one conspiracy to commit all of the criminal acts?

[B] Common Law Analysis

Although various approaches to the issue have developed, the Supreme Court in Braverman v. United States¹⁵³ announced the following rule regarding federal conspiracy prosecutions:

[T]he precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.

It follows in the hypothetical discussed above, therefore, that the fact that D1 and D2 planned to violate two criminal statutes, or to violate a particular statute multiple times, does not in itself convert a single conspiracy with multiple objectives into multiple conspiracies with a single objective each.

Ultimately, under Braverman, the issue is whether a single agreement or many distinct ones were formed. In the hypothetical, for example, it is possible that D1 and D2 got together once and agreed to commit each of the offenses, in which case there was one conspiracy. On the other hand, they may have met various times, each time reaching a new and independent agreement to rob, and the rape may have been a spur-of-the moment group decision, in which case D1 and D2 are guilty of four conspiracies. It is also possible that the co-conspirators originally agreed to conduct robberies together (without specifying the number or identity of the victims), and (as in the last scenario) the rape of V3 was a last-moment joint decision. Under these circumstances, there were two conspiracies.

Because of inherent difficulties of proof, and in order not to "place a premium upon...