WHAT IS CRIMINAL CONSPIRACY?
Under Virginia law, conspiracy is defined as two or more people deciding or agreeing together to commit some crime, or to accomplish a legal act by unlawful means. A person doesn’t need to know every detail of the criminal plan to be a conspirator, it’s sufficient to know just a portion of it, or just knowing some of the people involved, or just some of how the resulting funds will be divided, etc. Conspiracy is illegal, whether or not you actually commit a crime – which means that you do not have “free speech” to just agree to a commit a crime without doing anything else to come further to committing the crime other than just the agreement.
Conspiracy is a separate crime from the actual substantive offense that was planned, and it is also a separate crime from aiding and abetting. In order to establish the existence of a conspiracy, as opposed to mere aiding and abetting, the government must prove an additional element of an agreement and connivance – which are not necessarily present in aiding and abetting the criminal act.
It is easier to convict someone of conspiracy under Virginia Law than Federal Law because Federal Conspiracy requires an additional element of proof from the government – that one of the individuals involved int he conspiracy actually does something to come closer to the crime than just agreeing to do it.
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This article is written by criminal conspiracy defense attorney Marina Medvin, with law offices in Alexandria and Fairfax Virginia, who represents individuals charged with the crimes described below in Alexandria, Arlington, Fairfax, and Falls Church. Please call for a consultation request.
TYPES OF CONSPIRACY CHARGES IN VIRGINIA
§ 18.2-22. Conspiracy to commit felony.
(a) If any person shall conspire, confederate or combine with another, either within or without this Commonwealth, to commit a felony within this Commonwealth, or if he shall so conspire, confederate or combine with another within this Commonwealth to commit a felony either within or without this Commonwealth, he shall be guilty of a felony which shall be punishable as follows:
(1) Every person who so conspires to commit an offense which is punishable by death shall be guilty of a Class 3 felony;
(2) Every person who so conspires to commit an offense which is a noncapital felony shall be guilty of a Class 5 felony; and
(3) Every person who so conspires to commit an offense the maximum punishment for which is confinement in a state correctional facility for a period of less than five years shall be confined in a state correctional facility for a period of one year, or, in the discretion of the jury or the court trying the case without a jury, may be confined in jail not exceeding twelve months and fined not exceeding $500, either or both.
(b) However, in no event shall the punishment for a conspiracy to commit an offense exceed the maximum punishment for the commission of the offense itself.
(c) Jurisdiction for the trial of any person accused of a conspiracy under this section shall be in the county or city wherein any part of such conspiracy is planned or in the county or city wherein any act is done toward the consummation of such plan or conspiracy.
(d) The penalty provisions of this section shall not apply to any person who conspires to commit any offense defined in Chapter 34 of Title 54.1 or of Article 1 (§ 18.2-247 et seq.), Chapter 7 of this title. The penalty for any such violation shall be as provided in § 18.2-256.
§ 18.2-23. Conspiring to trespass or commit larceny.
A. If any person shall conspire, confederate or combine with another or others in the Commonwealth to go upon or remain upon the lands, buildings or premises of another, or any part, portion or area thereof, having knowledge that any of them have been forbidden, either orally or in writing, to do so by the owner, lessee, custodian or other person lawfully in charge thereof, or having knowledge that any of them have been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion or area thereof at a place or places where it or they may reasonably be seen, he shall be deemed guilty of a Class 3 misdemeanor.
B. If any person shall conspire, confederate or combine with another or others in the Commonwealth to commit larceny or counsel, assist, aid or abet another in the performance of a larceny, where the aggregate value of the goods or merchandise involved is more than $200, he is guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than 20 years. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise. A violation of this subsection constitutes a separate and distinct felony.
C. Jurisdiction for the trial of any person charged under this section shall be in the county or city wherein any part of such conspiracy is planned, or in the county or city wherein any act is done toward the consummation of such plan or conspiracy.
§ 18.2-23.1. Completed substantive offense bars conviction for conspiracy.
Notwithstanding any other provision of this article or of § 18.2-256, in any case where a defendant has been tried and convicted of an act he has also conspired to commit, such defendant shall be subject to conviction only for the completed substantive offense and not thereafter be convicted for the underlying conspiracy.
§ 18.2-256. Conspiracy.
Any person who conspires to commit any offense defined in this article or in the Drug Control Act (§ 54.1-3400 et seq.) is punishable by imprisonment or fine or both which may not be less than the minimum punishment nor exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.
§ 18.2-195. Credit card fraud; conspiracy; penalties.
(1) A person is guilty of credit card fraud when, with intent to defraud any person, he:
(a) Uses for the purpose of obtaining money, goods, services or anything else of value a credit card or credit card number obtained or retained in violation of § 18.2-192 or a credit card or credit card number which he knows is expired or revoked;
(b) Obtains money, goods, services or anything else of value by representing (i) without the consent of the cardholder that he is the holder of a specified card or credit card number or (ii) that he is the holder of a card or credit card number and such card or credit card number has not in fact been issued;
(c) Obtains control over a credit card or credit card number as security for debt; or
(d) Obtains money from an issuer by use of an unmanned device of the issuer or through a person other than the issuer when he knows that such advance will exceed his available credit with the issuer and any available balances held by the issuer.
