*3
FAY,
Before
HATCHETT,
dryer;
RUBIN and
washer and
agent
DEA
asked
Judges.
Circuit
Cifarelli who Alvarez was
said
and Cifarelli
Trevino, 5 Cir.
smiled, agent DEA if he was and asked the prosecutors Federal have often side going plane. agent on the The said he was. necessity seeking the answer stepped the conversation, After Alvarez unloaded in question by charging to this defendants from the appliances the household truck. criminal volved in crime with a different Cruz, and, agent spoke The then with after offense, prose joinder in a plans Cruz outlined his for arrival of the charge any completed cution need not even plane unloading, and its all were arrested. the crime of offense because *4 itself, treating condemns the all I. participants equally. Conspiracy also “col Society against protected mis accessories lapses the distinction between only guilty major creants if those of roles in perpetrators” through the doctrine of prosecuted. crime are Criminal ventures punishes conspiratorial complicity, which may complex. perpetrator be of trans any in conspirators principals as substantive gression may require help: before the crime offense committed in furtherance it; planning during to assist in the course directly conspiracy, they whether or not activity executing of his criminal to aid in it participated Fletch in that offense. See G. scene; escaping and in from the after the Law, 8.8.1, er, Rethinking Criminal at § him, completed, event is to conceal or to See, (1978). g., v. United e. Pinkerton avoiding assist him in detection or States, 1946, U.S. concealing against the loot or the evidence Thus, conspiracy is L.Ed. 1489. if a Therefore, him. accessories to criminal acts charged, prosecution analyze need not the were themselves considered criminals conspirator’s actions whether a defendant the common law. lia ordinarily would be sufficient to create Federal statutes continue at least offense; bility an all that is as an abettor of part pattern. of this Thus law federal necessary proof is that the defendant makes it criminal to and abet aid another in agreement. in an unlawful although general crime there is no feder al against attempts, statute criminal solici By eliminating the distinction be accessories, tation or participation perpetrators accessorial before the tween crimi crime.2 Criminal responsibility abetting conspiracy for nalization of eradicates common- “ distinguish a crime that a defendant ‘associ law and theoretical methods of venture, ate with partic ing degree liability partici himself the of various of ipate in it in something pants enterprises. that he wishes to in criminal G. See about, bring Fletcher, supra that he seek his action to at 8.5-8.8. Those who §§ Hand, J., committing make it succeed.’ an of supply L. United the means of Peoni, Cir., although may States 402.” those means be avail fense — States, 1949, Nye & Nissen v. for the United able elsewhere —become as liable 613, 619, 766, 770, actually offense as commit it if those (emphasis supplied). participants they United States v. are viewed as in the con- against provides: another would be an offense the Unit- 1. 18 U.S.C. 2§ States, principal. punishable ed is as a Principals 2.§ (a) Whoever commits an offense on Reform of Fed 2.SeeNational Commission aids, abets, counsels, United States or com- Laws, Study Draft of a New Fed eral Criminal mands, commission, procures induces or its Code, eral 1001 & comments §§ Criminal punishable principal. as a p. (1970). at 64 & (b) willfully Whoever causes an act to be directly performed done which if him or Thus, an plicity in unconsummated power- can be a criminal act. spiracy. shown, we prosecuting ful for accessories to Under the facts decline to affirm weapon proscription of the federal con- crime.3 use of spiracy. In the before us the has case
chosen
indictment
The use of
as a
device
path
prosecuting
Alvarez’s
com-
punishing
minor actors
criminal
case,”
(1972).
prosecution-tilted
typical
3.
Law
“In a
as Professor Fletcher
These
as-
§
points out,
pects
charge
“the
knows
defendant
of
of
include:
activity by
group
itself;
persons
vagueness
of
and nonetheless
the inherent
of the crime
id.;
Harno,
provides
knowledge
Conspiracy,
service with
his ser-
Intent in Criminal
illegal activity.”
(1941);
vice will facilitate the
G.
