Marquette Law Review Volume 44 Article 7 Issue 1 Summer 1960 The eT aparty Theory of Conspiracy James M. Shellow Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation James M. Shellow, The Teaparty Theory of Conspiracy, 44 Marq. L. Rev. 73 (1960). Available at: http://scholarship.law.marquette.edu/mulr/vol44/iss1/7 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 19601 COMMENTS THE TEAPARTY THEORY OF CONSPIRACY I. INTRODUCTION In spite of variously expressed judicial misgivings,' there has been an increasing use of the charge of criminal conspiracy, either in con- junction with substantive offenses or independent of them. 2 The popu- larity of this indictment among the public prosecutors has stemmed from three basic sources: (1) the quantum of proof is frequently less for the conspiracy charge, (2) a charge of a continuing conspiracy may serve to extend the statute of limitations beyond that for the substantive offense, and, (3) the co-conspirator exception to the hearsay rule per- mits the prosecution to introduce evidence which would be incompetent in a trial for the substantive offense alone. Thus the duration of the conspiracy is significant as it will determine the time from which the statute of limitations will begin to run and the period in which the hearsay statements of co-conspirators will be admissible. II. OBSTRUCT THE DUE ADMINISTRATION OF JUSTICE In general, a conspiracy is considered a complete offense at the time of the unlawful agreement of two or more persons to act in con- cert, and is terminated either with the completion of the object of the conspiracy or with the last overt act in furtherance of it, in those juris- dictions which require an overt act as an element of the offense.3 For this reason the Federal courts in several cases made the distinction be- tween a "continuing conspiracy" and a "conspiracy with continuing objects."'4 This discussion will be limited to the development of criminal conspiracy in the United States Federal Courts and will be particularly focused upon those cases in which a conspiracy to obstruct the due ad- ministration of justice is charged.5 This particular charge has been in- 1 Other Recommendations of Senior Circuit judges, 1925 Att'y Gen. Ann. Rep. 5-6; Krulewitch v. United States, 336 U.S. 440 (1959) (concurring opinion); Grunewald v. United States, 353 U.S. 391 (1957). 2 Arens, Conspiracy Revisited, 3 Buffalo L. Rev. 242 (1954). 3 Developments in the Law, Criminal Conspiracy, 72 Harv. L. Rev. 920, 960-61 (1959). 4 e.g. Fiswick v. United States, 329 U.S. 211 (1946). 5 Title 18 U.S.C. 371. Conspiracy to commit offense or to defraud United States. "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both." Title 18 U.S.C. 1503. Influencing or injuring officer, juror or witness generally. "Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any .witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other commit- ting magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing MARQUETTE LAW REVIEW [Vol. 44 creasingly utilized during the past few years to extend the statute of limitations by charging a "conspiracy to conceal"; the concealment as an attempt to defeat prosecution is alleged to obstruct the due admin- istration of justice. One of the elements which has been considered indispensable to an indictment for a conspiracy to obstruct the due administration of justice is knowledge; e.g., knowledge that justice was or will be administered. In Pettibone v. United States6 the defendants were charged with encouraging mine workers to disobey an injunction and the Supreme Court in reversing their conviction stated: It seems clear that an indictment against a person for... en- deavoring to influence or impede a witness or officer in a court of the United States in the discharge of his duty, must charge a knowledge or notice, on the part of the accused, that the wit- ness or officer was such.., such obstruction can only arise when justice is being administered. Unless that fact exists, the statu- tory offense cannot be committed . .and without such knowl- edge or notice, the evil intent is lacking.' The majority of cases which have interpreted 18 U.S.C. 15038 have involved a defendant or group of defendants who have attempted to bribe or intimidate witnesses or officers of the court. Within this con- text several significant problems emerged. The first of these concerned what Federal activities might be included within the "due administra- tion of justice" concept and the necessity of alleging within the indict- ment the precise Federal activities which the conspirators agreed to obstruct. In Etie v. United States9 the defendants were charged with a conspiracy to obstruct the due administration of justice by inducing certain witnesses by threats of violence to leave the jurisdiction of a Texas District Court. The defendants urged that the indictment was faulty on the grounds that it failed to allege which of several pending cases were involved, and in affirming their conviction the United States Court of Appeals for the Fifth Circuit held: "It is unnecessary to limit the conspiracy to any particular case, because it is conceivable that the conspirators may have more than one case in mind. The indictment may be as broad as the unlawful agreement." 10 Although the opinion magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats of force, or by any threatening letter or communication, influences, obstructs, impedes, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years. or both. 6 Pettibone v. United States, 148 U.S. 197 (1893). Id., at 206-207. s Statutes cited supra, note 5. 9 Etie v. United States, 55 F. 2d 114 (5 Cir. 1932). 10 Id., at 115. 19601 COMMENTS in the Etie case supra, suggested a possible extension of the Pettibone criterion of knowledge, there was no doubt that there were cases pend- ing in the District Court and hearings before its Grand Jury. The government unsuccessfully attempted to extend the obstruction of jus- tice charge to encompass a threat by a defendant to kill another if he divulged incriminating information to the Federal Bureau of Investiga- tion; the court in Scoratow v. United States held: "The act must be in relation to a proceeding pending in the Federal Court. And a proceed- ing is not pending until a complaint has been filed with the United States Commissioner."' In United States v. Solow 1 2 the defendant was charged with violating Section 1503 by destroying four letters in order to prevent their production before a Grand Jury. The defendant, rely- ing upon the Rosner13 case in which it was held that it was not obstruc- tion of the administration of justice to encourage a witness not to appear, when the witness was not under subpoena to appear, urged that no subpoena duces tecum had been issued for the letters and hence their destruction could not be obstructing the due administration of justice. The court in denying this contention held: The indictment alleges the defendant knew the grand jury was conducting the aforesaid investigation . and had reason to believe and did believe that he would be called as a witness before the grand jury and that the production of the correspondence 1 would be ordered by it. 4 The cou--t in distinguishing the Solow case from the Rosner case held that in the latter, the witness could always be subpoenaed if the Grand Jury needed his testimony, while in the Solow case, the destroyed docu- ments could never be recovered. The District Court for the Southern District of New York followed the pattern it had set in the Solow case in the case of United States v. Siegel15 the following year. In the Siegel case the defendant was charged with a conspiracy to obstruct the due administration of justice by influencing a prospective witness before a grand jury to destroy the stenographic notes she had taken, to give false testimony before the Grand Jury, if she was called to testify, and to substitute other records in the place of those she had destroyed.