100 See United States v. Dimeck, 24 F.3d 1239, 1248 (10th Cir. 1994) (holding that “mere knowledge of illegal activity, even in conjunction with participation in a small part of the conspiracy” is not sufficient to establish that the participant knowingly joined the conspiracy).
101 United States v. Falcone,109 F.2d 579, 581 (2d Cir.), aff ’d, 311 U.S. 205 (1940).
102 109 F.2d at 581.
103 Id.
104 Direct Sales Co. v. United States, 319 U.S. 703 (1943) (finding a sufficient showing of intent where the defendant sold an ingredient knowing it would be used to manufacture illegal drugs). One commentator argued that Direct Sales differed from Falcone in that the sale in Direct Sales could only be used for illegal purposes, given the nature and quantity of the ingredient sold, but that the same could not be said about Falcone. See Sara N. Welling et al., Federal Criminal Law and Related Actions § 2.14[C] at 75–76 (1998 & Supp. 1999). See also United States v. Blankenship, 970 F.2d 283 (7th Cir. 1992) (finding an insufficient showing of intent where the defendant leased
property for a short period knowing it would be used for an illegal drug laboratory).
105 Blankenship, 970 F.2d at 286.
106 See, e.g., United States v. Lanza, 790 F.2d 1015, 1023–24 (2d Cir. 1986). For a discussion of “willful blindness” as meeting the mens rea requirement of “knowledge,” see supra, § 1.06[A][1].
107 347 F.3d 471 (2d Cir. 2003).
108 Id. at 479. Robles relied upon an earlier Second Circuit decision, United States v. Reyes, 302 F.3d 48 (2d
Cir. 2002). In Svoboda, the court found that the Reyes language upon which Robles relied was dictum, and in any event the language “simply means that just as actual knowledge of the illegal purpose of a conspiracy is insufficient to prove a defendant’s joinder in a conspiracy, so conscious avoidance of such knowledge is also insufficient. There must be further proof that the defendant joined in the illegal agreement with the intent of helping it succeed in its criminal purpose.” 347 F.3d at 479.
109 420 U.S. 671 (1975).
110 Id. at 696.
111 See Goode v. United States, 58 F.2d 105, 107 (8th Cir. 1932) (conspiracy is rarely susceptible to proof by direct evidence). For an example of the rare case where the agreement was reduced to writing, see United States v. Hay, 527 F.2d 990 (10th Cir. 1975), cert. denied, 425 U.S. 935 (1976).
112 943 F.2d 1246 (10th Cir. 1991).
113 See Pomerantz & Obermaier, supra note 6, at § 4.02[10].
114 483 U.S. 171 (1987). Three Justices dissented, arguing that it was unfair to the defendant to allow the conspiracy to be shown by evidence not wholly independent of the declarant’s hearsay statements. Although the Supreme Court did not reach the issue, most courts also require some evidence, apart from the co-conspirator’s statement, showing that the conspiracy existed. See, e.g., United States v. Lindemann, 85 F.3d 1232, 1239 n.4 (7th Cir. 1996); United States v. Silverman, 861 F.2d 571 (9th Cir. 1988). For an argument in support of this requirement, see Pomerantz & Obermaier, supra note 6, § 4.02[10].
115 See United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert. denied, 393 U.S. 913 (1968).
116 336 U.S. 440, 444 (1949).
117 The requirements for withdrawal are discussed infra § 3.12.
118 See, e.g., United States v. Holder, 652 F.2d 449, 451 (5th Cir. 1981).
119 See supra § 3.04.
120 See Pomerantz & Obermaier, supra note 6, § 4.02[7], p. 4-30.
121 See Krulewich, 336 U.S. at 454 (Jackson, J., concurring) (“A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its merits in the minds of jurors who are ready to believe that birds of a feather are flocked together.”).
122 See United States v. Morrow, 39 F.3d 1228, 1235 (1st Cir.1994), cert. denied, 514 U.S. 1010 (1995).
123 See United States v. Lane, 474 U.S. 438, 446 n.8 (1986) (misjoinder may violate due process right to a fair trial where the prejudice is sufficient).
124 See Fed. R. Crim. P. 29(a) (motion to acquit at the end of the government’s case); Fed. R. Crim. P. 29(b) (motion for acquittal notwithstanding the verdict).
125 See Developments in the Law, supra note 25, at 982.
127 328 U.S. 750 (1946).
128 Id. at 754–55.
129 332 U.S. 539 (1947).
130 Id. at 559.
131 See Dressler, supra note 10, § 29.07[C][3], [D][4]. Not all conspiracies neatly fall into the “wheel” or “chain” categories; some will evince characteristics of each type. See id. at 414, citing United States v. Bruno, 105 F.2d 921 (2d Cir.), rev’d on other grounds, 308 U.S. 287 (1939).
132 39 F.3d 1228, 1234 (1st Cir. 1994).
133 Large conspiracies based upon loose connections among defendants are frequently charged in narcotics cases, and courts generally sustain such charges. See, e.g., United States v. Briscoe, 896 F.2d 1476 (7th Cir. 1990);
United States v. Vanwort, 887 F.2d 375 (2d Cir. 1989), cert. denied, 495 U.S. 910 (1990).
134 96 F.3d 1511 (D.C. Cir. 1996).
135 Id. at 1520.
136 See Benjamin M. Dooling & Marissa A. Lalli, Federal Criminal Conspiracy, 47 Am. Crim. L. Rev. 561,
575–76 (2010).
