The statute explicitly states that conspiracy to commit an aggravated felony constitutes an aggravated felony.[390]  Conversely, conspiracy to commit a non-aggravated felony would not constitute an aggravated felony.

 

                The BIA held that a state conspiracy statute does not have to be exactly analogous to the federal conspiracy statute for the state conviction to be a controlled substances aggravated felony.[391]   This decision was limited to the “general” drug trafficking test, however, and arguably does not apply to a conspiracy to commit other offenses.  Therefore, counsel should compare the state conspiracy statute at issue with the federal statutes.[392]  If the elements of state conspiracy are broader than the federal version, the state conviction may not qualify as aggravated felony conspiracy.

 

[390] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).  See, e.g., Conteh v. Gonzales, 461 F.3d 45 (1st Cir. Aug. 22, 2006) (federal conviction for conspiracy under 18 U.S.C. § 371, where the underlying offense was a violation of 18 U.S.C. § 1344 [bank fraud] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes); Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy constitutes an aggravated felony, under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), triggering deportability under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), so long as the substantive offense that is the object of the conspiracy constitutes an aggravated felony, without regard to whether the elements of the conspiracy crime themselves establish the underlying aggravated felony offense).

[391] In Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), the BIA considered conspiracy in the context of aggravated felony drug convictions.  There are two distinct tests to determine whether a state drug offense is an aggravated felony.  The offense must either be “trafficking” as the term is generally understood, or it must be an exact analogue to a federal drug felony.  In Davis, the BIA found that if the underlying offense is an aggravated felony because it meets the “common definition” of trafficking, conviction of conspiracy or attempt to commit the offense does not need to be analogous to the federal statute to be considered an aggravated felony.  Id. at 544-545.

[392] See American Law Institute, Model Penal Code § 5.03 (criminal conspiracy) (1985).

BIA

AGGRAVATED FELONY - CONSPIRACY
Matter of Richardson, 25 I. & N. Dec. 226 (BIA Apr. 23, 2010) (a person who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense).

AGGRAVATED FELONY - CONSPIRACY - FRAUD
Matter of SIK, 24 I. & N. Dec. 324 (BIA Oct. 4, 2007) (federal conviction for violation of 18 U.S.C. 371, conspiracy, where the substantive crime that was the object of the conspiracy was an is an aggravated felony under INA 101(a)(43)(M)(i), (U), 8 U.S.C. 1101(a)(43)(M)(i), (U), since the offense involved "fraud or deceit" and the potential loss to the victim(s) exceeded $10,000).

AGGRAVATED FELONY - CONSPIRACY
United States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) ("[E]vidence of a mere buyer-seller relationship is insufficient to support a conspiracy conviction [unless there is third party involvement, or it was agreed between them that the drugs would be further distributed]."); United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) ("[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.");.accord United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("[M]erely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy"); United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985) (merely introducing a willing buyer to a willing seller does not establish conspiracy). See Sevilla, What About Whartons Rule?, CACJ Nuggets (Jun.19, 2008).

     There are exceptions to this rule. If a statute implicitly or explicitly allows a conspiracy to be charged in addition to the substantive offense, then the statute controls. Iannelli v. United States, 420 U.S. 770 (1975) (lengthy description of Whartons Rule, finding it inapplicable to a prosecution for conspiracy as well as a federal gambling statute (18 U.S.C. 1955) based on an analysis of legislative intent).

     There are other examples of substantive offenses that require two persons to commit them. E.g., People v. Wettengel, 98 Colo. 193 (Colo. 1936) (bribery, as a crime requiring two peoples involvement, one to offer the bribe and one to accept it, could not qualify as a conspiracy where the actors within the conspiracy included both sides of the bribe); Gebardi v. United States, 287 U.S. 112, 121 (1932) (transporting a woman across state lines for immoral purposes in violation of the Mann Act: "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."); People v. Purcell, 304 Ill. App. 215 (Ill. App. Ct. 1940) (indictment returned charging defendants with conspiring with each other to gamble, holding the substantive offense of gaming required the concerted action of two or more persons so the substantive offense could not be committed by each of the two defendants); People v. Mayers, 110 Cal. App. 3d 809, 815 (1980)(the defendant was convicted of operating a game of three-card monte, and conspiracy to cheat and defraud another in the game; Court of Appeal held the defendant could not be convicted of conspiracy because the game required the concerted effort of a dealer and a shill); People v. Keyes, 103 Cal. App. 624, 646 (1930) (in denying rehearing, the Supreme Court noted the Rule and stated: "we deem it proper to say that we withhold our approval of so much of the opinion [of the Court of Appeal] rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy.").