(2) A person who is authorized by an issuer to furnish money, goods, services or anything else of value upon presentation of a credit card or credit card number by the cardholder, or any agent or employee of such person, is guilty of a credit card fraud when, with intent to defraud the issuer or the cardholder, he:
(a) Furnishes money, goods, services or anything else of value upon presentation of a credit card or credit card number obtained or retained in violation of § 18.2-192, or a credit card or credit card number which he knows is expired or revoked;
(b) Fails to furnish money, goods, services or anything else of value which he represents or causes to be represented in writing or by any other means to the issuer that he has furnished; or
(c) Remits to an issuer or acquirer a record of a credit card or credit card number transaction which is in excess of the monetary amount authorized by the cardholder.
(3) Conviction of credit card fraud is punishable as a Class 1 misdemeanor if the value of all money, goods, services and other things of value furnished in violation of this section, or if the difference between the value of all money, goods, services and anything else of value actually furnished and the value represented to the issuer to have been furnished in violation of this section, does not exceed $200 in any six-month period; conviction of credit card fraud is punishable as a Class 6 felony if such value exceeds $200 in any six-month period.
(4) Any person who conspires, confederates or combines with another, (i) either within or without the Commonwealth to commit credit card fraud within the Commonwealth or (ii) within the Commonwealth to commit credit card fraud within or without the Commonwealth, is guilty of a Class 6 felony.
§ 18.2-408. Conspiracy; incitement, etc., to riot.
Any person who conspires with others to cause or produce a riot, or directs, incites, or solicits other persons who participate in a riot to acts of force or violence, shall be guilty of a Class 5 felony.
§ 29.1-505.1. Conspiracy; penalty.
If any person conspires with another to commit any offense defined in this title or any of the regulations of the Board of Game and Inland Fisheries, and one or more such persons does any act to effect the object of the conspiracy, he shall be guilty of conspiracy to commit the underlying offense and shall be subject to the same punishment prescribed for the offense the commission of which was the object of the conspiracy.
§ 59.1-9.5. Contracts, etc., in restraint of trade unlawful.
Every contract, combination or conspiracy in restraint of trade or commerce of this Commonwealth is unlawful.
§ 59.1-9.6. Monopolies unlawful.
Every conspiracy, combination, or attempt to monopolize, or monopolization of, trade or commerce of this Commonwealth is unlawful.
§ 59.1-68.7. Combinations to rig bids.
A. Any combination, conspiracy or agreement to intentionally rig, alter or otherwise manipulate, or to cause to be rigged, altered or otherwise manipulated any bid submitted to the Commonwealth of Virginia or any governmental unit for the purpose of allocating purchases or sales to or among persons, raising or otherwise fixing the prices of the goods or services, or excluding other persons from dealing with the Commonwealth or any other governmental unit shall be unlawful.
B. Any person violating this section shall be guilty of a Class 6 felony.
§ 4.1-301. Conspiracy to violate § 4.1-300; penalty.
If two or more persons conspire together to do any act which is in violation of § 4.1-300, and one or more of these persons does any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be guilty of a Class 6 felony.
§ 4.1-300. Illegal manufacture and bottling; penalty.
A. Except as otherwise provided in §§ 4.1-200 and 4.1-201, no person shall manufacture alcoholic beverages in the Commonwealth without being licensed under this title to manufacture such alcoholic beverages. Nor shall any person, other than a brewery licensee or bottler’s licensee, bottle beer for sale.
B. The presence of mash at an unlicensed distillery shall constitute manufacturing within the meaning of this section.
C. Any person convicted of a violation of this section shall be guilty of a Class 6 felony.
Feigley v. Com., 432 SE 2d 520 – Va: Court of Appeals 1993
Drew B. Feigley appeals his convictions of distributing cocaine and conspiring to distribute cocaine. He contends (1) the trial judge erred by denying his motion for a continuance, and (2) the evidence was insufficient to support the conviction of conspiracy. We hold that the trial judge did not err by denying Feigley’s motion for a continuance on the day of trial where no good cause was shown. However, we hold that the evidence, which proved that Feigley sold cocaine, was insufficient to prove that he conspired to distribute cocaine. Therefore, we affirm the defendant’s conviction of distributing cocaine and reverse the conviction of conspiring to distribute cocaine.
On February 15, 1990, undercover officer Mike Edmonds purchased cocaine in a transaction involving Drew Feigley (defendant), David Evans, Eddie Parks, and Mark Hayden. Officer Donald Lambert visually observed the transaction and listened to it over an audio transmitter attached to Edmonds. Edmonds met David Evans at a Wal-Mart parking lot and asked him if he had cocaine to sell. Evans talked with Eddie Parks, who said that he believed Drew Feigley could sell them cocaine. Parks made phone calls, after which he reported that “Drew would deliver to the parking lot.”
Fifteen minutes later, Feigley arrived at the Wal-Mart parking lot. Mark Hayden got in Feigley’s car, and the two drove away. During that time, Feigley gave Hayden several “baggies” of cocaine. When they returned to the parking lot, Hayden went to Edmonds’ vehicle and handed Edmonds the cocaine in exchange for $275. Hayden then returned to Feigley’s vehicle and gave Feigley the $275.
Drew Feigley was indicted on one count of distributing cocaine and one count of conspiring to distribute cocaine. On April 2, 1990, the trial judge determined that Feigley was indigent and appointed him counsel. On July 20, 1990, the court-appointed attorney withdrew when he discovered that he had been appointed to represent a co-defendant in the case. The trial judge appointed Feigley a second attorney.
On October 22, 1990, the day set for trial, Feigley moved for a continuance so that he could obtain an attorney of his choice. Feigley stated that he and his attorney disagreed on trial tactics and that he felt that, because his attorney would not earn as large a fee as a privately retained attorney, he would not “do the best job.” Feigley stated that he had obtained funds within the past week to hire a private attorney who had agreed to represent him. Feigley’s appointed attorney moved to withdraw on the ground that he could not represent a client who had no confidence in his ability to defend him.
