§ 18-2-201 CRS – Conspiracy – Colorado Law & Penalties

Under § 18-2-201 CRS, Colorado law defines criminal conspiracy as two or more people entering an agreement for an unlawful purpose, and then taking at least one overt act to further the agreement. Conspiracy to commit a crime is punished one class of crime less seriously than the intended crime.

The key language of the code section reads that:

(1) A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.

You can be found guilty of conspiracy even if you never successfully attempted or completed the planned crime. If you do commit (or attempt) the crime, you can be convicted of both

• the crime (or the attempted crime) and
• conspiring to commit it.

Given that conspiracy is punished only slightly less severely than the planned crime itself, conspiracy charges should not be taken lightly. What’s more, when there is a conspiracy, the first conspirator to “flip” can often obtain a plea bargain at the expense of the other conspirators.

This makes it especially important to retain an experienced Colorado conspiracy lawyer if you are accused of this crime. A top Colorado conspiracy lawyer can present numerous defenses on your behalf, including (without limitation):

• There was no agreement to commit a crime;
• No overt acts were committed in furtherance of a criminal plan;
• You abandoned the conspiracy before any conduct took place; or
• The police engaged in misconduct, such as an illegal search and seizure.

To help you better understand the law, our Denver, Colorado criminal defense lawyers discuss the following:

• 1. The elements of criminal conspiracy
  • 1.1. What is an “overt act”?
  • 1.2. Exception: “Wharton’s Rule”
  • 1.3. Participation in a criminal enterprise
  • 1.4. Conspiring with a minor or someone incompetent
  • 1.5. When multiple crimes count as one conspiracy
• 2. Penalties for criminal conspiracy in Colorado
• 3. Colorado conspiracy defenses

Also see our related article on complicity.

1. The elements of criminal conspiracy

Colorado’s criminal conspiracy laws are outlined in sections 18-2-201 through 18-2-206 of the Colorado Revised Statutes (C.R.S.).

Under 18-2-201 C.R.S., criminal conspiracy is committed when:

• Two or more persons,
• With an unlawful purpose,
• Enter into a real agreement or confederation with a common design.¹

It is not necessary that the conduct actually is carried out or that the crime is concluded successfully. The agreement itself is the crime, provided at least one overt act is taken in furtherance of it.

1.1. What is an “overt act”?

Idle talk – without something more – is not a conspiracy.² Before you can be guilty of conspiracy, there must be some overt act to further the conspiracy.

You, yourself, do not need to be the one to commit the overt act. Any overt act — even a small one — by a conspirator is enough.

However, you are not guilty of conspiracy unless you yourself actually take part in

• the planning and/or
• the conduct.

“Passive cognizance” – simply knowing about the conspiracy or even acquiescing to it — does not make you guilty of a crime.³

Additionally, conspiracy is a “specific intent” crime. To be guilty of conspiracy, you must have intended to engage in specific criminal conduct. It is not enough that you and someone else agree simply to commit some crime generally.⁴

Example:

• Jack and Kate enter into an agreement to burn down Kate’s business for the insurance money. Jack purchases lighter fluid in furtherance of the plan. Both Jack and Kate are guilty of conspiracy.
• Let’s say, however, that after entering into the agreement, Jack has second thoughts. He goes to a store and buys cigarettes and a lighter so he can go home, have a smoke and think it over. He is not guilty of conspiracy, because buying a lighter was not done in furtherance of the conspiracy.
• But if when Jack hesitates, Kate buys the lighter fluid instead, Jack is guilty of conspiracy. That’s because Kate – a co-conspirator – has committed an overt act in furtherance of the planned arson.

1.2. Exception: “Wharton’s Rule”

“Wharton’s Rule” is a legal doctrine that provides that an agreement by two persons to commit a crime cannot be prosecuted as a conspiracy if the crime by its nature requires the participation of two persons for its commission.⁵

An example is 18-6-201 C.R.S., bigamy. By definition, bigamy requires the agreement of two people to get married. The idea behind Wharton’s Rule is that punishment for the planning is inherent in the statute making such conduct illegal, because two people could not commit bigamy without the agreement.

However, if a group of people conspired to bring about a bigamous marriage, they could be prosecuted for conspiracy to commit bigamy. Wharton’s Rule does not apply when more people than necessary are necessary to commit the crime and work together to plan it.

