The Lone Conspirator, Criminal Law's Oxymoron--In Defense of the Rule of Consistency in Federal Conspiracy Cases
Nicholas J. Schuler, Jr.   |   2004 U. Ill. L. Rev. 755
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For a defendant to be convicted of conspiracy under federal law, two or more people must agree to commit an unlawful act and the defendant must knowingly and intentionally join the agreement. By definition, it would seem the offense does not allow for the conviction of a lone con-spirator. Yet, most federal courts permit lone conspirator convictions.

This note examines the conundrum of the lone conspirator. At common law, a defendant’s conspiracy conviction had to be reversed if all the de-fendant’s coconspirators were acquitted on the same conspiracy charges. Over the years, however, federal courts have eroded this so-called rule of consistency to the point of threatening its existence altogether. The au-thor argues that the federal courts’ modern position of allowing lone conspirator convictions is misguided. Tracing the roots of this position, he suggests that federal courts’ gradual movement away from the rule of consistency is a result of their misapplication of Supreme Court prece-dents allowing inconsistent jury verdicts in cases involving compound of-fenses and multiple-defendant crimes other than conspiracy. In particu-lar, the author notes that Dunn v. United States and United States v. Powell, Supreme Court cases allowing inconsistency between jury con-victions for predicate and compound offenses, do not address factual sit-uations requiring the culpability of one person as a condition precedent to the conviction of a second. Therefore, the author argues, they cannot be validly extended to eliminate the consistency requirement in conspira-cy cases. In the same regard, the author contends that the Supreme Court’s decision to uphold inconsistent jury verdicts as to a principal and an aider/abettor in Standefer v. United States was based on Congress’s intent to eliminate the common-law rule requiring the conviction of a principal prior to the conviction of an aider/abettor. The case does not support elimination of the rule of consistency in conspiracy cases because Congress has not indicated a similar intent to eliminate the culpability of another as a prerequisite for a federal conspiracy conviction.

By way of resolution, the author suggests that federal courts should not extend the holdings of Dunn, Powell, and Standefer to justify lone con-spirator convictions. The author also suggests that the rule of consisten-cy should not be abandoned in the absence of congressional legislation to the contrary. Finally, the author notes that federal courts already may consider conspiratorial behavior as an aggravating factor in determining sentences under the Federal Sentencing Guidelines, and argues that mak-ing such a consideration in conjunction with applying the rule of con-sistency effectively punishes criminal behavior and preserves individuals’ constitutional rights.