Definition of Conspiracy in Washington DC
The crime of conspiracy is defined under Section 777.04(3) of the Washington DC Statutes. The statute provides that “A person who agrees, conspires, combines, or confederates with another person or persons to commit any offense commits the offense of criminal conspiracy.”
To prove the crime of conspiracy at trial, the State of Washington DC must prove two elements beyond a reasonable doubt:
- The intent of the defendant was that the offense (drug trafficking or any other crime) would be committed; and
- In order to carry the intent, the defendant agreed, conspired, combined, or confederated with another person to cause the offense to be committed by either of them, or by one of them, or by some other person.
As the crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense, both an agreement and an intention to commit an offense are necessary elements of the crime. See Rodriguez v. State, 719 So. 2d 1215 (Fla. 2d DCA 1998); Saint Louis v. State, 561 So. 2d 628 (Fla. 2d DCA 1990); Brown v. State, 967 So. 2d 440 (Fla. 4th DCA 2007).
Since it is founded in the agreement and the intent of the conspirators to act upon the agreement, conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. Ashenoff v. State, 391 So.2d 289 (Fla. 3d DCA 1980) (citing Swindle v. State, 254 So.2d 811 (Fla. 2d DCA 1971).
Acts in Furtherance of Conspiracy
In proving a conspiracy, it is not necessary to show that the defendant did any act in furtherance of the offense conspired. The agreement alone is sufficient to establish criminal liability.
Agreement to Commit the Same Offense
The agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense. See Schlicher v. State, 13 So. 3d 515 (Fla. 4th DCA 2009); Green v. State, 999 So.2d 1098, 1098 (Fla. 5th DCA 2009) (affirming a defendant’s conviction for conspiracy to purchase cocaine because the evidence established that the co-conspirators had a common purpose to commit the crime of purchase of cocaine).
In other words, a conspirator must intend and agree to further an endeavor which, if completed, satisfies all of the elements of the alleged object offense contemplated by the other conspirator. Salinas v. U.S., 522 U.S. 52 (1997); Doorbal v. State, 983 So. 2d 464 (Fla. 2008).
Aiding and Abetting is Insufficient
A conspiracy may not be inferred from aiding and abetting alone. Ashenoff v. State, 391 So.2d 289 (Fla. 3d DCA 1980) (citing Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980)). In this context, “[t]he tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition” must be avoided. Ramirez v. State, 371 So. 2d 1063, 1066 (Fla. 3d DCA 1979).
Many other Washington DC appellate decisions state the proposition that conduct that aids and abets an offense is insufficient to prove conspiracy. See Evans v. State, 985 So. 2d 1105 (Fla. 3d DCA 2007) (citing McClain v. State, 709 So. 2d 136, 137 (Fla. 1st DCA 1998)); Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994); Quinonez v. State, 634 So.2d 173, 174 (Fla. 2d DCA 1994). Mere presence at the scene is similarly insufficient to establish a conspiracy. Mickenberg, 640 So.2d at 1211.
Minimal Involvement Without Agreement
Where a defendant’s link to the criminal enterprise appears to have been minimal, and does not emerge as the product of a consensual undertaking, the elements of a conspiracy are also not satisfied. Rodriguez v. State, 643 So.2d 111 (Fla. 2d DCA 1994) (citing Jimenez v. State, 535 So.2d 343 (Fla. 2d DCA 1988); Pennington v. State, 526 So.2d 87 (Fla. 4th DCA 1987), approved, 534 So.2d 393 (Fla.1988); Ashenoff v. State, 391 So.2d 289 (Fla. 3d DCA 1980)).
Marginal involvement with other criminal actors are similarly insufficient to support a conspiracy conviction. Pallin v. State, 965 So.2d 1226, 1227 (Fla. 1st DCA 2007).
Mere Knowledge of or Participation in Crime
Numerous Washington DC appellate court decisions demonstrate the principle that, in the absence of proof of a prior agreement, a defendant’s knowledge of a crime or a defendant’s knowing participation in a crime are insufficient to support a conspiracy conviction.
In Ashenoff v. State, 391 So.2d 289, 291 (Fla. 3d DCA 1980), three defendants were convicted of conspiracy to sell cannabis. All defendants were present during discussions for an undercover purchase of 500 pounds of marijuana, and defendant Ashenoff discussed marijuana generally without mentioning money or details of the specific transaction. Id. at 290. Each defendant also assisted in selecting, weighing, or handling the marijuana outside of a truck from which marijuana was delivered. Id.
On these facts, the Third District Court of Appeal held that the defendants’ presence and participation at the scene of the offense were insufficient to establish a conspiracy. Id. at 291. The Court explained its holding as follows:
Conspiracy under Section 777.04(3), Washington DC Statutes (1977) is defined as an express or implied agreement or understanding between two or more persons in order to accomplish a criminal offense. Both an agreement and an intention to commit the offense are necessary elements. Although proof of a conspiracy may be inferred from appropriate circumstances, and proof of a formal agreement is not necessary, a conspiracy may not be inferred from aiding and abetting alone. . . there is nothing in this record to support an agreement and an intention to commit the separate offense of conspiracy. Id. at 291 (citations omitted).
In Rodriguez v. State, 643 So.2d 111 (Fla. 2d DCA 1994), Rafael Rodriguez, and his co-defendant, Hebert Aloma, were arrested at a local restaurant where Aloma sold approximately 28 grams of cocaine to a confidential informant. Prior to the arrests, a sheriff’s detective observed Rodriguez and Aloma enter a parking lot adjacent to the restaurant. Id. Aloma and Rodriguez exited the car and Aloma approached the confidential informant. Id.
