bought stolen paintings from Europe, nor did he share his belief as to the specific
painting in question being the stolen one. Far from agreeing with them to receive stolen
property, he was trying to shield them from that fact. Moreover, the mere fact that A. B,
and C suspected their father's nefarious activities does not suffice to create an implied
agreement between any or all of them and him to pursue that common unlawful
objective, as they neither shared those suspicions and/or knowledge with M or with
each other. Nor does it matter that A believed the painting was stolen (and that the one
they picked up was the stolen one), as he never did anything, through words or conduct,
to share that belief. The same is true for B and C -- though each independently
suspected or knew of their father's activities, there is nothing to suggest that through
words or conduct, an agreement was reached between M, A, B, and C (or any
subcombination of them) to receive stolen property. Thus, there is no conspiracy liability
for M, A, B, and C here.
Moreover, if evidence of an agreement existed, there would also be a question as to
whether C's role sufficed to show an agreement among the co-conspirators. As noted
above, under the majority rule, all co-conspirators must agree to pursue an unlawful
objective. Thus, C's status as informant to law enforcement and participation for the sole
purpose of continuing to deal with law enforcement would destroy his agreement to
further the objective in question. As a result, under the majority rule there would be no
conspiracy for this reason as well. Under the minority rule, however, the agreement of
only one participant will do, and thus there would be an agreement, if evidence of it
existed, notwithstanding C's status.
If evidence of such an agreement did exist, however, the overt act requirement would
be satisfied. The four of them going to pick up the painting that T had sent from London
would qualify as an overt act in furtherance of a conspiracy, as nearly any conduct that
is in furtherance of the objective in question will qualify.
Further, if an agreement existed, the defense of impossibility would not be available to
M and his sons. While a defense of legal impossibility would work (i.e., if the objective of