Federal criminal conspiracy.

AuthorWaters, Laura
PositionTwenty-Seventh Annual Survey of White Collar Crime
  1. INTRODUCTION II. ELEMENTS OF THE OFFENSE A. Agreement B. Illegal Goal C. Knowledge, Intent, and Participation D. Overt Act III. DEFENSES A. Statute of Limitations B. Variance C. Multiplicitous Indictment D. Insufficient Indictment E. Withdrawal F. Other Defenses IV. CO-CONSPIRATOR HEARSAY RULE A. Evidentiary Issues B. Sixth Amendment Issues V. PARTIES AND LIABILITY A. Vicarious Liability B. Joinder and Severance C. Acquittal of Other Co-Conspirators VI. SENTENCING I. INTRODUCTION

    Under 18 U.S.C. [section] 371, it is a crime to conspire to commit any offense against the United States or to defraud the United States. (1) A conspiracy offense sometimes poses a greater danger to society than a substantive offense committed by a single individual. The Supreme Court explained:

    For two or more to ... combine together to commit ... a breach of the criminal laws is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered. (2) A conspiracy is distinct from the substantive crime contemplated by the conspiracy (3) and may be charged whether or not the underlying substantive offense actually occurred. (4) While acquittal on a conspiracy charge does not bar prosecution based on the substantive offense, (5) acquittal of the substantive offense may bar conviction on the conspiracy count in some circuits under double jeopardy. The collateral estoppel analysis barring conviction on the conspiracy charge includes two steps: first, the court must determine that the jury's verdict was based upon a reasonable doubt about a single identifiable element of the crime, and second, that single element must be an essential element of the crime. (6)

    Section 371 applies generally to a conspiracy with the goal to "commit any offense against the United States, or to defraud the United States" (7) and criminalizes any agreement to violate a civil or criminal federal law. (8) Numerous federal statutes also identify specific conspiracy offenses. (9) A conspiracy to violate a civil law must inflict actual damage on the civil plaintiff. Such a requirement does not exist, however, for conspiracies to violate criminal laws. (10)

    Conspiracy is charged by prosecutors in a variety of situations, (11) often to afford prosecutors certain strategic and evidentiary advantages. (12) Because it can be difficult to define the temporal scope of the conspiracy, (13) courts remain wary of conspiracy charges spanning time periods outside of the statute of limitations of the substantive offense. (14)

    Courts also recognize, however, that the essential features of a conspiracy--secrecy and concealment (15)--make it difficult to prosecute, especially if the conspiracy is successful. The government, therefore, may establish the "essential nature of the plan and [defendants'] connections with it" through circumstantial evidence and inferences to ensure that conspirators do not "go free by their very ingenuity." (16) When the government seeks to prove the elements of a conspiracy by inference, it must prove each element beyond a reasonable doubt. (17)

    Section II of this Article outlines the basic elements of a conspiracy offense under [section] 371. Section III sets forth defenses available to challenge charges brought under the statute. Section IV presents evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys various procedural and substantive rules regarding enforcement amongst multiple parties. Finally, Section VI discusses sentencing for a conspiracy conviction.


    Criminal conspiracy has four elements, each of which the prosecution must prove beyond a reasonable doubt. (18) A conspiracy exists where there is: (i) an agreement between at least two parties; (ii) to achieve an illegal goal; (iii) where the parties possess knowledge of and participate in the conspiracy; and (iv) where at least one conspirator committed an overt act in furtherance of the conspiracy. (19)

    1. Agreement

      The first element and the "essence" of a conspiracy "is an agreement to commit an unlawful act." (20) The agreement must be between two or more people who are working together toward a common goal. (21) Corporations, as well as their officers, agents, and employees, are considered individual actors under [section] 371, so the "intracorporate conspiracy doctrine" generally does not apply. (22)