     California courts have found the Rule inapplicable in situations where the intent of the statute permits conspiracy prosecutions. See People v. Lee, 136 Cal. App. 4th 522 (2006) (defendant may be convicted of a conspiracy to furnish a controlled substance to a prison inmate in violation of Pen. Code, 4573.9. The same is true where the crime clearly involved other people than the two needed for the crime itself. In Hutchins v. Municipal Court, 61 Cal. App. 3d 77 (1976), an attorney was charged with aiding and abetting and conspiring with runners (cappers) to solicit business, in violation of Cal. Bus. & Prof. Code 6152, 6153. The attorney contended that while the cappers were subject to prosecution for violating 6152 and 6153, attorneys were not. On appeal, the court held the legislative history did not support the attorney's contention. An attorney who joins with cappers for the solicitation of business could be properly charged with solicitation, under which he could be found guilty of the completed offense set forth in 6152 and 6153, or with conspiracy. Wharton's Rule was held not to apply because the completed crime necessarily involves approaching third persons. In Calhoun v. Superior Court of San Diego County, 46 Cal. 2d 18, 29-30 (1955), Calhoun was indicted by the grand jury for conspiring to receive political contributions from persons licensed by the Board of Equalization to sell alcoholic beverages under Cal. Elec. Code 5002.5 and for obstruction of justice under Cal. Penal Code 182(5). Calhoun was a director of a nonprofit that sold alcohol. He was also general counsel for an association of wholesale liquor distributors, which gave him the authority to contribute to political funds. He was indicted for using these positions to fund a campaign to reelect a member of the board by improperly using monies provided by retail liquor licensees to fight a different political cause. He sought a writ of prohibition to restrain respondent Superior Court from going forward with a trial on the indictment. Denied. The Court held that the evidence showed an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance a political campaign and that petitioner was connected with the campaign as more than a donor. The Court rejected his Whartons Rule argument by noting that the conduct involved a widespread conspiracy: "In attacking the sufficiency of the evidence to support count I of the indictment, Calhoun urges that it establishes only his participation as a donor, or the agent of a donor, in the making of contributions to Bonelli's campaigns. He relies upon the rule, to which this court referred in denying a petition for hearing in People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], which precludes prosecution for conspiracy to commit a substantive offense when the only concert of action shown is that necessary to consummate the substantive offense. (Gebardi v. United States, 287 U.S. 112 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; notes, 26 So.Cal.L.Rev. 64, 70; 23 So.Cal.L.Rev. 262.) There is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance Bonelli's political campaigns."

     When applicable, the Rule prevents a defendant from being convicted both for a conspiracy to commit an offense and the substantive offense where the latter offense requires concerted action. It may be that both crimes can be charged if the prosecution hurdles the insufficiency of evidence issues at a preliminary hearing and a 995 motion (and a later 1181.1 during trial). If the conspiracy charge makes it to verdict, the jury should be instructed that unless the other necessary facts are proven, it must acquit of the conspiracy.

AGGRAVATED FELONY - CONSPIRACY
United States v. Montgomery, 150 F.3d 983, 1002 (9th Cir. 1998) ("[E]vidence of a mere buyer-seller relationship is insufficient to support a conspiracy conviction [unless there is third party involvement, or it was agreed between them that the drugs would be further distributed]."); United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994) ("[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy.");.accord United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir. 1987) ("[M]erely purchasing drugs or other property from a conspiracy, standing alone, can never establish membership in the conspiracy"); United States v. Tyler, 758 F.2d 66, 69 (2d Cir. 1985) (merely introducing a willing buyer to a willing seller does not establish conspiracy). See Sevilla, What About Whartons Rule?, CACJ Nuggets (Jun.19, 2008).

     There are exceptions to this rule. If a statute implicitly or explicitly allows a conspiracy to be charged in addition to the substantive offense, then the statute controls. Iannelli v. United States, 420 U.S. 770 (1975) (lengthy description of Whartons Rule, finding it inapplicable to a prosecution for conspiracy as well as a federal gambling statute (18 U.S.C. 1955) based on an analysis of legislative intent).