89 U.Pa.L.Rev. 624
see also Krulewitch
Fletcher,
8.8.1,
States, 1949,
440, 445,
supra,
674. This mutation
J.,
responsibility
conspiratorial
(Jackson,
of
into
accessorial
concurring);
simply
does
connivance
not result
from confu-
sion, prosecutorial
jurisprudential.
conspiracy charge
It is eas-
the ambit the
affords
introduce,
prove
charge
co-conspirator
ier
than to
the basis
guilt
exception,
establish
the familiar accessorial
be
evidence that would otherwise
hearsay;
Fed.R.Evid.;
801(d)(2)(E),
crimes.
Rule
courts,
disposition
prove aiding
abetting may
of all
our own includ
To
be difficult.
ed, to admit circumstantial evidence on some
completed
There
can
no abettor without a
States,
what relaxed
standards
relevance on
crime. See Hendrix v. United
971, 975;
rationale that
the clandestine nature
United States v.
unprovable
any
Hyatt,
crime
makes
other fash
F.2d
To
ion; see,
States,
g.,
guilt
prosecution
e.
accessory,
Blumenthal v. United
anof
*5
1947,
539, 557,
248, 256,
332 U.S.
68 S.Ct.
92
that a crime has been committed. Shut
154, 168;
Partin,
1963,
262,
Birmingham,
v.
tlesworth v.
United States
5 Cir.
373 U.S.
1130,
1977,
621, 634,
denied,
justi
83
F.2d
S.Ct.
10
552
cert.
434 U.S.
L.Ed.2d 335. When the
903,
298,
189;
fied intervention of
98 S.Ct.
54 L.Ed.2d
United
law enforcement officers
offense,
606,
planned
Harrell,
1970,
may
aborts the
there
no
States v.
436
612
be
5 Cir.
F.2d
way
prosecute anyone
7,
remand,
proposed
appeal
655,
join
to
& n.
to
after
458 F.2d
cert.
it,
committing
denied, 1972,
accessory,
846,
49,
in
mastermind or
409
34
U.S.
93 S.Ct.
by charging
86;
conspiracy.
save
L.Ed.2d
and
possibility
charge
attempt
utility
Nor
possible
does the
anof
of
the additional count in
always provide
satisfactory
plea
for,
bargaining,
a
alternate basis
from
defense stand-
prosecuting
point, may
gain
would-be accessories. Aside
it
attractive
of
dismissal
general
from the absence of
against attempts, proof
pleading only
a
federal statute
substantive counts while
attempt,
hand,
prosecu-
of an
even
On the other
exists,
statutory
willingly
may
instances where
plea bargain
warrant
is
tion
make such a
knowledge
difficult. It
may
conduct that
impose
is a substan
that
the court
a
step
crime, usually
tial
long
likely impose
toward
commission
sentence as
as it would
(18
the commencement of a
crime
act direct
the substantive count or counts.
U.S.C.
ly dangerous
protected by
$10,000
permits
year
to interests
law.
371
a five
sentence and
Oviedo,
1976,
fine.)
See United States v.
5 Cir.
881;
Mandujano,
F.2d
attempting
conspiracy’s
States v.
5 Cir.
In
to understand
use
1974,
370,
denied,
1114,
499 F.2d
prosecuting accessories,
cert.
419 U.S.
a means
we do
792,
812;
depreciate
S.Ct.
see
L.Ed.2d
also United
not
the seriousness of the offense
Jackson,
1977,
112,
States v.
law,
2 Cir.
itself. As defined in federal
a criminal
941,
434,
cert.
agreement
denied
U.S.
S.Ct.
is an
to commit an of
L.Ed.2d 301.
fense
the United States.
18 U.S.C.
conspiracy punishes
Criminalization of
§ 371.
It
established lore that combination
by prosecuting
agreement
inchoate offense
itself,
inherently
dangerous
to commit crimes is
more
separating
stigmatizing jointly
plan
and
person
than the
of one
alone.
Concert
activity prior
comple-
criminal
likely.
to its
action makes criminal success more
tion.
may
pre
Commitment
to confederates
itself
Moreover,
practical
change
there are
reasons
vent a
See United
heart.
States v.
charge
Feola, 1975,
671, 693-94,
a
even if a substantive crime
420 U.S.
95 S.Ct.
1255, 1268,
has been committed.
