                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan
                                                                Chief Justice:         Justices:



Syllabus                                                        Robert P. Young, Jr.   Stephen J. Markman
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                       Richard H. Bernstein
                                                                                       Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis



                                              PEOPLE v SEEWALD

               Docket No. 150146. Argued November 5, 2015 (Calendar No. 5). Decided April 25,
       2016.

               Paul Charles Seewald was charged in the 16th District Court with nine counts of falsely
       signing nominating petitions, which is a misdemeanor under MCL 168.544(a), and one count of
       conspiring to commit a legal act in an illegal manner, which is a felony under MCL 750.157a(d).
       Seewald and Don Yowchuang had worked in the district office of former Congressman
       Thaddeus McCotter during McCotter’s 2012 reelection campaign. McCotter had to submit at
       least 1,000 valid voter signatures before the Secretary of State could certify his placement on the
       ballot. The day before the nominating petitions were due, Seewald and Yowchuang realized that
       several of the petitions had not been signed by their circulator, as required by MCL 168.544c(5).
       They agreed to sign the petitions as circulators, even though they had not circulated the petitions
       themselves, so that McCotter would qualify to appear on the ballot. The voter signatures on
       those petitions were subsequently disqualified under MCL 168.544c(10)(a), and the remaining
       signatures were too few to secure McCotter’s place on the ballot. A criminal investigation of
       Seewald and Yowchuang then led to the charges in this case. Following the preliminary
       examination, the court, Sean P. Kavanagh, J., bound Seewald over to the Wayne Circuit Court as
       charged. Seewald moved to quash the information on the felony charge. The circuit court,
       Margie R. Braxton, J., granted his motion and dismissed the felony charge against him,
       concluding that there had been no conspiracy to commit a legal act. The Court of Appeals, SAAD
       and DONOFRIO, JJ. (JANSEN, P.J., dissenting), affirmed in an unpublished opinion per curiam,
       issued August 5, 2014 (Docket Nos. 314705 and 314706), agreeing that the prosecution could
       not show an agreement to commit a legal act. The Supreme Court granted the prosecution’s
       application for leave to appeal. 497 Mich 909 (2014).

               In a unanimous opinion by Justice LARSEN, the Supreme Court held:

                The district court properly found that the prosecution had presented sufficient evidence to
       establish probable cause that Seewald committed the felony of conspiracy to commit a legal act
       in an illegal manner. The gist of conspiracy lies in the illegal agreement, and once the agreement
       is formed, the crime is complete. Michigan law requires no proof of an overt act taken in
       furtherance of the conspiracy, and the prosecution need not prove that the purpose contemplated
       by the unlawful agreement was accomplished. MCL 750.157a, retaining the common-law
       formulation of conspiracy, provides that any person who conspires with one or more other
persons to commit an offense prohibited by law or commit a legal act in an illegal manner is
guilty of conspiracy. Under MCL 750.157a(a), the penalties for conspiring to commit an illegal
act roughly track the penalties for the substantive offense. Under MCL 750.157a(d), however,
conspiracies to commit a legal act in an illegal manner are categorically subject to penalties of up
to five years’ imprisonment or a $10,000 fine, or both, regardless of whether the illegal manner
itself would constitute a felony or a misdemeanor if charged as a substantive offense. In this
case, the sentencing scheme elevated conduct that could have been charged as a misdemeanor
(either as falsely signing petitions or conspiring to do so) to conduct chargeable as a five-year
felony. The prosecution argued that submitting nominating petitions with valid signatures is, in
the abstract, a legal act and that Seewald and Yowchuang agreed to perform this legal act by
falsely signing the petitions as circulators, which was the illegal means by which the conspirators
agreed to perform the generally legal act of submitting nominating signatures. Seewald argued
instead that there had never been an agreement to commit a legal act because while submitting
nominating petitions with valid voter signatures is generally legal, the voter signatures on the
petitions would become invalid by operation of law once he and Yowchuang falsely signed them
and their submission would therefore be illegal. Under this view, the only agreement between
Seewald and Yowchuang was to do an illegal act through an illegal means. The term “legal act”
in the conspiracy statute, however, is properly interpreted as referring to the lawfulness of the act
in general, rather than with respect to the specific facts of the case. Proof is required of an
agreement to perform an act that is legal in generic terms as opposed to one that would be legal
as performed in the particular circumstances of the case. The Court of Appeals erred by
concluding that the illegality of the means (signing falsely) tainted the ends (submitting
nominating petitions) and made those ends illegal too and that there accordingly was no legal act
at all or any agreement to perform one.

