Before its codification in state and federal statutes, the crime of conspiracy was simply an agreement to engage in an unlawful act with the intent to carry out the act.. Either the purp
Trang 1never conscripted women into military service, nor has it ever instituted universal military service It has conscripted only individuals meeting certain age, mental, and physical standards Congress has allowed the deferral of conscription for certain individuals, including those who need to support dependents or are pursuing an education Among those who have been declared exempt from service are sole surviving sons, conscientious objectors to war, and ministers ofRELIGION
The U.S government also has the power to conscript property in times of emergency
FURTHER READINGS Brophy, Alfred L 2000 “‘Necessity Knows No Law’: Vested Rights and the Styles of Reasoning in the Confederate Conscription Cases ” Mississippi Law Journal 69 (spring).
Levi, Margaret 1997 Consent, Dissent, and Patriotism New York: Cambridge Univ Press.
MacLean, Alair 2008 The Privileges of Rank Armed Forces &
Society 34.
CROSS REFERENCES Involuntary Servitude; Solomon Amendment; Thirteenth Amendment.
CONSENSUAL ALTERATION
A change in a legal document agreed to by the parties and binding upon them
Such consensual alteration is usually evi-denced by the signing by each party of his or her initials and the date on which the agreement to the changes to the instrument is made
CONSENT Voluntary acquiescence to the proposal of another;
the act or result of reaching an accord; a concurrence of minds; actual willingness that an act or an infringement of an interest shall occur
Consent is an act of reason and deliberation
A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another Consent assumes a physical power to act and a reflective, deter-mined, and unencumbered exertion of these powers It is an act unaffected byFRAUD, duress,
or sometimes even mistake when these factors are not the reason for the consent Consent is implied in every agreement
Parties who terminate litigation pursuant to
a consent judgment agree to the terms of a
decision that is entered into the court record subsequent to its approval by the court
In the context of RAPE, submission due to apprehension or terror is not real consent There must be a choice between resistance and
ACQUIESCENCE If a woman resists to the point where additional resistance would be futile
or until her resistance is forcibly overcome, submission thereafter is not consent
CONSENT DECREE
A settlement of a lawsuit or criminal case in which
a person or company agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit
A consent decree is a settlement that is contained in a court order The court orders injunctive relief against the DEFENDANT and agrees to maintain jurisdiction over the case to ensure that the settlement is followed (Injunc-tive relief is a remedy imposed by a court in which a party is instructed to do or not do something Failure to obey the order may lead the court to find the party in CONTEMPTand to impose other penalties.) Plaintiffs in lawsuits generally prefer consent decrees because they have the power of the court behind the agreements; defendants who wish to avoid publicity also tend to prefer such agreements because they limit the exposure of damaging details Critics of consent decrees argue that federal district courts assert too much power over the defendant They also contend that federal courts have imposed conditions on state and local governments in civil rights cases that usurp the power of the states
Most civil lawsuits are settled before going
to trial and most settlements are private agreements between the parties Typically, the
PLAINTIFF will file a motion to dismiss the case once the settlement agreement has been signed The court then issues a dismissal order and the case is closed However, if the defendant does not live up to the terms of the settlement agreement the plaintiff cannot reactivate the old lawsuit This means filing a new lawsuit with the court and going to the end of the line in order
to process the case
In more complex civil lawsuits that involve the conduct of business or industry, and in actions by the government against businesses that have allegedly violated regulatory laws,
108 CONSENSUAL ALTERATION
Trang 2consent decrees are regularly part of the
settlement agreement A court will maintain
jurisdiction and oversight to make sure the
terms of the agreement are executed The threat
of a contempt order may keep defendants from
dragging their feet or seeking to evade the intent
of the agreement In addition, the terms of the
settlement are public
Certain types of lawsuits require a court to
issue a consent DECREE In CLASS ACTION
settle-ments, Rule 23 of the Federal Rules of
Procedure mandates that a federal district court
must determine whether a proposed settlement
is fair, adequate, and reasonable before
approv-ing it Under the Antitrust Procedures and
Penalties Act (the Tunney Act), 15 U.S.C.A §
16(b)-(h), the court must review proposed
consent decrees in antitrust suits filed by the
JUSTICE DEPARTMENT The statute directs the court
to review certain items, including whether the
decree advances thePUBLIC INTEREST
The U.S Supreme Court, in Local No.93,
Int’l Ass’n of Firefighters v City of Cleveland, 478
U.S 501, 106 S.Ct 3063, 92 L.Ed.2d 405 (1986),
ruled that consent decrees“have attributes both
of contracts and of judicial decrees.” The
division between contracts and judicial decrees
suggests that consent decrees are contracts that
resolve some issues through the consent of the
parties However, for some issues, the decree
contains judicial acts rendered by the judge, not
the parties Commentators have noted that
these dual attributes require a court to
deter-mine when it is appropriate to“rubber-stamp”
a proposed settlement and when it is more
appropriate for the court to treat the proposal as
it would any judicial order
The federal courts have been criticized for
using consent decrees to reform prison systems,
school systems, and other government agencies
Some courts have maintained oversight of
agencies for many years and have imposed
conditions that have cost state and local
governments substantial amounts of money
Congress intervened in one litigation area when
it passed the Prison Litigation Reform Act of
1995 (Pub.L 104-134, 110 Stat 1321) The law
imposed strict limits on what federal courts
could do in the future to improve prison
conditions through the use of consent decrees
In addition, it gave government agencies the
right to seek the termination of consent decrees,
many of which had lasted for decades
FURTHER READINGS
“Consent Decree.” DocStoc Web site Available online at http://www.docstoc.com/docs/974671/consent-decree;
website home page: http://www.docstoc.com (accessed August 30, 2009).
