Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P13 doc

never conscripted women into military service, nor has it ever instituted universal military service. It has conscripted only individuals meeting certain age, mental, and physical standards. Congress has allowed the deferral of conscription for certain individuals, including those who need to support dependents or are pursuing an education. Among those who have been declared exempt from service are sole surviving sons, conscientious objectors to war, and ministers of RELIGION. The U.S. government also has the power to conscript property in times of emergency. FURTHER READINGS Brophy, Alfred L. 2000. “‘Necessity Knows No Law’: Vested Rights and the Styles of Reasoning in the Confederate Conscription Cases.” Mississippi Law Journal 69 (spring). Levi, Margaret. 1997. Consent, Dissent, and Patriotism. New York: Cambridge Univ. Press. MacLean, Alair. 2008. The Privileges of Rank. Armed Forces & Society 34. CROSS REFERENCES Involuntary Servitude; Solomon Amendment; Thirteenth Amendment. CONSENSUAL ALTERATION A change in a legal document agreed to by the parties and binding upon them. Such consensual alteration is usually evi- denced by the signing by each party of his or her initials and the date on which the agreement to the changes to the instrument is made. CONSENT Voluntary acquiescence to the proposal of another; the act or result of reaching an accord; a concurrence of minds; actual willingness that an act or an infringement of an interest shall occur. Consent is an act of reason and deliberation. A person who possesses and exercises sufficient mental capacity to make an intelligent decision demonstrates consent by performing an act recommended by another. Consent assumes a physical power to act and a reflective, deter- mined, and unencumbered exertion of these powers. It is an act unaffected by FRAUD, duress, or sometimes even mistake when these factors are not the reason for the consent. Consent is implied in every agreement. Parties who terminate litigation pursuant to a consent judgment agree to the terms of a decision that is entered into the court record subsequent to its approval by the court. In the context of RAPE, submission due to apprehension or terror is not real consent. There must be a choice between resistance and ACQUIESCENCE. If a woman resists to the point where additional resistance would be futile or until her resistance is forcibly overcome, submission thereafter is not consent. CONSENT DECREE A settlement of a lawsuit or criminal case in which a person or company agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit. A consent decree is a settlement that is contained in a court order. The court orders injunctive relief against the DEFENDANT and agrees to maintain jurisdiction over the case to ensure that the settlement is followed. (Injunc- tive relief is a remedy imposed by a court in which a party is instructed to do or not do something. Failure to obey the order may lead the court to find the party in CONTEMPT and to impose other penalties.) Plaintiffs in lawsuits generally prefer consent decrees because they have the power of the court behind the agreements; defendants who wish to avoid publicity also tend to prefer such agreements because they limit the exposure of damaging details. Critics of consent decrees argue that federal district courts assert too much power over the defendant. They also contend that federal courts have imposed conditions on state and local governments in civil rights cases that usurp the power of the states. Most civil lawsuits are settled before going to trial and most settlements are private agreements between the parties. Typically, the PLAINTIFF will file a motion to dismiss the case once the settlement agreement has been signed. The court then issues a dismissal order and the case is closed. However, if the defendant does not live up to the terms of the settlement agreement the plaintiff cannot reactivate the old lawsuit. This means filing a new lawsuit with the court and going to the end of the line in order to process the case. In more complex civil lawsuits that involve the conduct of business or industry, and in actions by the government against businesses that have alleg edly violated regulatory laws, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 108 CONSENSUAL ALTERATION consent decrees are regularly part of the settlement agreement. A court will maintain jurisdiction and oversight to make sure the terms of the agreement are executed. The threat of a contempt order may keep defendants from dragging their feet or seeking to evade the intent of the agreement. In addition, the terms of the settlement are public. Certain types of lawsuits require a court to issue a consent DECREE.InCLASS ACTION settle- ments, Rule 23 of the Federal Rules of Procedure mandates that a federal district court must determine whether a proposed settlement is fair, adequate, and reasonable before approv- ing it. Under the Antitrust Procedures and Penalties Act (the Tunney Act), 15 U.S.C.A. § 16(b)-(h), the court must review proposed consent decrees in antitrust suits filed by the JUSTICE DEPARTMENT. The statute directs the court to review certain items, including whether the decree advances the PUBLIC INTEREST. The U.S. Supreme Court, in Local No.93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), ruled that consent decrees “have attributes both of contracts and of judicial decrees.” The division between contracts and judicial decrees suggests that consent decrees are contracts that resolve some issues through the consent of the parties. However, for some issues, the decree contains judicial acts rendered by the judge, not the parties. Commentators have noted that these dual attributes require a court to deter- mine when it is appropriate to “rubber-stamp” a proposed settlement and when it is more appropriate for the court to treat the proposal as it would any judicial order. The federal courts have been criticized for using consent decrees to reform prison systems, school systems, and other government agencies. Some courts have maintained oversight of agencies for many years and have imposed conditions that have cost state and local governments substantial amounts of money. Congress intervened in one litigation area when it passed the Prison Litigation Reform Act of 1995 (Pub.L. 104-134, 110 Stat. 1321). The law imposed strict limits on what federal courts could do in the future to improve prison conditions through the use of consent decrees. In addition, it gave government agencies the right to seek the termination of consent decrees, many of which had lasted for decades. FURTHER READINGS “Consent Decree.” DocStoc Web site. Available online at http://www.docstoc.com/docs/974671/consent-decree; website home page: http://www.docstoc.com (accessed August 30, 2009). Kane, Mary Kay. 2007. Civil Procedure in a Nutshell. 6th ed. St. Paul, Minn.: West Law School. Mengler, Thomas M. 1988. “Consent Decree Paradigms: Models Without Meaning.” Boston College Law Review 29. CROSS REFERENCE Civil Action. CONSEQUENTIAL DAMAGES Injury or harm that does not ensue directly and immediately from the act of a party, but only from some of the results of such act, and that is compensable by a monetary award after a judgment has been rendered in a lawsuit. Detriment that arises from the interposition of special, unpredict- able circumstances. Harm to a person or property directly resulting from any breach of warranty or from a false factual statement, concerning the quality or nature of goods sold, made by the seller to induce the sale and relied on by the buyer. In terms of the UNIFORM COMMERCIAL CODE (UCC)—a body of law governing commercial transactions adopted by every state except for a few articles that were not adopted in Louisiana—consequential damages are injuries that result from a seller’s breach of contract. Such damages include any loss from general or particular requirements and needs of the buyer that the seller at the time of contracting had reason to know and that could not reasonably be prevented by cover, the purchase of substitute goods or other alternatives. CONSERVATOR OF THE PEACE An officer of the government authorized by law to act in such a manner that will preserve and maintain the order and safety of the community and the general public. The phrase conservator of the peace derives its meaning from its use in England during the Middle Ages. Until the reign of King Edward III, conservators of the peace were elected locally by the people. Subsequently they were appointed by the king. Among their duties were preven- tion of disturbances of the peace and arrest of individuals who did so. Around the year 1360, the duties of conservators of the peace were broadened by an act of Parliament to include the ARRAIGNMENT and trial of offenders. They, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSERVATOR OF THE PEACE 109 therefore, became known as justices of the peace. In the U.S. legal system, a conservator of the peace is synonymous with a peace officer. A police officer, a coroner, or a court officer may be considered a conservator of the peace. CONSIDERATION Something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances. Consideration is an essential element for the formation of a contract. It may consist of a promise to perform a desired act or a promise to refrain from doing an act that one is legally entitled to do. In a bilateral contract—an agreement by which both parties exchange mutual promises—each promise is regarded as sufficient consideration for t he other. In a UNILATERAL CONTRACT, an agreement by which one party makes a promise in exchange for the other’s performance, the performance is con- sideration for the promise, while the promise is consideration for the performance. Consideration must have a value that can be objectively determined. A promise, for example, to mak e a gift or a promise of love or affection is not enforceable because of the subjective nature of the promise. Traditionally, courts have distinguished between unilateral and bilateral contracts by determining whether one or both parties provided consideration and at what point they provided the consideration. Bilateral contracts were said to bind both parties the minute the parties exchanged promises, as each promise was deemed sufficient consideration in itself. Unilateral contracts were said to bind only the promisor and did not bind the promisee unless the promisee accepted by performing the obligations specified in the promisor’s offer. Until the promisee performed, he or she had provided no consideration under the law. For example, if someone offered to drive you to work on Mondays and Tuesdays in exchange for your promise to return the favor on Wednesdays and Thursdays, a BILATERAL CONTRACT would be formed binding both of you once you provided consideration by accepting those terms. But if that same person offered to pay you $10 each day you drove him to work, a unilateral contract would be formed, binding only upon the promisor until you provided consideration by driving him to work on a particular day. Modern courts have de-emphasized the distinction between unilateral and bilateral contracts. These courts have found that an offer may be accepted either by a promise to perform or by actual performance. An increasing number of courts have concluded that the traditional distinction between unilateral and bilateral contracts fails to significantly advance legal analysis in a growing number of cases where performance is provided over an extend- ed period of time. Suppose you promise to pay someone $500.00 