Dressler, 856-864
Dressler, 856-864
Dressler, 856-864
856
felt no such sympathy for the 29 year old [Y]. [Y]’s verdict must stand or fall on its own merit, not in comparison to [X]’s.
AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES, COMMENT TO § 5.03
(1985), 422–424.
* * * Much of the most perplexing litigation in conspiracy has been concerned less with the essential elements of the
offense than with the scope to be accorded to a combination, i.e., the singleness or multiplicity of the conspiratorial
relationships in a large, complex, and sprawling network of crime. The question here differs from that discussed above in that in
most of these cases it is clear that each defendant has committed or conspired to commit one or more crimes; the question now
is, to what extent is he a conspirator with each of the persons involved in the larger criminal network to commit the crimes that
are their objects.
A narcotics operation may involve smugglers, distributors, and many retail sellers and may result in numerous instances of
the commission of different types of crimes, as, for example, importing, possessing, and selling the narcotics. A vice ring may
involve an overlord, lesser officers, and numerous runners and prostitutes; it may comprehend countless instances of the
commission of such crimes as prostitution, placing a female in a house of prostitution, and receiving money from her earnings.
Has a retailer conspired with the smugglers to import the narcotics? Has a prostitute conspired with the leaders of the vice ring
to commit the acts of prostitution of each other prostitute who is controlled by the ring?
The inquiry may be crucial for a number of purposes. These include not only defining each defendant’s liability, but also
the propriety of joint prosecution, admissibility against a defendant of the hearsay acts and declarations of others, questions of
multiple prosecution or conviction and double jeopardy, satisfaction of the overt act requirement or statutes of limitation, or
rules of jurisdiction and venue, and possibly liability for substantive crimes executed pursuant to the conspiracy. The scope
problem is thus central to the concern of courts and commentators about the use of conspiracy, a concern based on the conflict
between the need for effective means of prosecuting large criminal organizations, and the dangers of prejudice to individual
defendants.
857
KILGORE V. STATE
Supreme Court of Georgia, 1983.
251 Ga. 291, 305 S.E.2d 82.
BELL, JUSTICE.
Kilgore was convicted * * * for the murder of Roger Norman and was given a life sentence. He appeals.
In the early morning hours of July 8, 1981, the victim, Roger Norman, was traveling south on Interstate 59 (I-59) * * * to
his home in Alabama. While driving, he was shot in the head and killed. * * *
At trial, the state introduced evidence of a conspiracy to kill Roger Norman. In particular, it introduced evidence of three
previous attempts on Norman’s life. As to the first attempt, David Oldaker testified that on February 6, 1981 Greg Benton, his
cousin, asked him to go with him to Menton, Alabama, Norman’s home. He testified that the purpose of the trip was to kill
Norman and that Benton told him a crippled man named Tom who sold pharmaceuticals and lived in Soddy-Daisy, Tennessee,
was the man who wanted Norman killed. This testimony was admitted over the hearsay objection of defense counsel. Tom
Carden, who died on July 16, 1981, was Norman’s brother in law and lived in Soddy-Daisy. He was a paraplegic. Oldaker and
Benton went to Norman’s home, where they unsuccessfully attempted to kill him. Kilgore was in no way implicated in this
attempt.
Evidence did specifically connect Kilgore with the second attempt. Ed Williams, an employee of a truck stop located just
off the interstate near Trenton, Georgia, testified that on the evening of June 8, 1981 he saw two cars traveling close to each
other while crossing a bridge over I-59; that he heard sounds like a car backfiring; and that Norman’s car pulled into the truck
stop while the other car turned north on I-59. Norman, who had been on his way home from work, had been shot in the upper
back. Sheriff Steele of Dade County testified that based on what Norman told him, he posted a lookout for a 1962 or 1963
Rambler with a dark bottom, white top, and Tennessee tags.