The trial judge denied the motion for a continuance and counsel’s motion to withdraw, finding that Feigley had been appointed “two very capable and experienced trial attorneys” within the last six months and that, had he intended or been able to employ counsel of his choosing, he could have done so prior to the day of trial. Also, the judge found that Feigley had not articulated a bona fide reason why the court-appointed attorney could not adequately defend him.
The jury found Feigley guilty of distributing cocaine and of conspiring to distribute 523*523 cocaine and recommended sentences of five years and a fine of $2500 on each charge. The judge sentenced Feigley in accordance with the jury’s verdict.
…..
II. CONSPIRACY
The evidence is insufficient to prove that Feigley conspired with Hayden to sell cocaine to a third party. When sufficiency of the evidence is challenged on appeal, the evidence must be viewed in the 524*524 light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The trial court’s refusal to set aside a jury verdict will not be disturbed on appeal unless plainly wrong or without evidence to support it. Gray v. Commonwealth, 233 Va. 313, 344, 356 S.E.2d 157, 174, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).
“Conspiracy is defined as `an agreement between two or more persons by some concerted action to commit an offense.'” Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)). “There can be no conspiracy without an agreement, and the Commonwealth must prove beyond a reasonable doubt that an agreement existed.” Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978) (citations omitted).
A conspiracy to distribute drugs can be shown by a series of drug transactions where one person sells drugs to a buyer who, in turn, resells them to a third party. See Zuniga v. Commonwealth, 7 Va.App. 523, 532, 375 S.E.2d 381, 387 (1988); Davis v. United States, 279 F.2d 576, 578-79 (4th Cir.1960); United States v. Walls, 582 F.Supp. 1266, 1270 (N.D.W.Va.1984). The fact finder may infer from the seller’s knowledge that the drugs are being resold an agreement between the seller and buyer to supply drugs for distribution. As a general rule, however, a two-party drug sale, standing alone, does not constitute a conspiracy to distribute drugs because the transaction lacks the essential element of an agreement between the two parties to commit a subsequent distribution offense together. Zuniga, 7 Va.App. at 528-29, 375 S.E.2d at 385. The agreement that is incidental to a sale of drugs does not prove a conspiracy to sell or distribute drugs; the agreement must be that two or more persons will act in concert to commit a crime. If the evidence proves beyond a reasonable doubt that (1) a seller sold drugs, knowing that the buyer intended to redistribute them and (2) the seller intended to “`further, promote and cooperate in'” the buyer’s plan to redistribute, “a conspiracy to distribute between a seller and a buyer … has been proved.” Id. at 529, 375 S.E.2d at 385 (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943)). Similarly, if two or more people agree in advance to act in concert to sell drugs, where one serves as the supplier and the other as the “runner,” an agreement to distribute drugs exists and a conspiracy has been proven. It is proof of the second element, the agreement to distribute, that “establishes the necessary preconcert and connivance” necessary to prove a conspiracy. Id.
On the facts in this case, it is plausible that Feigley had agreed or prearranged with Hayden that the two would act in concert to sell drugs. It is also plausible that Feigley had sold the drugs to Hayden “on credit,” knowing that Hayden had arranged an immediate resale in order to pay Feigley. See Zuniga, 7 Va.App. at 532, 375 S.E.2d at 387. In either situation, Feigley would have agreed with another to distribute drugs. There is no evidence to prove, however, that Hayden and Feigley had prearranged that they would distribute drugs or that Hayden would “run” drugs for Feigley. Likewise, no evidence proves that Feigley sold drugs to Hayden “on credit” whereby Feigley would have maintained a vested interest in the success of Hayden’s resale and thereby acted to “further, promote and cooperate in” a resale. Id.
On this record, it is equally, if not more, plausible that no “sale” took place between Feigley and Hayden, but that Hayden, who had been approached by Edmonds, simply facilitated a single drug sale between Feigley and Edmonds. In other words, by contacting Feigley on behalf of Edmonds and acting as the agent for the exchange of drugs and money between Edmonds and Feigley, Hayden was simply aiding and abetting in the drug sale between Edmonds and Feigley. The evidence fails to show any agreement between Feigley and Hayden 525*525 to sell drugs to others or that Hayden had agreed to sell drugs for Feigley. In view of this isolated transaction, the only agreement proven was that Hayden and Evans agreed with Edmonds to assist him to purchase cocaine. See Reed v. Commonwealth, 213 Va. 593, 594, 194 S.E.2d 746, 747 (1973). No money was exchanged between Feigley and Hayden until the sale to Edmonds was complete. On these facts, the evidence does not prove that Feigley sold drugs to Hayden, knowing that he would resell them. Compare Zuniga, 7 Va.App. at 525, 375 S.E.2d at 383; Davis, 279 F.2d at 578; Walls, 582 F.Supp. at 1269, 1270. The evidence proves only a single isolated drug sale by Feigley to Edmonds with Hayden acting as the agent on behalf of Edmonds. The evidence proves only that Feigley distributed cocaine, for which he stands convicted, and not that he conspired with Hayden to sell cocaine to Edmonds. See Zuniga, 7 Va.App. at 527-28, 375 S.E.2d at 384 (conspiracy to commit a crime is distinguishable from aiding and abetting the commission of a crime, which does not require proof of an agreement between the co-actors to commit an offense).
