Part II: Offenses Codified in the Michigan Penal Code
“Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy[.]” MCL 750.157a.
•M Crim JI 10.1 addresses conspiracy.
•M Crim JI 10.2 addresses agreement as it relates to conspiracy.
•M Crim JI 10.3 addresses membership as it relates to conspiracy.
•M Crim JI 10.4 addresses scope as it relates to a defendant’s liability for the acts of other members of a conspiracy.
MCL 750.157a(a)-(d) set forth the following penalties for conspiracy convictions:
“(a) Except as provided in paragraphs (b),[1] (c), and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he [or she] had been convicted of committing the crime he [or she] conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed.
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(c) If commission of the offense prohibited by law is punishable by imprisonment for less than 1 year, except as provided in paragraph (b), the person convicted under this section shall be imprisoned for not more than 1 year nor fined more than $1,000.00 or both such fine and imprisonment.
(d) Any person convicted of conspiring to commit a legal act in an illegal manner shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $10,000.00, or both such fine and imprisonment in the discretion of the court.”
In Michigan, “the statutory crime of conspiracy can be established in one of two ways: by proof that two or more persons have agreed to do an act that is in itself unlawful, or by proof that two or more persons have agreed to do a legal act using illegal means.” People v Seewald, 499 Mich 111, 118 (2016). The statutory language of MCL 750.157a clearly proscribes two forms of conspiracy. Seewald, 499 Mich at 118.
The crime of conspiracy is “complete upon formation of the agreement,” and “it is not necessary to establish any overt act in furtherance of the conspiracy.” People v Carter (Alvin), 415 Mich 558, 568 (1982), overruled in part on other grounds by People v Robideau, 419 Mich 458 (1984).2 An agreement may be proved by circumstantial evidence; direct proof of the agreement is not required. Carter (Alvin), 415 Mich at 568. Further, a conspiracy can exist without a formal agreement. Id. An agreement in fact is sufficient and may be proved by circumstances, acts, and conduct of the parties. Id. Because the crime of conspiracy is complete upon formation of the agreement, “[t]he guilt or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy.” Id. at 569.
“In general, each conspirator is held criminally responsible for the acts of his associates committed in furtherance of the common design, and, in the eyes of the law, the acts of one or more are the acts of all the conspirators.” People v Grant, 455 Mich 221, 236 (1997). To be convicted of conspiracy, a defendant need not “know the full scope of the conspiracy or participate in carrying out each detail.” Id. at 236-237 n 20. Nor does a conspiracy conviction require the defendant to be acquainted with or know the exact part played by each of his or her coconspirators. Id. at 236 n 20.
“Wharton’s Rule operates as a substantive limitation on the scope of the crime of conspiracy . . . .” People v Weathersby, 204 Mich App 98, 107 (1994). See also Carter (Alvin), 415 Mich at 570-571. Wharton’s Rule “provides that an agreement by two persons to commit a crime cannot be prosecuted as a conspiracy where the target crime requires the participation of two persons.” Id. “The rule does not apply where the number of alleged coconspirators exceeds the number necessary to commit the target crime, or where the Legislature intends to impose separate punishment for the conspiracy aspect of the target crime[.]” Id. (citations omitted).
Wharton’s Rule does not apply to a conspiracy-to-deliver offense involving only two persons because simple delivery of a controlled substance to another person “does not necessarily require the cooperative acts of more than one person[.]” People v Betancourt, 120 Mich App 58, 65 (1982) (quotation and citation omitted).
Conspiracy is a two-fold specific intent crime:
•the defendant must intend to combine with others; and
•the defendant must intend to accomplish the illegal objective. Carter (Alvin), 415 Mich at 568.
Because there can be no conspiracy without a combination of two or more persons, the prosecution must prove that both the defendant and at least one other person had the required specific intent. People v Anderson (James), 418 Mich 31, 35 (1983); People v Williams (Charles), 240 Mich App 316, 325 (2000). Thus, where only one person can be shown to have had the mens rea to commit an illegal act, no conspiracy exists. See People v Barajas, 198 Mich App 551, 559 (1993), aff’d 444 Mich 556 (1994)3 (no conspiracy to deliver over 650 grams of cocaine was found where the defendant’s coconspirator intended to defraud the defendant at the time the criminal agreement was made, by planning to deliver baking soda in place of most of the cocaine).
The rule barring a one-person conspiracy is commonly used to prevent inconsistent verdicts where coconspirators are tried jointly by a single fact finder for a conspiracy in which no additional persons are implicated. Under the rule barring a one-person conspiracy, a verdict finding one coconspirator guilty but not the other requires a judgment of acquittal as to both coconspirators. Williams (Charles), 240 Mich App at 325, quoting Anderson (James), 418 Mich at 36.
However, the rule barring a one-person conspiracy does not apply under the following circumstances:
•Where the defendant and his or her coconspirator are tried separately, an acquittal in one case does not require acquittal in the other. Anderson (James), 418 Mich at 38.
