Conspiracy

Is an agreement between 2 or more persons to commit a criminal act. Most conspiracy charges are felonies. In most States that follow old common law theories, a person could still be charged with felony conspiracy even if the intended act was only a misdemeanor. However in Florida, with some exceptions, a conspiracy to commit a misdemeanor is also a misdemeanor. Conspiracy charges are most commonly filed in Drug Trafficking cases.

Overt Act:

In Federal Court, to be convicted of conspiracy there must be some overt act in furtherance of the conspiracy. Merely talking about committing a criminal act would not be a conspiracy.

In Florida Criminal law, it is not necessary to prove that the defendant did any act in furtherance of the conspiracy. However, in most of the criminal cases filed by the State Attorney’s Office they generally do not move forward with just the conspiracy charge without the underlying intended substantive crime, because the State in order to prove conspiracy must prove the “intent” of defendant to commit the crime. Having an actual completed crime or attempted crime would help establish the intent requirement for conspiracy along with other circumstantial factors.

Solicitation:

If one of the parties offered another to commit a criminal act and the other person declined the offer, the person making the offer could be charged with solicitation. (E.g. rejected offer of money for sex, or in an undercover sting operation where the “john” asks the undercover cop for sex) If the other party accepted the offer to commit the criminal act, then a conspiracy charge will be filed, but not if the criminal act was for prostitution. (See below)

Wharton Rule (In Pari Delicto):

Which means two parties are equally at fault. Where two persons are necessary for the commission of the crime then there cannot be a charge of conspiracy. In the case of prostitution, if the “John” offered the prostitute money for sex and the prostitute accepted the offer; there can be no charge of conspiracy for prostitution; since the act of prostitution requires at least 2 persons. If the law requires two participants or “two to tango” as in a prostitution cases there cannot be a conspiracy charge for prostitution. However if a pimp, john and prostitute are involved, and the john made arrangements with the pimp and the pimp had the prostitute come over to the john’s house for sex then a charge of conspiracy can be charged.

Distinct Offenses:

Conspiracy and the completed crime are two distinct offenses. A Defendant can be convicted of both. Further one can be acquitted of the actual offense, but still be convicted of conspiracy Also a defendant can be charged with conspiracy with unindicted (not charged) co-conspirators.

Criminal Liability:

A conspirator, who leaves the conspiracy or one who is no longer part of the intended and agreed upon criminal act, may still be criminally liable for all criminal activity of the other conspirators if they were committed in the furtherance of that conspiracy and it was reasonably foreseeable that the criminal acts would occur.

Defense to Conspiracy Charge:

  • If the Defendant left the conspiracy and persuaded the others not to do so or otherwise prevented the commission of the crime (object of the conspiracy) this would be a defense to the conspiracy charge and if proven successfully the Defendant ought to be acquitted of this charge. In other jurisdictions this defense would only protect the defendant from the criminal liability as discussed above and not the conspiracy charge itself.

  • Mere presence at the scene is insufficient to establish conspiracy. Nor is the presence at the scene coupled with knowledge of the offense sufficient evidence to establish conspiracy.

  • Evidence that a person aided or abetted another in the commission of the offense is insufficient to convict either person of conspiracy to commit the offense. There must be evidence that the defendant had a prior agreement with another to perpetrate the offense and intended to execute the agreement.
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