What constitutes a (ssshhhh … ) conspiracy at law?
The suspected eco-terrorists, allegedly responsible for the October, 1998 Two Elk fire on Vail Mountain (and other similar dastardly acts throughout the West and Northwest) have been identified, cuffed, booked and indicted on charges of arson and conspiracy to commit arson by the Federal Court in the state of Oregon. To be fair, and completely accurate, not all of those thought responsible have yet been apprehended, and several are believed to be in hiding overseas. Further, not all of them have been charged with arson but, instead, have been charged only with conspiracy to commit arson. The “family” as the group of eleven apparently called itself, are in trouble up to their myopic eyeballs. The nature of that trouble is the grist intended for the mortal and pestle of this column.To date, the federal indictments which have been issued are for conspiracy to commit arson and for the crime of arson committed only within the state of Oregon. The federal indictment does not charge the four members of the “family” so far accused with committing the crime of arson for the Vail fires. For jurisdictional reasons, that crime (at least so far as Two Elk is concerned) would have to be charged in Colorado.The prior paragraph, while consisting of a mere three sentences, consists of a myriad of issues which need some ‘splaining. First, what is “jurisdiction?” Simply, it is the authority by which a particular court takes cognizance of, and decides cases. Crimes committed in Indiana (or Iowa, New Jersey or any other state for that matter), unless consisting of a federal crime, are generally decided in Indiana (or Iowa, New Jersey, or in some other state, as the case may be) according to the law of that state. Similarly, crimes committed in Colorado, unless federal crimes, are decided in Colorado according to Colorado law. Federal crimes committed in a particular state are generally tried in that state in federal court and are subject to the application of federal law.”Jurisdiction,” is the legal right by which judges exercise their authority and the bounds within they may exercise that authority.Some crimes are federal crimes (that is, crimes in violation of federal law) and other crimes are subject only to the law of the particular state or subdivision of a state (for example violation of a town code or ordinance). Some crimes may be both. Federal crimes are heard in federal court (most commonly, in Federal District Court some federal offenses, for example military offenses while arguably “federal” offenses, are tried in special courts, in the instance of military offenses, military courts). Logically enough, state crimes are heard in state court. Felonies consisting of alleged offenses of the state criminal code are tried in district courts within the state of Colorado. For certain crimes, which violate both state and federal law, a suspect may face charges in both state and federal courts. Oh my!As to the Two Elk fires, the reason the four indicted co-conspirators have not been charged in Oregon Federal Court for the alleged arson committed in Colorado is that the arson itself was not committed within the state of Oregon. Accordingly, the Oregon court lacks jurisdiction.Generally, the crime of arson unless committed against a branch or institution of the federal government is a state crime. Even where arson amounts to a federal offense, it is charged within the jurisdiction or ambit of the federal court responsible for administration of (or which has jurisdiction within) that region. In the case of the Two Elk fires, if the alleged arson is charged as a federal offense (and, as the fires burned on federal lands that is, on the White River National Forest and, as the crimes which may be charged, may well include domestic terrorism offenses, the federal court, will undoubtedly have a dog in the fight), the Federal District Court in Denver would be responsible for indictment of the alleged perpetrators of the crimes. Trial for those offenses, if one eventually is had, would be held in Denver in the Federal District Court. Why then, if the fires burned in Vail, did a federal court in Oregon indict the alleged bad guys? Well, there are two answers, really, and one requires understanding precisely what constitutes conspiracy.The easy answer first, however. If the crime of conspiracy were committed, and its commission took place within the state of Oregon, that crime (if not the crime of arson itself), took place within the jurisdiction of the federal courts situated in Oregon. As conspiracy is a separate crime from commission of the act itself (that is, separate from the actual commission of the act of arson), and if the conspiracy took place in Oregon (which is, apparently, what is alleged), then Oregon courts can indict and conduct trial of those accused within that state for commission of the crime of conspiracy.How then is conspiracy different from the crime itself?Conspiracy is defined as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint effort, some unlawful or criminal act. A person is guilty of conspiracy if he or she: i) agrees with the other person or persons that one or more of them will engage in conduct which constitutes such crime (or an attempt or solicitation to commit such crime); or ii) agrees to aid such other person or persons in the planning or commission of such crime (or an attempt or solicitation to commit such crime). In other words, it is the planning itself to commit a crime or to aid another in committing a crime that constitutes the offense. Say A and B (or perhaps more aptly, Overaker and Meyerhoff) plot to burn down Two Elk and only B (or Meyerhoff) actually torches the place. Even if Overaker was sipping hot toddies before her blazing Eugene hearth and never set a tippytoe in Colorado, she is as guilty as Meyerhoff in plotting to do the dirty deed and has, at least in this example, committed the crime of conspiracy co-equally with Mr. Meyerhoff. In this case, the crime of conspiracy to commit arson is separate and distinct from the “target” crime of arson. Arson, by the way, may be broadly defined as setting afire (or causing an explosion) which is intended to destroy or damage the property of another.In the case of the “family,” other legal delights, in addition to conspiracy, arson and domestic terrorism charges may wait. As the story develops, you may see such additional offenses charged as extortion, reckless endangerment and others that it is too early to divine. Suffice it to say, that if the alleged are, in fact, those responsible for the destruction of Two Elk and the other mayhem with which they are suspected, it will be a long, long time before they ever enjoy the taste of free, pine-scented air.The way things stand for now, some of the accused have been charged in Oregon Federal Court for arson committed in Oregon. The persons so charged are believed to have participated in the actual act of setting the fires (linked, perhaps, by physical evidence which links them to the crime). Those persons, along with the ones accused so far of conspiracy but not arson, are believed to have at least participated in hatching the plot to set the fires.Both arson and conspiracy are serious offenses and the persons charged so far only with conspiracy should take scant comfort in that fact. Too, as the case is further developed, they might find themselves charged with further offenses.Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” He can be reached at 926-4461 or at email@example.com.Vail, Colorado