Indictment on both the
ing
culpability of criminal
as in most crimi
conspiracy,
In
Its
separate
it is a
substantive offense.4
acts,
not at its unlawful
an element of the offense.
prohibition is directed
nal
intent is
agreeing
object,
process
is, however,
but at the
complex
more
be
Conspiracy
object. “Conspiracy
is an in
pursue
two elements of intent
cause it
involves
offense,
of which is an
choate
the essence
party
each other: each
that shade into
commit an unlawful act.”
agreement
agreement
have intended to enter into the
1975,
770,
States,
Iannelli
v. United
the schemers must have had a common
616;
777,
1284, 1289,
43 L.Ed.2d
S.Ct.
unlawful act.
intent
to commit an
See
1979,
Conroy,
5 Cir.
Harno,
at 631. There
supra, 89 U.Pa.L.Rev.
1269,
1258,
cert. denied, — U.S. —,
F.2d
may
practical purpose
often
be no
distin
60,
4. have not a Civil-law countries criminal, comparably conspiracy. of ments to do unlawful acts broad doctrine 846; general “European frequently U.S.C. federal criminal § make con- but the criminal codes agree- conspiracy requires proof aggravating penal- of an act both certed action a basis for crimes, of it. 18 completed ment and an overt act in furtherance ties but substantive not, however, The overt act need complet- U.S.C. 371. when no substantive offense has been any danger ed, pro- be criminal in nature or create only types conspiracies certain of are if, society; it suffices however the victim or notably those directed the se- scribed — innocent, the criminal venture. state, the act furthers curity involving many partic- those prerequisite the existence of a The essential committing ipants organized purpose for the of any agreement be- is in event an contemplating par- numerous crimes and those persons. Iannelli v. United tween two or more Comment, ticularly Devel- serious offenses.” 1284, States, 1975, 770, 95 S.Ct. 420 U.S. opments Conspiracy, in the Law —Criminal Comment, The Role of Joint L.Ed.2d 616. See (1959). Harv.L.Rev. Establishing Conspiratorial Agree- in Endeavor ment, Utah L.Rev. 133. albeit, party a people logical, supplier do is was but of which the had What circumstantial, 210, lies in knowledge.” evidence of what no at 311 U.S. at somewhat, Extending 207, this mind. L.Ed. at 132. their person’s considered that have also courts Appeals In the of opinion Court concerning an inference might acts create affirmed, had, thus Judge Learned Hand Therefore, agreed to do. what he has style, placed with characteristic a touch component an overt act is a not whether or stone to mark quality the fundamental statute, an as defined of the offense co-conspirator: in some “[H]e join a criminal agreement promote himself, sense their venture make performance from the may inferred be own, it his in have a stake its outcome.” eviden purpose. its This acts that further 109 F.2d at Partnership 581. in profits permitted to ob tiary not be rule should of the criminal venture essential but prove, an is admitted scure what - the defendant must least have demon- can agreement sans there agreement, for further, promote strated an intent “to and Note, in the Developments no conspiracy. cooperate illegal in” activity. Direct Conspiracy, 72 Harv.L.Rev. Law—Criminal States, 1943, 703, Sales United 319 U.S. Therefore, if a con (1959). even 63 S.Ct. In established, spiracy parties two between Direct Sales inference both of the that every person not a third assists act of join and the intent in it were objective in accomplishment based on the facts that controlled sub- is a sufficient to dem basis (not commerce) stance article free agreement. his that concurrence onstrate sold, being high pressure was sales methods In leading case of employed, buyer’s purchases were were Falcone, 579, aff’d, frequent, repeated and abnormal in size and systematic the evidence showed pro- jobbers the Second Circuit held that longed cooperation physician sup- with a sugar distributors of did not become ply him with his stock trade for illicit members to distill enterprise. This was sufficient to show spirits by knowingly sugar, selling yeast that the seller had “both mind and cans were used to make the alco- purchaser hand” with the hol. Court, Supreme