The fact finder resolves all conflicts in the evidence. However, once the conflicts in the evidence have been resolved and the evidence is equally susceptible to two or more constructions, one of which would support conspiracy and another which would not, the fact finder is not free arbitrarily to select that theory of conspiracy. See Corbett v. Commonwealth, 210 Va. 304, 307, 171 S.E.2d 251, 253 (1969). Furthermore, when a conviction is based on circumstantial evidence, the evidence “must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence.” Bishop v. Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984). Although the Commonwealth is not required to disprove every remote possibility of innocence, it must disprove those theories of innocence that “flow from the evidence itself.” Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981). The theory that Hayden merely aided and abetted Edmonds in a single transaction between Feigley and Edmonds is not “remote.” On this record, the evidence leaves in reasonable doubt whether Hayden aided and abetted Edmonds’ purchase of drugs from Feigley or whether, instead, Feigley and Hayden agreed to distribute drugs or that Feigley sold drugs to Hayden, knowing that he intended to resell them to Edmonds. The Commonwealth failed to prove a conspiracy between Feigley and Hayden.
Finding insufficient evidence of an agreement between Feigley and Hayden to distribute cocaine, we reverse Feigley’s conviction of conspiracy, but affirm the conviction for distributing cocaine.
Affirmed in part, reversed in part.
Amato v. Commonwealth, 352 SE 2d 4 – Va: Court of Appeals 1987
Defendant appealed his conviction of feloniously conspiring to possess marijuana with intent to distribute. He argued that the evidence was insufficient to support the conviction (Circuit Court of Isle of Wight County, Benjamin A. Williams, Jr., Judge).
The Court of Appeals affirmed, holding that the evidence was sufficient for the jury reasonably to have found that the defendant was aware of the plan to import the marijuana and agreed to and did act in concert with others in furtherance of the crime.
BAKER
BAKER, J. — Fred Amato (appellant), indicted as Frederick Amato, a/k/a Fred Amato, a/k/a Ferdinand Thomas Amato, a/k/a Ferdinand Thomas Amato, III, appeals from a judgment of the Circuit Court of Isle of Wight County (trial court) which approved a jury verdict convicting him of feloniously conspiring to possess with intent to distribute a quantity of marijuana in excess of five pounds. He was sentenced to a term of five years in the penitentiary.
At the conclusion of the Commonwealth’s case, appellant moved to strike the evidence, asserting that mere presence at the scene of the conspiracy is not sufficient to support a conspiracy conviction, and that proof of participation in the planning is required. Appellant’s motion was overruled and he proceeded to introduce evidence in his behalf. By adducing evidence in his own behalf, appellant waived his right to appeal from the denial of his motion. Starks v. Commonwealth, 225 Va. 48, 55, 301 S.E.2d 152, 156 (1983).
When both the Commonwealth and appellant rested their cases, appellant renewed his motion to strike, saying only: “I renew the motion to strike the Commonwealth’s evidence on the same grounds and reasons stated at the conclusion of the Commonwealth’s evidence.” This motion was also overruled. In view of the waiver resulting from appellant’s adducing evidence in his own behalf, the sufficiency of the evidence must be determined from the entire record. Id.; Hargraves v. Commonwealth, 219 Va. 604, 605, 248 S.E.2d 814, 815 (1978).
Where the sufficiency of the evidence is challenged after conviction, it is our duty to consider it in the light most favorable to the Commonwealth and give it all reasonable inferences fairly deducible therefrom. We should affirm the judgment unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it. Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 610 (1981) (quoting Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
In his brief on this appeal, appellant states that the only issue to be considered by this court is whether there was sufficient evidence upon which the jury could find him guilty of the charge contained in the indictment. The indictment reads as follows:
The grand jury charges that: On or about July 1, 1981 thru December 4, 1981 in the County of Isle of Wight, Frederick Amato, aka Fred Amato and aka Ferdinand Thomas Amato, aka Ferdinand Thomas Amato, III did feloniously conspire with others to possess with intent to distribute a quantity of marijuana in excess of five (5) pounds. VA CODE SECTIONS 18.2-248.1 and 18.2-256.
The conspiracy which the Commonwealth sought to prove involved a lengthy cast of characters. Their peculiar positions within the conspiracy are important to a full understanding of the scope and dimension of the crime. The alleged conspirators included John Bonner, Thomas Roberts, Jerry Pierce, Russell Moll, Beuford “Buddy” Higgs, William Jarvis, Barry Fullerton, Bruce Stampley, Ralph B. Newman, Jr., Karen Lloyd and appellant, Fred Amato. There were several other minor co-conspirators whose names are not relevant. A DC6 airplane, a gray Lincoln Continental and two dump trucks also played significant roles in the venture.
The conspiracy began sometime prior to November 1981. In October 1981, Bonner came to Virginia from Florida to find a remote airstrip on which a DC6 airplane loaded with $10,000,000 worth of illegal marijuana could land. Bonner and Roberts were the principal co-conspirators who devised the plan. Bonner was taken to the Franklin airport by Moll who described his personal involvement in the operation as a “gopher” for Higgs. At the Franklin airport Bonner and Moll met with Higgs, Stampley and Fullerton. Higgs’ specific role is not reflected clearly in the record; however, he appears to have been an intermediary between Bonner and Roberts and the other participants. Stampley was a previously convicted marijuana smuggler who operated in Florida until August 1981, when he was employed by Jarvis and Fullerton as a crop duster pilot working out of the Franklin airport. Fullerton, who appellant stated at argument was also a previously convicted drug smuggler, was a crop duster pilot who, with Jarvis, owned a crop dusting business. Stampley and Fullerton shared an apartment in Virginia Beach. Jarvis resided in Franklin and was the manager of the Franklin airport. After viewing the runways at the Franklin airport the group agreed that a DC6 could be landed there.