Kane, Mary Kay 2007 Civil Procedure in a Nutshell 6th ed.
St Paul, Minn.: West Law School.
Mengler, Thomas M 1988 “Consent Decree Paradigms:
Models Without Meaning.” Boston College Law Review 29.
CROSS REFERENCE Civil Action.
CONSEQUENTIAL DAMAGES Injury or harm that does not ensue directly and immediately from the act of a party, but only from some of the results of such act, and that is compensable by a monetary award after a judgment has been rendered in a lawsuit Detriment that arises from the interposition of special, unpredict-able circumstances Harm to a person or property directly resulting from any breach of warranty or from a false factual statement, concerning the quality or nature of goods sold, made by the seller
to induce the sale and relied on by the buyer
In terms of the UNIFORM COMMERCIAL CODE
(UCC)—a body of law governing commercial transactions adopted by every state except for
a few articles that were not adopted in Louisiana—consequential damages are injuries that result from a seller’s breach of contract
Such damages include any loss from general
or particular requirements and needs of the buyer that the seller at the time of contracting had reason to know and that could not reasonably be prevented by cover, the purchase
of substitute goods or other alternatives
CONSERVATOR OF THE PEACE
An officer of the government authorized by law to act in such a manner that will preserve and maintain the order and safety of the community and the general public
The phrase conservator of the peace derives its meaning from its use in England during the Middle Ages Until the reign of King Edward III, conservators of the peace were elected locally by the people Subsequently they were appointed
by the king Among their duties were preven-tion of disturbances of the peace and arrest of individuals who did so Around the year 1360, the duties of conservators of the peace were broadened by an act of Parliament to include the ARRAIGNMENT and trial of offenders They,
CONSERVATOR OF THE PEACE 109
Trang 3therefore, became known as justices of the peace
In the U.S legal system, a conservator of the peace is synonymous with a peace officer A police officer, a coroner, or a court officer may
be considered a conservator of the peace
CONSIDERATION Something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances
Consideration is an essential element for the formation of a contract It may consist of a promise to perform a desired act or a promise
to refrain from doing an act that one is legally entitled to do In a bilateral contract—an agreement by which both parties exchange mutual promises—each promise is regarded as sufficient consideration for the other In a
UNILATERAL CONTRACT, an agreement by which one party makes a promise in exchange for the other’s performance, the performance is con-sideration for the promise, while the promise is consideration for the performance
Consideration must have a value that can be objectively determined A promise, for example,
to make a gift or a promise of love or affection is not enforceable because of the subjective nature
of the promise
Traditionally, courts have distinguished between unilateral and bilateral contracts by determining whether one or both parties provided consideration and at what point they provided the consideration Bilateral contracts were said to bind both parties the minute the parties exchanged promises, as each promise was deemed sufficient consideration in itself
Unilateral contracts were said to bind only the promisor and did not bind the promisee unless the promisee accepted by performing the obligations specified in the promisor’s offer
Until the promisee performed, he or she had provided no consideration under the law
For example, if someone offered to drive you to work on Mondays and Tuesdays in exchange for your promise to return the favor
on Wednesdays and Thursdays, a BILATERAL CONTRACT would be formed binding both of you once you provided consideration by accepting those terms But if that same person offered to pay you $10 each day you drove him
to work, a unilateral contract would be formed,
binding only upon the promisor until you provided consideration by driving him to work
on a particular day
Modern courts have de-emphasized the distinction between unilateral and bilateral contracts These courts have found that an offer may be accepted either by a promise to perform
or by actual performance An increasing number of courts have concluded that the traditional distinction between unilateral and bilateral contracts fails to significantly advance legal analysis in a growing number of cases where performance is provided over an
extend-ed period of time
Suppose you promise to pay someone
$500.00 to paint your house The promise sounds like an offer to enter a unilateral contract that binds only you until the promisee accepts by painting your house But what constitutes lawful performance under these circumstances? The act
of beginning to paint your house or completely finishing the job to your satisfaction?