Before the It also showed a “stake the venture” conceded that conviction of which was not an essential element conspiracy could not rest “on proof alone of proof, but was not irrelevant. A mere knowingly supplying distiller, an illicit promise, however, to do some act is not conspiring with In others. such a might embryonic assist an conspiracy in case, concedes, as the Government the act achieving yet its unconsummated criminal of supplying or some other proof must im- *7 end does not of itself beyond demonstrate port agreement an or concert action be- reasonable promisor doubt that the knows seller, buyer tween and admittedly which is agreed join and has to present 207, not here.” 311 at 61 U.S. S.Ct. it. 205, at at govern- 130. Instead the While “a is seldom ment that contended one who with knowl- ” at,’ ‘open openly born of covenants arrived edge of a conspiracy conspirator sells to a is States, 1968, Lacaze v. United 5 Cir. 391 guilty himself of the conspiracy. Finding 516, 520, proof that must be the evidence F.2d there showed no more than purpose plan,” sup knowledge (emphasis of illicit use “common of the materials sold, Supreme prove to plied), joined Court affirmed that a defendant has dismissal, James, Second Circuit’s saying conspiracy. in a States v. 5 “Those United having knowledge 1976, 999, no 1010-11, are 528 F.2d cert. de Cir. .; not conspirators . nom., . one 959, nied sub 429 97 382, S.Ct. 50 without supplies more furnishes to an L.Ed.2d 326. It illicit is necessary prove not to guilty distiller that conspiracy even defendant knew either the entire though may have his sale furthered the scope scheme; all the details of the object conspiracy to which the distiller need be shown only that he knew its essen-
1257
join
States,
plan.
to
in the unlawful
v.
evidence
tial nature. Blumenthal
United
539,
248,
1947,
presented
jury
permits
332 U.S.
S.Ct.
in this case
154;
1973,
Musgrave,
v.
5 Cir.
United States
that
only by
long
conclusion
chain of
U,S.
denied,
1023,
327, cert.
483 F.2d
compounded inferences:
that Alvarez knew
315;
447,
38 L.Ed.2d
afoot;
illegal activity was
that Alvarez in-
1971,
940,
Quinn, 2 Cir.
445 F.2d
cert. de
illegal cargo upon
tended to unload
850,
87,
nied,
404 U.S.
L.Ed.2d
return;
plane’s
Alvarez,
therefore,
that
agreement
knew of an
between others to
essential, nonetheless, that the
It is
that,
import
illegal cargo;
conse-
beyond
prosecution show
reasonable doubt
quently, Alvarez must have
that ille-
deliberate,
the defendant had “the
gal agreement.
proof only
There is direct
join
knowing, specific
conspir
intent to
of Alvarez’s intentions. That he knew the
Morado,
1972,
acy.” United
States
activity was criminal is a reasonable infer-
denied,
917,
454 F.2d
cert.
406 U.S.
logical
ence. The other two conclusions are
1767,
JOHNSON, Jr., HATCHETT, POLITZ, AN-
REAVLEY, TATE, RANDALL, D.
DERSON, SAM CLARK, A. and THOMAS
JOHNSON Judges.
Circuit
BY THE COURT: ser- majority Judges in active
A motion,
vice, having on the Court’s own en case reheard
determined to have this
banc,
IT IS ORDERED that this cause shall
be reheard en banc the Court en banc
on briefs without argument oral on a
date hereafter to be fixed. The Clerk
will specify a briefing schedule for the
filing supplemental briefs. said, “Therefore, addressing Sensing perhaps the court we evi- the weakness of its acquittal dence, judgment at the government the first time would move for a raised for was after argument evidence.” This that Alvarez had end of all of the oral the claim defense, put judge’s Alvarez’s right his after Alvarez had on waived his to review of the trial thought acquittal intend- judgment he counsel said denial of his motion for a rebuttal, put and after the failing on witnesses renew motion at the close of ed said, you your motion out “I’ll let make from the fact that the court all the evidence. Aside (sic) having been belatedly them and consider that we would not of turn issue was raised so government’s it,' argument appears case.” usually at the end of to be renewed consider record, (Obviously referring page close of the evi- for at based failure to read the *9 Alvarez, dence.) transcript, 148 of the trial counsel