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9. Could the dealer properly be convicted of conspiring to distribute drugs?
The jurisdiction follows the common law approach to conspiracy.
A drug dealer agreed with another individual to purchase heroin from the individual in order to sell it on a city street corner. Unbeknownst to the drug dealer, the other individual was an undercover police officer whose only purpose was to arrest distributors of drugs. The drug dealer made a down payment for the heroin and agreed to pay the remainder after he sold it on the street. As soon as the undercover officer handed over the heroin, other officers moved in and arrested the dealer.
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At common law, a conspiracy requires at least two «guilty minds,» i.e., persons who are actually committed to the illicit plan. Under this «bilateral» approach, one person in a two-party agreement is only feigning agreement, the other party cannot be convicted of conspiracy.
The modern trend, by contrast, follows the Model Penal Code's (MPC) «unilateral» approach to conspiracy, which requires that only one party have genuine criminal intent. Accordingly, under the unilateral approach, a defendant can be convicted of conspiracy if he conspires with one person only and that individual is an undercover law enforcement agent.
B is correct. The dealer may be convicted of the underlying crime of distributing drugs, but he cannot also be guilty of conspiracy because he was the only person who agreed to commit the crime. The undercover police officer's only purpose in interacting with the dealer was to arrest the dealer; it was never to distribute the heroin. Because there was no plurality of agreement, the dealer cannot properly be convicted of conspiring to distribute drugs.
A is incorrect. An agreement between two or more people, the intent to agree, and the intent that the underlying crime takes place are required to prove conspiracy at common law. Some jurisdictions also require an overt act in furtherance of the conspiracy. Regardless of whether this jurisdiction requires an overt act, however, making a down payment for the heroin would likely satisfy that requirement because it was conduct performed in furtherance of the underlying crime of distributing drugs. Nevertheless, the dealer cannot avoid liability for conspiracy due to the lack of an overt act.
C is incorrect. This is a misstatement of the law. Not all jurisdictions following the common law also require an overt act, but a plurality of agreement is mandatory under common law. As noted above, it must be a true plurality of agreement, where the parties actually agree with each other that the underlying crime will occur. In this case, because the undercover officer was feigning his agreement to purchase and sell the heroin, there was no plurality of agreement and thus no conspiracy.
D is incorrect. The dealer did appear to believe that all of the elements of the conspiracy were present, but under the common law, that is not enough to convict the dealer of conspiracy. As explained above, the common law requires a true agreement between two or more people that the underlying crime will occur. Although it may be true that the dealer believed all the elements of conspiracy were present and cannot take advantage of a mistake of fact or law, the dealer still cannot properly be convicted of conspiracy because there was no plurality of agreement.