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Wharton's Rule

Wharton’s rule under Criminal Conspiracy

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“The mind was apt to take pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individuals, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete”

This was a warning addressed by Baron Alderson to the jury in the case of Reg v. Hodge[i], on the danger that conjecture or suspicion may take the place of legal proof. This, somehow, also tends to crystallize the law of criminal conspiracy.

What is ‘criminal conspiracy’?

The Black’s Law Dictionary defines ‘criminal conspiracy as An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.” 

The offense of criminal conspiracy is an exception to the general law where intent alone does not constitute a crime. It is the intention to commit a crime and joining hands with the persons having the same intention. The main purpose of lawmaking conspiracy a crime is to curb excessive power to do mischief which is gained by an amalgamation of the means. The offense of criminal conspiracy has its foundation in an agreement to commit an offense.

A criminal conspiracy does not merely consist in the intention of two or more, but consists in the agreement of two or more, to commit an offense or to do a lawful act by unlawful means. It is settled that what is necessary, is not thoughts, which may even be criminal in character, often involuntary but the offense would be said to have been committed thereunder only when that takes a concrete shape of an agreement to do or cause to be done an illegal act which although not illegal by illegal means and then even if nothing further is done, the agreement would give rise to a criminal conspiracy.

What is Wharton’s rule

Wharton’s rule originated primarily to address criminal cases that involved a criminal conspiracy. The rule is named after Francis Wharton, an American lawyer who developed it.

Wharton’s rule states that an agreement between two by two people to engage in a crime cannot be regarded as a criminal conspiracy when a crime of that nature requires two people for its execution. In other words, it is a rule that prohibits the prosecution of two persons for conspiracy to commit a particular offense when the offense in question can only be committed by at least two persons, that is, an agreement by two or more persons to commit a particular offense cannot be prosecuted as a conspiracy if the offense could not be committed except by the definite number of participants involved. Two individuals can only be charged for conspiring to commit a crime if there was an additional person who was involved in the agreement to commit a crime.

Generally, the statutory limitation in punishment for a crime that involves conspiracy is ‘n+1’ where ‘n’ is the minimum number of actors required to commit the crime and one person whose participation is not strictly necessary for the crime to be executed, but she or he agrees to be a part of the crime and goes ahead to aid in the commission of it.

Wharton’s rule has the potential to be used to exempt a person from the charges of criminal conspiracy. Necessary parties cannot be charged with conspiracy to commit a crime that naturally requires a concert of agents. This rule can only be applied to offenses that require a concert in an effort in perpetrating criminal activity. Hence, the rule is also known as the ‘concert-of-action’ rule.

The rule suggests that there ought to be an examination of purposes that underlie a criminal conspiracy. Prosecutors prove a criminal conspiracy by establishing circumstantial evidence that proves that there was an agreement among the accused persons for the commission of an offense, or a legal act by illegal means. The rule is applicable in cases where the agreement was entered into, irrespective of whether the offense or the illegal act that was planned, was ultimately committed or not.

Cases under which Wharton’s rule is Applicable

The essence of Wharton’s rule is that an agreement by two persons to commit a particular crime cannot be prosecuted as a criminal conspiracy when the crime is of such a nature as to inevitably involve the involvement of two persons for its commission. Each one of the actors of the offense may be charged with criminal conspiracy if one additional person participates so as to broaden the extent of the agreement. When the intent of the legislature is to inflict a separate penalty for conspiracy to commit a particular crime, the Wharton’s Rule does not apply.

Certain offenses require two or more culpable actors acting in concert. Examples of such offense are:

  •  Bigamy
  • Dueling
  • Incest
  • Adultery
  • Bribery
  • Buying and selling contraband goods

In all such offense, the commission inevitably necessitates the culpable acting of at least two persons. Hence, in an agreement to commit any of the above offenses, the accused persons shall not be held liable for criminal conspiracy, as per the Wharton’s rule.

Cases under which Wharton’s rule is not applicable

Wharton’s rule does not apply if the legislature has imposed a separate punishment for conspiracy to commit a particular crime. Also, if the legislature interprets the crime to have been committed by a single person only, for example, in cases where a statute prohibits as offer ‘or’ the reception of a bribe, this rule shall have no application.

