CA: existence of unsatisfied condition does not necessarily negate criminal conspiracy

People v Washington, 2007 NY Slip Op 04720 [available here]

While incarcerated, Mr. Washington entered into an agreement with a hitman (who was actually an undercover informer) to have one of his rivals killed. (Washington, 2007 NY Slip Op 04720.) Being somewhat short of funds due to his incarceration, Washington told the informer to hold off on executing the hit until Washington could get out of jail and raise the necessary cash. On appeal, Washington argued that the agreement to have the rival killed was contingent on an event that never happened (because Washington was arrested for conspiracy before he was released from jail), and the existence of an undischarged condition negated the conspiracy.

The Court of Appeals (in a unanimous decision by Judge Ciparick) rejected that argument. While acknowledging a split among the federal circuit courts on the correct analysis to apply--the First and Eighth Circuits "have adopted the approach that an agreement with a condition will be effective only if the defendant subjectively believes the condition is likely to be fulfilled," while the Fifth, Seventh and Eleventh Circuits "hold[...] that conditions to an agreement are largely irrelevant, unless the conditions are so unlikely to be met that the agreement is illusory"--the Court does not choose a side. (Id. at __.) Even under the First and Eighth Circuit's somewhat stricter analysis, Mr. Washington would have subjectively believed that he would eventually be released from jail and thereby satisfy the condition, and the deal was otherwise specific enough to satisfy the requirements of a criminal conspiracy. (Id. at __.)