      Due to the secretive nature of a conspiracy, the government need not prove a formal agreement, (23) but can demonstrate its existence through circumstantial evidence (24) or by inference from the defendants' actions. (25) Individual defendants may implicitly enter into an agreement to commit a larger conspiracy if they knew, or should have known, others were committing similar actions. (26)

      The bilateral conspiracy requirement of [section] 371 requires at least two actors. (27) A defendant, however, does not need to know the identity of other conspirators. (28) If there are only two actors, neither may be a government agent. (29) A government agent can serve as a link between a true conspirator and the defendant if the defendant knew, or should have known, the conspiracy involved conspirators beyond the government agent. (30)

      Wharton's Rule (31) states, absent legislative intent to the contrary, an agreement by two people to commit a particular crime cannot be prosecuted as a conspiracy if the commission of the crime itself requires the participation of two people. (32) Wharton's Rule does not apply, however, if the crime could have been committed by one person, (33) if the number of actual conspirators exceeds the number required to commit the substantive offense, (34) or if the consequences of the conspiracy rest on "society at large" rather than the parties themselves. (35)

    2. Illegal Goal

      The second element of a federal conspiracy is the presence of an illegal goal. (36) Specifically, the government must establish that the aim of the conspiracy was either to defraud or hinder a lawful federal government objective (the "defraud clause") (37) or to violate a federal law (the "offense clause"). (38) Evidence of prior or uncharged acts not connected to the conspiracy may be admitted if it creates a reasonable inference of knowledge of the substantive offense charged. (39)

      The language of [section] 371's "defraud clause" is "not confined to fraud as that term has been defined in the common law." (40) Unlike in common law, under [section] 371 the government need not suffer pecuniary loss to prove a conspiracy to defraud, (41) because fraud reaches "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the] government." (42)

      The "offense clause" of [section] 371 is not limited to offenses committed against the United States or its agents; (43) it applies to any conspiracy that does, or is intended to, violate a specific federal statute. (44) It is not necessary that the conspirators knew or intended for the conspiracy to specifically violate federal law. (45)

      If a defendant is indicted for violating a federal statute and for conspiracy to defraud, the government need not prove the elements of the substantive offense to prove the conspiracy, (46) as long as the indictment provides sufficient notice of the conspiracy charges. (47)

    3. Knowledge, Intent, and Participation

      The third element of a conspiracy states that the defendant must have knowledge of the conspiratorial agreement and have voluntarily participated in it. (48) Conspiracy is a specific intent crime, meaning the government must establish that the defendant had the specific intent to engage in the conspiracy. (49) The defendant's conscious participation in the conspiracy may be inferred from circumstantial evidence. (50) The government need not prove the defendant knew all the details of the conspiracy, (51) but must show that the defendant had some idea of its criminal objectives. (52) The defendant need not know the identity of all other participants in the conspiracy. (53) Besides acts included in the underlying substantive offense, other acts the defendant committed in furtherance of the objectives of the conspiracy are often sufficient to demonstrate defendant was a knowing participant. (54) However, a defendant's "mere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in [a] conspiracy, " even if the defendant had knowledge of the conspiracy. (55)

      Most circuits hold that if the government proves beyond a reasonable doubt the conspiracy's existence, the defendant's intent to further the conspiracy, and his knowledge of the conspiracy, it need only prove a "slight connection" between defendant and the conspiracy. (56) The Fifth (57) and Eleventh (58) Circuits are internally split as to application of the rule. Deliberate avoidance of knowledge does not preclude a finding of intent with respect to the conspiracy. (59)

    4. Overt Act

      The fourth element of a federal conspiracy charge under [section] 371 is the performance of an overt act in furtherance of the conspiracy. (60) Not all federal conspiracy statutes require an overt act. (61) The purpose of the overt act requirement is to demonstrate that the conspiracy was operative, rather than a mere scheme in the minds of the actors. (62) The overt act need not be unlawful, (63) nor need it be the substantive offense charged in the indictment. (64)

      The Pinkerton (65) rule sets out a theory of vicarious liability whereby reasonably foreseeable...

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