“The Engagement” – Conspiracy

After Elaine complains to Jerry and Kramer about a a dog in the courtyard that keeps her up all night from barking, she enlists Kramer and Newman to help create an unfortunate accident. Are Elaine, Kramer, and Newman guilty of conspiracy of kidnapping that stupid mutt?

In New York (and generally across the country) the crime of conspiracy is simply defined as an agreement between 2 or more people to commit a crime. The parties must actually have the intent to agree to commit the crime, and at least one of the parties must actually do something in furtherance of the conspiracy. This last requirement is known as the “overt act requirement.” If Elaine, Kramer, and Newman agreed to commit a crime, and at least one of them made an “overt act” in furtherance of committing that crime, then they will all be guilty of conspiracy.

- You're under arrest. - Arrest?

The first step in determining whether a party is guilty of conspiracy is determining whether what they have agreed to do is actually a sticky situation. In New York, stealing a vile beast is a crime – it’s just like stealing any kind of property. Now, we must determine whether there was any agreement between the parties.

Elaine, Kramer, and Newman certainly agreed to commit a crime. Elaine tells Newman “all right, let’s do it,” and Newman responds “excellent! Excellent!” Later, Kramer says “give me the rope,” demonstrating that he is a participant in the conspiracy as well. Since they have all agreed to commit the crime, Elaine, Newman, and Kramer have fulfilled this element of the crime of conspiracy.

The final step is whether any one of them has made an “overt act” in furtherance of the conspiracy. It certainly seems like they have. Kramer rents a van, Newman buys rope, not to mention they actually do steal the mongrel! Therefore, there is no question about it, Elaine, Kramer, and Newman are guilty of conspiracy.

- Bark! - Bark!

The crime of conspiracy is an inchoate crime, meaning it is a crime in and of itself. Therefore, had the gang not been successful in kidnapping the vicious beast they would still be guilty of conspiracy, and they could be guilty of both a conspiracy to steal the dog AND guilty of actually stealing the dog. Needless to say, conspiracy is treated incredibly seriously in the criminal code.

There are, however, two defenses to conspiracy. The first is “withdrawal.” A party can withdraw from the conspiracy, meaning they completely and voluntarily notify their co-conspirators that they will no longer participate in the conspiracy. Withdrawal though only protects against criminal liability for future crimes committed as party of the conspiracy. It does not retroactively wipe the slate clean. The second defense is “renunciation.” This requires both withdrawal plus taking steps to actively thwart the conspiracy, like helping the police.

Elaine could try to argue that she effectively withdrew from the conspiracy, as she said “I don’t know. Now, I’m thinking maybe we shouldn’t do this,” and then never affirmatively said she was back in on the plan. However, this would not constitute an effective withdrawal, as she merely expressed some doubt about the dognapping, and did not actually fully withdraw from it. Plus she stayed in the van, so that is a strong indication that she did not truly intend to withdraw.

What took you so long?

Another thing to keep in mind with regards to conspiracy is what is known as “Pinkerton Liability.” This creates criminal liability for all parties in the conspiracy for any act committed by one of the co-conspirators that is both a foreseeable part of the conspiracy and done in furtherance of the conspiracy. So, if Newman had stolen a van to transport the dog upstate, then that could create criminal liability for Elaine and Kramer even if they did not expressly agree that Newman should do this. This is because stealing a car as a getaway vehicle could be considered a foreseeable outgrowth of committing the crime and what have been performed in furtherance of the conspiracy. If, however, Newman stole a candy bar that night, then that would not be criminal liability under Pinkerton.

Even though Kramer tells Elaine that they are doing a the beast a favor, and that the dog will be prancing and dancing in the fresh air and dandelions, the gang is still guilty of conspiracy.  And it wouldn’t even take a jury that long to convict them. No amount of swarming mailmen will be able to save them.

Shut up, you stupid mutt!

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