WPIC 110.02 Criminal Conspiracy—Elements

Fill in the crime alleged to be the subject of the conspiracy.

An instruction must be given defining the crime alleged to be the subject of the conspiracy. Use the definition instruction for the crime involved.

Use WPIC 10.01 (Intent—Intentionally—Definition) with this instruction. The crime to be filled in must be the underlying crime, e.g., first degree murder, not the crime of conspiracy to commit such a crime. When the charging document names a specific co-conspirator, the instruction may also need to name the co-conspirator, and should be modified accordingly.

Use WPIC 110.03 (Criminal Conspiracy—Substantial Step—Definition) with this instruction; do not use WPIC 100.05 (Attempt—Substantial Step—Definition). See the Comment to WPIC 110.03 (Criminal Conspiracy—Substantial Step—Definition).

Use the first element's bracketed phrase when the defendant is charged with an underlying crime, such as delivery of a controlled substance, which requires the participation of two persons. Fill in the name of a person other than the defendant whose participation provided the basis for the underlying charge.

See Comment below before using this instruction in a conspiracy case under the Uniform Controlled Substances Act, RCW 69.50.407.

For a discussion of the phrase “any of these acts” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.28.040.

Elements. “[A]ll a prosecutor needs to prove is that the conspirators agreed to undertake a criminal scheme and that they took a substantial step in furtherance of the conspiracy.” State v. Bobic, 140 Wn.2d 250, 265, 996 P.2d 610 (2000).

Agreement. An agreement to commit a crime is an essential part of a conspiracy, State v. Miller, 131 Wn.2d 78, 929 P.2d 372 (1997), although the agreement need not be formal. State v. Israel, 113 Wn.App. 243, 284, 54 P.3d 1218 (2002); State v. Barnes, 85 Wn.App. 638, 664, 932 P.2d 669 (1997). A conspiracy may be shown by a “concert of action, all the parties working together understandingly, with a single design for the accomplishment of a common purpose.” State v. Embry, 171 Wn.App. 714, 287 P.3d 648 (2012); State v. Butler, 165 Wn.App. 820, 269 P.3d 315 (2012); State v. Israel, 113 Wn.App. at 284; State v. Barnes, 85 Wn.App. at 664.

For example, a “conspiracy to commit murder by extreme indifference requires that the conduct be intended [and] there must be an agreement (express or implied) to engage in conduct creating a grave risk [of death], but the result of the conduct-death-need not be intended.” In re Sandoval, 189 Wn.2d 811, 828, 408 P.3d 675 (2018).

When the underlying crime necessarily requires the participation of two persons, as in the case of delivery of a controlled substance, the jury must be instructed that the person with whom the illicit agreement is made is not the person involved in the delivery. State v. Valdobinos, 122 Wn.2d 270, 280, 858 P.2d 199 (1993) (error harmless under facts). A bracketed phrase is included in element (1) for use in such a case. The person whose agreement with the defendant supports the charge of conspiracy may also have participated in the underlying crime. State v. Miller, 131 Wn.2d 78, 929 P.2d 372 (1997).

Intent. A conspiracy exists only when the defendant knew that the co-conspirators intended to commit the particular criminal conduct; it is not enough to prove that the criminal conduct was reasonably foreseeable. State v. Stein, 144 Wn.2d 236, 246, 27 P.3d 184 (2001) (rejecting under state law the federal Pinkerton doctrine of foreseeability); State v. Israel, 113 Wn.App. at 274–75.

Drug cases. Punishment for conspiracy cases under the Uniform Controlled Substances Act is governed by a separate statute, RCW 69.50.407. There is disagreement, however, in the Court of Appeals whether drug conspiracies require proof of a substantial step. In State v. Casarez-Gastelum, 48 Wn.App. 112, 738 P.2d 303 (1987), Division III held the lack of a substantial step requirement in RCW 69.50.407 vitiated the need for that element when instructing on a drug crime conspiracy. In contrast, Division I, in State v. Pineda-Pineda, 154 Wn.App. 653, 667–69, 226 P.3d 164 (2010), held the substantial step element of RCW 9A.28.040 applies equally to all conspiracies, drug or otherwise. To date, the Supreme Court has not weighed in on this issue. See generally Fine, 13A Washington Practice, Criminal Law and Sentencing §§ 12:11–13 (3d ed.).

Statutory non-defenses. RCW 9A.28.040(2) lists several matters that do not constitute a defense to the crime of criminal conspiracy. No pattern instruction is proposed. An instruction can usually be drafted in the language of the statute.

RCW 9A.28.040(2)(d) states that it is not a defense to criminal conspiracy that a co-conspirator has been acquitted. This statute is consistent with cases that have broadly rejected the rule against inconsistent verdicts. See, e.g., State v. Mullin-Coston, 152 Wn.2d 107, 120, 95 P.3d 321 (2004) (“issues decided by one defendant's jury are not binding in the later trial of a different defendant”); State v. Goins, 151 Wn.2d 728, 738, 92 P.3d 181 (2004) (inconsistency between a jury's special and general verdicts is not a basis for overturning the guilty verdict, as long as the guilty verdict is supported by sufficient evidence); State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988). In one case, State v. Valladares, 99 Wn.2d 663, 664 P.2d 508 (1983), the court required consistent verdicts when it held that RCW 9A.28.040(2)(d) does not apply in a joint trial involving co-conspirators. The Valladares analysis appears to have been overruled sub silentio by the Ng line of cases. See Fine, 13A Washington Practice, Criminal Law and Sentencing § 7:4 (3d ed.) (concluding that the rule against inconsistent verdicts is no longer valid in conspiracy cases).

Underlying crime. The crime to be filled in must be the underlying crime, e.g., first degree murder, not the crime of conspiracy to commit such a crime. State v. Smith, 131 Wn.2d 258, 930 P.2d 917 (1997) (failure to do so renders instruction constitutionally defective).

Merger. Wharton's Rule applies in Washington absent a legislative intent to the contrary. Under this rule of statutory construction, a charge of conspiracy will not lie and is merged into a substantive offense, if the substantive offense necessarily requires the participation of two persons and no more than two persons are alleged to have been involved in the agreement to commit the offense. See Fine, 13A Washington Practice, Criminal Law and Sentencing § 7:4 (3d ed.).

Cross-reference. For a general discussion of conspiracy issues, see Fine, 13A Washington Practice, Criminal Law and Sentencing section 7:4 (3d ed.).