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Conspiracy, § 939.31 – Impossibility of Fulfilling Objective

State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen

Issue/Holding: Impossibility of fulfilling goal of conspiracy (here: election bribery, where other “conspirators” were undercover officers ineligible to vote) doesn’t preclude conviction, given Wisconsin’s recognition of “unilateral” conspiracies, State v. Sample, 215 Wis. 2d 487, 573 N.W.2d 187 (1998):

¶11   … Thus, under a unilateral conspiracy a person who intends to accomplish the objects of the conspiracy is guilty even though “the other members of the conspiracy never intended that a crime be committed.” Seeid., 215 Wis. 2d at 492, 573 N.W.2d at 189. For example, a person would be guilty of unlawfully conspiring to kill a business associate by hiring an undercover law-enforcement officer to commit the murder even though the officer had no intention to fulfill the contract. This same logic applies to the next step: that is, where the fulfillment of the conspiracy is not only highly unlikely, as in Sample, a reverse delivery-of-narcotics sting involving a jail inmate and an undercover officer, id., 215 Wis. 2d at 491–492, 573 N.W.2d at 189, or our murder-for-hire hypothetical, but is legally impossible, as is the case here. Indeed, although there is no published Wisconsin authority dealing with the legally-impossible situation, the law elsewhere is consistent with our next-logical-step conclusion, as revealed by a recent analysis and survey by United States v. Fiander, 547 F.3d 1036, 1042–1043 (9th Cir. 2008) …. As Sample recognizes, “under the inchoate crime of conspiracy, by definition no substantive crime is ever needed. Wisconsin Stat. § 939.31 focuses on the subjective behavior of the individual defendant.” Sample, 215 Wis. 2d at 505, 573 N.W.2d at 195 (emphasis added).


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