Xref: utzoo comp.sys.amiga:73128 misc.legal:22972 alt.censorship:1051 Path: utzoo!attcan!utgpu!news-server.csri.toronto.edu!rutgers!usc!wuarchive!uunet!world!eff!mnemonic From: mnemonic@eff.org (Mike Godwin) Newsgroups: comp.sys.amiga,misc.legal,alt.censorship Subject: Re: Conspiracy law. Keywords: Why is this being distributed to comp.sys.amiga? Message-ID: <1990Dec2.171423.15633@eff.org> Date: 2 Dec 90 17:14:23 GMT References: <21727@well.sf.ca.us> <1990Nov20.131334.21651@eff.org> <21904@well.sf.ca.us> Distribution: usa Organization: The Electronic Frontier Foundation Lines: 79 In article <21904@well.sf.ca.us> mingo@well.sf.ca.us (Charles Hawkins Mingo) writes: > > For example, mere talk is good enough. In US v. Amore, 363 F.2d 385 >(2nd Cir. 1966) cert den. 385 U.S. 957, the act of warning a co-conspiritor >of the risks attendant in carrying out the contemplated criminal act (distrib- >uting counterfeit currency) was deemed sufficient. Accord, US v. Smith, 92 >F.2d 460 (9th Cir. 1937)(placing telephone calls sufficient). But this is a different kind of talk. It is talk that is not discussion of the conspiracy, but talk that is an act in furtherance of the conspiracy. I do not dispute, of course, that talk can be an act. But these cases don't support the thesis that the discussion of the conspiracy is itself the overt act. I hope it was clear in my earlier discussion that, while many things qualify as an overt act, there are still some limits on the scope of conspiracy law. Just barely. > I only mention this to rebut the notion that, somehow, because you >have only discussed something, you cannot be found to have conspired. I don't think you have rebutted this notion, actually. A "warning" is not a discussion, nor is the "placing of a phone call." One can imagine warnings that involve no language at all; clearly, it was the act of warning that constituted the overt act, not the fact that words were used. Similarly, the placing of phone calls would be an overt act for conspiracy purposes even if the calls were not completed, or if no one was home on the other end of the line. The cases you cite are not cases of "mere discussion." A good treatment of the distinctions required for proper analysis of the "overt act" requirement appears in CRIMINAL LAW 2d, LaFave and Scott (1986), pp. 547-549. In that section, they quote the following instructive language: "The function of the overt act in a conspiracy prosecution is simply to manifest 'that the conspiracy is at work,' * * * and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence." Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064 (1957). Professor LaFave then states explicitly, "Thus the overt act may be the substantive offense which was the object of the conspiracy, but may not be simply a part of the act of agreement." CRIMINAL LAW 2d, page 548. I'm sure you don't mean to dispute Professor LaFave's statement of the law, do you, Charles? I have found that it helps clarify one's thinking on the elements of a conspiracy to read some philosophy of language: John Searle's SPEECH ACTS is a good analysis of the kinds of ways language can be used above and beyond the act of communication Similarly, one finds in the law evidence extensive discussion of linguistic acts (particularly in the discussions of exceptions to the hearsay rule). > BTW: I stand corrected: "unilateral conspiracy" is exclusively a state >law concept (although it has been included in proposals for a Federal >Conspiracy Statute). One can only hope that the federal law of conspiracy, already overbroad (See Jackson, Krulewitch v. U.S., 336 U.S. 440, 69 S.Ct. 716), is not further expanded by such an amendment to 18 USC 371. --Mike -- Mike Godwin, (617) 864-0665 |"If the doors of perception were cleansed mnemonic@eff.org | every thing would appear to man as it is, Electronic Frontier | infinite." Foundation | --Blake