137 328 U.S. at 771.
138 Id. at 772.
140 See William H. Theis, The Double Jeopardy Defense and Multiple Prosecutions for Conspiracy, 49
SMU L. Rev. 269, 287 (1996) (referring to the Kotteakos holding as “a perennial beacon of false hope for the criminal defense bar”).
141 39 F.3d at 1235.
142 Id. at 1236.
143 See, e.g., United States v. Smith, 82 F.3d 1261 (3d Cir. 1996) (rejecting the argument that there was one single conspiracy).
144 450 U.S. 333, 338 (1981).
145 317 U.S. 49, 53 (1942).
146 328 U.S. 640 (1946).
147 See Id. at 648 (Rutledge, J., dissenting).
148 Although some cases have stated to the contrary, see Welling et al., supra note 36, § 4.5 n. 14, the defendant should not be held liable for substantive offenses committed after the defendant has withdrawn from the conspiracy. See infra § 3.12.
149 Pinkerton, 328 U.S. at 647–48. See generally Welling et al., supra note 104, § 4.5; Dressler, supra note
10, § 30.08[B].
150 See, e.g., United States v. Tilton, 610 F.2d 302, 309 (5th Cir. 1980) (liability for mail fraud based upon conspiracy to commit mail fraud).
151 See cases cited in United States v. Alvarez, 755 F.2d 830, 850 n.24 (11th Cir. 1985), cert. denied, 474 U.S. 905 (1987).
152 For an expansive application of the Pinkerton doctrine in a non-white collar case, see United States v.
Alvarez, 755 F.2d 830, 850 (11th Cir. 1985) (conceding perhaps “an unprecedented application of Pinkerton,” the court affirmed the second-degree murder convictions of defendants in a drug conspiracy case who were uninvolved in and had no knowledge of the circumstances leading to the homicides). But see United States v. Cherry, 217 F.3d 811, 817 (10th Cir. 2000) (declining to expand Pinkerton liability to include reasonably foreseeable but originally unintended substantive crimes).
153 Thus, the Model Penal Code rejects Pinkerton liability. See Model Penal Code § 2.06 commentary.
154 610 F.2d 302 (5th Cir. 1980).
155 Id. at 309.
156 See, e.g., United States v. Valles-Valencia, 811 F.2d 1232 (9th Cir.), amended by 823 F.2d 381 (9th Cir.
1987).
157 469 U.S. 57 (1984).
158 811 F.2d 1232 (9th Cir. 1986). The initial opinion noted that there were two circumstances when acquittal of co-conspirators did not require reversal: (1) when the government presents substantial evidence that the defendant conspired with unindicted or unnamed co-conspirators; and (2) when the judgment as to the defendant is not based upon the merits, as with a hung jury. Id. at 1239.
159 20 F.3d 974 (9th Cir. 1994).
160 See, e.g., Robertson v. Klem, 580 F.3d 159 (3d Cir. 2009); United States v. Loe, 248 F.3d 449 (5th Cir.
2001). See generally Dooling & Lalli, supra note 136, 492–93, and cases cited therein.
161 See, e.g., United States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992); United States v. Levario, 877 F.2d
1483, 1486 (10th Cir. 1989). Note that Powell involved inconsistent verdicts as to crimes allegedly committed by a single defendant. Some have argued that the Powell reasoning does not apply to conspiracy cases, in which there are inconsistent verdicts as to different defendants. See United States v. Andrews, 850 F.2d 1557, 1570 (11th Cir. 1988) (en banc) (Clark, J., dissenting).
162 See Krulewitch v. United States, 336 U.S. 440, 442–43 (1949) (the hearsay exception does not apply where statement was made after the conspiracy ended).
163 Id.
164 537 U.S. 270 (2003).
165 127 F.3d 791 (9th Cir. 1997), abrogated by United States v. Jimenez Recio, 537 U.S. 270 (2003).
166 537 U.S. at 272.
167 Id. at 274.
168 Cf. United States v. Wallach, 935 F.2d 445, 470–71 (2d Cir. 1991) (impossibility of completion of object offense is not a defense to conspiracy charge).
169 See United States v. Gonzalez, 797 F.2d 915, 916 (10th Cir. 1986); Roger Spaeder & Gary Weinfeld, Effective Withdrawal from a Business Conspiracy, 9-SPG Crim. Justice 8-9 (1994).
170 See United States v. Steele, 685 F.2d 793 (3d Cir.), cert. denied, 459 U.S. 908 (1982); United States v.
Read, 658 F.2d 1225, 1232–33 (7th Cir. 1981).
171 See Dooling & Lalli, supra note 136;; Spaeder & Weinfeld, supra note 169, at 8-9.
172 See United States v. Patel, 879 F.2d 292, 293 (7th Cir. 1989), cert. denied, 494 U.S. 1016 (1990).
173 438 U.S. 422, 464–65 (1978).
175 See Spaeder & Weinfeld, supra note 169, at 11.
176 685 F.2d 793 (3d Cir.), cert. denied, 459 U.S. 908 (1982).
177 685 F.2d at 803–04.
178 974 F.2d 246 (2d Cir. 1992), cert. denied, 507 U.S. 1029 (1993). See also United States v. Lowell, 649 F.2d
950, 958 (3d Cir. 1981) (after defendant terminated his employment he participated in the conspiracy by warning co- conspirators of the government investigation).