Suppose a man is on video paying and then having sex with a prostitute. Open and shut case, pretty much.
But then the state charges that same man with conspiracy since he and another person (the prostitute) conspired to violate a misdemeanor law of the state? Is that legitimate?
I say no, but can’t articulate why. In my opinion, violation of the prostitution statute, by definition, will require a buyer and a prostitute. There are always two people involved. It seems that the violation of the statute already encompasses this form of conspiracy and that a conspiracy charge would be a form of double jeopardy.
All laws involving two people such as selling drugs, prostitution, knowingly permitting DUI, underage drinking, etc. would have an automatic conspiracy charge attached.
Any lawyer dopers want to comment? Case law would also be nice. Thanks.
You wouldn’t expect a real estate lawyer to be able to dish on the Batson test or discuss the prongs of Strickland ineffective assistance claims. This is one of those oddball things that comes up rarely in criminal practice, and not at all elsewhere. (Expect, of course, on the bar every now and then).
Hypo: Roommate gives his friend “clean” urine so that he may pass drug screen. Friend gets caught using urine. Roommate admits providing the urine.
It seems that roommate is clearly guilty of (1) by providing a substance (urine) with the intent of defeating the drug test. Can he also be charged with conspiracy to violate (2)? It would seem that the Legislature has spoken on the totality of the crime of defeating a drug test and that any and all violations of (1) would be conspiracies to violate (2). That seems to be in excess of what the Legislature envisioned and thereby violating Wharton’s Rule and double jeopardy. Counter argument?
A person can violate §60A-4-412(1) without violating (2), and vice-versa. The gravamen of (1) is the use of any substance to defeat the test – this could be satisfied by selling a diuretic that’s intended to increase urine output. (2) is the act of modifying the sample so as to render it counterfeit, either by wholesale substitution or by adulteration.
So §60A-4-412(1) and §60A-4-412(2) are different crimes for double jeopardy purposes – Blockburger; each requires proof of an element the other does not. And each crime can be committed solo, so Wharton’s rule does not bar prosecution on the conspiracy charge.
But if I sell a diuretic to a person, am I not also part of the conspiracy to modify his urine sample? I didn’t see him do it directly, but I knew he would do it; that’s why I sold him the diuretic. Do you disagree?
ETA: (1) cannot be committed solo. If I “sell or give away” a “product or substance” it by definition requires a “donee” who will almost certainly violate #2.
That’s a question of fact – it isn’t a priori true. I could buy the “quick flush” herbal teas you’re selling because I like quick flush herbal tea, even though they are grouped under a sign that says, “Beat the Drug Test With This Amazing Product.” I’d be part of no conspiracy whatsoever, but you’ve still sold it while marketing it as a way to beat the drug test.
Nope. See above. The fact that the seller, recipient, whatever would then use the product illegally must be proven; it’s not an automatically true condition.
I think I’m following you here. Since there are certain circumstances (like your hypo) where it is not actually used for the purpose of defeating a drug test, #2 is never intended by one party, so no conspiracy unless #2 is actually intended by both parties?
I can agree with that except that intent is generally implied from the likely result of ones actions. Sticking with your hypo: You buy my herbal tea under the “Beat the Drug Test” sign. When you walk out of the store, I have no idea what you will do with it. I can guess that you are probably using it to beat a drug test, but like you said, maybe you just enjoy tea.
But isn’t it also a rule of conspiracy that the “left hand doesn’t have to know what the right hand is doing”? If you were actually to use the tea to defeat a drug test, I could then be charged with conspiracy, correct? Even if our transaction proceeded the same way (with you remaining silent as to your intentions with the tea)
So, why does the conspiracy charge depend on your motivations and actions? Why would I be less culpable simply because you chose not to try to defeat the drug test? If we conspire to rob a bank, but you don’t go through with it, I am still guilty of conspiracy.
Wouldn’t the conspiracy with you buying the tea be the same as “conspiring” with an undercover cop? I thought that I was conspiring to commit a crime, but the other party wasn’t. It’s still conspiracy in both cases is it not?
Both hands, though, must agree to commit a crime for both hands to be guilty. Virginia requires no overt act, as do many other states, so here the crime of conspiracy is complete the moment two people agree to commit a crime. But Virginia is a common-law state, not an MPC state. See below.
Sure. Because when we conspire to commit the crime of bank robbery, we both plan to rob a bank. That completes the crime of conspiracy. (Even in states that require an overt act, the act doesn’t have to be illegal: we could agree to rob a bank dressed as clowns and I could go buy the clown masks. At that point, the crime is complete, even though buying clown masks is not illegal.)
But here, there’s no reason that simply buying quick flush tea shows my agreement with you to commit any crime.