     There are other examples of substantive offenses that require two persons to commit them. E.g., People v. Wettengel, 98 Colo. 193 (Colo. 1936) (bribery, as a crime requiring two peoples involvement, one to offer the bribe and one to accept it, could not qualify as a conspiracy where the actors within the conspiracy included both sides of the bribe); Gebardi v. United States, 287 U.S. 112, 121 (1932) (transporting a woman across state lines for immoral purposes in violation of the Mann Act: "Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, * * * or under the federal statute."); People v. Purcell, 304 Ill. App. 215 (Ill. App. Ct. 1940) (indictment returned charging defendants with conspiring with each other to gamble, holding the substantive offense of gaming required the concerted action of two or more persons so the substantive offense could not be committed by each of the two defendants); People v. Mayers, 110 Cal. App. 3d 809, 815 (1980)(the defendant was convicted of operating a game of three-card monte, and conspiracy to cheat and defraud another in the game; Court of Appeal held the defendant could not be convicted of conspiracy because the game required the concerted effort of a dealer and a shill); People v. Keyes, 103 Cal. App. 624, 646 (1930) (in denying rehearing, the Supreme Court noted the Rule and stated: "we deem it proper to say that we withhold our approval of so much of the opinion [of the Court of Appeal] rendered as holds that in California, contrary to rulings elsewhere, an unlawful agreement between two parties, the one to give and the other to receive a bribe, may constitute a criminal conspiracy. It is true that a set of defendants may conspire to give or a set of defendants may conspire to receive or accept a bribe, but bribery requires for its consummation the unlawful concert of one or more persons acting with one or more other persons having a different motive or purpose. That being true, there is in such a case no room for the operation of a charge of conspiracy.").

     California courts have found the Rule inapplicable in situations where the intent of the statute permits conspiracy prosecutions. See People v. Lee, 136 Cal. App. 4th 522 (2006) (defendant may be convicted of a conspiracy to furnish a controlled substance to a prison inmate in violation of Pen. Code, 4573.9. The same is true where the crime clearly involved other people than the two needed for the crime itself. In Hutchins v. Municipal Court, 61 Cal. App. 3d 77 (1976), an attorney was charged with aiding and abetting and conspiring with runners (cappers) to solicit business, in violation of Cal. Bus. & Prof. Code 6152, 6153. The attorney contended that while the cappers were subject to prosecution for violating 6152 and 6153, attorneys were not. On appeal, the court held the legislative history did not support the attorney's contention. An attorney who joins with cappers for the solicitation of business could be properly charged with solicitation, under which he could be found guilty of the completed offense set forth in 6152 and 6153, or with conspiracy. Wharton's Rule was held not to apply because the completed crime necessarily involves approaching third persons. In Calhoun v. Superior Court of San Diego County, 46 Cal. 2d 18, 29-30 (1955), Calhoun was indicted by the grand jury for conspiring to receive political contributions from persons licensed by the Board of Equalization to sell alcoholic beverages under Cal. Elec. Code 5002.5 and for obstruction of justice under Cal. Penal Code 182(5). Calhoun was a director of a nonprofit that sold alcohol. He was also general counsel for an association of wholesale liquor distributors, which gave him the authority to contribute to political funds. He was indicted for using these positions to fund a campaign to reelect a member of the board by improperly using monies provided by retail liquor licensees to fight a different political cause. He sought a writ of prohibition to restrain respondent Superior Court from going forward with a trial on the indictment. Denied. The Court held that the evidence showed an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance a political campaign and that petitioner was connected with the campaign as more than a donor. The Court rejected his Whartons Rule argument by noting that the conduct involved a widespread conspiracy: "In attacking the sufficiency of the evidence to support count I of the indictment, Calhoun urges that it establishes only his participation as a donor, or the agent of a donor, in the making of contributions to Bonelli's campaigns. He relies upon the rule, to which this court referred in denying a petition for hearing in People v. Keyes, 103 Cal.App. 624, 646 [284 P. 1096], which precludes prosecution for conspiracy to commit a substantive offense when the only concert of action shown is that necessary to consummate the substantive offense. (Gebardi v. United States, 287 U.S. 112 [53 S.Ct. 35, 77 L.Ed. 206, 84 A.L.R. 370]; notes, 26 So.Cal.L.Rev. 64, 70; 23 So.Cal.L.Rev. 262.) There is little dispute, however, that the evidence shows an elaborate conspiracy to utilize contributions from both retail and wholesale liquor licensees to finance Bonelli's political campaigns."

     When applicable, the Rule prevents a defendant from being convicted both for a conspiracy to commit an offense and the substantive offense where the latter offense requires concerted action. It may be that both crimes can be charged if the prosecution hurdles the insufficiency of evidence issues at a preliminary hearing and a 995 motion (and a later 1181.1 during trial). If the conspiracy charge makes it to verdict, the jury should be instructed that unless the other necessary facts are proven, it must acquit of the conspiracy.

