Question
Max imports paintings. For years, he has knowingly bought and resold paintings stolen (possibly a receipt of stolen property with the necessary intent) from small museums in Europe. He operates a gallery in State X in partnership with his three sons, Allen, Burt, and Carl, but he has never told them about his criminal activities. (no solicitation, no conspiracy no accomplice liability) Each of his sons, however, has suspected (intent-knowingly) that many of the paintings were stolen. (No agreement but only a suspicion)
One day, Max and his sons picked up a painting sent from London. Max had arranged to buy a painting recently stolen by Ted, (Possibly conspiracy of M with T with an overt act of picking up the painting) one of his criminal sources, from a small British museum.
Max believed (possibly specific intent and attempt) the painting that they picked up was the stolen one, but he did not share his belief with the others. (No conspiracy for M with A, B & C)
Liability of A
Having read an article about the theft, Allen also believed the painting was the stolen one but also did not share his belief. (No conspiracy for A with M, B & C)
Liability of B
Burt knew about the theft of the painting. Without Max’s knowledge, however, he had arranged for Ted to send Max a copy of the stolen painting (Not the stolen painting itself) and to retain the stolen painting itself for sale later.
Liability of C
Carl regularly sold information about Max’s transactions to law enforcement agencies and continued to participate in the business for the sole purpose of continuing to deal with them. (No intent)
Are Max, Allen, Burt, and/or Carl guilty of:
(a) conspiracy to receive stolen property, (#1)
(b) receipt of stolen property with respect to the copy of the stolen painting, and/or, (#2)
(c) attempt to receive stolen property with respect to the copy of the stolen painting? (#3) Discuss.
Outline
#1 CONSPIRACY RSP
(1) M: Yes with T
(2) A: No
(3) B: Yes with T
(4) C: No
#2 RSP
(1) M: No
(2) A: No
(3) B: No
(4) C: No
#3 ATTEMPT RSP
(1) M: Yes
(2) A: Yes
(3) B: No
(4) C: No
Comments
Because there are 12 subpoints to discuss (and more if you include T), an organization and time management is critical.
1. Conspiracy: It is important to point out that M did not conspire with any of his sons because there is no express or implied agreement as required the majority bilateral or minority unilateral conspiracy rule. M, however, did conspire with T, a person not one of the defendant. A lengthy discussion of whether there was an agreement is critical- the answer should discuss the mere suspicion and lack of communication to conclude that no agreement existed.
2. Receipt of Stolen Property: The fact that the painting was not the stolen original but a copy makes it factual impossibility. and the defendants cannot be guilty of the completed crime.
3. Attempt of receipt of stolen property: Specific intent and substantial step need to be discussed.
Sample Answer
I. Conspiracy to Receive Stolen Property
Conspiracy requires: (1) an agreement between two or more people to accomplish an unlawful or fraudulent purpose, and (2) an overt act taken in furtherance of the conspiracy.
Under the majority rule, all parties to the conspiracy must agree while under the minority rule, the agreement can be unilateral. For overt act requirement, any act taken by any co-conspirators in furtherance of the unlawful objective will suffice.
1. an agreement
(1) Agreement between M and A, B, C
Agreement among co-conspirators need not be in writing and need not even be expressed orally, but rather can be implied from conduct and knowledge under the circumstances.
Here, there was no express or implied agreement between M, A, B, and C to receive the painting stolen by and acquired from T. The mere fact that A. B, and C suspected their father's criminal activities does not suffice to create an implied agreement between any or all of them and him to pursue that common unlawful objective, as they neither shared those suspicions and/or knowledge with M or with each other. Nor does it matter that A believed the painting was stolen (and that the one they picked up was the stolen one), as he never did anything, through words or conduct, to share that belief. The same is true for B, though each independently suspected or knew of their father's activities, C's status as informant to law enforcement and participation for the sole purpose of continuing to deal with law enforcement would destroy his agreement to further the objective in question.
Thus, there is no conspiracy liability for M, A, B, and C here.
(2) Agreement between M and T
Lastly, M and T may well be guilty of conspiracy to steal and/or receive the stolen painting. M and T agreed for T to sell the stolen painting to M, and T took the act of sending the copy and arranging for payment in furtherance of the conspiracy. Similarly, B has conspired with T, and if he receives the stolen painting from T, he may face conspiracy liability for the theft and/or receipt or sale of the painting as well.
2. Overt Act
An overt act was the picking up of the painting sent from London.
In conclusion, while there was no agreement between M and A, B, C to constitute conspiracy there was an agreement between M and T and the overt act. Therefore, M is liable for conspiracy.
#2 Receipt of Stolen Property
The crime of receiving stolen property requires that the defendant: (1) receive property that has been wrongfully taken from the rightful owner with the intent not to return it to its true owner, and (2) know that the property in question was wrongfully taken from its rightful owner. A defendant's knowledge may be express or implied under the circumstances, and, furthermore, the knowledge requirement may be met if the defendant under the circumstances is "willfully blind" to the fact that the property has been stolen.
(1) Factual impossibility
the painting that M, A, B, and C received was not in fact stolen so they will not be guilty of having received stolen property based on their receipt of the copy.
#3 Attempt to Receive Stolen Property
Attempt is a specific intent crime. It requires: (1) that the defendant take sufficient action toward the completion of a crime, and (2) specifically intend to commit that crime. There is a split of authority as to the appropriate test to use for determining whether a defendant has done enough to constitute an attempt.
M and A: In this case, M knew the painting had been stolen and believed the copy was the real thing, and A also knew it had been stolen and believed that this one was the real thing. Thus, M and A each specifically intended to commit the crime of receiving stolen property. Moreover, each took a substantial step toward doing so, and came dangerously close, by picking up the copy of the painting. But for B's dirty doublecrossing of his father and brothers, M and A would have succeeded in committing this crime. Thus, each of M and A is guilty of attempt to receive stolen property, regardless of the fact that the painting they picked up was a copy
B: B presents a different case. Clearly he took a substantial step toward and came dangerously close to committing the crime, but he did not specifically intend to commit the crime of receiving stolen property by taking the copy of the painting. He in fact knew that the painting they picked up was a copy, and had not been stolen, and thus lacked specific intent. Thus, B would not be guilty under these circumstances for attempted receipt of stolen property by taking the copy of the painting sent from London. As noted above, he may be guilty for other conduct -- such as actually receiving the true stolen painting if T sends it to him, or for receiving proceeds of the sale of the true stolen painting under his agreement with T.
C: C, however, did believe that the painting that he picked up with the others was in fact stolen, and thus, like M and A, would be guilty for attempt. The fact that he was participating with law enforcement would not change this fact. C might be able to obtain immunity from prosecution as a result of his assistance, but absent a grant of immunity, he would be guilty along with M and A of attempted receipt of stolen property.