In practice, Wharton’s Rule rarely comes up. However, a good Colorado conspiracy lawyer will be aware of the exception and raise it as a defense, if appropriate.

1.3. Participation in a criminal enterprise

18-2-201 (3) C.R.S. provides:

If a person knows that one with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit a crime with the other person or persons, whether or not he knows their identity.

So, for instance, participants in large-scale criminal operations can be found guilty of conspiracy

• even if, by definition, everyone involved in the organization is unable to participate personally in any given offense and
• even if they don’t know who all the participants are.⁶

1.4. Conspiring with a minor or someone incompetent

It is not a defense to a conspiracy charge that the person you conspired with

• was legally not responsible for the crime or
• is immune to prosecution for any reason.⁷

So you can still be found guilty of conspiracy even if the person you conspired with

• could not form the requisite intent to commit a specific intent crime — such as first-degree murder — or
• did not otherwise satisfy the conditions for committing a crime.

This means you can be found guilty of conspiracy even if your co-conspirator is underage or legally insane. Your intent to engage in conduct that is criminal is what counts.

1.5. When multiple crimes count as one conspiracy

If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are part of a single criminal episode.⁸

Example: Wendell, Xavier and Zelda belong to the same gang. Together, they plan how they are going to enter a residence for the purpose of stealing the owner’s cash, guns and drugs. Even though they are conspiring to commit multiple crimes (including burglary and several counts of theft), because the crimes are part of a single planned episode, they can only be charged with one count of conspiracy each, along with any crimes they actually commit or attempt.

2. Penalties for criminal conspiracy in Colorado

In general, conspiracy to commit a crime is punished one class of crime less seriously than the crime intended.⁸ For instance, conspiracy to commit a Colorado class 1 felony or Colorado level 1 drug felony is a Colorado class 2 felony or Colorado level 2 drug felony, as applicable.⁹

Conspiracy to commit a class 1 misdemeanor or a class 2 misdemeanor is a class 2 misdemeanor.¹⁰ In addition, if the crime you conspire to commit is a Colorado crime of violence, then conspiring to commit it is a crime of violence as well.¹¹

It is important to note that conspiracy to commit a crime is itself a separate crime from the crime you conspire to commit.

This means that if you conspire to commit a crime AND you commit (or attempt to commit) that crime, you can be punished for BOTH

• the conspiracy AND
• the crime (or the attempt).¹²

Example: Ruth, Sally and Tina conspire to keep a place of prostitution in violation of 18-7-204 C.R.S. Eventually, after weeks of planning, they open one. They can be found guilty of both keeping a place of prostitution, a class 2 misdemeanor, and of conspiracy to keep a place of prostitution, a class 2 misdemeanor.

Sentencing you for both the conspiracy and the crime itself does not violate your rights under the Double Jeopardy Clause of the 5th amendment.

Conspiracy is not a “lesser included offense.” It contains at least one element that the crime does not (planning) and vice versa.

It does, mean, however, that committing a crime with other people can subject you to greater total punishment than if you had simply committed the same crime yourself. The theory behind punishing both conspiracy and the ultimate crime is that the introduction of additional people creates more potential danger.

For a more comprehensive listing of sentences for conspiracy convictions, please see our article on Penalties for a Colorado Conspiracy Conviction.

3. Colorado conspiracy defenses

There are numerous defenses to charges of criminal conspiracy. Which is the best defense for your Colorado conspiracy charges depends on the facts of your case.

Some common defenses to Colorado criminal conspiracy include (but are not limited to):

You didn’t actively participate in the conspiracy or there was no overt act

If you knew about a planned crime but didn’t agree (even tacitly) to commit it, you are not guilty of conspiracy.

Likewise, you may not be convicted of conspiracy to commit a crime, unless the prosecution can prove that either you or one of your alleged co-conspirators committed an overt act in pursuance of it.¹³

Planning alone is not a conspiracy. There must be some act in furtherance of the planned crime, no matter how small.

Example: Jenny is present when her boyfriend Carl and one of his friends make a plan to violate Carl’s protective order to stay away from his ex-wife and children. Even though Jenny does not object or notify the authorities, because she doesn’t actively participate in any of the acts, she is not guilty of conspiracy to violate a Colorado protective order.