Most courts would rule that the act of beginning performance under these circum-stances converts a unilateral contract into a bilateral contract, requiring both parties to fulfill the obligations contemplated by the contract However, other courts would analyze the facts
of each case so as not to frustrate the reasonable expectations of the parties In neither of these cases are the legal rights of the parties ultimately determined by courts by applying the concepts
of unilateral and bilateral contracts
In still other jurisdictions, courts have simply expressed a preference for interpreting contracts as creating bilateral obligations in all cases where no clear evidence suggests that a unilateral contract was intended The rule has been stated that in case of doubt an offer will be presumed to invite the formation of a bilateral contract by a promise to perform what the offer requests, rather than the formation of a unilateral contract commencing at the time of actual performance The bottom line across most jurisdictions is that as courts have been confronted by a growing variety of fact patterns involving complicated contract disputes, courts have turned away from rigidly applying the concepts of unilateral and bilateral contracts and moved towards a more ad hoc approach
CROSS REFERENCES Contracts; Performance; Promise; Value Consideration.
110 CONSIDERATION
Trang 4The delivery of goods to a carrier to be shipped to a
designated person for sale A bailment of goods for
sale
A consignment is an arrangement resulting
from a contract in which one person, the
consignor, either ships or entrusts goods to
another, the consignee, for sale If the goods are
transported by a carrier to the consignee, the
name of the consignor appears on the BILL OF
LADINGas the person from whom the goods have
been received for shipment The consignee’s
name appears on it as the person to whom
delivery is to be made The consignee acts as an
agent on behalf of the consignor, a principal, in
selling the goods and must take reasonable care
of them while in his or her possession The
consignor does not give up ownership of the
goods until their sale
Under the terms of the consignment
con-tract, the consignee agrees to pay the consignor a
balance of the price received for any goods sold,
which has been reduced by a fee, usually a small
percentage of the sale price Any goods that have
not been sold must be returned to the consignor
CROSS REFERENCE
Shipping Law.
CONSORTIUM
The marital alliance between a husband and wife
and their respective right to each other’s support,
cooperation, aid, and companionship
Loss of consortium is an actionable injury
for which money damages may be awarded The
loss of the love, sexual relations, and services of
a spouse are being considered tangible injuries
to an increasing extent An action for loss of
consortium is based upon the inconvenience of
having a spouse who has been injured Such
injury might result from MEDICAL MALPRACTICE,
ASSAULT AND BATTERY, NEGLIGENCE, the sale of
addictive drugs, WRONGFUL DEATH, or FALSE
IMPRISONMENT The key requirement is that the
wrongful act has a debilitating effect upon the
individual whose spouse is initiating the action
Consortium encompasses services
per-formed by a spouse TheCOMMON LAW did not
recognize a wife’s right to services on her
husband’s part Because she was viewed as a
social and legal inferior, she could not demand
that he work for her and, therefore, she had no
remedy for loss of sexual relations, affection, or
services The wrongdoer was liable only to the husband directly
A husband was considered to have suffered tangible damages for injury to his wife and, initially, had the sole right to bring an action for loss of consortium TheLOSS OF SERVICESthat had
to be asserted included his wife’s general usefulness, household services such as cooking and cleaning, industry, and frugality Eventually, the assumption evolved that a man suffered these impairments upon injury to his wife, and damages were recoverable by him for any period
in which he was divested of sex, fellowship, and affection, in spite of the fact that his wife might not be responsible for housekeeping
Subsequently the Married Women’s Property Acts (29 Stat 193 [1896]) emerged Some states interpreted these acts to mean that a man could
no longer sue for the loss of his wife’s services, as she was a full legal person Most states, however, interpreted the acts as extending to women the right to sue for loss of consortium A plethora
of recent cases indicate that either spouse may bring action for loss of consortium
In 1950 the U S Court of Appeals for the District of Columbia in Hitaffer v Argonne Co.,
183 F.2d 811 (D.C Cir 1950), held that women had a right to sue for loss of consortium Many states directly repudiated its holding and adhered to the old rule, while others supported the change
By the late 1970s many courts revised their views and held that women may sue for loss of consortium Other jurisdictions refuse to rule in favor of the change on the ground that it can be made only by the state legislatures
Some states seek to prevent double recover-ies by requiring that the spouse who is suing for loss of consortium assert that claim in the same action as the spouse who is suing for damages for injuries When this might be inconvenient
or impossible in some instances, other states require judicial supervision of the second action
in order to ensure that the amount of damages awarded will not be excessive
CONSORTIUM/
INTERGOVERNMENTAL CORPORATIONS AND CONSORTIUMS Quasi-business associations formed to provide services, arrange financing, or operate certain enterprises
CONSORTIUM/INTERGOVERNMENTAL CORPORATIONS AND CONSORTIUMS 111
Trang 5The involvement of more than one state or institution can be advantageous in expanding the financial and administrative resources available to the entity and, in some cases, permitting services or products to be distributed
