Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 CR 7--Marvin E. Aspen, Judge.
POSNER and EASTERBROOK, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
Podolsky, a Chicago fireman, was convicted after a bench trial of one count of violating 18 U.S.C. § 844(i), which makes it a federal felony to attempt to damage or destroy, by means of fire, any building used in interstate commerce, and one count of conspiring (in violation of 18 U.S.C. § 371, the federal conspiracy statute) to violate section 844(i). He was sentenced to four years in prison on the conspiracy count and to five years of probation and 500 hours of community service on the attempted-arson count. 625 F. Supp. 188 (N.D. Ill. 1985). His appeal presents two issues: whether the agreement to burn down the building in question was conditional on an event that neither took place, and whether, if not, still his conviction should be set aside because the government "manufactured" federal jurisdiction.
Ziedman, a paid informant for the federal Bureau of Alcohol, Tobacco and Firearms, hired Podolsky (who in turn hired Hawkins) to burn down the building located at 2436 West Division Street (Chicago), for $5,000. The building was vacant. This was important because Podolsky had made clear that he would not knowingly set fire to a building that had people in it; he didn't want to kill anybody. Before Podolsky could get to work on 2436, Ziedman asked him to burn down number 2438. Apparently the Bureau was concerned that there might not be federal jurisdiction over arson in the vacant 2436. But since 2438 was not vacant, Podolsky's concern that there might be people in it when he set fire to it intensified and he demanded assurances that everyone would be out before he did the job. Ziedman gave him the requisite assurances, whereupon Podolsky and Hawkins went one night to 2438, well equipped with flammable materials. But upon arrival the saw a light in one of the window. Afraid that someone might be inside, they decided not to go through with the job. Instead they went over to 2436, to burn it--for their agreement to do so had not been superseded by their agreement to burn 2438--where they were immediately pounced on by waiting agents.
Podolsky was convicted of conspiracy to burn down 2438, not 2436 (because of jurisdictional concerns); and he argues that there was no such conspiracy because his agreement to burn down 2438 was conditional on its bring emptied of people, a condition apparently not fulfilled. But a conspiracy may be actionable, even though it is conditional. United States v. Anello, 765 F.2d 253, 262 (1st Cir. 1985). Every conspiracy is conditional to some extent, for no one agrees to go through with an agreement no matter what. Conditions, express or implied, do not make a contract unenforceable; they merely define the circumstances in which a party can avoid having to perform his contractual obligations; they presuppose rather than nullify the obligation. See Farnsworth, Contracts 536 (1982). Since criminal agreements are not enforceable, it would hardly make sense to import the law of contracts wholesale into the criminal law of conspiracy; we mention contract law only to make clear that "conditional agreement" is not an oxymoron.
Of course if the condition is a condition not of committing the agreed-upon acts (in this case, burning down number 2438), but of agreeing in the first place, there is no criminal conspiracy unless and until the condition is satisfied. If Podolsky had merely said to Ziedman, "I'll discuss 2438 with you if and when you prove to me that you've gotten all the people out," there would be no agreement to burn down 2438. There would only be an agreement to negotiate at some future date, and an agreement to negotiate an agreement to commit arson is not an agreement to commit arson. See United States v. Melchor-Lopez, 627 F.2d 886, 892 (9th Cir. 1980); cf. United States v. Jones, 765 F.2d 996, 1002-03 (11th Cir. 1985).
The judge found that the agreement was a conditional agreement to burn down number 2438, and not merely an agreement to agree to burn it down if an when Podolsky was satisfied that there was no one in the building. The evidence supports this finding. After much to-ing and fro-ing on the question whether everyone would be got out of 2438, the following exchange took place between Ziedman and Podolsky:
Z: They are going to be out. You going to do it or not?
Z: If you don't say "no." Just tell me.
This was the meeting of the minds, creating an agreement, though one implicitly conditioned on Podolsky's satisfying himself when he showed up at 2438 to burn it down that it really was empty of people.
The First Circuit suggested in the Anello case that not every conditional agreement to commit an offense is punishable as a conspiracy; the "test for conspiratorial liability [in such a case] should focus on subjective or objective likelihood that condition will be fulfilled," 765 F.2d at 263, summarizing Note, Conditional Objections of Conspiracies, 94 Yale L.J. 895 (1985). The court must have been worried that without some attention to the likelihood of the condition's being fulfilled, all sorts of fantastic hyperbole might become punishable ("I agree to horsewhip Idi Amin if he ever shows his face on Rush Street"). Since, however, section 371 requires the commission of an overt act, as well as an agreement, we doubt whether it is necessary to complicate the trial of conspiracy cases by making likelihood of fulfilling all conditions another element of the crime. As all agreements, including all conspiracies, have some conditions, implied or expressed, "subjective or objective likelihood" could become an issue in every conspiracy trial. What is true is that the more fantastic the condition, the lower the probability that the defendant actually agreed to commit an offense. Certainly if the conditions were ...