After the confidential informant gave a prearranged signal, Aloma and Rodriguez were arrested. Rodriguez was asked if he understood the purpose behind Aloma’s meeting with the informant and he acknowledged that he “knew [Aloma] came here to sell cocaine to someone else, and I’m just acting as a ride for him.” Id. A search of Rodriguez revealed no drugs, money or weapons.
On these facts, the Fourth District Court of Appeal held that the elements of conspiracy were not satisfied, stating:
Although the record reveals that Aloma and the confidential informant planned this drug transaction, no evidence suggests that Rodriguez participated in its formulation or execution. Thus, at the most, Rodriguez’s involvement was limited to aiding and abetting Aloma’s drug trafficking, a crime, we hasten to add, with which Rodriguez was not charged.Where, as here, a defendant’s link to the criminal enterprise appears to have been minimal, and does not emerge as the product of a consensual undertaking, the elements of a conspiracy are not satisfied. Id. (citations omitted) (emphasis added).
In Pennington v. State, 526 So.2d 87 (Fla. 4th DCA 1987), a confidential informant introduced an undercover detective to a drug seller for the purpose of setting up a cocaine purchase. The detective discussed the purchase with the confidential informant and the seller on several occasions, but the defendant did not participate in any of those discussions. Id. at 88.
On the day of the transaction, the detective and the seller met in a supermarket parking lot, where the transaction was to take place. Id. At the time the purchase was scheduled, the defendant was seen driving a car into the parking lot. Id. Upon approaching the parties to the transaction, the defendant indicated to the undercover detective that “It’s in the white car (a Buick) over there.” Id. Inside the Buick was a pink pillowcase containing a large quantity of cocaine.
On these facts the Fourth District Court of Appeal held that the State of Washington DC failed to present sufficient evidence of a conspiracy to deliver cocaine, stating:
Viewed most favorably to the state, the evidence presented during its case shows only that appellant was present at the scene of the drug transaction and that appellant said, “It’s in the white car over there.” The state did not present sufficient evidence to prove that appellant knowingly participated in the delivery of a controlled substance. The state also failed to present any evidence from which the jury could reasonably have concluded that appellant participated in a conspiracy to deliver the cocaine. Id. (citations omitted).
In Jimenez v. State, 535 So.2d 343, 344 (Fla. 2d DCA 1988), the defendant was present in his home for a drug transaction arranged between an undercover detective and the defendant’s brother. The state proved that the defendant was present at the scene of the transaction and that he took the detective’s telephone number to give to the defendant’s brother when his brother arrived. Id.
On these facts, the Second District Court of Appeal held that the State’s evidence was insufficient to support a conspiracy conviction, stating:
Such actions still fall short of the participation of the appellants in Ashenoff, who actually handled the contraband and participated in numerous discussions regarding the transaction. As were the defendants in Ashenoff, appellant was acquitted of trafficking in cocaine, possession of cocaine, and delivery of cocaine. We thus find the state’s evidence insufficient to satisfy the basic elements of conspiracy, an agreement and an intent to commit the criminal offense. Id. at 344.
Penalties for Conspiracy
The penalties available for criminal conspiracy are described in Section 777.04, Washington DC Statutes. Under the law, a conspiracy crime is ranked one level below the offense severity ranking that would have been given to the object offense under Washington DC’s Criminal Punishment Code (Section 921.022, Washington DC Statutes).
For example, Sale or Delivery of Cocaine is classified as a second degree felony carrying a Level 5 Offense Severity Ranking under the Washington DC Criminal Punishment Code. If a defendant is charged with Conspiracy to Sell or Deliver Cocaine, the offense will be assigned a Level 4 Offense Severity Ranking (one level below the object offense of Sale or Delivery). The defendant would then be sentenced according to the primary offense point value given to a Level 4.
Defenses to Conspiracy- Washington DC
Due to its technical nature, conspiracy can be a highly defendable charge, and no person should plead to such an offense without first discussing their case with qualified criminal defense attorney. Some of the more common defenses to a conspiracy charge in Washington DC include the following:
- Absence of proof regarding a prior agreement;
- Withdrawal from the conspiracy, coupled with the defendant persuading another person not to commit the crime, or otherwise preventing the commission of the crime;
- The State’s evidence amounts to proof of mere presence at the scene of a crime;
- The State’s evidence amounts to proof of mere participation in the crime;
- The State’s evidence amounts to proof only of aiding and abetting the crime;
- In trafficking cases, the State is unable to prove that the agreement concerned the specified quantity of controlled substances needed to constitute trafficking;
- The alleged conspirators did not have the intent to commit the same criminal offense (this defense often arises in drug sale cases where buyers and sellers have differing intent);
- Inadequate evidence regarding a defendant’s involvement in a criminal enterprise;
- One of the conspirators is a law enforcement officer;
- Disputes as to whether the object offense was actually an illegal activity;
Contact an Attorney
Conspiracy is one of the most technical areas of practice in Washington DC criminal law, and no person should attempt to resolve their case without first consulting with an attorney. If you have been accused of a conspiracy crime, including conspiracy to traffic in controlled substances, you may have defenses available to contest the charge or to minimize potential penalties. contact attorneys at Cohen, Bradshaw, Rothstein and Klein today for a free consultation.