on a larger and more efficient scale Various banks, for example, may form a consortium with a government to finance a major develop-ment project that is too large for one bank to finance alone The terms of the agreement forming the consortium or corporation will determine the reciprocal rights and duties of the members of the entity Whereas in practical terms there may be little difference between an intergovernmental consortium or corporation, the usual ad hoc nature of a consortium suggests its use for individual projects with a definite completion schedule The widespread use of the corporate framework in other circumstances indicates that the corporate form works well when the entity must provide services over an indefinite period of time The corporate structure, with its separate board of directors and management, can also protect the independence of the entity from direct political control and may help to facilitate access to private financial markets
CONSPIRACY Conspiracy is an agreement between two or more persons to engage jointly in an unlawful or criminal act or an act that is innocent in itself but becomes unlawful when done by the combi-nation of actors
Conspiracy is governed by statute in federal courts and most state courts Before its codification in state and federal statutes, the crime of conspiracy was simply an agreement to engage in an unlawful act with the intent to carry out the act Many state and federal statutes require not only agreement and intent but also the commission of anOVERT ACTin furtherance
of the agreement
Conspiracy is a crime separate from the criminal act for which it is developed For example, one who conspires with another to commit BURGLARY and in fact commits the burglary can be charged with both conspiracy
to commit burglary and burglary
Conspiracy is an INCHOATE, or preparatory, crime It is similar to solicitation in that both crimes are committed by manifesting an intent
to engage in a criminal act It differs from
solicitation in that conspiracy requires an agreement between two or more persons, whereas solicitation can be committed by one person alone
Conspiracy also resembles attempt However, attempt, like solicitation, can be committed by
a single person On another level, conspiracy requires less than attempt A conspiracy may exist before a crime is actually attempted, whereas no attempt charge will succeed unless the requisite attempt is made
The law seeks to punish conspiracy as a substantive crime separate from the intended crime because when two or more persons agree
to commit a crime, the potential for criminal activity increases, and as a result, the danger to the public increases Therefore, the very act
of an agreement with criminal intent (along with an overt act, where required) is considered sufficiently dangerous to warrant charging con-spiracy as an offense separate from the intended crime
According to some criminal-law experts, the concept of conspiracy is too elastic, and the allegation of conspiracy is used by prosecutors
as a superfluous criminal charge Many criminal defense lawyers maintain that conspiracy is often expanded beyond reasonable interpreta-tions In any case, prosecutors and criminal defense attorneys alike agree that conspiracy cases are usually amorphous and complex
The Elements of Conspiracy Agreement The essence of conspiracy is the agreement between two or more persons A single person acting alone cannot be guilty of conspiracy However, if a coconspirator dies prior to the indictment or trial, the surviving coconspirator may still be charged with conspiracy A husband and wife can be guilty of conspiracy A corporation is considered a person for conspir-acy purposes, so a corporation can be guilty of conspiracy, but it cannot conspire with itself For example, if two or more employees within a corporation conspire to break the law and subsequently commit an act in furtherance of the conspiracy, the corporation itself is not criminally liable for conspiracy
The agreement must be made voluntarily and with an intent to participate in furthering a common purpose Mere knowledge or
approv-al, in the absence of an actual agreement to cooperate, does not constitute conspiracy
112 CONSPIRACY
Trang 6Once an agreement with criminal intent is
made, the conspiracy is complete, unless the
applicable statute requires the additional
ele-ment of an overt act The agreeele-ment need not
be written or formal, and it may be proved by
CIRCUMSTANTIAL EVIDENCE A tacit understanding
is sufficient to constitute agreement, even if no
words are spoken that expressly communicate
the conspiracy Conspiracy exists if there is
some form of mutual understanding between
persons working together with a common
unlawful end
Intent Criminal intent is also necessary to
create a conspiracy The parties must intend
both to agree on and to engage in the unlawful
act Ignorance of the law is not usually a defense
to a crime, but an unwitting conspirator may
defend against conspiracy charges on grounds
of ignorance Ignorance will not be a defense if
the person continues to participate in the
common plan after learning of its illegality
Either the purpose of the agreement or the
means by which it is accomplished must be
illegal to support criminal prosecution on
conspiracy charges If the purpose is unlawful,
the offense is committed even if the means used
to achieve the purpose are lawful One
illustra-tion is where a noncustodial parent conspires
with another person to kidnap the parent’s
child, and the child is abducted during a
court-approved visit Conspiracy also occurs if the
purpose of the agreement is lawful but the means
used to achieve it are illegal For example, if a
custodial parent chooses to retrieve a child who
has been kidnapped by the noncustodial parent,
an agreement to use unlawful force constitutes
conspiracy
