01 August 2018

Conspiracy Theory

Let's say a bunch of dudes are sitting around one night drinking. They're bored. There's nothing to do in this town, they say. They want excitement.

"I know," one of the brighter lights, call him Danny, says, "Why don't we rob a casino vault?"*

"Hmmm. I don't know. Is it possible? What about all that security?" Several dudes pipe up.

"I have a plan," Danny says. "Who's in?"

Everyone agrees, all eleven of them. Danny lays out the plan, assigns specific roles and duties, and tells them the potential outcomes—jail if you're caught or eight figures if you get away with it. "Do the math."

The plan goes without a hitch until one of the group, call him Basher, can't get his hands on an electromagnetic pulse ("EMP") generator that the plan requires to create a blackout so the gang can, at least in theory, bypass casino security.

Danny is forced to call off the heist. And everybody goes home.

Question: Has Danny or any of his crew committed a crime? It's clear no robbery was committed. The plan failed.

The answer is yes. The entire gang, if caught, could face conspiracy charges. Conspiracy is a crime.

How so? They didn't do anything. They didn't break into any security systems or vaults. They didn't steal anything. It was just a bunch of guys being guys. They knew it was going to fail because it was so outlandish to begin with. They claim that it's not a crime if a bunch of screwballs colluded to advance a plan that was destined to fail in the first place and did, in fact, fail. How is that a crime? "Yeah, like where's my money?" Danny's eleven ask in unison.

Let me tell you.

The crime of conspiracy is defined as two or more persons conspiring to commit any sort of crime, together with proof of the commission of an overt act in furtherance of that plan by one or more of the parties to such agreement.

A bunch of dudes can agree to do anything they want. A potential charge of conspiracy is only triggered if what they agree to do is otherwise a crime—be it a bank heist, computer hacking, election fraud, RICO, money laundering, fraud, etc. In our little scenario, it was to rob a casino which, of course, is a crime.

But a potential charge of conspiracy is not triggered by a bunch of dudes sitting around a swimming pool drinking and talking like big shots. Yet, when Danny laid out his plan, they started down that road. And as soon as any one of the group did the first action in an effort to carry out that heist plan, it became a criminal conspiracy.

Let's say one of the gang, let's call him Linus, starts casing the casino, learning how things operate; or another member, call him Rusty, borrows and copies some detailed architectural plans to find out how to access the casino vault. Either of those things constitutes a specific overt act in furtherance of the plan. And when that happens, ALL ELEVEN can be charged with—and most likely convicted of—conspiracy to commit the crime of robbery.

It doesn't matter that Basher failed to carry out his task, or even that none of the rest of the guys actually did anything in furtherance of the plan, or that the group called off the plan, disbanded, and went their separate ways without carrying out the robbery. Their collusion and specific actions in furtherance of an agreed-upon plan constitutes the crime of conspiracy.

* Apologies to Steven Soderbergh

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