Constance Chambers, Kilgore’s ex-girlfriend who lived with him from April through September of 1981, testified that on
June 8, 1981, Kilgore and his cousin, Lee Berry, borrowed her 1964 Rambler. It had a dark green body, white top, and
Tennessee tags. She testified that Kilgore returned to her apartment around 4:00 a.m. the next morning and told her they had
killed a man near Trenton, Georgia. Later that day, Chambers testified that Kilgore received a phone call from Tom Carden,
during which she heard Kilgore say “apparently we didn’t get him” * * *. * * *
Concerning the circumstances leading up to Norman’s death on July 8, 1981, Chambers’ testimony shows the continuation
of a conspiracy to kill Norman. She testified that on June 15, 1981 Kilgore received a phone call
858
from Carden, during which she heard Kilgore tell Carden he needed more money to obtain a faster car and another man to
help him. Shortly thereafter, Kilgore went to Carden’s and picked up fifteen hundred dollars. Chambers also testified that on
July 5, 1981 Kilgore received another call from Carden, after which she and Kilgore drove to Carden’s trailer where Kilgore
took fifteen thousand dollars from the mailbox. According to her testimony, they left Carden’s and drove to a V.F.W. post where
they met a friend of Kilgore’s, Bob Price. She testified that Kilgore took a rifle out of his car, put it in Price’s van, and left with
him, while she drove home alone. * * *
Chambers testified that on July 7, 1981, the day preceding the murder, Kilgore and Price left her apartment about 6:00
p.m., each in a separate vehicle but driving in the same direction. She did not see Kilgore until noon the next day, July 8, when,
she testified, he returned driving a blue Lincoln. * * *
Kilgore and Chambers spent several days in Florida, and Chambers testified that on the way home Kilgore told her that
“all mighty hell is going to break loose. * * * we killed a man”; that they [he and Price] had killed him on I-59 * * *. * * *
Kilgore appeals and enumerates fifty-one errors. * * *
Kilgore apparently contends that the state did not prove he actually committed the murder, and that consequently, it must
have been proceeding on the theory that his guilt was based upon a conspiracy; yet, he argues, the state did not prove a
conspiracy because it did not prove an overt act occurred in Georgia. * * * However, * * * the conspiracy was merely an
evidentiary tool used by the state to help prove Kilgore guilty of the murder of Norman. In fact, Kilgore could not have been
tried for conspiracy since the object of the conspiracy was completed.j * * *
He next argues that the trial court erred in admitting over objection the hearsay testimony of David Oldaker that Benton
told him that the man who wanted Norman killed was a crippled man named Tom who sold pharmaceuticals and lived in a
trailer in Soddy-Daisy, Tennessee. This testimony was the only evidence connecting Tom Carden to the February 1981 attempt.
For the reasons which follow, we find that this hearsay testimony was inadmissible.
The testimony could only be admissible under the exception to the hearsay rule which provides that the out-of-court
statements of one conspirator are admissible against all conspirators. Therefore, this testimony was only admissible if Oldaker,
Benton, and Kilgore were co-conspirators.
859
To have a conspiracy, there must be an agreement between two or more persons to commit a crime. Here, there is no
question that the evidence shows that Oldaker and Benton and Carden were co-conspirators in their attempt to kill Norman, and
that Kilgore and Price and Carden were co-conspirators in the murder of Norman, but the question is whether Kilgore, who did
not know of or communicate with Oldaker and Benton, and Oldaker and Benton, who likewise did not know of or communicate
with Kilgore, can be considered to have agreed to and become co-conspirators in the murder of Norman. We find that they
cannot.
The type of agreement necessary to form a conspiracy is not the “meeting of the minds” necessary to form a contract and
may be a “mere tacit understanding between two or more people that they will pursue a particular criminal objective.” Also,
“there need not be any written statement or even a speaking of words which expressly communicates agreement. It is possible
for various persons to be parties to a single agreement (and thus one conspiracy) even though they do not know the identity of
one another, and even though they are not all aware of the details of the plan of operation.”
However, limitations have been imposed upon the concept that persons who do not know each other can “agree” to commit
a crime. An agreement, and thus one conspiracy, is more likely to be inferred in what have been termed “chain” conspiracies,
“usually involving the distribution of narcotics or other contraband, in which there is successive communication or
cooperation. . . . ” Because the parties should know by the large, ongoing nature of the conspiracy that the other members exist,
and because the various “links” have a community of interest in that the success of one member’s part is dependent upon the
success of the whole enterprise, courts have treated links as co-conspirators despite a lack of communication or contact with one
another. United States v. Bruno, 105 F.2d 921, 922 (2d Cir.1939), rev’d on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed.
