Conspiracy Question

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Illinifan1985
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Joined: Wed Dec 05, 2007 9:46 pm

Conspiracy Question

Postby Illinifan1985 » Sat Apr 25, 2009 10:03 am

If person x and person y agree to sell a random white powdery substance as cocaine what crime have they conspired to commit?

Further, if person Z takes possession of the substance from person x thinking the white substance is cocaine can they be guilty of conspiracy if they seemingly have different target crimes? Could a conspiracy only be found under a unilateral theory here?

fourklub
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Joined: Wed Oct 24, 2007 9:01 pm

Re: Conspiracy Question

Postby fourklub » Sat Apr 25, 2009 6:29 pm

The crime would depend on whether there is a statute that criminalizes the attempt to sell a substance that appears to be illegal (sorry, not exact "legal language"). This question also raises the issue of legal vs. factual impossibility and which view the jurisdiction adopts.

To have a conspiracy, there must be an agreement between 2 or more people to commit the target crime (as defined by statute or a CL offense) and both people must have the specific intent to commit the target crime. Since a conspiracy necessarily requires two people to have the specific intent to commit the same target offense, I do not think that Z can be convicted of a conspiracy. Maybe an attempt to possess cocaine?

Illinifan1985
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Joined: Wed Dec 05, 2007 9:46 pm

Re: Conspiracy Question

Postby Illinifan1985 » Sat Apr 25, 2009 7:18 pm

MPC has unilateral conspiracy.


I don't think it is a question of impossible. Person X and Y know all the relevant facts so it is not factual impossibility. Legal impossibility is when you think something is illegal, but it is actually legal and therefore you can't commit the crime. Here I find it hard to believe that they are not committing some crime. I mean at a minimum it would be fraud to sell white powder as cocaine?

Anybody has any ideas on how to answer the above problem? Please help!

LurkerNoMore
Posts: 237
Joined: Thu Oct 09, 2008 12:05 pm

Re: Conspiracy Question

Postby LurkerNoMore » Sat Apr 25, 2009 7:31 pm

Do both parties know that the white powdery substance is not cocaine? Do they plan to sell it as cocaine or just give it away? You'd be pretty stuck looking down the path of some sort of conspiracy to commit fraud if they were planning on selling, and if they weren't and the substance wasn't otherwise controlled or dangerous, then you'd probably come up blank because there is no underlying crime.

As to the third person, is this a sale, or bringing in the person to distribute? If its a sale you would have trouble with conspiracy, since the sale requires more than one person, so the underlying crime necessarily includes conspiracy as a lesser included offense. If the third person was just brought into the group to continue the distribution, then you would need to look at whether it is a unilateral or bilateral jurisdiction. If it is a bilateral jurisdiction, you'd have a problem on the conspiracy and would need to look at the attempt crimes (and again look at the jurisdiction to see what the impossibility doctrine is for attempt). If you have enough to go after conspiracy, you would most likely have enough under the MPC for attempt (substantial step is pretty early in the chain of events in the MPC). If it's not MPC you'd need to look at what would be enough to go after attempt.

If you are in a unilateral jurisdiction you could should be able to get conspiracy for the third person, again so long as you don't run afoul of Wharton's rule.

JDewey
Posts: 9
Joined: Fri Jan 04, 2008 1:54 pm

Re: Conspiracy Question

Postby JDewey » Sat Apr 25, 2009 7:52 pm

Don't know if this will help, but my bff4e (best friend forever forever) got arrested when he tried to sell incense as opium. It was incense and the cops arrested him when he was selling it to someone else and they charged him not with distribution but with intent to distribute and he was found guilty.

Illinifan1985
Posts: 4
Joined: Wed Dec 05, 2007 9:46 pm

Re: Conspiracy Question

Postby Illinifan1985 » Sat Apr 25, 2009 8:47 pm

Both parties know that is harmless white powder and they are plan and do give it to a friend to sell person Z as cocaine.

I still don't see how attempt would work for intent to sell. They don't have the intent to sell drugs. For attempt they would need the specific intent to commit the target crime (intent to possess? intent to sell?), but they clearly don't have this intent. They only have the intent to fraudulently sell harmless white powder as cocaine.

This is not a factual impossibility case because they are well aware they do not have drugs. They are trying to dupe junkies into buying harmless white powder. I could see factual impossibility if they thought it was cocaine, but it was really a harmless white substance, but that is not the case.

I guess the real question is can you be arrested for possession with intent to distribute if you are attempting to distribute a harmless substance?

JaHerer22
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Joined: Tue Jan 08, 2008 10:57 am

Re: Conspiracy Question

Postby JaHerer22 » Sat Apr 25, 2009 10:39 pm

If they both know the substance is not cocaine and are trying to pass it off as cocaine it would be conspiracy to commit fraud. If they actually thought it was cocaine then it would be conspiracy to sell cocaine but they would have a defense of factual impossibility, which of course is no defense at all.

Some states have statutes that criminalize selling fake drugs but this is not widespread or anything I would think you would learn in criminal law so unless the hypo mentions some such statute I wouldn't worry about it. If it does, then it would be conspiracy to sell fake drugs and conspiracy to commit fraud.

JDewey
Posts: 9
Joined: Fri Jan 04, 2008 1:54 pm

Re: Conspiracy Question

Postby JDewey » Sun Apr 26, 2009 3:46 am

Yeah, he tried to say he knew it was incense and that since he knew it was incense he shouldn't be charged with intent to distribute (a narcotic), but the DA just told him, you presented it to the officer as opium and that is enough for us to assume that you believed it to be opium. He couldn't prove that he knew it was incense and they had a pretty strong argument that he believed it to be opium. So from there, they assumed he intended to distribute opium.




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