Student Review:

In this article, Theis focuses on the double jeopardy defense in successive conspiracy prosecutions.  Determining when double jeopardy exists in a conspiracy case is difficult due to the nature of the crime.  The offense of conspiracy does not provide clear beginning or ending points, so it is difficult to determine whether one or more than one conspiracy took place.
      Double jeopardy concerns arise in situations in which a defendant is subjected to multiple proceedings under multiple statutes for what seems to be the same offense.  In these situations, the Supreme Court currently applies the Blockburger test which looks to determines whether each offense requires proof of a different element.  Double jeopardy concerns also arise when a defendant is prosecuted in multiple proceedings for a violation of the same statute that seems to be a single incident.  Successive prosecutions for conspiracy fall into this category.
      Theis discusses the fatal variance doctrine (which looks at the charged offenses of indictments) and its relation to double jeopardy provisions.  In order to compare indictments and evidence, the court must realize the unit of prosecution for the offense.  If the offense is a continuous offense, such a determination becomes difficult.  Theis feels that the courts should recognize that conspiracy is a continuing offense that has no natural limits. Since conspiracy is a crime that focuses on the agreement to commit an offense or offenses, a conspiracy does not necessarily end when new individuals become part of the group or after a certain time period elapses.  Such evidence does not indicate that a new conspiracy has taken place.  Thesis emphasizes that the existence of one conspiracy or multiple conspiracies depends entirely on the defendant's agreement.  Unfortunately since the subjective thoughts of defendants doe not come up at trial, courts often focus on the action of the group or immaterial time limits. Thesis urges that  courts should approach their double jeopardy analysis on the assumption that only one conspiracy existed.  After the defendant has raised enough evidence for the claim, the burden of persuasion should be placed on the government.
      Theis next discusses both Supreme Court and Court of Appeals cases that have dealt with variance, conspiracy, and double jeopardy.  Theis praises both Ex parte Snow and Ex parte Nielsen.   Snow focused on the danger of resting variance analysis on the allegations of an indictment since such allegations could be artificially manipulated in a continuous offense.  Nielsen supported this decision by declaring that only the legislature, and not the prosecutor, could make a continuous crime into separate offenses.  Theis finds fault with United States v. Korfant which created a list of eight factors to determine when a conspiracy conviction was barred by the Double Jeopardy Clause.  Likewise, Theis finds that the decision in Calderone II which created a geometric metaphor to deal with conspiracies is equally misplaced.  Theis stresses that the focus of courts should be the conspirator's agreement rather than the group of individuals involved.
      Thus, Theis suggests that courts should have a different approach in dealing with the offense of conspiracy in double jeopardy claims.  Due to the fact that conspiracy is a continuous offense, the assumption should be that only one conspiracy existed unless the evidence points elsewhere.  Theis notes that this is especially true in cases of drug conspiracies.  Cases which look at various factors miss the appropriate focal point - the defendant's agreement.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999