•Where the defendant and his or her coconspirator are tried jointly, but with separate fact-finders, an acquittal in one case does not require acquittal in the other. People v Jemison, 187 Mich App 90, 93 (1991).
•There was sufficient evidence to support the defendant’s conspiracy conviction despite the fact that the conspiracy charges against a coconspirator were dismissed in exchange for a guilty plea to a different offense. See People v Turner, 86 Mich App 177, 182-183 (1978), vacated 407 Mich 890 (1979) and People v Turner (On Remand), 100 Mich App 214, 217 (1980).4
•Where a coconspirator is granted immunity from prosecution in exchange for his or her testimony against the defendant, the defendant’s conviction need not be set aside. People v Berry, 84 Mich App 604, 607 (1978).
A defendant may become a member of an already existing conspiracy by cooperating knowingly to further the object of the conspiracy. People v Blume, 443 Mich 476, 483-484 (1993) (citations omitted). “Mere knowledge that someone proposes unlawful action alone is not enough to find involvement in a conspiracy[.]” Id. at 484. Rather, intent5 must be proven: “the defendant must know of the conspiracy, must know of the objective of the conspiracy, and must intend to participate cooperatively to further that objective.” Id. at 485. However, “[i]t is not necessary to conviction for conspiracy that one must have knowledge of its inception or of all its many ramifications. One who joins in a criminal conspiracy after it has been formed is as guilty as though he [or she] were an original conspirator.” People v Ryan, 307 Mich 610, 612 (1943).
A conspiracy “continues until the common enterprise has been fully completed, abandoned, or terminated.” People v Martin, 271 Mich App 280, 317 (2006) (quotation marks and citation omitted). In fact, “[a] conspiracy may continue even after the substantive crime which was the primary object of the conspiracy is complete until financial and other arrangements among the conspirators are also complete.” People v Centers, 141 Mich App 364, 374-375 (1985), rev’d in part on other grounds 453 Mich 882 (1996).6 However, subsequent acts taken for the purpose of concealing the conspiracy’s crime do not show a continuation of the conspiracy. See Grunewald v United States, 353 US 391, 401-402 (1957); Centers, 141 Mich App at 375.
Withdrawal is not a defense to the crime of conspiracy under MCL 750.157a. People v Cotton, 191 Mich App 377, 393 (1991). “[W]ithdrawal from the conspiracy is ineffective because the heart of the offense is the participation in the unlawful agreement.” Id. See also People v Jahner, 433 Mich 490, 510 (1989) (The Court stated, in dicta, that “[t]he crime of conspiracy is complete ‘upon formation of the agreement,’ Carter (Alvin), 415 Mich at 568, and it has been held that a withdrawal after this point is ineffectual. People v Juarez, 158 Mich App 66, 73 (1987).”). But see People v Denio, 454 Mich 691, 710 (1997), quoting United States v Castro, 972 F2d 1107, 1112 (CA 9, 1992), overruled on other grounds by United States v Jimenez Recio, 537 US 270 (2003) (noting, in dicta, that “[t]he crime of conspiracy is a continuing offense; it ‘is presumed to continue until there is affirmative evidence of abandonment, withdrawal, disavowal, or defeat of the object of the conspiracy’”).
5.Elements of Conspiracy to Possess With Intent to Deliver a Controlled Substance
“To be convicted of conspiracy to possess with intent to deliver a controlled substance, the people must prove that (1) the defendant possessed the specific intent to deliver the statutory minimum as charged, (2) his [or her] coconspirator possessed the specific intent to deliver the statutory minimum as charged, and (3) the defendant and his [or her] coconspirator possessed the specific intent to combine to deliver the statutory minimum as charged to a third person.” People v Hunter, 466 Mich 1, 6 (2002), quoting People v Justice (After Remand), 454 Mich 334, 349 (1997).
The jury must be instructed that the defendant conspired to deliver the amount of the controlled substance alleged in the underlying offense; that the defendant conspired to deliver an unspecified amount of a controlled substance is not sufficient. People v Mass, 464 Mich 615, 639 (2001). Stated differently, “[i]n a conspiracy case, the amount the defendant and his [or her] coconspirators agree to deliver is significant, while the amount actually delivered is what matters in a non-conspiracy case.” People v Collins (Jesse), 298 Mich App 458, 462-463, 465-466 (2012) (rejecting the prosecution’s reliance on conspiracy caselaw and finding insufficient evidence to convict the defendant of delivering 50 grams or more but less than 450 grams of heroin where the evidence showed that the largest amount the defendant actually delivered on any one occasion was 28 grams).
6.Statements of Coconspirators7
“‘Hearsay’ means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.” MRE 801(c).
Hearsay is generally inadmissible. MRE 802. However, a statement is not hearsay when it is offered against an opposing party and “was made by the party’s coconspirator during and in furtherance of the conspiracy, if there is independent proof of the conspiracy.” MRE 801(d)(2)(E). Accordingly, statements of coconspirators may be admissible during trial. See, e.g., People v Martin, 271 Mich App 280, 316-319 (2006). For a more detailed discussion on the admission of statements by coconspirators, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.