to paint your house. The promise sounds like an offer to enter a unilateral contract that binds only you until the promisee accepts by painting your house. But what constitutes lawful performance under these circumstances? The act of beginning to paint your house or completely finishing the job to your satisfaction? Most courts would rule that the act of beginning performance under these circum- stances converts a unilateral contract into a bilateral contract, requiring both parties to fulfill the obligations contemplated by the contract. However, other courts would analyze the facts of each case so as not to frustrate the reasonable expectations of the parties. In neither of these cases are the legal rights of the parties ultimately determined by courts by applying the concepts of unilateral and bilateral contracts. In still other jurisdictions, courts have simply expressed a preference for interpreting contracts as creating bilateral obligations in all cases where no clear evidence suggests that a unilateral contract was intended. The rule has been stated that in case of doubt an offer will be presumed to invite the formation of a bilateral contract by a promise to perform what the offer requests, rather than the formation of a unilateral contract commencing at the time of actual performance. The bottom line across most jurisdictions is that as courts have been confronted by a growing variety of fact patterns involving complicated contract disputes, courts have turned away from rigidly applying the concepts of unilateral and bilateral contracts and moved towards a more ad hoc approach. CROSS REFERENCES Contracts; Performance; Promise; Value Consideration. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 110 CONSIDERATION CONSIGNMENT The delivery of goods to a carrier to be shipped to a designated person for sale. A bailment of goods for sale. A consignment is an arrangement resu lting from a contract in which one person, the consignor, either ships or entrusts goods to another, the consignee, for sale. If the goods are transported by a carrier to the consignee, the name of the consignor appears on the BILL OF LADING as the person from whom the goods have been received for shipment. The consignee’s name appears on it as the person to whom delivery is to be made. The consignee acts as an agent on behalf of the consignor, a principal, in selling the goods and must take reasonable care of them while in his or her possession. The consignor does not give up ownership of the goods until their sale. Under the terms of the consignment con- tract, the consignee agrees to pay the consignor a balance of the price received for any goods sold, which has been reduced by a fee, usually a small percentage of the sale price. Any goods that have not been sold must be returned to the consignor. CROSS REFERENCE Shipping Law. CONSORTIUM The marital alliance between a husband and wife and their respective right to each other ’s support, cooperation, aid, and companionship. Loss of consortium is an actionable injury for which money damages may be awarded. The loss of the love, sexual relations, and services of a spouse are being considered tangible injuries to an increasing extent. An action for loss of consortium is based upon the inconvenience of having a spouse who has been injured. Such injury might result from MEDICAL MALPRACTICE, ASSAULT AND BATTERY, NEGL IGENCE, the sale of addictive drugs, WRONGFUL DEATH,orFALSE IMPRISONMENT . The key requirement is that the wrongful act has a debilitating effect upon the individual whose spouse is initiating the action. Consortium encompasses services per- formed by a spouse. The COMMON LAW did not recognize a wife’s right to services on her husband’s part. Because she was viewed as a social and legal inferior, she could not demand that he work for her and, therefore, she had no remedy for loss of sexual relations, affection, or services. The wrongdoer was liable only to the husband directly. A husband was considered to have suffered tangible damages for injury to his wife and, initially, had the sole right to bring an action for loss of consortium. The LOSS OF SERVICES that had to be asserted included his wife’s general usefulness, household services such as cooking and cleaning, industry, and frugality. Eventually, the assumption evolved that a man suffered these impairments upon injury to his wife, and damages were recoverable by him for any period in which he was divested of sex, fellowship, and affection, in spite of the fact that his wife might not be responsible for housekeeping. Subsequently the Married Women’sProperty Acts (29 Stat. 19 3 [1896]) emerged. S ome states interpreted t hese a cts to mean that a man could no longer sue for th e los s of h is wif e’s s ervice s, as she was a f ull legal person. M os t states, however, interpreted the acts as extending to women the right to sue for loss of consortium. A plethora of recent cases indicate that either spouse m ay bring action f or lo s s of consortium. In 1950 the U. S. Court of Appeals for the District of Columbia in Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir. 1950), held that women had a right to sue for loss of consortium. Many states directly repudiated its holding and adhered to the old rule, while others supported the change. By the late 1970s many courts revised their views and held that women may sue for loss of consortium. Other jurisdictions refuse to rule in favor of the change on the ground that it can be made only by the state legislatures. Some states seek to prevent double recover- ies by requiring that the spouse who is suing for loss of consortium assert that claim in the same action as the spouse who is suing for damages for injuries. When this might be inconvenient or imp ossible in some instances, other states require judicial supervision of the second action in order to ensure that the amount of damages awarded will not be excessive. CONSORTIUM/ INTERGOVERNMENTAL CORPORATIONS AND CONSORTIUMS Quasi-business associations formed to provide services, arrange financing, or operate certain enterprises. