Monday, April 27, 2009

Gossip Girl: What's Yours is Ours

Gossip Girl: Southern Gentlemen Prefer Blondes
(aired April 27, 2009)

Serena goes on a Spanish holiday with her friend Poppy and Poppy's boyfriend Gabriel. While in Spain, Serena and Gabriel get married after a night of drinking. Serena returns to the United States regretting what happened, but soon Gabriel follows her and they begin to date. But Gabriel is still dating Poppy so he can keep her business contacts for his telecommunications start-up company. Poppy finds out and Gabriel and Poppy break up. Without Poppy's contacts, though, Gabriel is concerned he'll have to go work for his father's tobacco business. Serena proposes Gabriel solicit her mother and other rich friends to invest in his new company. He does with great success.

In reality, there is no company and Gabriel and Poppy plan to keep the money for themselves. Before they could skip down together, Gabriel takes all of the money, including $500,000 from Poppy. Poppy tells Serena everything that happened.

Issue: Are Gabriel and Poppy liable for the same or different offenses? If so, which ones?

A conspiracy is an agreement between at least two people to commit an offense, and all parties to the agreement are liable for the acts of other conspirators if those acts are within the scope and objective of the conspiracy. False pretenses is the obtaining of another's property through a false representation of an existing fact.

Analysis: Likely the same. Gabriel and Poppy entered into an agreement to solicit investment funds for a company that does not exist. At a minimum they are both guilty of conspiracy to commit false pretenses. Because Gabriel, in furtherance of the conspiracy, actually obtained the funds through his false representation, he is also likely guilty of false pretenses. Poppy assisted in Gabriel's acts, and therefore, she is likely liable under accomplice liability (think: aiding and abetting).

And even though Poppy told Serena everything that happened, that doesn't change anything. While a conspirator can withdraw from a conspiracy (and avoid liability for subsequent acts), she can only withdraw from the conspiracy by telling her co-conspirator, Gabriel, that she was leaving the conspiracy. It does not appear she withdrew from the conspiracy, as seen in her apparent surprise at Gabriel's double-crossing of her. Let that be a lesson to you potential conspirators out there!

Bonus: Here's a fun fact to share at cocktail parties. Under the common law, a conspiracy required only an agreement to commit an offense. Most jurisdictions now treat conspiracy as a two-element offense: (1) an agreement to commit a criminal offense and (2) an overt act in furtherance
of the agreement. Even under modern criminal law, Gabriel and Poppy are guilty of conspiracy because the committed an overt act when they tricked Serena into introducing Gabriel to the investors at the cocktail party.

As an added bonus, consider the following. Gabriel and Poppy can be guilty of both conspiracy to commit false pretenses and false pretenses because conspiracy offenses do not merge with a completed underlying offense. This is different from the two other inchoate crimes--solicitation and attempt--where you can only be guilty of the completed offense or the completed underlying offense.

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