7.Double Jeopardy Considerations8
Conspiracy to commit an offense is a separate and distinct crime from its target offense, and as a general rule both crimes may be punished even though they arise out of the same criminal transaction. People v Mass, 464 Mich 615, 632 (2001); People v Denio, 454 Mich 691, 695-696 (1997).
Similarly, although conspiracy and aiding and abetting have common elements, it is possible to accomplish each without the other. People v Carter (Alvin), 415 Mich 558, 579-580 (1982), overruled in part on other grounds by People v Robideau, 419 Mich 458 (1984).9 Thus, a person may be convicted of both crimes stemming from the same completed offense without violating the rule against double jeopardy. Carter, 415 Mich at 582.
Michigan “has statutory territorial jurisdiction over any crime where any act constituting an element of the crime is committed within Michigan even if there is no indication that the accused actually intended the detrimental effects of the offense to be felt in this state.” People v Aspy, 292 Mich App 36, 42 (2011); MCL 762.2.10
Venue in a conspiracy case properly lies in any county where an overt act was committed in furtherance of the conspiracy. People v Meredith (On Remand), 209 Mich App 403, 408 (1995). See also MCL 762.8 (“Whenever a felony consists or is the culmination of 2 or more acts done in the perpetration of that felony, the felony may be prosecuted in any county where any of those acts were committed or in any county that the defendant intended the felony or acts done in perpetration of the felony to have an effect.”)
9.Conspiracy to Commit a Legal Act in an Illegal Manner
Where a physician and another “were in the business of providing, for a price, physician certifications required to obtain [Michigan Medical Marihuana Act] registry identification cards,” the physician was improperly charged with conspiracy to commit a legal act in an illegal manner in violation of MCL 750.157a because failure to comply withMCL 333.26424(g)11 (governing physician certification for registry identification cards) is not illegal. People v Butler-Jackson, 307 Mich App 667, 677 (2014), vacated in part on other grounds 499 Mich 965 (2016).12
MCL 750.157a “requir[es] proof of an agreement to perform an act legal in generic terms, [not] legal as it would be performed in the particular circumstances of the case.” Seewald, 499 Mich at 120, 121. Accordingly, where the defendant “testified under oath that [he and another individual] agreed to [falsely] sign [nominating] petitions ‘for the purpose of having [the] signatures included in’ the Secretary of State’s count for the nomination,” and the other individual “similarly testified that the purpose for agreeing to do so was ‘to make [the] signatures count towards the nomination,’” there was sufficient evidence to establish probable cause that the defendant committed the felony of conspiracy to commit a legal act in an illegal manner. Id. at 125 (rejecting the defendant’s argument that “the only agreement between defendant and [the other individual] was to do an illegal act through illegal means”).
1 MCL 750.157a(b) addresses illegal gambling or wagering and is not relevant to this benchbook.
2 Robideau was overruled by People v Smith (Bobby), 478 Mich 292 (2007) (construing the appropriate test for double jeopardy).
3 In affirming the decision of the Court of Appeals in Barajas, the Supreme Court noted that “the analysis employed by the Court of Appeals is limited strictly to the facts of this case.” People v Barajas, 444 Mich 556, 557 (1994).
4 In its order vacating the Court of Appeals’ decision, the Michigan Supreme Court did not discuss the issue concerning the rule barring a one-person conspiracy that was initially addressed by the Court of Appeals. Additionally, on remand, the Court of Appeals did not specifically discuss the rule against a one-person conspiracy; however, it did hold that there was sufficient evidence to support the conspiracy charges. Thus, in its opinion on remand, the Court of Appeals implicitly held that the dismissal of charges against the coconspirator did not violate the rule against a one-person conspiracy. See People v Turner, 86 Mich App 177, 182-183 (1978), vacated 407 Mich 890 (1979) and People v Turner (On Remand), 100 Mich App 214, 217 (1980).
5 See Section 5.3(D)(2) for more information on required intent.
6 For more information on the precedential value of an opinion with negative subsequent history, see our note.
7 For additional discussion of the admissibility of a coconspirator’s statements, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.
8 For a more complete discussion of double jeopardy, see Section 7.6
9 Robideau was overruled by People v Smith (Bobby), 478 Mich 292 (2007).
10 Prior to the enactment of MCL 762.2 in 2002, caselaw held that Michigan courts have no jurisdiction to try a non-resident for conspiracy offenses without proof that the non-resident’s acts were intended to have, and actually did have, a detrimental effect in Michigan. People v Blume, 443 Mich 476, 486, 494 (1993). For further discussion of jurisdiction, see Section 1.3
11 Formerly MCL 333.26424(f). See 2016 PA 283.
12 For more information on the precedential value of an opinion with negative subsequent history, see our note.