Justices consider whether buyer‑seller transaction can support conspiracy conviction in Cantel v. Commonwealth

At oral argument in Cantel v. Commonwealth of Virginia, counsel disputed whether a conspiracy conviction based on a buyer‑seller transaction is legally permissible under Virginia law and whether a disjunctive jury instruction imperiled the verdict.

Counsel for Mr. Ansell (arguing appellant) told the court he would reserve five minutes for rebuttal and said the indictment and jury charge allowed the jury to convict on theories that were not criminal offenses under his reading of the statutes. He argued the indictment alleged an alternative ‘‘sell or purchase’’ theory and that, if purchase is not an offense, the jury instruction permitted conviction on a non‑crime. "The indictment states an offense for which that is not an offense," he told the court, urging dismissal or other relief tied to several assignments of error.

Aaron Campbell, counsel for the Commonwealth, said three outcomes were possible: purchasing could be a crime and the instruction correct; purchasing could not be a crime but any instructional error was harmless; or the instruction was incorrect and retrial would be required with a proper instruction. Campbell also told the justices the Court of Appeals had assumed the instructional issue was before it and reached the merits.

The parties clashed over Wharton’s rule, a common‑law merger doctrine that can bar conspiracy liability when the underlying crime requires two parties (classic examples include adultery or dueling). Counsel for Mr. Ansell argued the rule—and precedent—require planning or agreement with a third party for conspiracy where buyer and seller alone cannot form a criminal conspiracy. He pointed to the trial record, saying evidence showed the appellant’s daughters each transported cubs on one occasion after purchase and that there was no evidence they knowingly participated in a plan to commit an offense.

Campbell urged three independent reasons Wharton’s rule should not block the conspiracy conviction here: the statutory text in §29.1‑505.1 and related provisions indicate the legislature intended conspiracy and the underlying offense to be separate; the societal harms targeted by endangered‑species laws distinguish these statutes from classic Wharton examples; and the record included facts the Court of Appeals relied on under a third‑party exception. He argued the alleged sale and purchase were factually intertwined—documents and repeated exchanges at Wilson’s Zoo—and that any erroneous instruction could be harmless because a reasonable jury would attach the facts to the sale‑based predicate.

Justices pressed both sides on preservation and waiver, asking whether counsel objected at trial to the purchasing language in the conspiracy instruction and whether the issue was briefed on appeal. The Commonwealth noted other transportation‑related indictments were charged but later affected by statute‑of‑limitations rulings tied to the COVID period.

Counsel for Mr. Ansell closed by reiterating that the record lacked evidence of active collusion by third parties and that the appellant’s conduct resembled that of a zoo visitor seeking to operate a petting exhibit rather than a distributor planning to traffic endangered animals.

The court heard argument but made no immediate ruling from the bench; the case remains under submission.