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSORTIUM/INTERGOVERNMENTAL CORPORATIONS AND CONSORTIUMS 111 The involvement of more than one state or institution can be advantageous in expanding the financial and administrative resources available to the entity and, in some cases, permitting services or products to be distributed on a larger and more efficient scale. Various banks, for example, may form a consortium with a government to finance a major develop- ment project that is too large for one bank to finance alone. The terms of the agreement forming the consortium or corporation will determine the reciprocal rights and duties of the members of the entity. Whereas in practical terms there may be little difference between an intergovernmental consortium or corporation, the usual ad hoc nature of a consortium suggests its use for individual projects with a definite completion schedule. The widespread use of the corporate framework in other circumstances indicates that the corporate form works well when the entity must provide services over an indefinite period of time. The corporate structure, with its separate board of directors and management, can also protect the independence of the entity from direct political control and may help to facilitate access to private financial markets. CONSPIRACY Conspiracy is an agreement between two or more persons to engage jointly in an unlawful or criminal act or an act that is innocent in itself but becomes unlawful when done by the combi- nation of actors. Conspiracy is governed by statute in federal courts and most state courts. Before its codification in state and federal statutes, the crime of conspiracy was simply an agreement to engage in an unlawful act with the intent to carry out the act. Many state and federal statutes require not only agreement and intent but also the commission of an OVERT ACT in furtherance of the agreement. Conspiracy is a crime separate from the criminal act for which it is developed. For example, one who conspires with another to commit BURGLARY and in fact commits the burglary can be charged with both conspiracy to commit burglary and burglary. Conspiracy is an INCHOATE, or preparatory, crime. It is similar to solicitation in that both crimes are committed by manifesting an intent to engage in a criminal act. It differs from solicitation in that conspiracy requires an agreement between two or more persons, whereas solicitation can be committed by one person alone. Conspiracy also resembles attempt. However, attempt, like solicitation, can be committed by a single person. On another level, conspiracy requires less than attempt. A conspiracy may exist before a crime is actually attempted, whereas no attempt charge will succeed unless the requisite attempt is made. The law seeks to punish conspiracy as a substantive crime separate from the intended crime because when two or more persons agree to commit a crime, the potential for criminal activity increases, and as a result, the danger to the public increases. Therefore, the very act of an agreement with criminal intent (along with an overt act, where required) is considered sufficiently dangerous to warrant charging con- spiracy as an offense separate from the intended crime. According to some criminal-law experts, the concept of conspiracy is too elastic, and the allegation of conspiracy is used by prosecutors as a superfluous criminal cha rge. Many criminal defense lawyers maintain that conspiracy is often expanded beyond reasonable interpreta- tions. In any case, prosecutors and criminal defense attorneys alike agree that conspiracy cases are usually amorphous and complex. The Elements of Conspiracy Agreement The essence of conspiracy is the agreement between two or more persons. A single person acting alone cannot be guilty of conspiracy. However, if a coconspirator dies prior to the indictment or trial, the surviving coconspirator may still be charged with conspiracy. A husband and wife can be guilty of conspiracy. A corporation is considered a person for conspir- acy purposes, so a corporation can be guilty of conspiracy, but it cannot conspire with itself. For example, if two or more employees within a corporation conspire to break the law and subsequently commit an act in furtherance of the conspiracy, the corporation itself is not criminally liable for conspiracy. The agreement must be made voluntarily and with an intent to participate in furthering a common purpose. Mere knowledge or approv- al, in the absence of an actual agreement to cooperate, does not constitute conspiracy. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 112 CONSPIRACY Once an agreement with criminal intent is made, the conspiracy is complete, unless the applicable statute requires the additional ele- ment of an overt act. The agreement need not be written or formal, and it may be proved by CIRCUMSTANTIAL EVIDENCE. A tacit understanding is sufficient to constitute agreement, even if no words are spoken that expressly communicate the conspiracy. Conspiracy exists if there is some form of mutual understanding between persons working together with a common unlawful end. Intent Criminal intent is also necessary to create a conspiracy. The parties must intend both to agree on and to engage in the unlawful act. Ignorance of the law is not usually a defense to a crime, but an unwitting conspirator may defend against conspiracy charges on grounds of ignorance. Ignorance will not be a defense if the person continues to participate in the common plan after learning of its illegality. Either