In late November 1981, Moll and Higgs met with Bonner and Roberts in Florida and were told of the plan and the need for personnel to unload the plane. On November 29, 1981, Moll, Higgs, Bonner, Roberts and Pierce flew to Virginia from Florida and landed at the Chesapeake airport. Pierce was the owner of a 1000 acre tract of land in North Carolina where the marijuana was to be transported and distributed after it was unloaded at the Franklin airport. From the Chesapeake airport they went to a nearby motel where the gathering attracted the attention of C. L. McCoy, an alert Virginia state trooper, who was staying at the motel in connection with an ongoing investigation into an unrelated matter. The trooper reported his observations to his superiors, who in turn placed various participants under surveillance.
The next day Pierce and Moll, who had obtained a refrigerated truck, procured the services of Roberts, Newman and several others to assist in the unloading of the plane. Newman was to receive $7500 for providing two dump trucks and was told that the trucks were to be used to transport the marijuana to Pierce’s land in North Carolina. The persons employed to unload the plane were to be paid $10,000 each, and Moll, Higgs and Pierce each were to receive approximately $80,000 for their efforts. The landing was to occur after dark. In preparation, Moll purchased a number of needed supplies, including flashlights and batteries.
Appellant and his girlfriend, Karen Lloyd, arrived in Virginia Beach from Florida on November 1, 1981. They returned to Florida on December 31, 1981. Neither was employed during that two month period, yet they rented and lived in a Virginia Beach condominium in the Rudee Inlet area across the street from the apartment occupied by Stampley and Fullerton. Appellant and Stampley were acquainted prior to their coming to Virginia in late 1981. Appellant owned a gray Lincoln Continental which he kept at his Virginia Beach condominium. During the time Stampley and appellant lived across the street from each other, appellant and Lloyd would see and visit with Stampley at least twice a week.
In the early evening of December 2, 1981, Stampley received a telephone call at his Virginia Beach apartment from Fullerton, who called from the Franklin airport. There was a suggestion of a need for Stampley to come to the airport to “help out.” Because he was told that he probably did not want to drive his car, he procured the services of appellant to drive him to the airport in appellant’s gray Lincoln Continental.
In preparation for the arrival of the DC6, Newman parked the two dump trucks on a motel lot on Military Highway. In accordance with instructions, in the late afternoon of December 2, 1981, Newman moved the dump trucks to a point near the Franklin airport where he was to be met by another person. Later that night, someone came by driving a gray Lincoln Continental and told Newman to follow the Continental in one of the dump trucks. Newman complied and drove his truck to the airport. He parked the truck, got into the Continental, was driven back to the second dump truck, and drove it back to the airport where he sat awaiting further instructions. A short while later, Jarvis waved Newman into the airport tower. The tower consisted of a large room, two rest rooms and two small offices. Present at the time Newman entered the tower were Jarvis, Stampley, Fullerton and “another fellow” whose name Newman did not know but whom he described as being a young man. At trial, Newman was unable to “positively” identify appellant as the “young man” who was in the tower when he entered, but Stampley testified that appellant was present.
Shortly after Newman entered the airport tower, Stampley and Fullerton discussed the impending arrival of an airplane loaded with marijuana and what was to be done. The participants were suspicious that police were in the airport area. Moll arrived with his crew and two other trucks. With him were Pierce, Roberts, Wilson, and Mancini. Moll testified that Stampley, Fullerton, Jarvis, an older woman and a gentleman whose name he did not know were present when he arrived at the airport. Moll complained to Stampley and Fullerton that he was short two men who were expected to help unload the plane. The “other gentleman” in the room was then identified as “Fred.” Stampley and Fullerton told Moll that Fred would help unload the plane and be paid for his work. Moll heard “a guy say, ‘Yea, I’ll give a hand.'” The “other gentleman” referred to as Fred was to receive $10,000 for his efforts.
Increasing concern about the presence of police caused Stampley, Roberts and Fullerton to consider an alternative landing strip. The tower facility was kept dark and they studied maps on the floor using flashlights. They concluded that the plane should be diverted to Melfa on the Eastern Shore of Virginia. Roberts instructed Moll and his unloading group to go to Melfa to unload the plane when it arrived there.
Believing that the police followed Moll and his crew as they left the airport to go to Melfa, Roberts and Stampley decided to redirect the plane to Franklin. The plane landed at approximately 1:30 a.m. on December 3, 1981. Appellant and Roberts entered appellant’s gray Lincoln Continental and drove down to the plane for the purpose of removing the crew to prevent their capture. Jarvis, Fullerton and Stampley closed the tower and followed appellant’s car to the plane in a Volkswagen. The crew was loaded into the Lincoln with Roberts and, driven by appellant, followed the Volkswagen to Jarvis’ apartment in Franklin.
Jarvis did not want the group to remain at his apartment, so appellant, the crew, Roberts, and Stampley got back into the Lincoln and drove to appellant’s Virginia Beach apartment, where Karen Lloyd was present. Almost immediately, the group decided that Roberts and the crew should leave the State. They were again loaded into appellant’s car and driven south. The copilot was dropped off in North Carolina, the others in South Carolina.
In court, Stampley identified appellant as the person he knew as Fred Amato, the “Fred” who was at the airport. Newman could not positively identify appellant as the “other gentleman” called “Fred” at the airport, and Moll’s testimony was equivocal: “[It] quite possibly could have been him and quite possibly could not. I can’t say yes or no. The other guy that was in there was somebody they called Fred.”
The DC6 was taken into custody and authorities found that it was loaded with 610 bales of marijuana valued at approximately $10,000,000.
