Soliciting Prostitution and Conspiracy

[twickster]

Since you’re looking for legal opinions/advice, moved to IMHO (from MPSIMS).

[UltraVires]

@Bricker

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.

You bought the tea because you like tea which is a permissible motive. However, you saw that I was selling it with the intention that a person would use it to defeat a drug test.

Did you not then conspire with me to violate subsection (1)?

ETA: Subsection (1) focuses only my intention, not yours.

[Jimmy_Chitwood]

Much simpler than all that: this is the buyer-seller exception. Without more, a mere buyer-seller relationship is insufficient to establish a conspiracy. That’s been litigated to high heaven.

[skdo23]

@razncain

No lawyer here, but in most states prostitution wouldn’t fall under conspiracy due to Wharton’s rule that you can look up.

I’m in-house counsel for a large corporation and I emailed your post to several of my colleagues, all were impressed.

[UltraVires]

@Jimmy_Chitwood

Much simpler than all that: this is the buyer-seller exception. Without more, a mere buyer-seller relationship is insufficient to establish a conspiracy. That’s been litigated to high heaven.

Can I trouble you for a quick cite? Does it also apply to donor-donee relationships?

[Jimmy_Chitwood]

It’s all circuit opinions, so you can find bits and pieces of discussion all over the place. There’s some cases here:

[

The lower federal appellate courts have acknowledged that evidence of a mere buyer-seller
relationship is insufficient to support a drug trafficking conspiracy charge. Some do so under the
rationale that there is no singularity of purpose, no necessary agreement, in such cases: “the
buyer’s purpose is to buy; the seller’s purpose is to sell.”
47
…
Again, in most cases the essence of conspiracy is agreement. “Nevertheless, mere association,
standing alone, is inadequate; an individual does not become a member of a conspiracy merely
associating with conspirators known to be involved in crime.”
51

](http://fas.org/sgp/crs/misc/R41223.pdf)

I would imagine whether it applies to donor/donee depends. If my dealer gives me my 10th rock for free, I can’t imagine how that’s a different analysis.

[Bricker]

@jtgain

You bought the tea because you like tea which is a permissible motive. However, you saw that I was selling it with the intention that a person would use it to defeat a drug test.

Did you not then conspire with me to violate subsection (1)?

ETA: Subsection (1) focuses only my intention, not yours.

I still say no – because the essence of a conspiracy is an agreement to break the law, and we never made such an agreement, nor did I intend to agree with you. Same result as if an undercover officer bought the tea. Any construction that allows a conspiracy when only one person intends to break the law is flouted by Wharton’s rule, which requires culpable participation by two or more people. My conduct isn’t culpable – I know I’m going to use the tea for a completely legal purpose.

Under the circumstances, completing the crime described in subsection (1) is factually impossible (as distinguished from legally impossible). (Now, it might be said that you attempted the crime of (1), but you did not complete it.)