the purpose of the agreement or the means by which it is accomplished must be illegal to support criminal prosecution on conspiracy charges. If the purpose is unlawful, the offense is committed even if the means used to achieve the purpose are lawful. One illustra- tion is where a noncustodial parent conspires with another person to kidnap the parent’s child, and the child is abducted during a court- approved visit. Conspiracy also occurs if the purpose of the agreement is lawful but the means used to achieve it are illegal. For example, if a custodial parent chooses to retrieve a child who has been kidnapped by the noncustodial parent, an agreement to use unlawful force constitutes conspiracy. Overt Act An overt act can be any step that indicates that the execution of the conspiracy has begun. This act can be innocuous and need not be illegal unto itself. For example, if two persons agree to rob a bank, then purchase a ski mask, the act of buying the mask may constitute the overt act required to charge the two with conspiracy. The overt act must follow the agreement and must be executed with an intent to carry out the purpose of the conspiracy. For example, if one of the potential bank robbers buys a ski mask after the agreement is made, the purchase may not constitute the overt act if the ski mask will not be worn to carry out the robbery. An overt act need not be committed by each and every conspirator; an overt act by one conspira- tor solidifies the offense for all coconspirators. Thus, a conspirator who does not participate in the overt act can be charged with conspiracy. If a conspirator completely and voluntarily renounces the criminal purpose to all conspira- tors, that person may withdraw from the conspiracy before the overt act is committed. Many jurisdictions require that the withdrawing conspirator also inform law enforcement officials or take measures to thwart the crime, in order to avoid criminal liability for the conspiracy. Congress has enacted some conspiracy laws that have removed the overt act requirement. In Whitfield v. United States, 543 U.S. 209, 125 S. Ct. 687, 160 L. Ed. 2d 611 (2005), the Supreme Court addressed a MONEY LAUNDERING statute that did not include an overt act requirement for conspiracy. In a unanimous decision, the Court ruled that an overt act is not required for a conspiracy conviction when the statute does not mention such a requirement. Other Considerations A conspiracy exists as long as measur es are taken to conceal evidence of the crime. A person who did not participate in the original agree- ment can become a coconspirator after the actual criminal act if the person joins in the concealment of the conspiracy. Whether a coconspirator received personal benefit or profit is of no importance. Generally, conspirators are liable for all crimes committed within the course or scope of the conspiracy. The application of this general rule varies from state to state. Ordinarily, an act is within the course or scope of the conspiracy if it is a foreseeable result of the agreement. In some states, a conspirator is not liable where he or she has no knowledge of the specific act and argues successfully that the act was beyond the scope of the conspiracy. Also, if the purpose of the agreement is later changed by coconspira- tors, a conspirator who did not participate in the alteration may not be held liable for the new conspiracy. A person is liable for conspiracy only in regard to the meaning of the agreement as he or she understands it. In some jurisdictions, a person may be guilty of conspiracy even if a coconspirator is immune from prosecution. For example, if two persons conspire to commit MURDER and one is found to have been insane at the time of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSPIRACY 113 killing, the other conspirator may not be exempt from prosecution for conspiracy. One who provi des services to conspirators will not be guilty of conspiracy if that person has not participated in the agreement and does not know that a conspiracy exists. There must be a willful participation in the conspiracy, as well as an intent to further the common purpose or design for conspiratorial liability. Therefore, aiding a conspiracy by selling material to further it does not make someone a conspirator if the person does not know of the conspiracy, even if that person knows the goods sold will be used for an unlawful purpose. However, if the circumstances indicate a conspiracy, one who cooperates and knowingly sells goods for illegal use may be guilty of conspiracy. Generally, if a number of conspirators agree to carry out different functions in furtherance of the conspiracy, the agreement constitutes a single conspiracy, even if the different functions amount to more than one unlawful purpose. In some states, however, the different functions may constitute multiple conspiracies if there is an agreement to commit more than one crime. Punishment for the crime of conspiracy is ordinarily defined by statute and varies in accordance with the conspiracy’s objective. For example, a conspiracy to commit a misdemeanor will not be subject to the same punishment as a conspiracy to commit a felony. Conspiracy may be alleged in a civil case if the PLAINTIFF has suffered an injury as a result of the conspiracy. Civil conspiracy is ordinarily not a cause of action, but the existence of a c onspiracy may be used in determining the amount of damages in a CIVIL ACTION and the respective liabilities of civil codefendants for the payment of damages. History of Conspiracy Federal conspiracy statutes were first passed in 1909. Under 18 U.S.C.A. § 371, it is a crime to commit an offense against or to DEFRAUD the United States or any agency of the United States. If the crime actually committed is a felony, the punishment is a fine of not more