Overt Act An overt act can be any step that
indicates that the execution of the conspiracy
has begun This act can be innocuous and need
not be illegal unto itself For example, if two
persons agree to rob a bank, then purchase a ski
mask, the act of buying the mask may constitute
the overt act required to charge the two with
conspiracy
The overt act must follow the agreement
and must be executed with an intent to carry
out the purpose of the conspiracy For example,
if one of the potential bank robbers buys a ski
mask after the agreement is made, the purchase
may not constitute the overt act if the ski mask
will not be worn to carry out the robbery An
overt act need not be committed by each and
every conspirator; an overt act by one conspira-tor solidifies the offense for all coconspiraconspira-tors
Thus, a conspirator who does not participate in the overt act can be charged with conspiracy
If a conspirator completely and voluntarily renounces the criminal purpose to all conspira-tors, that person may withdraw from the conspiracy before the overt act is committed
Many jurisdictions require that the withdrawing conspirator also inform law enforcement officials
or take measures to thwart the crime, in order to avoid criminal liability for the conspiracy
Congress has enacted some conspiracy laws that have removed the overt act requirement In Whitfield v United States, 543 U.S 209, 125 S
Ct 687, 160 L Ed 2d 611 (2005), the Supreme Court addressed aMONEY LAUNDERINGstatute that did not include an overt act requirement for conspiracy In a unanimous decision, the Court ruled that an overt act is not required for a conspiracy conviction when the statute does not mention such a requirement
Other Considerations
A conspiracy exists as long as measures are taken to conceal evidence of the crime A person who did not participate in the original agree-ment can become a coconspirator after the actual criminal act if the person joins in the concealment of the conspiracy Whether a coconspirator received personal benefit or profit
is of no importance
Generally, conspirators are liable for all crimes committed within the course or scope of the conspiracy The application of this general rule varies from state to state Ordinarily, an act
is within the course or scope of the conspiracy if
it is a foreseeable result of the agreement In some states, a conspirator is not liable where he
or she has no knowledge of the specific act and argues successfully that the act was beyond the scope of the conspiracy Also, if the purpose of the agreement is later changed by coconspira-tors, a conspirator who did not participate in the alteration may not be held liable for the new conspiracy A person is liable for conspiracy only in regard to the meaning of the agreement
as he or she understands it
In some jurisdictions, a person may be guilty of conspiracy even if a coconspirator is immune from prosecution For example, if two persons conspire to commitMURDERand one is found to have been insane at the time of the
CONSPIRACY 113
Trang 7killing, the other conspirator may not be exempt from prosecution for conspiracy
One who provides services to conspirators will not be guilty of conspiracy if that person has not participated in the agreement and does not know that a conspiracy exists There must
be a willful participation in the conspiracy, as well as an intent to further the common purpose or design for conspiratorial liability
Therefore, aiding a conspiracy by selling material to further it does not make someone
a conspirator if the person does not know of the conspiracy, even if that person knows the goods sold will be used for an unlawful purpose
However, if the circumstances indicate a conspiracy, one who cooperates and knowingly sells goods for illegal use may be guilty of conspiracy
Generally, if a number of conspirators agree
to carry out different functions in furtherance of the conspiracy, the agreement constitutes a single conspiracy, even if the different functions amount to more than one unlawful purpose In some states, however, the different functions may constitute multiple conspiracies if there is
an agreement to commit more than one crime
Punishment for the crime of conspiracy is ordinarily defined by statute and varies in accordance with the conspiracy’s objective For example, a conspiracy to commit a misdemeanor will not be subject to the same punishment as a conspiracy to commit a felony Conspiracy may
be alleged in a civil case if the PLAINTIFF has suffered an injury as a result of the conspiracy
Civil conspiracy is ordinarily not a cause of action, but the existence of a conspiracy may be used in determining the amount of damages in a
CIVIL ACTION and the respective liabilities of civil codefendants for the payment of damages
History of Conspiracy Federal conspiracy statutes were first passed in
1909 Under 18 U.S.C.A § 371, it is a crime to commit an offense against or to DEFRAUD the United States or any agency of the United States
If the crime actually committed is a felony, the punishment is a fine of not more than $10,000 or five years’ imprisonment, or both Under 18 U.S.C.A § 372, it is a crime to conspire to impede
or injure a federal law enforcement officer
The U.S Congress has made specific conspiracies illegal through a variety of statutes
For example, conspiracy to murder federal or
foreign officials is prohibited by 18 U.S.C §
1117, a freestanding statute Conspiracy to kidnap is contained in subsection C of 18 U.S
C § 1201, the federal kidnapping statute Other federal statutes prohibit conspiracies to assassi-nate the president, the vice president, and their successors; assassinate the director or deputy director of the Central Intelligence Agency (CIA); assassinate or kidnap a Supreme Court justice; interfere with commerce and trade; violate computer laws; launder money; obstruct state or local regulation of gambling; injure property of the federal government; tamper with consumer products; gather, transmit, lose, remove, or destroy national defense informa-tion or materials; incite sailors toMUTINY; engage