You abandoned or renounced the conspiracy

You can renounce or abandon a conspiracy in several ways:

• You thwart the success of the crime under circumstances showing that you completely and voluntarily renounced your criminal intent;¹⁴
• You and the other conspirators agree to call it off;¹⁵
• You give timely notice to your co-conspirators that you are abandoning the plan;¹⁶
• You inform the police or other appropriate law enforcement agency of the existence of the conspiracy and of your participation therein;¹⁷ or
• Neither you nor any of the other conspirators do any overt act in pursuance of the conspiracy during the applicable statute of limitations for the crime.¹⁸

• Example: A group of friends gets drunk one night and hatches an elaborate plan to waylay and beat up someone who has insulted them. After that night, however, they never discuss it again nor do any of them take any further action. While they never directly abandon their plan, it is deemed to be abandoned after 18 months — the statute of limitations for most Colorado misdemeanors, including Colorado third-degree assault.

You are acquitted of the crime and there is no other evidence of conspiracy

As discussed above, you can be charged separately with both conspiracy to commit a crime and commission of the crime, whether or not you actually carry it out.

Sometimes, however, the only evidence of a conspiracy is the alleged commission of a crime itself.

Example: Walter and Ramon are arrested for possession of cocaine with intent to sell it. They are found guilty based, in part, on their possession of scales and baggies. There is no separate evidence of a conspiracy to possess a controlled substance. Nevertheless, in order to be guilty of possessing drugs for sale together, they must necessarily have conspired to do so.

However, if the sole evidence of the conspiracy is the evidence that establishes the commission of the crime itself and you are found not guilty of the charges, you cannot be convicted of conspiring to commit the crime.¹⁹

Example: In the example above, let’s say Walter and Ramon are acquitted of the drug possession for sale charges. They cannot be found guilty of conspiracy without independent evidence of a plan to commit the crime — such as incriminating text messages or emails showing that they intended to possess drugs for sale.

“Rule of Consistency”

If you and your co-conspirators are tried in the same proceeding (which is usually the case), you cannot be found guilty of conspiracy if your alleged co-conspirators are acquitted. This is known as the “Rule of Consistency.”²⁰

The Rule of Consistency is a logical necessity. If your co-conspirators weren’t guilty of conspiring, you can’t be either, since you cannot conspire with yourself.²¹

The “Rule of consistency” does not apply, however, if your alleged co-conspirators are acquitted in a different proceeding. While in general co-conspirators are tried in a single trial, Colorado law permits you to be tried separately if the court deems it appropriate to ensure fairness.²²

This is just one reason why it is so important to retain your own Colorado conspiracy lawyer. An experienced Colorado criminal defense attorney can recommend whether it is in your best interest to try

• to get a separate trial,
• to try your case jointly, or
• to enter into a separate plea bargain.

If your co-conspirators accept a plea bargain in exchange for offering testimony against you, your lawyer should make sure the jury is aware of this.

We cannot stress this enough — if you are charged with conspiracy, make sure you have your own lawyer.

The planned crime is inherently ridiculous

In general, you can be found guilty of conspiracy even if your plan is not a practical one or one likely to succeed. By engaging in conduct that would result in a crime if everything went according to plan, you have committed criminal conspiracy.²³

However, the court is allowed to reduce your sentence or even dismiss the charges if the conduct is

“so inherently unlikely to result or culminate in the commission of a crime that neither that conduct nor the offender presents a public danger.”²⁴

So, for example, if your planned crime of kidnapping requires the use of rockets attached to your feet to fly into a third-story window, the sheer ridiculousness of the plan might serve as a complete or partial defense.

Though mistake of fact is NOT a defense to conspiracy. If your conduct could have resulted in a crime if the facts were as you and your co-conspirators believed them to be, and any of you takes a step towards completion, you are guilty of conspiracy.²⁵

Illegal search and seizure or other police misconduct

If the evidence of the alleged conspiracy was obtained as the result of an illegal search and seizure, your Colorado defense lawyer can bring a motion to suppress the illegally obtained evidence.

Likewise, if the police violated your rights in any other way, your lawyer can often use it to help you obtain a plea bargain to

• less serious charges or
• even a dismissal of your case.

Ways the police can violate your rights in Colorado include:

• Failure to give you a Miranda warning when required;
• Coercing your confession;
• Fabricating evidence; or
• Lying under oath.

Colorado Legal Defense Group
4047 Tejon Street
Denver, CO 80211

In California? Learn about California conspiracy laws (PC 182).

In Nevada? Learn about Nevada conspiracy laws (NRS 199.480).

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