than $10,000 or five years’ imprisonment, or both. Under 18 U.S.C.A. § 372, it is a crime to conspire to impede or in jure a federal law enforc ement o f ficer. The U.S. Congress has made specific conspiracies illegal through a variety of statutes. For example, conspiracy to murder federal or foreign officials is prohibited by 18 U.S.C. § 1117, a freestanding statute. Conspiracy to kidnap is contained in subsection C of 18 U.S. C. § 1201, the federal kidnapping statute. Other federal statutes prohibit conspiracies to assassi- nate the president, the vice president, and their successors; assassinate the director or deputy director of the Central Intelligence Agency (CIA); assassinate or kidnap a Supreme Court justice; interfere with commerce and trade; violate computer laws; launder money; obstruct state or local regulation of gambling; injure property of the federal government; tamper with consumer products; gather, transmit, lose, remove, or destroy national defense informa- tion or materials; incite sailors to MUTINY; engage in prohibited practices regarding radio broad- casts or game show contests; defraud the Tennessee Valley Authority; violate or interfere with voting rights; and sexually exploit children. Conspiracy cases are often infamous for their ambition and breadth. The ASSASSINATION of President Abraham Lincoln in 1865 by John Wilkes Booth was a product of a conspiracy between Booth and several supporters of the defunct Confederacy. In the early 1950s, the U.S. Congress conducted numerous hearings on Communist conspiracies against the United States. In the mid-1970s, several White House aides were indicted on charges of conspiracy in connection with the 1972 burglary of the offices of the Democratic National Committee in the WATERGATE Hotel, in Washington, D.C. In November 1986 a Lebanese weekly, Al-Shiraa, reported that the U.S. government had secretly sold military weapons to so-called moderate factions in Iran. In exchange for the arms sales, according to Al-Shiraa, the moderate Iranians would work to secure the release of U.S. citizens held hostage i n Lebanon. Thus b egan an investigation into a conspiracy that became popularly known as the IRAN-CONTRA AFFAIR. Congressional investigations that followed the Al-Shiraa article revealed a covert enterprise connected with the arms sales. The operation, staffed by private citizens and funded by private monies, had diverted profits from the sale of the weapons to the Contras, a loosely knit military force in Honduras that sought to overthrow the socialist Sandinista government in Nicaragua. Congressional investigations in the spring of 1987 revealed that the enterprise had been supervised by U.S. National Security Council GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 114 CONSPIRACY (NSC) staff. The NSC, created by the National Security Act of 1947 (61 Stat. 496 [50 U.S.C. § 402]) and amended by the National Security Act Amendments of 1949 (63 Stat. 579 [50 U.S.C. § 401 et seq.]), existed to advise the president with respect to the integration of domestic, foreign, and military policies relating to national security. One of the many problems presented by the enterprise was its apparent violation of the Boland amendments to a series of appropria- tions bills. These bills were established in the early 1980s to prevent any “agency or entity of the United States involved in intelli gence activities” from spending funds available to it “to support military or paramilitary operations in Nicaragua” (133 Cong. Rec. H4982-87 [daily ed. June 15, 1987]). The covert arms sales also violated procedural and substantive require- ments of the Arms Export Control Act of 1976 (Pub. L. No. 90-629, 82 Stat. 1320 [22 U.S.C. §§ 2751–2796c]). Moreover, the executive branch’s failure to notify Congress of the covert arms sales flouted the reporting provisions of the 1980 Intelligence Oversight Act (Pub. L. No. 96- 450, tit. IV, § 407[b][1], 94 Stat. 1981 [50 U.S.C. § 413]). In 1987 Lawrence Walsh, a former Ameri- can BAR ASSOCIATION president and former federal judge, was assigned by the U.S. Court of Appeals for the District of Columbia Circuit, INDEPENDENT COUNSEL Division, to investigate the Contra-funding scheme. In March 1988 Walsh charged Richard Secord, Albert Hakim, Oliver North, and John Poindexter with conspiracy to obstruct the U.S. government. North and Poindexter had worked for the NSC. As in all conspiracy cases, an important goal of the prosecution was to determine who was involved in the agreement. A major issue in the Iran-Contra investigation was to determine precisely who in the executive branch autho- rized or was aware of the arms diversions and, specifically, whether the president had knowl- edge of the unlawful activities. In the legal battles that ensued over access to information in connection with the prose- cutions, Walsh faced challenges by the Ronald Reagan and George H. W. Bush administra- tions, the Justice Department, intelligence agencies, and lawyers for the accused. U lti- mately, the Wh ite House refused to relinquish classified information crucial to the prosecu- tions, and Walsh was forced to drop all conspiracy charges. The Iran-Contra Affair resulted in criminal convictions of several persons directly connected with the Reagan administration, but Walsh was never able to link the president to a conspiracy to obstruct the U.S. government. In another conspiracy case, Patricia Caldwell, a bookkeeper with the Northwest Community Exchange (NCE), was charged with conspiracy to defraud the United Stat es be cause she refused to provide to the IRS certain account information it requested regarding NCE customers. The NCE was one of a number of warehouse banks, which promised their customers that they would not reveal account information to third parties, including the Internal