in prohibited practices regarding radio broad-casts or game show contests; defraud the Tennessee Valley Authority; violate or interfere with voting rights; and sexually exploit children Conspiracy cases are often infamous for their ambition and breadth TheASSASSINATIONof President Abraham Lincoln in 1865 by John Wilkes Booth was a product of a conspiracy between Booth and several supporters of the defunct Confederacy In the early 1950s, the U.S Congress conducted numerous hearings on Communist conspiracies against the United States In the mid-1970s, several White House aides were indicted on charges of conspiracy in connection with the 1972 burglary of the offices
of the Democratic National Committee in the
WATERGATEHotel, in Washington, D.C
In November 1986 a Lebanese weekly, Al-Shiraa, reported that the U.S government had secretly sold military weapons to so-called moderate factions in Iran In exchange for the arms sales, according to Al-Shiraa, the moderate Iranians would work to secure the release of U.S citizens held hostage in Lebanon Thus began
an investigation into a conspiracy that became popularly known as theIRAN-CONTRA AFFAIR Congressional investigations that followed the Al-Shiraa article revealed a covert enterprise connected with the arms sales The operation, staffed by private citizens and funded by private monies, had diverted profits from the sale of the weapons to the Contras, a loosely knit military force in Honduras that sought to overthrow the socialist Sandinista government in Nicaragua Congressional investigations in the spring of
1987 revealed that the enterprise had been supervised by U.S National Security Council
114 CONSPIRACY
Trang 8(NSC) staff The NSC, created by the National
Security Act of 1947 (61 Stat 496[50 U.S.C §
402]) and amended by the National Security Act
Amendments of 1949 (63 Stat 579[50 U.S.C §
401 et seq.]), existed to advise the president with
respect to the integration of domestic, foreign,
and military policies relating to national security
One of the many problems presented by the
enterprise was its apparent violation of the
Boland amendments to a series of
appropria-tions bills These bills were established in the
early 1980s to prevent any“agency or entity of
the United States involved in intelligence
activities” from spending funds available to it
“to support military or paramilitary operations
in Nicaragua” (133 Cong Rec H4982-87 [daily
ed June 15, 1987]) The covert arms sales also
violated procedural and substantive
require-ments of the Arms Export Control Act of 1976
(Pub L No 90-629, 82 Stat 1320[22 U.S.C §§
2751–2796c]) Moreover, the executive branch’s
failure to notify Congress of the covert arms
sales flouted the reporting provisions of the
1980 Intelligence Oversight Act (Pub L No
96-450, tit IV, § 407[b][1], 94 Stat 1981 [50 U.S.C
§ 413])
In 1987 Lawrence Walsh, a former
Ameri-canBAR ASSOCIATIONpresident and former federal
judge, was assigned by the U.S Court of
Appeals for the District of Columbia Circuit,
INDEPENDENT COUNSELDivision, to investigate the
Contra-funding scheme In March 1988 Walsh
charged Richard Secord, Albert Hakim, Oliver
North, and John Poindexter with conspiracy to
obstruct the U.S government North and
Poindexter had worked for the NSC
As in all conspiracy cases, an important goal
of the prosecution was to determine who was
involved in the agreement A major issue in the
Iran-Contra investigation was to determine
precisely who in the executive branch
autho-rized or was aware of the arms diversions and,
specifically, whether the president had
knowl-edge of the unlawful activities
In the legal battles that ensued over access
to information in connection with the
prose-cutions, Walsh faced challenges by the Ronald
Reagan and George H W Bush
administra-tions, the Justice Department, intelligence
agencies, and lawyers for the accused
Ulti-mately, the White House refused to relinquish
classified information crucial to the
prosecu-tions, and Walsh was forced to drop all
conspiracy charges The Iran-Contra Affair resulted in criminal convictions of several persons directly connected with the Reagan administration, but Walsh was never able to link the president to a conspiracy to obstruct the U.S government
In another conspiracy case, Patricia Caldwell, a bookkeeper with the Northwest Community Exchange (NCE), was charged with conspiracy to defraud the United States because she refused to provide to the IRS certain account information it requested regarding NCE customers The NCE was one of a number
of warehouse banks, which promised their customers that they would not reveal account information to third parties, including the Internal Revenue Service (IRS) As a result, the IRS shut down the warehouse banks, and it charged several customers and employees with conspiracy to defraud the United States A jury convicted Caldwell of conspiring to defraud the United States, in violation of 18 U.S.C.A § 371
The Ninth Circuit Court of Appeals re-versed Caldwell’s conspiracy conviction (United States v Caldwell, 989 F.2d 1056 [1993]) The government had argued that people have a duty
to conduct their business affairs so as not to impair or impede the collection of revenue by the IRS The majority opinion, written by Judge Alex Kozinski, rejected this interpretation of 18 U.S.C.A § 371 and held that to defraud the government, a person had to act deceitfully or dishonestly To allow otherwise would create an oppressive theory of criminal conspiracy
The court observed that under the govern-ment’s theory, “a husband who asks his wife
to buy him a radar detector would be a felon … because their actions would obstruct the government function of catching speeders.”