       Reversed and remanded to the circuit court for reinstatement of bindover order.




                                     ©2016 State of Michigan
                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                      Chief Justice:          Justices:



OPINION                                               Robert P. Young, Jr. Stephen J. Markman
                                                                           Brian K. Zahra
                                                                           Bridget M. McCormack
                                                                           David F. Viviano
                                                                           Richard H. Bernstein
                                                                           Joan L. Larsen

                                                                       FILED April 25, 2016


                            STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                              No. 150146

PAUL CHARLES SEEWALD,

             Defendant-Appellee.


BEFORE THE ENTIRE BENCH

LARSEN, J.


      This case requires us to decide what alleged conduct is sufficient to warrant a

bindover on the peculiar charge of “conspiring to commit a legal act in an illegal

manner,” MCL 750.157a(d). In an anomalous reversal of roles, defendant, Paul Seewald,

argues that his aim was illicit through and through. He never agreed to commit any legal

act. Rather he conspired to commit an illegal act illegally; and that double illegality

should set him free. The prosecution, for its part, argues that while defendant’s agreed-to
means were surely illegal, his conspiratorial ends were purely legal; and that legality is

sufficient to try him as a felon.

        The irony is not lost on us. Yet, after examining the conspiracy statute, we hold

that the conduct alleged provides probable cause for trial on the charge. Accordingly, we

reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit

Court for reinstatement of the 16th District Court’s order to bind defendant over and for

further proceedings.

                       I. FACTS AND PROCEDURAL HISTORY

        Defendant and alleged coconspirator Don Yowchuang worked in the district office

of former Congressman Thaddeus McCotter during McCotter’s 2012 reelection

campaign. 1 Michigan election law required McCotter to submit at least 1,000 valid voter

signatures before the Secretary of State could certify his placement on the ballot. 2

Defendant and Yowchuang bore some responsibility for collecting those signatures and

submitting them to the Secretary of State. The day before the nominating petitions were

due, defendant and Yowchuang realized that several of the petitions had not been signed

by their circulator, as required by law. 3 To solve this problem, they agreed to sign the


1
  We note at the outset that this case is only at the bindover stage. The facts presented in
this opinion are gleaned mostly from testimony given by defendant and Yowchuang at
pretrial interviews.
2
    MCL 168.544f.
3
  MCL 168.544c(5), as amended by 2014 PA 94 and 2014 PA 418, requires each
individual petition to be signed and dated by the person who circulated the petition—the
circulator—after the signatures for that petition have been collected. The Secretary of
State is forbidden to count signatures submitted on an unsigned petition. Id. At the time


                                             2
petitions as circulators, even though they had not circulated the petitions themselves.

Defendant and Yowchuang explained that they signed as circulators so McCotter would

qualify to appear on the ballot.

       The Board of State Canvassers discovered the petitions’ irregularities and,

pursuant to MCL 168.544c(10)(a), disqualified the voter signatures contained thereon. 4

The remaining signatures were too few to secure McCotter’s place on the ballot. Shortly

after the announcement that his name would not appear on the ballot, McCotter resigned

his seat in the House of Representatives.