Revenue Service (IRS). As a result, the IRS shut down the warehouse banks, and it charged several customers and employees with conspiracy to defraud the United States. A jury convicted Caldwell of conspiring to defraud the United States, in violation of 18 U.S.C.A. § 371. The Ninth Circuit Court of Appeals re- versed Caldwell’s conspiracy conviction (United States v. Caldwell, 989 F.2d 1056 [1993]). The government had argued that people have a duty to conduct their business affairs so as not to impair or impede the collection of revenue by the IRS. The majority opinion, written by Judge Alex Kozinski, rejected this interpretation of 18 U.S.C.A. § 371 and held that to defraud the government, a person had to act deceitfully or dishonestly. To allow otherwise would create an oppressive theory of criminal conspiracy. The court observed that under the govern- ment’s theory, “a husband who asks his wife to buy him a radar detector would be a felon … because their actions would obstruct the government function of catching speeders.” According to the court, Congress did not intend to make a federal crime out of actions that merely make “the government’s job more difficult.” The jury in Caldwell’s case had not been instructed that it had to find that Caldwell agreed to obstruct the IRS tax-collecting func- tions by deceitful or dishonest means. This failure to inform the jury about an essential element of conspiracy constituted reversible error, and Caldwell’s conviction was overturned. American Honda Conspiracy The sheer size of a conspiracy can create distinct problems for prosecutors and defense attorneys GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSPIRACY 115 alike. In 1993 U.S. attorneys in New Hampshire began to investigate employees of the American Honda Motor Company. By 1994 prosecutors had cobbled together an immense conspiracy- based commercial BRIBERY case. The conspiracy prosecutions of American Honda executives and dealers began to develop in 1989, when Richard Nault, an automobile dealer in Nashua, New Hampshire, brought a civil suit against American Honda, claiming unfair treatment. In 1993, after testimony raised concerns of bribery, the judge in Nault’s case recommended that federal authorities investi- gate the financial affairs at American Honda. Investigations by the Federal Bureau of Investigation (FBI) revealed a widespread pat- tern of illegal payoffs in which American Honda executives were given cash, jewelry, cars, and store ownership interests in return for the award of new Honda dealerships and favorable car allocations. According to the prosecutors, assistant U.S. attorneys Michael Connolly and Donald Feith, the alleged conspiracy involved 22 American Honda executives and dealers, encompassed 30 states, and was responsible for the misappropriation of approximately $50 million. In 1993 and 1994, prosecutors dan gled various substantive and conspiracy charges before the executives and dealers. By the end of 1994, only three of the alleged conspirators had refused to plead guilty: John Billmyer, an 18-year American Honda veteran and longtime vice president of auto field sales; Stanley Cardiges, another vice president of auto field sales and Billmyer’s protégé; and Dennis Josleyn, whose last position was West Coast sales manager for Acura, American Honda’s flagship automobile. In March 1994 Billmyer, Cardiges, and Josleyn were arrested at their homes, booked at local jails, and then released pending trial. A federal grand jury charged Billmyer with one count of conspiring with Cardiges and Josleyn to defraud American Honda, the United States, the Treasury Department, and the IRS, in violation of 18 U.S.C. § 1341. Specifically, the indictment alleged that Billmyer, Josleyn, and Cardiges had conspired to receive money and gifts by secretly selling the valuable contract rights conferred on prospective dealers by American Honda. Cardiges and Josleyn were charged with participating in the broad conspiracy with Billmyer and also conspiring to receive kick- backs in conne ction with an American Honda advertising campaign. Cardiges and Josleyn were further charged with violating the Racke- teer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961 et seq.). In November 1993, Cardiges allegedly asked former American Honda zone manager Edward Temple to tell the FBI that payments the two had received from a hidden interest in a Conway, Arkansas, car dealership were actually loan payments. American Honda was portrayed by prose- cutors as a victim of the conspiracies. As the trial approached, lawyers for Cardiges and Josleyn prepared a defense that would further victimize the company. According to Cardiges’s lawyer Philip Israels, any conspiracy case should have included the Japanese executives of Honda Motor Company International, the owner of American Honda. Israels maintained that the Japanese executives knew of, condoned, and even participated in the kickback schemes. Israels further charged that the federal govern- ment had information that suggested that Japanese executives knew of the kickbacks and that the decision not to prosecute the Japanese executives was being used as a bargaining chip in trade negotiations between the United States and Japan. Josleyn adopted a defense similar to that of Cardiges. Josleyn’s attorneys, Paul Twomey and Mark Sisti, noted that the alleged conspiracy was so widespread that Japanese executives must have known of it. Josleyn would deny no specific facts. Rather, he would invert the meaning of the mountain of evidence uncovered by the prosecutors and the FBI to show that the Japanese executives must have known about and approved of the kickback schemes. Such a showing would allow Josleyn’s attorneys to argue that the alleged conspiracy was actually a lawful, routine business practice promoted by American