In most white collar criminal cases, the government’s proof of the criminal mental state, or mens rea, is likely to be key to the jury’s determination of guilt or innocence. This is particularly true in conspiracy cases, where proof of the conspiratorial agreement itself will rest on evidence of the co-conspirators’ intent.
Courts have stated that conspiracy is a “specific intent” crime.88 Further, in a conspiracy case, the government must prove that the defendant possessed two levels of mens rea: (1) the intent to agree; and (2) the intent that the object [47/48]offense(s) be
committed.89 Recall that conspiracy and the object offense(s) are separate crimes, with distinct elements. Thus, specific intent is required for a conspiracy conviction, even in cases where the object crime could be proven based upon a lower level of mens rea, such as knowledge or recklessness.90
[A] Specific Intent
The general rule is that the government must prove both that the defendant (1) specifically intended to enter into the conspiratorial agreement, and (2) specifically intended that the object offense(s) be committed. Although the government must show that the defendant intended that the criminal objective be achieved, most courts hold that the government need not prove that the defendant specifically intended to violate the law. It is enough that the government prove that the defendant intended to agree and intended that the illegal act or acts be committed.91
Definitions of the term “specific intent” are notoriously imprecise.92 In the most common formulation in the conspiracy context, proof of specific intent requires, in the language of the Model Penal Code, proof that the defendant acted “purposely” — that is, that the defendant “consciously desire[d]” to achieve the criminal result.93 This high level of mens rea is appropriate with such inchoate crimes as attempt and conspiracy because the criminal harm has not come to pass, and society has an interest in assuring that only the guilty are punished.94
The government need not prove, however, that the defendant specifically intended that all the object crimes be committed, nor need the government prove that the defendant knew all the details of the object crimes. It is sufficient if the defendant knew of the general nature of the scheme and intended that some object offense or offenses be committed. For example, in United States v. Stavroulakis,95 the court affirmed the conviction for conspiracy to commit money laundering where the defendant believed that the money to be laundered came from gambling and not from narcotics sales; it was sufficient that the defendant intended to commit acts that fell within the statute. Also, the government need not prove that the defendant knew the identities of all the alleged co-conspirators, so long as the [48/49]defendant was
generally aware of the co-conspirators’ existence.96
Proof of specific intent to agree and proof of specific intent to effect the object crime(s) are often two sides of the same coin. Thus, in most cases, proof of intent to effect the object crime will also constitute proof of intent to enter into a conspiracy.
There is one typical case where there is a distinction between the intent to agree and the intent that the criminal objective be achieved — an undercover “sting” operation. Imagine, for example, a bribery sting targeting a corrupt legislator. A person is guilty of paying a bribe when that person pays off a public official with the understanding that the public official will perform an official act in return (the “quid pro quo”). In this scenario, the undercover government agent may agree, and intend to agree, with the legislator to pay the official an illegal bribe in return for a favor. Although the agent intends to enter into an agreement, the agent does not intend that the government official actually perform the quid pro quo. In fact, the undercover agent probably intends to arrest the targeted official before the target can do the official “favor.” Because the undercover agent does not have the mens rea to complete the object crime, there is no conspiracy under the bilateral approach to conspiracy
followed by federal courts.97
[B] “Knowledge” vs. “Specific Intent”
Two issues arise concerning knowledge and specific intent in conspiracy cases. First, is proof of specific intent always required, or may proof of knowledge suffice? Second, even assuming proof of specific intent is required, what is the burden on the government in making that showing?
As to the first issue, the federal cases use the imprecise term “specific intent.” There is some confusion in the case law over whether it is sufficient that the defendant acted with mere “knowledge” of the scheme’s illegality, or whether the defendant must have acted with purpose.98 A defendant acts “knowingly” when the defendant “is aware that it is practically certain that his conduct will cause [the criminal] result.”99
Because of the vague nature of the offense, courts should require proof that the defendant acted with purpose.100 In one illustrative case, the court reversed a conspiracy conviction where the government had proven that the defendant sold an ingredient merely knowing that the ingredient would be used to manufacture illegal whiskey.101 As the Second Circuit stated in that case, “[i]t is not enough that [49/50][the
defendant] does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome.”102 The court went on to note that the requirement of such heightened proof is essential to protect against unfairness: “The distinction [between mere knowledge and purpose] is especially important today when so many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.”103 Just three years later, however, the Supreme Court affirmed a conspiracy conviction in similar, although arguably distinguishable, circumstances.104 Thus, the case law remains somewhat muddled.
As to the second issue — the level of the required proof for specific intent — the cases show that distinguishing proof of “knowledge” from proof of “purpose” is not
easy. One court gave the following example: “Selling a camera to a spy [with mere knowledge of the camera’s illegal use] does not make one a traitor — but selling camera and film, developing the prints, enlarging the detail in the critical areas, and collecting half of the payment for the secret information [i.e., acting with the purpose that the crime be committed] would surely land one in prison.”105 Courts continue to struggle to establish the level of proof necessary to show purpose to engage in a conspiracy.
[C] Conscious Avoidance
At a minimum, the government should be required to prove both that the defendant knew of the illegal nature of the scheme and had the purpose to achieve the criminal objectives. If a person agrees to enter into a scheme, but deliberately avoids learning of the illegal nature of the scheme, is that person guilty of conspiracy? Most courts hold in the affirmative.106 In United States v. Svoboda,107 defendant Robles appealed his securities fraud conviction. At trial, the government alleged that Robles and his co- conspirator Svoboda illegally traded securities based upon secret information that Svoboda had stolen from his employer and had given to Robles. In defense, Robles claimed that he did not know that Svoboda had obtained the information illegally and therefore did not know of the alleged conspiracy’s illegal objectives. At the government’s request, the trial judge instructed the jury that it could find the requisite knowledge if it found that Robles [50/51]had deliberately avoided acquiring knowledge
of the information’s source.
On appeal, Robles argued that a conscious avoidance instruction is improper in a conspiracy case, particularly when there are only two alleged co-conspirators. According to this argument, the plurality requirement is not met unless the government proves that both co-conspirators had actual knowledge of the conspiracy’s illegal objectives. The Second Circuit rejected the argument. The court held that, where the facts support such an instruction, a conscious avoidance instruction is proper as to the knowledge prong of a conspiracy case.108
It is important to distinguish between the mens rea as to the agreement and the object crimes, on the one hand, and the jurisdictional elements of the crime on the other. In United States v. Feola,109 the Supreme Court held that the defendant need not have acted with specific intent as to the jurisdictional element of the object crime. In that case, the defendants were drug dealers charged with conspiring to assault a federal officer. The defendants agreed to attack the victim, who they believed was a drug buyer but who was actually an undercover federal agent. The defendants argued that, because they did not know the victim was a federal agent, they could not have acted with the specific intent or purpose to assault a federal officer.
The Supreme Court rejected the defendants’ argument, and held that it was sufficient that the defendants intended to achieve the desired criminal result, the physical harm to the victim. The Court noted that the victim’s status as a federal officer was not a substantive element of the crime but merely a circumstance element that provided federal jurisdiction. As to that jurisdictional element, the defendants were strictly liable, i.e., the government was not required to prove any mental state.110