Appellant adduced evidence on his behalf, including his own testimony. When asked to give his full name he answered: “Ferdinand Thomas Amato, III.” He stated that as of October 1984, he was thirty-one years of age. When asked what name he used when he returned to Florida in late December 1981, he replied: “My own name, Fred Amato.” When asked if he had ever used any other name he answered: “No, sir.” Although appellant testified that his name was Ferdinand Thomas Amato, III, it is apparent that he was generally known as “Fred.” While admitting that he owned a gray Lincoln Continental he denied being present at the Franklin airport on December 2 and 3 as testified to by Stampley. He further stated that during the two months he resided in the Virginia Beach condominium apartment across the street from Stampley both he and Karen were unemployed. They spent “a lot” of time at the Raven bar in Virginia Beach and frequently socialized with Stampley in that bar and at their respective apartments. Karen Lloyd did not testify.
Appellant concedes that the evidence amply discloses that the Virginia state police discovered a conspiracy to transport marijuana into Virginia by airplane during the period of November 30, 1981, to December 3, 1981. Fully stated, the conspiracy may be summarized as consisting of a basic plan made in Florida in October 1981 to import a quantity of marijuana valued at $10,000,000 into Virginia by landing a large, four engine airplane in a remote, small airport at night without landing strip or other lights, where it was to be unloaded into trucks which were to be disguised, and transported to a 1000 acre tract of land in North Carolina where the contraband was to be distributed.
The question is whether sufficient evidence was presented from which the jury could reasonably have inferred that appellant was present, knew there was a conspiracy to possess more than five pounds of marijuana with intent to distribute, and agreed to participate in furtherance thereof. We find there was sufficient evidence to support the judgment of the trial court.
“Conspiracy is defined as an ‘agreement between two or more persons by some concerted action to commit an offense.'” Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937)); see Ramsey v. Commonwealth, 2 Va. App. 265, 270, 343 S.E.2d 465, 469 (1986). When a conspiracy has been proved, “the acts and declarations of any of the conspirators, in furtherance of the object of the conspiracy, are admissible evidence against each and all of them, though such acts and declarations were not done and said in the presence of all.” Sands v. Commonwealth, 62 Va. (21 Gratt.) 871, 895 (1872).
And they are admissible even against a conspirator who did not accede to the conspiracy until after they were done and said. Each conspirator is the criminal agent of every other, and when he accedes to the conspiracy he sanctions what may have been previously done or said by the others, or any of them, in furtherance of the common object. Id. The elements of a conspiracy may be proved by circumstantial evidence. Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). Circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the only method of proof. See Turner v. Commonwealth, 218 Va. 141, 145-46, 235 S.E.2d 357, 360 (1977); Toler v. Commonwealth, 188 Va. 774, 780, 51 S.E.2d 210, 213 (1949). “‘[A] common purpose and plan may be inferred from a development and collocation of circumstances.'” United States v. Godel, 361 F.2d 21, 23 (4th Cir.), cert. denied, 385 U.S. 838 (1966) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)). “Where it is shown that the defendants by their acts pursued the same object, one performing one part and the other performing another part so as to complete it or with a view to its attainment, the jury will be justified in concluding that they were engaged in a conspiracy to effect that object.” 16 Am. Jur. 2d Conspiracy | 42 (1979); see also State v. Silverthorn, 195 Okla. 696, 161 P.2d 858 (1945).
Guilty knowledge must be proved against each conspirator but it is only necessary to prove that the defendant conspirator “had such guilty knowledge, no matter how, where or when he acquired it.” Sands, 62 Va. (21 Gratt.) at 899-900.
[L]iability as a conspirator is not dependent on knowledge of the entire scope of the conspiracy. Knowledge need not extend to all the details of the conspiracy, the identity of the other conspirators, the part each member of the conspiracy is to play, or how the spoils of the conspiracy are to be divided. 16 Am. Jur. 2d Conspiracy | 14 (1979). When one accedes to the conspiracy he sanctions what may have been previously done or said by the other in furtherance of the common object. Sands, 62 Va. (21 Gratt.) at 895.Finally, the participants may be found guilty of conspiracy even though the planned crime was not fully consummated. See Wright, 224 Va. at 505-06, 297 S.E.2d at 713. In Wright, the record disclosed that at 10:40 p.m. a policeman observed an unoccupied automobile parked in a dark, weeded area twenty-five feet off the gravel portion of a parking lot in such a position that it could not be seen from the road. The nearest light was at a McDonalds’s restaurant, approximately three hundred feet away. The weeded area where the automobile was parked led to the McDonald’s parking lot. The officer noted that the car’s engine was still warm. He looked inside the car, then went to another place to observe the car without himself being seen. He called for assistance and other officers responded by entering McDonald’s parking lot in marked vehicles. After maintaining surveillance for about twenty-five minutes, the officer observed the defendants coming from the vicinity of McDonald’s restaurant and saw them place an object in the center of the trunk of the automobile. As defendants attempted to drive away, the car was stopped by the other officers. Two stocking masks, a black skullcap, two ski caps, and a pair of brown gloves were found between the two front seats of the car. These items were not present when the first officer examined the car. A .38 caliber revolver was found lying in the trunk of the car approximately where the officer had seen “the pair” place an object. There was no other object near the gun. Wright’s clothing had weeds on it similar to those in the area between McDonald’s and his car. No robbery or overt attempt to rob McDonald’s was shown. The court held that from the above evidence the trial court could conclude that there was sufficient evidence from which it reasonably could be inferred that the two men had an agreement between themselves to commit the robbery. Id. at 504-06, 297 S.E.2d at 712-13.