First Circuit

PRACTICE ADVISORY " AGGRAVATED FELONY " CONSPIRACY " TARGET OFFENSE IS NOT AN ELEMENT UNDER CALIFORNIA LAW SO CONSPIRACY OFFENSE IS NOT DIVISIBLE WITH RESPECT TO THE TARGET OFFENSE
In jurisdictions in which the target offense is an element of conspiracy, then that offense would be an aggravated felony if the target offense is an aggravated felony. In California, however, the target offense of a conspiracy not an element of the offense, since the jury need not unanimously agree on the identity of the target offense. The California conspiracy offense is therefore indivisible with respect to the target offense, and the modified categorical analysis does not apply. The immigration authorities are precluded from examining the record of conviction to discern the identity of the target offense. A California conspiracy conviction may therefore never constitute an aggravated felony conviction or a conviction of a crime of moral turpitude or be considered in determining whether the conspiracy conviction triggers any other conviction-based ground of removal or bar to relief. While no court has yet held to this effect, the Ninth Circuit adopted this exact reasoning in concluding that because the target offense is not an element of a California burglary offense, burglary can never be an aggravated felony. Rendon v. Holder, 764 F.3d 1077 (9th Cir. Aug. 22, 2014). This conclusion on conspiracy offenses is no more in tension with 8 USC 1101(a)(43)(U), than the fact that California burglary is indivisible with 8 USC 1101(a)(43)(G), as Rendon held. This interpretation of the aggravated felony definition would not be underinclusive because other states would be covered, wherever the target offense is an element. Counsel should be conservative, however, and if possible wait to adopt this plea strategy until the immigration or federal courts agree or there is no better argument available. This strategy would not be successful for controlled substance trafficking because the underlying conduct may give the government reason to believe the defendant was an illicit trafficker. If the defendant actually committed the target offense, there would also be exposure for controlled substance or moral turpitude inadmissibility because an immigration factfinder could seek to cause the noncitizen to admit to the commission of the target offense, which, if successful, would make the noncitizen inadmissible. Immigration counsel, however, could freely use this argument in immigration court where there is no downside. Caution: If the jury in a federal conspiracy case is not required unanimously to agree on the target offense, the government could argue that this interpretation would render 8 U.S.C. 1101(a)(43)(U) meaningless. Thanks to Dan Kesselbrenner.

Fifth Circuit

AGGRAVATED FELONIES " CONSPIRACY " CONSPIRACY TO COMMIT MURDER IS AGGRAVATED FELONY
United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. Apr. 11, 2014) (Nevada conviction for violation of N.R.S. 199.480, 200.010, 200.030, conspiracy to commit murder, is a categorical crime of violence for illegal re-entry sentencing guidelines purposes since the generic federal definition of conspiracy to commit murder does not require an overt act). NOTE: The court here distinguished between conspiracy to commit murder from other forms of conspiracy, finding that, even under federal criminal law, there are varying definitions of conspiracy, and the court must look to the underlying offense to determine which generic definition of conspiracy applies.

AGGRAVATED FELONY " CONSPIRACY " OVERT ACT
United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. Nov. 1, 2012) (conspiracy for purposes of U.S.S.G. 2L1.2(b)(1)(A)(i), does not require an overt act, where the conviction falls within 21 U.S.C. 846 (attempt and conspiracy)).

Ninth Circuit

CAL CRIM DEF " CONSPIRACY " OBJECT OF A CONSPIRACY IS NOT AN ELEMENT AGGRAVATED FELONY " CONSPIRACY
People v. Vargas, 110 Cal. Rptr. 2d 210, 247 (2001) (the object of a conspiracy is not an element of a California conspiracy offense: [T]he specific crimes that constitute the object of the conspiracy are not elements of the conspiracy. Rather, they are the means by which the purpose of the conspiracy was to be achieved.); id. at 245 (So long as there is unanimity that crime was the object of the agreement, conspiracy is established regardless of whether some jurors believe that crime to be murder and others believe that crime to be something else.). Note: As long as Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. August 22, 2014), remains the law of the Ninth Circuit, the target offense of the conspiracy does not constitute part of the elements of the offense of conviction. Under the same reasoning, a conspiracy offense is not divisible in terms of the elements, so the immigration authorities cannot use the modified categorical analysis to consult the record of conviction documents to determine the nature of the conviction for immigration purposes. Thanks to Dan Kesselbrenner.

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).