       These events led to a criminal investigation. Defendant was charged with nine

counts of falsely signing petitions, a misdemeanor under MCL 168.544c(9), and one

count of felony conspiracy to commit a legal act in an illegal manner under MCL

750.157a.    The conspiracy count charged defendant with agreeing “together with

[Yowchuang] to submit nominating petitions with valid signatures to The Michigan

Secretary of State by falsely signing the petitions as the circulator[.]” 5




this case arose, the version of the statute as amended by 2002 PA 431 was in effect and
the applicable subsection was Subsection (4). For ease of reference, however, this
opinion will use and quote the 2014 version of MCL 168.544c.
4
  Pursuant to MCL 168.544c(10)(a), any “obviously fraudulent signatures on a petition
form,” which include the false signature of one purporting to be a circulator, are
disqualified and may not be counted toward the number of signatures a candidate needs
to appear on the ballot.
5
  Yowchuang was also charged with 10 counts of felony forgery, 6 counts of
misdemeanor falsely signing petitions, and 1 count of felony conspiracy to commit a
legal act in an illegal manner. Those charges are not directly at issue in this case.



                                               3
         Following a preliminary examination, the 16th District Court bound defendant

over to the Wayne Circuit Court as charged; defendant then moved to quash the

information on the felony charge. The circuit court granted defendant’s motion and

dismissed the felony charge against him, concluding that there had been no conspiracy to

commit a legal act. 6 The Court of Appeals affirmed, agreeing that the prosecution could

not show an agreement to commit a legal act. 7 We granted the prosecution’s application

for leave to appeal. 8

                               II. STANDARD OF REVIEW

         In order to bind a defendant over for trial in the circuit court, the district court

must find probable cause that the defendant committed a felony. 9 This standard requires

“evidence of each element of the crime charged or evidence from which the elements

may be inferred.” 10 Absent an abuse of discretion, a reviewing court should not disturb

the district court’s bindover decision. 11 An abuse of discretion occurs when the trial




6
 People v Seewald, unpublished order of the Wayne Circuit Court, entered January 18,
2013 (Case No. 12-010198-02-FH).
7
 People v Seewald, unpublished opinion per curiam of the Court of Appeals, issued
August 5, 2014 (Docket No. 314705).
8
    People v Seewald, 497 Mich 909 (2014).
9
    See MCL 766.13.
10
 People v Hill, 433 Mich 464, 469; 446 NW2d 140 (1989), citing People v Doss, 406
Mich 90; 276 NW2d 9 (1979).
11
  People v Stone, 463 Mich 558, 561; 621 NW2d 702 (2001). See also People v Hudson,
241 Mich App 268, 276; 615 NW2d 784 (2000) (commenting that appellate courts


                                              4
court’s decision “falls outside the range of principled outcomes.” 12 Determining the

scope of a criminal statute is a question of statutory interpretation, which we review de

novo. 13

                                    III. CONSPIRACY

         The “gist” of conspiracy “lies in the illegal agreement”; 14 once the agreement is

formed, the “crime is complete.” 15 Michigan law requires no proof of an overt act taken

in furtherance of the conspiracy.       And, because the crime is complete upon the

conspirators’ agreement, the prosecution need not prove that “the purpose contemplated

by the unlawful agreement was accomplished.” 16

         At common law, conspiracy consisted of “an understanding or agreement to

accomplish an unlawful end, or a lawful end by unlawful means.” 17 Most states have


“review the district court’s original exercise of discretion” when reviewing a decision to
bind a defendant over to the circuit court).
12
  Epps v 4 Quarters Restoration LLC, 498 Mich 518, 528; 872 NW2d 412 (2015), citing
Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
13
  Stone, 463 Mich at 561, citing People v Denio, 454 Mich 691, 698; 564 NW2d 13
(1997).
14
     People v Asta, 337 Mich 590, 611; 60 NW2d 472 (1953).
15
  People v Justice, 454 Mich 334, 345-346; 562 NW2d 652 (1997), quoting People v
Carter, 415 Mich 558, 568; 330 NW2d 314 (1982).
16
     Asta, 337 Mich at 611.
17
  People v Tenerowicz, 266 Mich 276, 285; 253 NW 296 (1934). See also 2 LaFave,
Substantive Criminal Law (2d ed), § 12.1(a), p 255 (“[I]n 1832 came Lord Denman’s
famous epigram that a conspiracy indictment must ‘charge a conspiracy either to do an
unlawful act or a lawful act by unlawful means’ . . . .”).