This is true in some places, and not in others. The common-law rule is that an agreement takes at least two people. The undercover officer didn’t intend to agree, so no conspiracy. This is known as the rule of plurality, or “bilateral conspiracy.” So in a common-law penal system, nope.
The MPC allows unilateral conspiracy to go forward – the “feigned agreement,” conspiracy. In a Model Penal Code state, you’re correct.
By purchasing the tea under the “Beat the Drug Test” sign, haven’t you conspired with me to violate subsection (1)?
That was last year. This is real stuff. My hypothetical client is charged with committing subsection (1) and conspiracy to commit subsection (2) and it just seems duplicitous to me. If I provide anyone with a substance or product to defeat a drug test, then I can’t wrap my head around how I am, by definition, not also conspiring with that individual to help them provide a false sample.
The drug test violation is a petty misdemeanor. Conspiracy is a serious misdemeanor with a jail term. It just seems to me that the Legislature intended to punish the distribution of anything needed to beat a drug test with the penalties prescribed in the statute and didn’t envision a conspiracy charge when the giving or selling of a substance known to defeat a drug test, in almost all circumstances, requires a seller and a buyer who know what these substances are for.
Okay, another example. Wharton’s Rule doesn’t allow a conspiracy charge for drug sales for example. But could a drug seller be charged with both selling drugs and two counts of conspiracy to possess drugs? (First count: possession by seller; he conspires with buyer to be in possession of drugs) (Second count: Possession by buyer; seller also conspires with buyer to facilitate buyer’s possession)
Wharton’s Rule seems to only disallow the conspiracy charge with respect to the sale, but not the before and after possession as possession is a separate and distinct charge. Under your reasoning (not just yours but the cases I’ve read) one might say that it is theoretically possible to sell drugs without actual possession taking place (I send money by Paypal and delivery is never complete) so that there are different elements to the sale and subsequent possession, and therefore conspiracy is a legitimate additional charge.
IOW, it seems like many, many more crimes could have a conspiracy charge taken on under this type of expansive reading.
Stated differently, is Wharton’s Rule only limited to offenses where there is absolutely no possible way that the crime can be done without the participation of two otherwise conspirators?
What if studies showed, alternatively, that 1) since the drug test law was passed that not one single person had bought my product without the intention of using it in a drug test or 2) that 99.8% of people who purchased my product had that intention?
Does it only matter that 1) some hypothetical future person might purchase it for innocent reasons? That if two lawyers sit down for 20 minutes we can conceive of a situation where the law might possibly be violated without two people then the Rule doesn’t apply? Or 2) that since a few people have done what we described, even if it is an extreme minority, that since it does happen sometimes (although not in the case at hand) then we can safely say that the Legislature wanted two distinct punishments (with conspiracy and without)?
As you stated, you saw my quick flush herbal tea under a “Beat the Drug Test” sign. You knew that I was selling it with the intent to help people beat a drug test. However, your purchase was only done for an innocent reason (because you like tea). In my view, under your reading, you nonetheless conspired with me to sell a substance with my intent that it would be used to defeat a drug test.
Common law. I am in West Virginia. We share your common law until the unfortunate split in 1863.
Merger rules are pretty much the same everywhere. Conspiracy to commit a crime is a distinct evil. It’s one thing if I rob a bank. If you and I sit down and agree to rob a bank, that is a separate punishable harm that doesn’t merge into the completed offense. No overt act required in this state.
And this prosecutor is just starting to do the same thing. I think the drug sale hypo is a good one. The Legislature would know that in 99.9% of cases, if not all cases, that a sale of drugs requires both the seller and buyer’s possession of them. Wharton’s Rule would seem to apply.
But as was noted, we could think of a hypo where I sell you drugs on contract, and you pay me through PayPal. That transaction doesn’t require possession by either of us. So, under your reading (and again, the common reading) if we exchange drugs on a street corner, or in your home, I could not only be charged with selling drugs, but with conspiracy to commit two counts of possession of drugs, and one count of possession of drugs. Wharton’s Rule might preclude you from being charged with conspiracy to sell, but you could likewise be charged with two counts of conspiracy to possess, and one count of possession.
It seems as if when the Legislature provided a penalty of X for drug selling and Y for drug possession it knew that two people would also be in possession of drugs in the course of committing a drug sale and specifically provided that I get X and you get Y for our transaction.
That’s a good cite. It is theoretically possible that one may sell lottery tickets without the witting participation of an accomplice (like Bricker buying my herbal tea). But the Court found that selling lottery tickets almost always requires another party who will buy them.
Likewise, if you give away your “clean” urine with the intention of defeating a drug test, doesn’t that always require a “givee”?
Yes – but that’s why the inquiry is fact-specific. I can credibly claim i bought herbal tea with no impermissible motive. Explaining why I bought (or accepted at no charge) clean urine is a more difficult task.