Honda’s parent company. Billmyer had retired from American Honda in 1988. His lawyers, David Long and Kevin Sharkey, based his defense on various grounds. Their arguments included that the prosecution of Billmyer was barred by the five-year STATUTE OF LIMITATIONS on conspiracy charges because the indictment actually alleged multiple conspiracies, and any criminal liability for a conspiracy involving Billmyer expired in 1993; Billmyer had withdrawn from any alleged conspiracies by GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 116 CONSPIRACY retiring in 1988; and New Hampshire was an improper venue because none of the acts Billmyer was alleged to have committed had any relation to New Hampshire. In the months before trial, several motions to dismiss the case were denied by Judge Joseph DiClerico of the U.S. District Court for the District of New Hampshire. On January 22, 1994, after two years of maintaining his innocence and just one day before jury selection was scheduled to begin, Cardiges pleaded guilty to all charges. In exchange for lenient sentenc- ing recommendations by the prosecutors, Cardiges agreed to testify against Billmyer and Josleyn. All the conspirators except Billmyer and Josleyn were prepared to testify to conspir- acies to defraud. The case proceeded to jury trial in February 1995 and was presided over by Judge DiClerico. In opening statements, assistant U.S. attorney Connolly submitted to the jury that the conspir- acy was limited to a few rogue U.S. executives and dealers and that the United States and American Honda had been conspired against and defrauded by them. Twomey declared that “the government is going to take you everywhere—north, south, east and west” to prove a conspiracy that was supposedly limited to U.S. executives and was completely unknown to Japanese executives. Long and Sharkey covered the litany of apparent infirmities in the government’s conspiracy case against Billmyer. A seemingly endless stream of witnesses then proceeded to testify against Billmyer and Josleyn. American Honda executives and dealers regaled the jury with descriptive accounts of opulence and excess. The kickback schemes resembled homage to the executives, a practice that Honda and Acura dealers called kissing the ring. Dealers and executives told of expensive offerings, including cash payments, free auto- mobiles, Rolex watches, shopping sprees, swim- ming pools, and tuition payments for children. In several days on the WITNESS STAND, Cardiges alone testified to the receipt of approximately $5 million in kickbacks. At the close of the government’s CASE IN CHIEF , Long made a motion to dismiss, arguing that the suit was one of multiple conspiracies, that any conspiracy involving Billmye r sup- ported by the evidence was barred by the statute of limitations, and that any payments or gifts received by Billmyer were unconnected to any conspiracy with Josleyn. The motion was denied, Billmyer called no witnesses, and Josleyn began his defense. Throughout the presentation of the govern- ment’s case, Josleyn’s lawyers had been fighting with American Honda. They sought to obtain, and eventually received, a copy of handwritten notes kept by Sherry Cameron, American Honda’s vice president of human resources. Cameron’s notes had been made in connection with American Honda’s 1992 internal investiga- tions into rumors of kickbacks. American Honda had appealed Judge DiClerico’s decision to order American Honda’s release of the notes to the defense, but the First Circuit Court of Appeals refused to reverse the order. Cameron had testified for the government in March 1995, and Sisti’s cross-examination of her had been suspended while the production of her notes was contested. On May 15, 1995, Cameron resumed the witness stand and was faced with poster-sized copies of her notes, one of which revealed that her “point of view” in the investigation was to “try to protect” the company. Cameron further testified that she had limited her investigation to facts, not rumors. Twomey then called to the stand J. D. Powers, a prominent market research specialist for the automobile industry. Powers testified that in 1983, he sent a letter to Yoshihida Munekujni, then president of American Honda, informing him of widespread rumors of corruption in American Honda. According to Powers, several unindicted top-ranking American Honda executives knew of the kickback schemes in the early 1980s. This and other evidence allowed Twomey to argue in his closing statement that the conspir- acy was so implicit as to constitute one company’s policy. Twomey asked the jury whether it could be satisfied that it knew the entire truth in the case. Long contended, in part, that the government had been selective and heavy-handed in its prosecution. The case was submitted to the jury. After five days of deliberations, Billmyer and Josleyn were con- victed of all charges. Billmyer and Josleyn appealed their convictions, but the Fifth Circuit Court of Appeals affirmed the district court’s decision (United States v. Josleyn, 99 F.3d 1182 [5th Cir. 1996]). Although no Japanese executives were charged in the case, 20 American Honda GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSPIRACY 117 . the year 136 0, the duties of conservators of the peace were broadened by an act of Parliament to include the ARRAIGNMENT and trial of offenders. They, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSERVATOR. and defense attorneys GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSPIRACY 115 alike. In 19 93 U.S. attorneys in New Hampshire began to investigate employees of the American Honda Motor Company commit MURDER and one is found to have been insane at the time of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSPIRACY 1 13 killing, the other conspirator may not be exempt from prosecution