257 (1939). In Bruno, because of these considerations the court found but one conspiracy among many smugglers, middlemen,
and retailers in a drug smuggling operation.
The “chain” conspiracy contrasts with the “wheel” conspiracy in which there is usually a “hub,” or common source of the
conspiracy, who deals individually with different persons, “spokes,” who do not know each other. It is more difficult to infer an
agreement among these spokes than among the links of a “chain” conspiracy because they are less likely to have a community
of interest or reason to know of each other’s existence since one spoke’s success is usually not dependent on the other spokes’
success, but instead on his dealings with the hub. This is the type of conspiracy, if any, with which we deal in this case.
Kotteakos v. United States, [328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946),] is the classic case of a “wheel” conspiracy.
There, Brown, the hub, agreed with various persons, the
860
spokes, on an individual basis to fraudulently procure loans for them for a 5% commission. Because most of the spokes
had no connection with and had not aided each other, the court found that there was no common purpose or interest among the
spokes and, thus, that they were not co-conspirators. * * *
In the instant case, we conclude that Kilgore was not a co-conspirator of Benton and Oldaker. Here, there was no
community of interests between Benton and Oldaker on the one hand and Kilgore on the other. The success of Benton’s and
Oldaker’s attempt to kill Norman was not dependent in any way on Kilgore. Likewise, the success of Kilgore’s attempt to kill
Norman was not aided by Oldaker and Benton, especially considering that they did not assist in further efforts to kill Norman.
In addition, Benton and Oldaker, as one spoke, and Kilgore, as another or replacement spoke, had no knowledge of and no
reason to know of each other such that an agreement can be inferred between them. There was no reason for Kilgore to know of
the previous attempt on Norman’s life, as his success was not dependent on it. Likewise, Oldaker and Benton had no reason to
know of another spoke. It could be argued that Oldaker and Benton should have known that if they failed Carden would find
another spoke, and that, therefore, they can be deemed to have “agreed” with this spoke. However, we find this reasoning to be
too speculative a ground on which to infer such an agreement.
For the above reasons, we find that Kilgore and Oldaker and Benton were not co-conspirators. Consequently, it was error
to admit the hearsay testimony of Oldaker. * * *
861
be proven if each link knew or must have known of the other links in the chain, and if each defendant intended to join
and aid the larger enterprise. * * *
This structural analysis is not without confusion, as some conspiracies may be classified as chain/spoke combinations.
For example, in narcotics trafficking, the links at either end might be comprised of a number of persons “ * * * who may have
no reason to know that others are performing a role similar to theirs—in other words the extreme links of a chain conspiracy
may have elements of the spoke conspiracy.”
Perhaps a more accurate way to visualize a complex conspiracy case would be to view it as a three-dimensional organic
chemistry molecule with each part interacting continuously with another thereby forming and adhering to the whole, for a
common purpose.
2. In Kilgore, according to the prosecutor’s theory of the case, who were the parties to the conspiracy to kill Norman? Structurally,
what would the conspiracy look like? What does the conspiracy look like under the court’s interpretation of the facts?
3. In United States v. Bruno, 105 F.2d 921 (2d Cir. 1939), cited in Kilgore, Bruno was indicted with 87 others for conspiracy to
import, sell and possess narcotics. The government proved that various members of the conspiracy smuggled narcotics into the port of
New York, that these smugglers received compensation for the narcotics from middlemen, who in turn sold the drugs to retailers in New
York and to a retail group working the Texas-Louisiana region. In turn, the retailers dispensed the drugs on the street or distributed them
to smaller-level peddlers. The evidence did not disclose any cooperation or communication between the smugglers and the retailers;
however, the smugglers were aware that the middlemen with whom they dealt sold to retailers, and the retailers knew that the middlemen
were buying the drugs from importers. Is this a single wheel conspiracy, a single chain conspiracy, or something else?
4. In Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), also cited in Kilgore, the indictment charged a
single 32-person conspiracy, in which it was alleged that Brown, the key figure in the scheme, obtained federal loans for at least eight sets
of persons by assisting them in making false representations in their loan applications. Apparently, none of Brown’s customers were
aware of his arrangements with the others.