In the present case, a conspiracy was proved. There is ample evidence in the record from which the jury could have inferred that the man referred to as “Fred” was in fact appellant and that he was an active participant in the plan to import illegal marijuana. The only reasonable hypothesis from this record is that appellant knew of the conspiracy and agreed to participate in its completion. Searching in this record for an hypothesis other than appellant’s knowledge of the conspiracy would be an exercise in imagination. The Supreme Court of Virginia has not placed a burden on the Commonwealth to “exclude every possible theory or surmise.”
We place too great a burden on the Commonwealth if we require it to exclude every possible theory or surmise presented by the defense. Our precedents do not require this. The hypotheses which the prosecution must reasonably exclude are those “which flow from the evidence itself, and not from the imagination of defendant’s counsel.” Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981) (citation omitted). The Commonwealth’s burden has been met. As was said by Justice Stephenson in Wright, appellant’s “actions were consistent with illegality and inconsistent with legality.” Wright, 224 Va. at 505, 297 S.E.2d at 713. Considering all the circumstances shown by the record, the jury reasonably could have inferred from the evidence that appellant was aware of the plan to import the marijuana and agreed to and did act in concert with others in furtherance of the crime.
Accordingly, the judgment of the trial court is
Affirmed.
Ramsey v. Com., 343 SE 2d 465 – Va: Court of Appeals 1986
Violet Marie Ramsey (Salaski) appeals her convictions by jury trial of forgery, uttering and conspiracy to commit a felony on the grounds that the evidence was insufficient to support the convictions. Alternatively, she argues that the double jeopardy bar and application of Wharton’s Rule precluded her conviction of conspiracy to commit a felony since she was convicted of the substantive offenses as a principal in the second degree.[1] We find the evidence sufficient to support all convictions and hold that the conspiracy conviction is not barred by either double jeopardy principles or Wharton’s Rule.
On appeal we view the evidence in the light most favorable to the Commonwealth, granting to it all just and reasonable inferences deducible therefrom. Evans v. Commonwealth, 215 Va. 609, 612-613, 212 S.E.2d 268, 271 (1975). On October 27, 1983, the appellant met James Faulkner at a bar in Bristol, Tennessee. The two left together with Ramsey driving Faulkner’s vehicle. They went to his motel room after stopping briefly at Bristol Memorial Hospital where Ramsey attempted to obtain a controlled drug, ativan. Faulkner was intoxicated at the time. The evidence was in conflict concerning Ramsey’s condition. She indicated that at the time she was addicted to drugs and was taking more ativan than had been prescribed by her doctor. On this particular evening she had taken valium and ativan which she obtained from Faulkner. Faulkner indicated that insofar as he observed she was neither on drugs nor had she consumed any alcoholic beverage. Ramsey stayed the night in Faulkner’s room and left the motel the following morning.
The next day, October 29, 1983, Ramsey accompanied her niece, Angela Bowen, to Miners Exchange Bank of Coeburn in Wise County, where Angela Bowen opened an account with a personalized check of James H. Faulkner made payable in the amount of five thousand dollars ($5,000) to one Marcus Welch. The check was purportedly signed by James H. Faulkner and drawn on his account with First Citizens Bank of Spartanburg, South Carolina. Faulkner’s signature was a forgery. He had no knowledge that his check was missing until his bank later called to verify its authenticity. He did not give any of his checks to Ramsey.
Angela Bowen, who pled guilty to forgery and uttering of the check in question, testified that when Ramsey gave her the check it had already been completed on its face and had been made payable to Marcus Welch. Bowen indicated that she did not 468*468 know who actually forged Faulkner’s signature on the check, but acknowledged personally having forged the endorsement of Marcus Welch on the back in order to open the account. A report from the forensic laboratory was inconclusive as to whether Angela Bowen or Violet Marie Ramsey had forged Faulkner’s signature.
Bowen testified that she first saw the check after Ramsey returned from Faulkner’s motel room, at which time Ramsey said that Faulkner had given the check to her. Bowen explained that she personally picked the name “Marcus Welch” because she earlier had found a social security card bearing that name. Bowen acknowledged that Ramsey accompanied her to the bank when she opened the account, but wasn’t beside or “nowhere near me” while opening the account.
In a statement to the arresting officer, Ramsey denied writing the check herself but acknowledged that Bowen had written it after she had given the check to her. Ramsey admitted accompanying Bowen to the bank in Coeburn where Bowen opened the account. Ramsey reiterated that Faulkner gave her the check.
Darlene Powers, who handled the account with Angela Bowen at Miners Exchange Bank, testified that on October 29, 1983, when Bowen opened the new account in the name of Marcus Welch, Ramsey was with her. She did not identify any direct participation by Ramsey in opening the account.
I.
The facts are sufficient to criminally implicate the appellant in both forgery and uttering. A principal in the second degree is a person who is present, aiding and abetting, by helping some way in the commission of the crime. Presence or consent alone is not sufficient to constitute aiding and abetting. It must be shown that the defendant intended his words, gestures, signals or actions to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it. Underwood v. Commonwealth, 218 Va. 1045, 1048, 243 S.E.2d 231, 233 (1978). A principal in the second degree is equally accountable and is subject to the same punishment as the actual perpetrator. Code § 18.2-18; J.D. Briley v. Commonwealth, 221 Va. 563, 573, 273 S.E.2d 57, 63 (1980).
Forgery is “the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.” Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 (1964) (quoting 5B Michie’s Jur. Forgery § 2, at 129 (1977)).