According to the court, Congress did not intend
to make a federal crime out of actions that merely make “the government’s job more difficult.”
The jury in Caldwell’s case had not been instructed that it had to find that Caldwell agreed to obstruct the IRS tax-collecting func-tions by deceitful or dishonest means This failure to inform the jury about an essential element of conspiracy constituted reversible error, and Caldwell’s conviction was overturned
American Honda Conspiracy The sheer size of a conspiracy can create distinct problems for prosecutors and defense attorneys
CONSPIRACY 115
Trang 9alike In 1993 U.S attorneys in New Hampshire began to investigate employees of the American Honda Motor Company By 1994 prosecutors had cobbled together an immense conspiracy-based commercialBRIBERYcase
The conspiracy prosecutions of American Honda executives and dealers began to develop
in 1989, when Richard Nault, an automobile dealer in Nashua, New Hampshire, brought a civil suit against American Honda, claiming unfair treatment In 1993, after testimony raised concerns of bribery, the judge in Nault’s case recommended that federal authorities investi-gate the financial affairs at American Honda
Investigations by the Federal Bureau of Investigation (FBI) revealed a widespread pat-tern of illegal payoffs in which American Honda executives were given cash, jewelry, cars, and store ownership interests in return for the award of new Honda dealerships and favorable car allocations According to the prosecutors, assistant U.S attorneys Michael Connolly and Donald Feith, the alleged conspiracy involved
22 American Honda executives and dealers, encompassed 30 states, and was responsible for the misappropriation of approximately $50 million In 1993 and 1994, prosecutors dangled various substantive and conspiracy charges before the executives and dealers
By the end of 1994, only three of the alleged conspirators had refused to plead guilty: John Billmyer, an 18-year American Honda veteran and longtime vice president of auto field sales;
Stanley Cardiges, another vice president of auto field sales and Billmyer’s protégé; and Dennis Josleyn, whose last position was West Coast sales manager for Acura, American Honda’s flagship automobile In March 1994 Billmyer, Cardiges, and Josleyn were arrested at their homes, booked at local jails, and then released pending trial
A federal grand jury charged Billmyer with one count of conspiring with Cardiges and Josleyn to defraud American Honda, the United States, the Treasury Department, and the IRS, in violation of 18 U.S.C § 1341 Specifically, the indictment alleged that Billmyer, Josleyn, and Cardiges had conspired to receive money and gifts by secretly selling the valuable contract rights conferred on prospective dealers by American Honda
Cardiges and Josleyn were charged with participating in the broad conspiracy with
Billmyer and also conspiring to receive kick-backs in connection with an American Honda advertising campaign Cardiges and Josleyn were further charged with violating the Racke-teer Influenced and Corrupt Organizations Act (18 U.S.C § 1961 et seq.) In November 1993, Cardiges allegedly asked former American Honda zone manager Edward Temple to tell the FBI that payments the two had received from a hidden interest in a Conway, Arkansas, car dealership were actually loan payments American Honda was portrayed by prose-cutors as a victim of the conspiracies As the trial approached, lawyers for Cardiges and Josleyn prepared a defense that would further victimize the company According to Cardiges’s lawyer Philip Israels, any conspiracy case should have included the Japanese executives of Honda Motor Company International, the owner of American Honda Israels maintained that the Japanese executives knew of, condoned, and even participated in the kickback schemes Israels further charged that the federal govern-ment had information that suggested that Japanese executives knew of the kickbacks and that the decision not to prosecute the Japanese executives was being used as a bargaining chip
in trade negotiations between the United States and Japan
Josleyn adopted a defense similar to that of Cardiges Josleyn’s attorneys, Paul Twomey and Mark Sisti, noted that the alleged conspiracy was
so widespread that Japanese executives must have known of it Josleyn would deny no specific facts Rather, he would invert the meaning of the mountain of evidence uncovered
by the prosecutors and the FBI to show that the Japanese executives must have known about and approved of the kickback schemes Such a showing would allow Josleyn’s attorneys to argue that the alleged conspiracy was actually a lawful, routine business practice promoted by American Honda’s parent company
Billmyer had retired from American Honda