                                             5
since abandoned this common-law formulation, jettisoning the “lawful end by unlawful

means” alternative in favor of a requirement that the object of the conspiracy be itself

criminal. 18 Michigan’s conspiracy statute, by contrast, has retained the common-law

form. MCL 750.157a provides:

           Any person who conspires together with 1 or more persons to
      commit an offense prohibited by law, or to commit a legal act in an illegal
      manner is guilty of the crime of conspiracy . . . [.]

As at common law, then, the statutory crime of conspiracy can be established in one of

two ways: by proof that two or more persons have agreed to do an act that is in itself

unlawful, or by proof that two or more persons have agreed to do a legal act using illegal

means.

      There can be little doubt that the Legislature intended to proscribe two forms of

conspiracy. The plain language of the statute contemplates it, 19 and distinct penalty

provisions govern the commission of conspiracies to commit legal and illegal acts. 20


18
  2 LaFave, § 12.3(a), p 287 (“[M]ost states provide that the object of a criminal
conspiracy must be some crime or some felony.”) (collecting statutes). See, e.g., La Stat
Ann 14:26, Reporter’s Comment—1950 (“By limiting ‘criminal conspiracy’ to cases
where a substantive crime is involved we escape the hazardous undertaking of trying to
determine when a lawful act is being done with a fraudulent or corrupt purpose,--a
problem which plagued the common law.”); Ala Code 13A-4-3, Commentary (noting the
“vagueness and uncertainty of the common law definition of conspiracy”).
19
   See Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999) (“If the
language of the statute is unambiguous, the Legislature must have intended the meaning
clearly expressed, and the statute must be enforced as written. No further judicial
construction is required or permitted.”).
20
   We note also that two separate committees examining the criminal code advocated a
change to the conspiracy statute due to the indeterminate nature of the current law. First,
the 1967 Joint Committee of the State Bar of Michigan suggested that the conspiracy


                                            6
        The statute provides penalties for conspiring to commit an illegal act that roughly

track the penalties for the substantive offense. Conspiracies to commit a felony are

subject to the same penalties as the corresponding substantive offense. 21 Conspiracies to

commit a misdemeanor may be punished by no more than one year in prison, a $1,000

fine, or both. 22

        Conspiracies to commit a legal act in an illegal manner are treated differently.

The statute makes such conspiracies categorically subject to penalties of up to five years’

imprisonment, a $10,000 fine, or both, regardless of whether the “illegal manner” would

constitute a felony or a misdemeanor if charged as a substantive offense. 23 On the facts

of the present case, this sentencing scheme elevates conduct that could be charged as a

misdemeanor—either as falsely signing petitions or as conspiracy to do the same—to




statute be limited to conspiracies to commit a criminal act because of the “open-ended”
nature of the conspiracy to commit a legal act in an illegal manner. Israel, The Process of
Penal Law Reform—A Look at the Proposed Michigan Revised Criminal Code, 14
Wayne L Rev 772, 819-820 (1968), citing Michigan Revised Criminal Code (final draft,
1967), § 1015, comment, p 98. In 1979, another State Bar committee recommended a
change to the statute, arguing that the current formulation is “too vague and indefinite.”
Michigan Second Revised Criminal Code (final draft, June 1979), § 1015, Committee
Commentary, p 108. The committee further noted: “[R]eported cases indicate little
practical need for such a broad definition of an illicit conspiratorial objective. With few
exceptions, past reported cases all have involved conspiracies to commit acts that were in
themselves criminal.” Id. at 109. However, the Legislature has not amended the statute
following its initial codification in 1966 by 1966 PA 296.
21
     MCL 750.157a(a).
22
     MCL 750.157a(c).
23
     MCL 750.157a(d).