As the Supreme Court looked at the evidence, the Government proved the existence of a hub with spokes: Brown was at the hub,
with eight spokes emanating outward. As there was no rim connecting the spokes, there was no wheel conspiracy. Under this
interpretation, Brown should have been charged with at least eight counts of conspiracy, based on each fraudulent loan application.
862
Why do you think the prosecutor sought to treat the events as a single conspiracy, rather than as eight separate agreements? What
additional facts, if proven, would have established a single wheel conspiracy?
5. United States v. McDermott, 245 F.3d 133 (2d Cir. 2001):
The present prosecution arose out of a triangulated love affair involving the president of a prominent investment bank, a
pornographic film star and a New Jersey businessman.
Until May 1999, McDermott was the president, CEO and Chairman of Keefe Bruyette & Woods, an investment bank
headquartered in New York City that specializes in mergers and acquisitions in the banking industry. Around 1996, McDermott
began having an extramarital affair with Kathryn Gannon. Gannon was an adult film star and an alleged prostitute who
performed using the stage name “Marylin Star.” During the course of their affair, McDermott made numerous stock
recommendations to Gannon. Unbeknownst to McDermott, Gannon was simultaneously having an affair with Anthony
Pomponio and passing these recommendations to him. Although neither Gannon nor Pomponio had extensive training or
expertise in securities trading, together they earned around $170,000 in profits during the period relevant to this case.
The government indicted McDermott, Gannon and Pomponio for conspiracy to commit insider trading and for insider
trading on the theory that McDermott’s recommendations to Gannon were based on non-public, material information.
Based on the preceding information, should this three-person single conspiracy charge hold up? If not, what should the prosecutor
have charged in regard to conspiracy?
6. Look again at the facts in Anderson v. Superior Court, as set out on p. 828, Note 3. How would you characterize the shape of the
conspiracy according to the prosecutor’s theory of the case? Based on the materials you have read, what do you believe is the correct way
to characterize the situation: who conspired with whom to do what?
863
have found that for a considerable period of time petitioners, with others, collaborated in the illicit manufacture,
transportation, and distribution of distilled spirits involving the violations of statutes mentioned in the several counts of the
indictment. At the close of the trial petitioners renewed a motion which they had made at the beginning to require the
Government to elect one of the seven counts of the indictment upon which to proceed, contending that the proof could not and
did not establish more than one agreement. In response the Government’s attorney took the position that the seven counts of the
indictment charged as distinct offenses the several illegal objects of one continuing conspiracy, that if the jury found such a
conspiracy it might find the defendants guilty of as many offenses as it had illegal objects, and that each such offense the two-
year statutory penalty could be imposed.
The trial judge submitted the case to the jury on that theory. The jury returned a general verdict finding petitioners “guilty
as charged,” and the court sentenced each to eight years’ imprisonment. On appeal the Court of Appeals for the Sixth Circuit
affirmed * * *. It found that “From the evidence may be readily deduced a common design of appellant and others, followed by
concerted action” to commit the several unlawful acts specified in the several counts of the indictment. It concluded that the fact
that the conspiracy was “a general one to violate all laws repressive of its consummation does not gainsay the separate identity
of each of the seven conspiracies.” * * *
Both courts below recognized that a single agreement to commit an offense does not become several conspiracies because
it continues over a period of time, and that there may be such a single continuing agreement to commit several offenses. But
they thought that in the latter case each contemplated offense renders the agreement punishable as a separate conspiracy.
The question whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or
several conspiracies is raised on the present record, not by the construction of the indictment, but by the Government’s
concession at the trial and here, reflected in the charge to the jury, that only a single agreement to commit the offenses alleged
was proven. Where each of the counts of an indictment alleges a conspiracy to violate a different penal statute it may be proper
to conclude, in the absence of a bill of exceptions bringing up the evidence, that several
864
conspiracies are charged rather than one, and that the conviction is for each. But it is a different matter to hold, as the court
below appears to have done in this case, that even though a single agreement is entered into, the conspirators are guilty of as
many offenses as the agreement has criminal objects.
The gist of the crime of conspiracy as defined by the statute is the agreement or confederation of the conspirators to
commit one or more unlawful acts * * *.
For when a single agreement to commit one or more substantive crimes is evidenced by an overt act, as the statute
requires, the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and
defines its objects. Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement
which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and
hence several conspiracies because it envisages the violation of several statutes rather than one. * * *
865