Conspiracy is a crime, separate and distinct from the substantive offense[i]. A criminal conspiracy will be complete if it fulfills the following main elements [ii]:
- An agreement about the object of the conspiracy;
- Specific intent to achieve that object;
- An overt act in furtherance of the agreement.
The crime of conspiracy is defined as two or more persons conspiring to commit any crime, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy[iii]. Conspiracy is a specific intent crime. A specific intent crime is one in which an act is committed voluntarily and purposely with the specific intent to do something the law forbids.
Therefore, conspiracy is a specific intent crime requiring an intent to agree or conspire and a further intent to commit the target crime, the object of the conspiracy[iv]. In other words, a specific intent crime is one in which a person acts with knowledge of what he/she is doing and also with the objective of completing some unlawful act[v]. Intent can be determined from words, acts, and conduct.
The main two elements for specific intent are[vi]:
- Intent to agree, or conspire;
- Intent to commit the offense which is the object of the conspiracy.
It is to be noted that the essence of the statutory crime of conspiracy is the joining together of the conspirators with an unlawful intent. A conspiracy charge focuses primarily on the intent of the defendants, while in an attempt case, the primary inquiry centers on the defendants’ conduct tending toward the commission of the substantive crime. The crime of conspiracy is complete once the conspirators formed the intent to commit a crime and take any step in preparation or mere preparation[vii]. If the goal of a conspiracy can be reached only through deception and concealment, silence which is designed to conceal may indicate an intention to conspire.
In order to establish voluntary participation, the government must prove both the intent to agree and the intent to effectuate the object of the conspiracy. However, direct evidence is not necessary to prove the agreement or a defendant’s participation[viii]. If the conspirators agree or conspire with a specific intent to kill and commit an overt act in furtherance of such agreement, then they are guilty of conspiracy to commit express malice murder[ix].
[i] United States v. Pinckney, 85 F.3d 4 (2d Cir. N.Y. 1996)
[ii] United States v. Wallace, 85 F.3d 1063 (2d Cir. N.Y. 1996)
[iii] People v. Swain, 12 Cal. 4th 593 (Cal. 1996)
[v] United States v. Blair, 54 F.3d 639 (10th Cir. Okla. 1995)
[vi] People v. Swain, 12 Cal. 4th 593 (Cal. 1996)
[vii] State v. Moretti, 52 N.J. 182 (N.J. 1968)
[viii] United States v. Ruiz, 105 F.3d 1492 (1st Cir. Mass. 1997)
[ix] People v. Swain, 12 Cal. 4th 593 (Cal. 1996)