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14. In addition to embezzlement, of what crime or crimes may the man properly be convicted?
A man and a woman were partners in an automobile leasing agency. For some time, the man had been embezzling money from the agency. The woman became suspicious and told the man that she wanted to engage an accounting firm to audit the agency's books. In a panic to prevent the audit and avoid being discovered, the man decided to have the woman killed. He contacted a professional killer and hired him to kill the woman for $10,000. A short time later, the woman died in a car crash arranged by the killer.
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Under Pinkerton v. United States, 328 U.S. 640 (1946), one member of a conspiracy is liable for the crimes of her co-conspirators if those crimes were foreseeable and committed in furtherance of the conspiracy's objective. Even if the co-conspirator is not present and took no physical part in the crime, she still can be held liable under this standard.
Solicitation consists of inciting counseling, advising, inducing urging, or commanding another to commit a crime with the specific intent that the person commit the crime. The offense is complete the moment the solicitation is made, regardless of agreement. Solicitation merges with the crime that was solicited if it was actually committed. An accused, therefore, cannot be convicted of both solicitation and the principal offense.
A defendant may be guilty of solicitation if she requests or encourages another to commit a crime with the intent that that crime takes place. She may be guilty of solicitation if she fulfills these requirements, regardless of the response of the person she solicits. Unlike conspiracy, solicitation does merge into any resulting conspiracy, or into the target offense if it takes place.
A is correct. The man hired the professional killer to kill his partner and the killer arranged the woman's death, demonstrating the first three elements on behalf of both parties: the agreement between the man and the killer, their intent to enter into that agreement, and their intent that the killing actually occur. The parties easily meet this standard by completing the agreement to kill the partner. Even if this jurisdiction requires an overt act, the man and the killer meet all of the requirements of conspiracy.
The man did not arrange the car crash; the killer did. But the man and the killer were co-conspirators who agreed to arrange the woman's killing. Not only was the woman's death a foreseeable result of that conspiracy, but the car crash the killer arranged was also an action taken in furtherance of their conspiratorial objective to kill the woman. Because conspiracy does not merge into the target crime, the man can be held liable for the killing as a co-conspirator, and be convicted of both conspiracy and murder.
B is incorrect. As discussed above, the man may indeed properly be convicted of murder, but the man and the professional killer also fulfilled the elements of conspiracy. Conspiracy is a separate crime that does not merge into the target offense, so although the man may properly be convicted of murder, he can properly be convicted of conspiracy as well.
C is incorrect. The man approached and hired a professional killer to kill his partner, which qualifies as his requesting or encouraging the killer to commit murder. As explained above, the man and the professional killer then formed a conspiracy when the professional killer agreed, and both parties had the requisite intent to agree and intend that the woman be killed. The killer then fulfilled the agreement and arranged for the woman's killing, completing the target crime. Although it is true that the man meets the requirements of solicitation, that solicitation merged into the subsequent conspiracy, as well as the target crime. The man cannot properly be convicted of solicitation and conspiracy.
D is incorrect. As explained above, the man may have committed all three of these crimes; however, solicitation merges into conspiracy or into the completed target crime. Therefore, the man may properly be convicted of conspiracy and murder since conspiracy does not merge with the target crime, but the man cannot properly be convicted of solicitation in addition to either conspiracy or murder, let alone all three.