                                             7
conduct chargeable as a five-year felony. In a different case, the statute might allow a

prosecutor to limit punishment, by charging conduct punishable as a felony with a higher

maximum penalty as a felony with a five-year maximum. The scheme thus places great

discretion in the hands of prosecutors. Absent constitutional infirmity, however, 24 we

must give effect to the statute the Legislature has crafted.

                                     IV. THE BINDOVER

         We now consider whether defendant’s agreement with Yowchuang can provide

the basis for a bindover on a charge of violating MCL 750.157a(d). The statute specifies

three elements: (1) conspiring, (2) to commit a legal act, (3) in an illegal manner. Here,

the prosecution charged that defendant conspired “together with [Yowchuang] to submit

nominating petitions with valid signatures to The Michigan Secretary of State by falsely

signing the petitions as the circulator[.]”         The parties agree that falsely signing a

nominating petition as a circulator is an illegal act. 25 What divides them is whether the

agreement to falsely sign as circulators can be charged as an illegal means to commit a

legal act.

         The prosecution argues that submitting nominating petitions with valid signatures

to the Secretary of State is, in the abstract, a legal act. Defendant and Yowchuang agreed

to perform this legal act by falsely signing the petitions as circulators.            In the




24
     We note that defendant has raised no constitutional objections to the statute.
25
     See MCL 168.544c(8) and (9).



                                                8
prosecution’s view, falsely signing is the illegal means by which the conspirators agreed

to perform the generally legal act of submitting nominating signatures.

       Defendant, by contrast, argues that, on the facts of this case, there never was any

agreement to commit a legal act. Although submitting nominating petitions containing

valid voter signatures to the Secretary of State is generally legal, once defendant and

Yowchuang falsely signed the petitions, the voter signatures contained thereon would

become invalid by operation of law, and their submission to the Secretary of State would

therefore be illegal. Thus, as defendant characterizes the facts here, the only agreement

between defendant and Yowchuang was to do an illegal act through illegal means.

       At bottom, then, the dispute revolves around whether to read the conspiracy statute

as requiring proof of an agreement to perform an act legal in generic terms, or legal as it

would be performed in the particular circumstances of the case. We conclude that it must

be the former.

       This Court has never opined on the scope of the “legal act” requirement under

MCL 750.157a and so we have no precedent on point. 26 Yet, defendant’s suggestion that

we should train our focus on the specific facts of the case when construing the statute’s




26
  The parties have identified only one case in this Court arising out of a conviction under
MCL 750.157a(d): People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). But that case
did not analyze what it meant to commit a legal act in an illegal manner. The defendants
there did not contest the validity of the charge, either in this Court or in the Court of
Appeals. Accordingly, neither Court ruled on the question or even commented on it in
dictum. To argue, by working backwards from Duncan’s facts, that the charge in that
case must have been valid, when the question was not raised and no legal ruling on it was
rendered, is to build a syllogism upon a conjecture.



                                            9
requirement of an agreed-upon “legal act” points us in the direction of our impossibility

jurisprudence. Another way to have presented defendant’s argument, after all, would

have been to argue that it was impossible, on the facts of the case, to have done the legal

act alleged (submitting nominating petitions) because the illegal means alleged (false

signing) made the legal act illegal. Defendant has not squarely raised an impossibility

defense. Still, our precedent discussing impossibility can guide us toward the proper

reading of the statutory text.