Uttering is “`[t]o put or send [as a forged check] into circulation … to utter and publish.’ It is an assertion by word or action that a writing known to be forged is good and valid.” Bateman v. Commonwealth, 205 Va. 595, 599-600, 139 S.E.2d 102, 106 (1964) (quoting Black’s Law Dictionary 1716 (Rev. 4th ed. 1968)).
The evidence established, at a minimum, that Ramsey was a principal in the second degree to forgery and uttering. There was evidence upon which the trier-of-fact could have found that she unlawfully obtained a check belonging to James Faulkner. Additionally, Bowen testified that when she received the check from Ramsey, the check, made payable to one Marcus Welch in the amount of five thousand dollars ($5,000), contained Faulkner’s signature. The inference is compelling that Ramsey forged the check or procured someone else to do so. In either case, she would be guilty of forgery.
Although the evidence here repels the inference that [the accused] personally forged the name of the maker, it is entirely consistent with the inference that [s]he procured it to be done. It has been the law of Virginia for more than a century and a half that one who procures the forgery of an instrument is an accessory before the fact if he was absent when the writing was forged, or a principal in the second degree if he was present. The distinction is of no consequence, 469*469 because his guilt is the same, and he is subject to the same punishment, in either event.
Fitzgerald v. Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395-96 (1984).
The evidence also is sufficient to support a finding of Ramsey’s guilt, as a principal in the second degree, to the crime of uttering. The placing or procuring of the name of a payee for whom Bowen could provide identification, and the delivery of the check to her, were sufficient to make Ramsey an accessory, even in the absence of overt acts at the bank in establishing the bogus account. Additionally, Ramsey’s presence at the bank while Angela Bowen opened the account with a check which Ramsey had either forged, or procured to be forged, was, under the circumstances, sufficient evidence from which the trier-of-fact could find that she shared Bowen’s criminal intent, and that she procured, encouraged and approved Bowen’s commission of the crime. Sutton v. Commonwealth, 228 Va. 654, 666, 324 S.E.2d 665, 671 (1985). Ramsey was not merely silently and passively acquiescing in the known commission of a crime by another, nor was she merely present at the commission of a crime by someone whom she knew. She was a knowing, willing and actual participant in the uttering of the forged document.
II.
Conspiracy is “an agreement between two or more persons by some concerted action to commit an offense.” Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1937) (quoting J.B. Minor, Exposition of the Law of Crimes and Punishments 160 (1894)). A conspiracy is committed when the agreement to commit the offense is complete regardless whether any overt act in furtherance of commission of the substantive offense is initiated. “[F]rom the very nature of the offense, it often may be established only by indirect and circumstantial evidence.” Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978).
The evidence previously recited is sufficient to support the jury’s finding that Ramsey did conspire, confederate and combine with Angela Bowen to commit the felony of uttering. The sequence of events supports the inference that Ramsey and Bowen acted in concert and discussed and planned to commit the crime of uttering; Ramsey accompanied Bowen to the bank to feloniously negotiate the check after having personally made the check payable to an individual for whom Bowen had identification.
III.
Appellee has succinctly stated the reasons why Ramsey’s convictions for forgery and uttering do not preclude the conspiracy conviction:
Conspiracy is a separate and distinct offense from that of aiding and abetting [the commission of a felony]. United States v. Arrington, 719 F.2d 701, 705 (4th Cir. 1983), cert. denied [465 U.S. 1028], 104 S.Ct. 1289 [79 L.Ed.2d 691] (1984); United States v. Peterson, 524 F.2d 167, 174 (4th Cir. 1975), cert. denied, 423 U.S. 1088 [96 S.Ct. 881, 47 L.Ed.2d 99] (1976). Conspiracy involves the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting [the commission of a felony]. Peterson, 524 F.2d at 174. “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
Clearly, the elements of the offenses of forgery and uttering are separate and distinct from the elements of the crime of conspiracy. As noted, the elements of conspiracy are complete upon proof that two or more persons agree to commit a crime. A necessary element of the crime 470*470 of conspiracy is an “agreement.” In order to find a person guilty as an accessory or as a principal in the second degree to a felony, the Commonwealth must prove the commission of the felony. Proof of the commission of a felony is not a necessary element of the crime of conspiracy to commit a felony, and proof of an “agreement” to commit a felony is not a necessary element in a conviction for the commission of the felony. For this reason, the offenses are not the “same” and multiple convictions and punishments therefor are not prohibited by the double jeopardy clause. See Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).
Appellant’s assertion that “Wharton’s Rule” bars her convictions for conspiracy upon the conviction of aiding and abetting the commission of a felony misapplies the principle. Wharton’s Rule is defined as follows:
When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a character that it is aggravated by a plurality of agents, cannot be maintained.
Stewart v. Commonwealth, 225 Va. 473, 478, 303 S.E.2d 877, 879 (1983) (quoting 2 F. Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932)). As the Commonwealth notes, “[t]he classic Wharton’s Rule offenses are crimes such as adultery, incest, bigamy, dueling, or murder for hire,” which necessarily involve at least two people; the offenses of forgery and uttering do not necessarily require the involvement of two people. Application of the rule is dependent upon a showing that the commission of the substantive offenses requires the participation of two people; the fact that two or more people combine to commit an offense that could be committed by only one person does not invoke application of the rule. To hold otherwise would necessarily mean that the Commonwealth could never convict two people for the commission of a crime and for conspiring to commit the crime. Under the guise of “Wharton’s Rule” we would be fashioning a “merger” rule which, as previously noted, was not the law in Virginia at the time of these convictions. See footnote 1, supra.
For the foregoing reasons, the convictions are affirmed.
Affirmed.