In the case of Iannelli v. the United States[ii], the defendant, along with seven others, was convicted of criminal conspiracy to violate and of violating a federal statute making it a crime for five or more persons to operate a prohibited gambling business. The convictions for both of the offenses were upheld.  It was opined that Wharton’s Rule has significance only as a judicial presumption, to be applied in the absence of legislative intent to the contrary. The classic Wharton’s Rule offenses—adultery, incest, bigamy, dueling—are offenses that are portrayed by the general resemblance of the agreement and the completed substantive offense. The parties to the agreement are the only persons who contribute in the commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than society at large.

Wharton’s rule also does not have any application in cases where the substantive offense does not demand concerted criminal activity, for example, drug use or distribution. Such was the opinion in the case of Crocker v. the United States[iii]. In the cases of United States v. Johnson[iv], the defendants were convicted of drug distribution, and the United States Court of Appeal, upholding the conviction, opined that the Wharton’s rule does not apply in situations in which the substantive offense does not require concerted activity.

The rule is not applicable where the alleged criminal conspiracy involves the cooperation of a greater number of persons than is required for commission of the substantive offense. In the case of Crocker v. the United States[v], the conviction for criminal conspiracy was affirmed where the accused had accepted money and agreed to buy drugs for another airman on a trip to Amsterdam. The Court held that Wharton’s Rule did not apply because of only one party to a drug distribution needed to have criminal intent. The Court decided on similar lines in the case of United States v. Yamango Jiles[vi] the defendant was convicted of conspiracy to possess with intent to distribute crack cocaine. The court upheld the conviction stating that Wharton’s rule is not applicable for a case involving conspiracy to distribute drugs.

However, in the case of United States v. Parada[vii], it was opined that the application of Wharton’s Rule to drug offenses is a highly fact-dependent determination in which the extent of the enterprise in time and reach are prime considerations. An accusation of a conspiracy to distribute marijuana were the only parties involved was the accused, who mailed the drugs, and his friend, who received them, was unnecessary “piling-on” of charges. The court, in the case of United States v. Viser[viii], held again that Wharton’s rule is not applicable to drug offenses.

Wharton’s Rule is also not applicable to cases involving a conspiracy to violate an anti-black marketing regulation. In the case of United States v. Wood[ix], the Court made it clear that Wharton’s rule shall not be applicable to cases of violation of such regulations. The reasoning adopted by the Court was that the regulation could be violated by one person.

Conclusion

The basic purpose of the law penalizing criminal conspiracy is to deter group criminality and to fill the law of attempt which is construed very narrowly. The general rule for criminal conspiracy is that conspiracy and the substantive offense that is its immediate end are discrete crimes for which separate sanctions may be imposed. The Wharton’s rule regulates the law of criminal conspiracy by prohibiting the conviction for such an offense of conspiracy to commit a substantive offense in which the participation of two persons is inevitable for its commission. The Wharton’s rule however does not apply if the legislature imposes a separate punishment for conspiracy to commit a particular crime or construes the crime such that it can be committed by only one person, and in certain other cases as has been decided by the federal courts from time to time.


Endnotes

[i] Reg v. Hodge (1838) 2 Lew 227

[ii] Iannelli v. the United States, 420 U.S. 770 (1975)

[iii] Crocker v. the United States, 240 U.S. 74 (1916)

[iv] The United States v. Johnson, 221 U.S.488 (1911)

[v] Supra note [iii]

[vi] United States v.Yamango Jiles, No. 16-3030 (7th Cir. 2017)

[vii] United States v. Parada, 289 F. Supp. 2d 1291 (2003)

[viii] United States v. Viser, 27 M.J. 562 (A.C.M.R. 1988)

[ix] United States v. Wood, 7 M.J. 885 (A.F.C.M.R. 1979)

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Ritu Basu

Student, School of Law and Justice, Adamas University

The author is currently pursuing B.Sc. LL.B. (H) from the School of Law and Justice Adamas University, Kolkata. She has completed her plus two with 98% marks in the ISC. She is a regular mooter and article-writer. Her area of interest mainly includes Constitutional Law and Criminal Law. However, she also takes a keen interest in Human Rights issues. Public speaking is her passion, and her ardour for penning down her opinions has not been dampened. With an additional benefit of belonging to the legal fraternity, she has a passion for the discipline, and also understands the need for legal research and legal education in the country.

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