in 1988 His lawyers, David Long and Kevin Sharkey, based his defense on various grounds Their arguments included that the prosecution of Billmyer was barred by the five-yearSTATUTE OF LIMITATIONS on conspiracy charges because the indictment actually alleged multiple conspiracies, and any criminal liability for a conspiracy involving Billmyer expired in 1993; Billmyer had withdrawn from any alleged conspiracies by
116 CONSPIRACY
Trang 10retiring in 1988; and New Hampshire was
an improper venue because none of the acts
Billmyer was alleged to have committed had any
relation to New Hampshire
In the months before trial, several motions
to dismiss the case were denied by Judge Joseph
DiClerico of the U.S District Court for the
District of New Hampshire On January 22,
1994, after two years of maintaining his
innocence and just one day before jury selection
was scheduled to begin, Cardiges pleaded guilty
to all charges In exchange for lenient
sentenc-ing recommendations by the prosecutors,
Cardiges agreed to testify against Billmyer and
Josleyn All the conspirators except Billmyer
and Josleyn were prepared to testify to
conspir-acies to defraud
The case proceeded to jury trial in February
1995 and was presided over by Judge DiClerico
In opening statements, assistant U.S attorney
Connolly submitted to the jury that the
conspir-acy was limited to a few rogue U.S executives and
dealers and that the United States and American
Honda had been conspired against and defrauded
by them Twomey declared that“the government
is going to take you everywhere—north, south,
east and west” to prove a conspiracy that was
supposedly limited to U.S executives and was
completely unknown to Japanese executives
Long and Sharkey covered the litany of apparent
infirmities in the government’s conspiracy case
against Billmyer
A seemingly endless stream of witnesses
then proceeded to testify against Billmyer and
Josleyn American Honda executives and dealers
regaled the jury with descriptive accounts of
opulence and excess The kickback schemes
resembled homage to the executives, a practice
that Honda and Acura dealers called kissing the
ring Dealers and executives told of expensive
offerings, including cash payments, free
auto-mobiles, Rolex watches, shopping sprees,
swim-ming pools, and tuition payments for children
In several days on theWITNESS STAND, Cardiges
alone testified to the receipt of approximately
$5 million in kickbacks
At the close of the government’s CASE IN
CHIEF, Long made a motion to dismiss, arguing
that the suit was one of multiple conspiracies,
that any conspiracy involving Billmyer
sup-ported by the evidence was barred by the statute
of limitations, and that any payments or gifts
received by Billmyer were unconnected to any
conspiracy with Josleyn The motion was denied, Billmyer called no witnesses, and Josleyn began his defense
Throughout the presentation of the govern-ment’s case, Josleyn’s lawyers had been fighting with American Honda They sought to obtain, and eventually received, a copy of handwritten notes kept by Sherry Cameron, American Honda’s vice president of human resources
Cameron’s notes had been made in connection with American Honda’s 1992 internal investiga-tions into rumors of kickbacks American Honda had appealed Judge DiClerico’s decision
to order American Honda’s release of the notes
to the defense, but the First Circuit Court of Appeals refused to reverse the order
Cameron had testified for the government in March 1995, and Sisti’s cross-examination of her had been suspended while the production of her notes was contested On May 15, 1995, Cameron resumed the witness stand and was faced with poster-sized copies of her notes, one of which revealed that her “point of view” in the investigation was to“try to protect” the company
Cameron further testified that she had limited her investigation to facts, not rumors
Twomey then called to the stand J D
Powers, a prominent market research specialist for the automobile industry Powers testified that in 1983, he sent a letter to Yoshihida Munekujni, then president of American Honda, informing him of widespread rumors of corruption in American Honda According
to Powers, several unindicted top-ranking American Honda executives knew of the kickback schemes in the early 1980s
This and other evidence allowed Twomey to argue in his closing statement that the conspir-acy was so implicit as to constitute one company’s policy Twomey asked the jury whether it could be satisfied that it knew the entire truth in the case Long contended, in part, that the government had been selective and heavy-handed in its prosecution The case was submitted to the jury After five days of deliberations, Billmyer and Josleyn were con-victed of all charges Billmyer and Josleyn appealed their convictions, but the Fifth Circuit Court of Appeals affirmed the district court’s decision (United States v Josleyn, 99 F.3d 1182 [5th Cir 1996])
Although no Japanese executives were charged in the case, 20 American Honda
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