B. Conspiracy

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

B. Conspiracy

1. The Basics

Conspiracy has been recognized as a common law offense in South Carolina for many years. See State v. De Witt, 20 S.C.L. (2 Hill) 282 (1834). The common law offense was a misdemeanor, State v. Ferguson, 221 S.C. 300, 70 S.E.2d 355, cert. denied, 344 U.S. 830 (1952), and was defined as an agreement between two or more persons to do an unlawful act or a lawful act by unlawful means. State v. Ameker, 73 S.C. 330, 53 S.E. 484 (1906).

The current general statutory conspiracy provision retains the common law definition but changes the classification to that of felony (in keeping with the 1993 classification bill whereby offenses with five year maximum penalties become class F felonies).

The common law crime known as "conspiracy" is defined as a combination between two or more persons for the purpose of accomplishing an unlawful object or lawful object by unlawful means.
A person who commits the crime of conspiracy is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years.
A person who is convicted of the crime of conspiracy must not be given a greater fine or sentence than he would receive if he carried out the unlawful act contemplated by the conspiracy and had been convicted of the unlawful act contemplated by the conspiracy or had he been convicted of the unlawful acts by which the conspiracy was to be carried out or effected.

S.C. Code Ann. § 16-17-410 (2003). There are a number of statutory references to conspiracies to commit specific crimes. These are significant primarily because of the sentences they authorize. These statutes are discussed in subsection 8, infra.

The statutory definition of conspiracy conforms to that of the common law relied on in Ameker. State v. Puckett, 237 S.C. 369, 117 S.E.2d 369 (1960); State v. Jacobs, 238 S.C. 234, 119 S.E.2d 735 (1961). Puckett and Jacobs dealt with an earlier version of section 16-17-410 with slightly different language but which differed in no significant manner.

As will be developed in detail, infra, the crux of a criminal conspiracy is the agreement. The agreement, among two or more persons, must be to engage in the proscribed conduct with the intent that their objective be achieved. The offense of conspiracy is complete when the agreement is reached, and no overt act in furtherance of the conspiracy need be established, State v. Ferguson, 221 S.C. 300, 70 S.E.2d 355, cert. denied, (1952), although an overt act may have significance in terms of jurisdiction, State v. McAdams, 167 S.C. 405, 166 S.E. 405 (1932), or venue, State v. McIntire, 221 S.C. 504, 71 S.E.2d 410 (1952).

Conspiracy can take place far in advance of those acts requisite to conviction of attempt. Conspiracy is a separate offense from the substantive offense which is the object of the conspiracy, and double jeopardy does not result from convicting and punishing separately for each in a single prosecution. State v. Greuling, 257 S.C. 515, 186 S.E.2d 706 (1972); State v. Steadman, 257 S.C. 528, 186 S.E.2d 712 (1972). See generally William S. McAninch, Unfolding the Law of Double Jeopardy, 44 S.C. Law Rev. 411 (1993).

The basic rationale of conspiracy seems to be that the combination of two or more persons makes it more likely that the criminal objective will be achieved, because the co-conspirators may offer each other encouragement and support, thereby rendering it less likely that the project will be abandoned. Also, there is the prospect that the criminal combination might generate additional criminal activity. As in the situation of attempt, conspiracy authorizes police intervention before the ultimate harm has obtained; this timely intervention is justified both to preclude the conspirators from accomplishing their immediate goal and because the conspirators have identified themselves as potentially dangerous persons. See generally LaFave, 655-56 (5th ed. 2010).

The offense of conspiracy has been strongly criticized as readily abused by the prosecution because of its vagueness, breadth, and unique procedural aspects. See, e.g., Judge Learned Hand in Harrison v. United States, 7 F.2d 259 (2d Cir. 1925); Francis B. Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393 (1922); Nathaniel L. Nathanson, Freedom of Association and the Quest for Internal Security: Conspiracy from Dennis to Dr. Spock, 65 Nw. U. L. Rev. 153 (1970); Phillip E. Johnson, The Unnecessary Crime of Conspiracy, 61 Calif. L. Rev. 1137 (1973).

The South Carolina Supreme Court observed:

We take this occasion to remind prosecutors of the pitfalls inherent in mass conspiracy trials. More than forty years ago this Court stated, "It is always cumbersome to try a great number of defendants at one time . . . With such a large number [of defendants] there might be a danger of some of them being lost sight of by the jury, and their case considered by the jury in a vague way.''

State v. Gunn, 313 S.C. 124, 138, 437 S.E.2d 75, 83 (1993), cert denied, 510 U.S. 1115 (1994) (citations omitted). Reversing half of the conspiracy convictions in a massive conspiracy prosecution, the Court noted that separate indictments and separate trials, as well as a sharper focus on the precise agreement or agreements, would have helped refine the State's case. Id.

