Federal criminal conspiracy.

AuthorBolles, Emily
PositionAnnual 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) Numerous federal statutes also identify specific conspiracy offenses, (2) but this article focuses on [section] 371.

    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. (3) A conspiracy is distinct from the substantive crime contemplated by the conspiracy (4) and may be charged whether or not the underlying substantive offense actually occurred. (5) While a defendant's acquittal on a conspiracy charge does not bar prosecution based on the substantive offense, (6) acquittal on the substantive offense may bar conviction on a conspiracy count under the doctrine of collateral estoppel. The collateral estoppel analysis has two steps: first, the court must determine that the jury's not-guilty verdict was based upon a reasonable doubt about a single, identifiable element of the substantive offense, and second, that identifiable element must also be an essential element of the conspiracy offense. (7)

    Section 371 criminalizes any agreement to "commit any offense against the United States, or to defraud the United States"; the action need not be criminally proscribed. (8) 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. (9)

    Prosecutors bring conspiracy charges in a variety of situations, (10) often because bringing a conspiracy charge provides certain strategic and evidentiary advantages. (11) However, because it is often difficult to define a conspiracy's temporal scope, (12) courts are wary of conspiracy charges that span time periods outside of the statute of limitations of the substantive offense. (13)

    Courts recognize that conspiracies' typical attributes--secrecy and concealment (14)--make them difficult to prosecute. The government, therefore, may establish the "essential nature of the plan and [defendants'] connections with it" through circumstantial evidence to ensure that conspirators do not "go free by their very ingenuity." (15)

    Section II of this Article outlines the basic elements of a conspiracy offense under [section]371. Section III discusses 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 touches upon sentencing.


    Criminal conspiracy has four elements, each of which the prosecution must prove beyond a reasonable doubt. (16) 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. (17)

    1. Agreement

      The first element and the "essence" of a conspiracy "is an agreement to commit an unlawful act." (18) The agreement must be between two or more people who are working together toward a common goal. (19) Corporations, as well as their officers, agents, and employees, are considered individual actors under [section] 371, so the "intracorporate conspiracy doctrine" (20) generally does not apply to charges under [section] 371, (21) although circuits are split on whether this doctrine applies to other federal conspiracy statutes. (22) Notwithstanding the intracorporate conspiracy doctrine, a sole stockholder in complete control of a corporation's activities is not sufficiently separate from the corporation to conspire with the corporation. (23) Conspiracy requires at least two autonomous persons.

      The bilateral conspiracy requirement of [section] 371 requires at least two actors. (24) A defendant, however, does not need to know the identity of other conspirators. (25) If there are only two actors, neither may be a government agent. (26) 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 other than the government agent. (27)

      Wharton's Rule (28) states that absent contrary legislative intent, 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. (29) Wharton's Rule does not apply, however, if the crime could have been committed by one person, (30) if the number of actual conspirators exceeds the number required to commit the substantive offense, (31) or if the consequences of the conspiracy rest on "society at large" rather than the parties themselves. (32)

      Due to the secretive nature of a conspiracy, the government need not prove a formal agreement. (33) Individual defendants may implicitly agree to a larger conspiracy if they knew, or should have known, others were committing similar actions. (34)

    2. Illegal Goal

      The second element of a federal conspiracy is the presence of an illegal goal. (35) Specifically, the government must establish that the aim of the conspiracy was (i) to defraud the United States government or hinder a lawful federal government objective (the "defraud clause") (36) or (ii) to violate a federal law (the "offense clause"). (37)

      The language of [section] 371's "defraud clause" is "not confined to fraud as that term has been defined in the common law." (38) The government need not suffer pecuniary loss to prove a conspiracy to defraud. (39) The defraud clause reaches "impairing, obstructing, or defeating the lawful function of any department of [the] government." (40) This does not require the conspiracy's acts were otherwise illegal. (41)

      The "offense clause" of [section] 371 is not limited to offenses committed against the United States or its agents; (42) it applies to any conspiracy that does, or is intended to, violate a specific federal statute. (43) It is not necessary that the conspirators knew or intended for the conspiracy to specifically violate federal law. (44)

      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, (45) as long as the indictment provides sufficient notice of the conspiracy charges. (46)

    3. Knowledge, Intent, and Participation

      The third element of a federal conspiracy requires the defendant to have knowledge of the conspiratorial agreement and have voluntarily participated in it. (47) Conspiracy is a specific intent crime, meaning the government must establish that the defendant must know of the scheme's criminal purpose and specifically intend to further that objective. (48) The defendant's conscious participation in the conspiracy may be inferred from circumstantial evidence. (49) The government need not prove the defendant knew all the details of the conspiracy, (50) but must show that the defendant knew "the essential nature of the plan." (51) The defendant need not know the identity of all other participants in the conspiracy. (52) Besides acts included in the underlying substantive offense, other acts the defendant committed in furtherance of the conspiracy's objectives are often sufficient to demonstrate that the defendant was a knowing participant. (53) 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. (54)

    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. (55) The overt act does not need to be performed by the defendant. 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. (56) The overt act need not be unlawful, (57) nor need it be the substantive offense charged in the indictment. (58)

  3. Defenses

    This section discusses several potential defenses: (i) the statute of limitations; (ii) variance; (iii) multiplicitous indictment; (iv) insufficient indictment; (v) withdrawal; and (vi) various other defenses. Defendants are entitled to present inconsistent defenses. (59)

    1. Statute of Limitations

      Because no provision of [section] 371 provides an express statute of limitations for conspiracy charges, the general five-year limitation for non-capital criminal offenses applies. (60) A conspiracy ends when the central criminal purpose of the conspiracy has been achieved or when all parties withdraw from the...

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