Grappling with Gebardi: Paring Back an Overgrown Exception to Conspiracy Liability

by Jack C. Smith

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Abstract

For over a century, the Supreme Court has recognized that someone can conspire to commit a crime that he is not eligible to commit himself. Though this broad rule seeks to prevent the exploitation of statutory loopholes by concerted bad actors, courts have recognized narrow exceptions to this baseline reach of conspiracy liability for nearly as long as the rule itself. One such exception was announced in Gebardi v. United States, a 1932 Supreme Court case concerning an early human trafficking law that criminalized the act of transporting a woman across state lines for prostitution. The Court held that a woman transported in violation of this law was not guilty of conspiring with her transporter merely because she acquiesced to the journey. In the ensuing decades, lower courts debated the implications of the case for other kinds of criminal conspiracies and reached conflicting interpretations of the Gebardi exception—with some deriving broad, categorical exceptions for large classes of actors.

This Note argues that Gebardi created only a narrow exception requiring inquiries into both statutory construction and individual intent. While this reading comports with recent Supreme Court discussion of Gebardi as a narrow exception, one circuit court has since dismissed that brief treatment and expanded the Gebardi exception to its breaking point. This incongruence suggests further clarity and direction are needed to ensure cohesion in an area that could implicate a vast array of criminal statutes.

Grappling with Gebardi: Paring Back an Overgrown Exception to Conspiracy Liability

by Jack C. Smith

Click here for a PDF file of this article

Abstract

For over a century, the Supreme Court has recognized that someone can conspire to commit a crime that he is not eligible to commit himself. Though this broad rule seeks to prevent the exploitation of statutory loopholes by concerted bad actors, courts have recognized narrow exceptions to this baseline reach of conspiracy liability for nearly as long as the rule itself. One such exception was announced in Gebardi v. United States, a 1932 Supreme Court case concerning an early human trafficking law that criminalized the act of transporting a woman across state lines for prostitution. The Court held that a woman transported in violation of this law was not guilty of conspiring with her transporter merely because she acquiesced to the journey. In the ensuing decades, lower courts debated the implications of the case for other kinds of criminal conspiracies and reached conflicting interpretations of the Gebardi exception—with some deriving broad, categorical exceptions for large classes of actors.

This Note argues that Gebardi created only a narrow exception requiring inquiries into both statutory construction and individual intent. While this reading comports with recent Supreme Court discussion of Gebardi as a narrow exception, one circuit court has since dismissed that brief treatment and expanded the Gebardi exception to its breaking point. This incongruence suggests further clarity and direction are needed to ensure cohesion in an area that could implicate a vast array of criminal statutes.