The trial court judge's decision not to grant a severance in a massive conspiracy is one within his discretion and will not readily be disturbed, as two companion decisions of the Court of Appeals indicate. Both involve individual defendants in a drug trafficking conspiracy with 24 other defendants. Eighteen pleaded guilty, and the other eight were tried in a single, joint trial, several of whom raised severance issues; the Court of Appeals dealt with the merits of the severance denial in two cases. State v. Castineira, 341 S.C. 619, 535 S.E. 449 (Ct. App. 2000), and State v. Harris (Miller), 342 S.C. 191, 535 S.E.2d 652 (Ct. App. 2000). Castineira did not identify any prejudice, and the judge gave cautionary instructions regarding the jury's duty to consider each case separately. Miller, whose actual name was Harris, identified as prejudicial the admission of certain evidence, but the Court of Appeals concluded that the evidence was admissible and therefore not prejudicial. The court noted that the jury did not find several of the 26 co-defendants guilty of trafficking in more than 400 grams of cocaine, which indicated the jury's careful analysis and its ability to follow of the judge's cautionary instructions.

Criminal conspiracy differs from civil conspiracy. While, as noted above, the former requires an agreement to do an unlawful act or to do a lawful act by unlawful means, the latter requires only a "combination of two or more persons joining for the purpose of injuring the plaintiff and causing special damage to the plaintiff." LaMotte v. Punch Line of Columbia, Inc., 296 S.C. 66, 69, 370 S.E.2d 711, 713 (1988). It should be noted that while the crime of conspiracy has been committed once the agreement is reached, the tort of conspiracy is not actionable until overt acts occur which damage the plaintiff. Lee v. Chesterfield Gen. Hosp., Inc., 289 S.C. 6, 344 S.E.2d 379 (Ct. App. 1986). See generally F. Patrick Hubbard and Robert L. Felix, The South Carolina Law of Torts, 313-17 (1990).

2. The Agreement

As noted above, the crux of conspiracy is the agreement. That is the actus reus of the offense. The mental state required is that necessary to reach the agreement, with the intent that the objective of the agreement be obtained. Yet there is no need to establish the existence of a formal, explicit, verbalized agreement. "A tacit, mutual understanding, resulting in the willful and intentional, adoption of a common design by two or more persons is sufficient, provided the common purpose is to do an unlawful act either as a means or an end." State v. Fleming, 243 S.C. 265, 274, 133 S.E.2d 800, 805 (1963) (citing 15 C.J.S. Conspiracy § 40 (1967)).

While the agreement may be a silent, mutual understanding instead of a formalized statement, the agreement must be proved. The mere fact that two persons happened to be doing the same thing at the same time does not compel the conclusion that there was a conspiracy. For example, if A and B, each an enemy of C, should happen to simultaneously shoot and kill C without prior agreement to do so, each could properly be convicted of murder but not of conspiracy. See the trial court's instructions involving a similar hypothetical situation in State v. Ameker, 73 S.C. 330, 339, 53 S.E. 484, 487 (1906).

For a more recent example, see State v. Mouzon, 326 S.C. 199, 485 S.E.2d 918 (1997), aff'g 321 S.C. 27, 467 S.E.2d 122 (Ct. App. 1995). Simply because several persons happened to be selling drugs at the same place at the same time did not mean that they were co-conspirators to sell drugs. The evidence suggested, to the contrary, that they were competitors. The fact that several of them threw objects at fleeing customers, perceived to be ripping them off, was not enough to establish the existence of a conspiracy.

The agreement might be difficult to establish by direct evidence if none of the coconspirators will talk. Consequently, the cases in this jurisdiction, as well as others, which hold that the agreement can be established by circumstantial evidence, are legion. E.g., State v. Kelsey, 331 S.C. 50, 502 S.E.2d 63 (1998); State v. Oliver, 275 S.C. 79, 267 S.E.2d 529 (1980); State v. Hightower, 221 S.C. 91, 69 S.E.2d 363 (1952); United States v. Direct Sales Co., 44 F. Supp. 623 (W.D.S.C. 1942), aff'd 131 F.2d 835, 319 U.S. 703 (1943).

The fourth circuit concluded that there was insufficient evidence to sustain a conspiracy conviction in a South Carolina case and reversed the federal district court's denial of habeas corpus. Goldsmith v. Witkowski, 981 F.2d 697 (4th Cir. 1992), cert. denied, 509 U.S. 913 (1993) (reviewing the conviction in State v. Goldsmith, ...