Federal Conspiracy RICO - Part 2

Federal Conspiracy RICO - Part 2

Conspiracy

Elements of a Racketeering Conspiracy

First, I will discuss the elements of conspiracy under federal law, and then the elements of conspiracy under New York State law.

A conspiracy is an agreement by two or more persons to accomplish some unlawful purpose. The formation of a conspiracy, which is sometimes referred to as a partnership in crime, is in and of itself a crime. In other words, the crime of conspiracy is an offense separate from the crime that the alleged conspirators intend to commit. If a conspiracy exists, even if it should fail to achieve its purposes, it is still punishable as a crime. The essence of a conspiracy is an understanding among two or more persons that they will act together to accomplish a common objective that they know is unlawful.

The Government has charged you with the substantive crime of Racketeering as well as the crime of a Racketeering Conspiracy as enumerated in Count II.

Elements of Conspiracy Under Federal Law:

There are two elements of the federal crime of conspiracy:

First: it must be proved that two or more persons entered into the particular unlawful agreement charged in the conspiracy count or Racketeering Act charged; and

Second: it must be proved that the defendant knowingly and intentionally became a member of the conspiracy.

First Element

The existence of the conspiracy. The first element that the Government must prove beyond a reasonable doubt to establish the offense of conspiracy is that two or more persons entered the unlawful agreement charged in the Indictment. In order for the government to satisfy this element, it is not necessary that the alleged members of the conspiracy met together and entered into any express or formal agreement. Similarly, it is not necessary that the alleged conspirators stated, in words or writing, what the scheme was, its object or purpose, or every precise detail of the scheme, or the means by which its object or purpose was to be accomplished. What the Government must prove is that there was a mutual understanding, either spoken or unspoken, between two or more people to cooperate with each other to accomplish an unlawful act. The gist or essence of the conspiracy is the unlawful agreement to violate the law.

Since conspiracy is, by its very nature, characterized by secrecy, you may infer its existence from the circumstances of the case and the conduct of the parties involved. In the context of conspiracy cases, actions often speak louder than words. In determining whether an agreement existed here, one must consider the actions and statements of all of those found to be participants as proof that a common design existed on the part of the parties involved to act together to accomplish an unlawful purpose.

It is not necessary for the Government to prove, in the Racketeering Conspiracy count, that the ultimate objectives of the conspiracy were successfully accomplished. It is enough if the Government has proved that two or more persons -- in any way, expressly or impliedly – came to a common understanding to violate the law.

Second Element

Defendant’s membership in the conspiracy. The second element requires that the Government prove beyond a reasonable doubt that the defendant knowingly, willfully and voluntarily became a participant in or a member of the conspiracy. A person acts willfully if he acts intentionally and with the specific intent to do something that law forbids, that is to say, with the bad purpose to either disobey or disregard the law. One who intentionally joins an existing conspiracy is charged with the same responsibility as if he had been one of the originators or instigators of the conspiracy. The evidence must first show beyond a reasonable doubt that the conspiracy was knowingly formed, and that the defendant knowingly participated in the unlawful plan with knowledge of its unlawful purpose and with the intent to advance or further some objective or purpose of the conspiracy. Proof of a financial interest in the outcome of a scheme is not essential, but is a factor which may properly be considered in determining whether or not the defendant was a member of the conspiracy charged in the indictment.

The defendant’s mere presence at the scene of the alleged crime does not, by itself, make him a member of the conspiracy. The mere fact that a defendant was seen with one of the conspirators, associated with them, or was related to or had a friendship with one of them is, by itself, not enough to make him a conspirator.

Additionally, mere knowledge or acquiescence, without participation, in the unlawful plan is not sufficient. What is necessary is that a defendant must have participated with knowledge of at least some of the purposes or objectives of the conspiracy and with the intention of aiding in the accomplishment of those unlawful objectives.

In sum, the defendant, with an understanding of the unlawful character of the conspiracy, must have intentionally engaged, advised or assisted in it for the purpose of furthering the illegal undertaking. He thereby becomes a knowing and willing participator in the unlawful agreement – that is to say, a conspirator.

The extent of a defendant's participation in the conspiracy has no bearing on his guilt or innocence. Even if a defendant participated in a conspiracy to a degree more limited than that of another, he is equally culpable, so long as you find, beyond a reasonable doubt, that he deliberately and intentionally became a member of the conspiracy and participated in it. A conspirator's liability is not measured by the extent or duration of his participation in the conspiracy.

Further, it is not required that a person be a member of the conspiracy from its very start. Indeed, each member may perform separate and distinct acts and perform them at different times. Some conspirators play major roles, while others play minor parts in the scheme. An equal role is not what the law requires. Even a single act, if done willfully and to further the conspiracy, may be sufficient to draw a defendant within the circle of the conspiracy. In fact, the defendant need not have known the identities of each and every other member, nor need to been apprised of all of their activities.

Under the Pinkerton theory of liability, a conspirator “can be held responsible for the substantive crimes committed by his co-conspirators to the extent those offenses were reasonably foreseeable consequences of acts furthering the unlawful agreement, even if he did not himself participate in the substantive crimes.” US v. Romero, 897 F.2d 47, 51 (2d Cir. 1990)(quotation omitted), cert. denied, 498 US 1092 (1991); see also Rosario v. US, 164 F.3d 729 (2d Cir. 1998); US v. Masotto, 73 F.3d 1233 (2d Cir. 1996).

It is well settled law that a conspirator can be held liable for his co-conspirator’s substantive crimes if five elements are met. The five elements of the Pinkerton analysis are:

  1. The crime charged in the substantive counts was in fact committed;
  2. The person or persons the jury find actually committed the substantive crime were members of the conspiracy that the jury found to have been in existence;
  3. The substantive crime was committed pursuant to the common plan and understanding the jury found to exist among the conspirators;
  4. The defendant was a member of the conspiracy at the time the substantive crime was committed; and,
  5. The defendant could have reasonably foreseen the substantive crime committed by the co-conspirators.

US v. Salameh, 152 F.3d 88 (2d Cir. 1998).

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