         In People v Thousand, 27 this Court discussed the availability of an impossibility

defense with respect to a charge of attempt under MCL 750.92, which criminalizes

attempts to commit an “offense prohibited by law.” The offense at issue was distribution

of obscene material to a minor, an act which is generally illegal. 28 The defendant,

however, claimed entitlement to an impossibility defense because the intended recipient

of the obscene material was not, in fact, a minor, but instead an adult undercover law

enforcement officer. 29 In a scholarly opinion considering the state of the law with respect

to impossibility as a defense to inchoate crimes generally, the Court concluded that

impossibility was not a valid defense to the crime of attempt. 30        It did not matter,

therefore, that completion of the substantive offense was impossible on the facts of the


27
     People v Thousand, 465 Mich 149; 631 NW2d 694 (2001).
28
  See MCL 722.675 (currently denominating the offense as “disseminating sexually
explicit matter to a minor”).
29
     Thousand, 465 Mich at 155.
30
     Id. at 162-166.



                                             10
case, the recipient being an adult, not a child. What mattered was that the defendant

attempted to commit an offense generally prohibited by law. 31 The Court thus reinstated

the charge against the defendant.

         As noted, defendant has not squarely raised the defense of impossibility, and the

parties have not briefed the question of its availability. We do not, therefore, resolve that

question here. What Thousand suggests, however, is that the term “legal act” in the

conspiracy statute is most properly read in the same manner that we read the language

“offense prohibited by law” in the related statute criminalizing attempt: as referring to the

lawfulness of the act in general, rather than with respect to the specific facts of the case.

If, in Thousand, the statutory term “offense prohibited by law” had been read not as

referring to offenses generally prohibited, but had instead been read in light of the

particular facts of the case, there would have been no need to have discussed the

availability of a defense. As the partial dissent in that case hinted, the charges could not

have been sustained. 32

         We are buoyed in this conclusion by the realization that to read the term “legal

act” to mean “an act that is legal in light of the specific facts of the case,” instead of “an

act that is legal generally,” would threaten to drain all meaning from the legal-act prong



31
     Id. at 165-166.
32
  Id. at 175 (KELLY, J., concurring in part and dissenting in part). In People v Tinskey,
394 Mich 108; 228 NW2d 782 (1975), this Court also briefly discussed the doctrine of
impossibility as a defense to a charge of attempt. The charge in Tinskey, however, was
conspiracy, not attempt. Although the Court discharged the defendants, the order leaves
some ambiguity as to the grounds for the discharge.



                                             11
of the conspiracy statute. This we are loath to do. When possible, we strive to avoid

constructions that would render any part of the Legislature’s work nugatory. 33 Here, the

text and structure of MCL 750.157a make clear that the Legislature intended to

criminalize both conspiring to commit an offense prohibited by law and conspiring to

commit a legal act in an illegal manner. The Court of Appeals’ and defendant’s analyses,

however, would effectively collapse the two into one.

         The Court of Appeals reasoned that the false signing (a concededly illegal act)

made the later generally lawful act (submitting petitions) into an illegal act, since it

involved “[defendant’s and Yowchuang’s] defrauding of the Secretary of State.” 34 Thus,

the Court reasoned, the illegality of the means (signing falsely) tainted the ends

(submitting nominating petitions) and made those ends illegal too. Accordingly, the

Court concluded there was no legal act at all, nor any agreement to commit one. But if

any illegal means taints the legality of the ends, it is difficult to envision the scenario in

which a person could commit a legal act in an illegal manner. 35 The Court of Appeals


33
     Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999).
34
     Seewald, unpub op at 4.
35
  When asked at oral argument to describe a scenario in which a person might properly
be charged with committing a legal act in an illegal manner, the defense referred us to the
facts of Duncan, 402 Mich 1. Because the Court in Duncan did not consider the legal
question before us, we consider Duncan’s facts only as a hypothetical. If we apply
defendant’s taint theory to those facts, however, we are not sure that even the charge in
Duncan could survive. That case involved returning property to its rightful owner,
which, of course, is generally a legal act. But, on the facts of that case (on which
defendant would have us focus) it was to be returned only after a bribe had been paid.
The return, then, being tainted by the bribe, might be better described not as a lawful act,
but as the final step in an extortion. That it would have been worse to have received the


                                             12
thus erred by giving the statute a construction that threatened to combine two distinct

forms of conspiracy into one.

       Defendant argues that just the opposite is true—that the prosecution’s reasoning

would eliminate the statutory distinction between conspiracies to commit an offense

prohibited by law and conspiracies to commit a legal act in an illegal manner. We are not

persuaded. It may be that the single agreement between defendant and Yowchuang

satisfied the elements of both flavors of conspiracy: conspiracy to commit an offense

prohibited by law, which in this case was a misdemeanor, and felony conspiracy to

commit a legal act in an illegal manner. But this does not, as defendant contends,

eliminate the misdemeanor offense from the statute. To the contrary, when a single act

violates multiple statutes, the prosecution is given discretion in its charging decision as

long as the offenses and penalties are sufficiently clear. 36 That prosecutors might often

elect to charge the felony in no way makes the misdemeanor charge surplusage as a

matter of law. 37



bribe and then to have kept the property does not remove the taint. We are left, therefore,
skeptical that any “legal act” conspiracy charge could survive on defendant’s reading of
the statute.
36
  See People v Ford, 417 Mich 66, 100; 331 NW2d 878 (1982), citing United States v
Batchelder, 442 US 114, 126; 99 S Ct 2198; 60 L Ed 2d 755 (1979).
37
   In any event, it is by no means clear that prosecutors will always or often elect the
felony charge. The scarcity of appellate cases arising under the “legal act” prong of the
conspiracy statute suggests that it has not heretofore been a popular charge, despite being
available since before the adoption of our criminal code. In the exercise of sound
discretion, prosecutors might well elect to charge the misdemeanor offense alone or in
combination with a felony.



                                            13
         Finally, defendant argues, in circumstances not present in this case, a ruling for the

prosecution would permit future prosecutors to broaden the goals of the conspiracy when

charging under MCL 750.157a(d) such that any conspiracy could be charged as a felony

under the statute. We think the risk exaggerated. Defendant forgets that the crime of

conspiracy is the agreement. 38 Therefore, the prosecutor does not define the scope of the

conspiracy: the conspirators do. Because one of the elements of MCL 750.157a(d) is the

conspiracy, the prosecution must prove beyond a reasonable doubt, either by direct or

circumstantial evidence, 39 that the conspirators agreed both to commit a legal act and to

do it in an illegal manner. The prosecution may not obtain a conviction simply by

asserting that some legal act was the aim of the conspiracy; it must prove, beyond a

reasonable doubt, an agreement to it. In this case, there is certainly probable cause to

believe that the conspirators agreed to the legal act charged, given that defendant has

testified under oath that they agreed to sign the petitions “for the purpose of having [the]

signatures included in” the Secretary of State’s count for the nomination and that

Yowchuang similarly testified that the purpose for agreeing to do so was “to make [the]

signatures count towards the nomination[.]”

                                      V. CONCLUSION

         The district court properly found that the prosecution presented sufficient evidence

to establish probable cause that defendant committed the felony of conspiracy to commit



38
     Asta, 337 Mich at 611.
39
     See People v Kanar, 314 Mich, 242 249-250; 22 NW2d 359 (1946).



                                               14
a legal act in an illegal manner. We therefore reverse the judgment of the Court of

Appeals and remand the case to the Wayne Circuit Court for it to reinstate the bindover

decision of the 16th District Court and for further proceedings consistent with this

opinion. We do not retain jurisdiction.


                                                            Joan L. Larsen
                                                            Robert P. Young, Jr.
                                                            Stephen J. Markman
                                                            Brian K. Zahra
                                                            Bridget M. McCormack
                                                            David F. Viviano
                                                            Richard H. Bernstein




                                          15
