Federal criminal conspiracy.

Author:Langer, Anne
Position:Twenty-Third 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. ENFORCEMENT 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. Detailing the gravity of such danger, the Supreme Court wrote:

    [f]or 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 occulted. (4) Acquittal on a conspiracy charge does not bar prosecution based on the substantive offense; (5) however, acquittal of the substantive offense may bar conviction on the conspiracy count. (6)

    Section 371 applies generally to a conspiracy possessing 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 proscribe specific conspiracy offenses. (9) A conspiracy to violate a civil law must inflict actual damage on the civil plaintiff. Though such a requirement does not exist for conspiracies to violate criminal laws. 10

    Conspiracy is applied by prosecutors to a variety of situations, (11) making it one of the most commonly charged federal crimes. (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, 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 of the statute. 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 the conspiracy and with actual participation 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, including married spouses, (21) working together toward a common goal. (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 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 analogous 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 defendant if defendant knew, or should have known, the conspiracy involved conspirators beyond the government agent. (30) Corporations, their officers, agents, or employees are considered individual actors under [section] 371, (31) so the "intracorporate conspiracy doctrine" generally does not apply. (32)

      Wharton's Rule (33) 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. (34) Wharton's Rule does not apply if the crime could have been committed by one person, (35) if the number of actual conspirators exceeds the number required to commit the substantive offense, (36) or if the consequences of the conspiracy rest on "society at large" rather than the parties themselves. (37)

    2. Illegal Goal

      The second element of a federal conspiracy is the presence of an illegal goal. (38) 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") (39) or to violate a federal law (the "offense clause"). (40) 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. (41)

      The language of [section] 371's "defraud clause" is "not confined to fraud as that term has been defined in the common law." (42) Unlike common law, under [section] 371 the government need not suffer pecuniary loss to prove a conspiracy to defraud (43) because fraud reaches "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the] government." (44)

      The "offense clause" of [section] 371 is not limited to offenses committed against the United States or its agents; (45) it applies to any conspiracy that does or is intended to violate a specific federal statute. (46) It is not necessary that the conspirators knew that or intended for the conspiracy to violate federal law. (47) If a defendant indicted for violating a federal statute is also charged with conspiracy to defraud, the government need not prove the elements of the substantive offense to prove the conspiracy (48) as long as the indictment provides sufficient notice of the charges. (49)

    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. (50) The defendant's conscious participation in the conspiracy may be inferred from circumstantial evidence. (51) The government need not prove the defendant knew all the details of, (52) objectives of, (53) or identity of all the other participants in the conspiracy. (54) Besides acts included in the underlying substantive offense, other acts committed by defendant in furtherance of the objectives of the conspiracy are often sufficient to demonstrate defendant was a knowing participant. (55) However, "a defendant's mere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in the conspiracy," even if the defendant had knowledge of the conspiracy. (56)

      Most circuits hold that if the government proves beyond a reasonable doubt the conspiracy's existence, defendant's intent to further, and his knowledge of the conspiracy, it need only prove a "slight connection" between defendant and the conspiracy. (57) The Fifth (58) and Eleventh (59) Circuits are split as to application of the rule. Deliberate avoidance of knowledge does not preclude a finding of intent with respect to the conspiracy. (60)

    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. (61) Not all federal conspiracy statutes require an overt act. (62) 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. (63) The overt act need not be unlawful, (64) nor need it be the substantive offense charged in the indictment. (65)

      The Pinkerton (66) rule sets out a theory of vicarious liability whereby reasonably foreseeable overt acts of one co-conspirator committed in furtherance of the conspiracy are attributable to the other conspirators. (67) Defendant is liable for overt acts committed by his co-conspirators both prior to and during the defendant's participation. (68) However, this proposition only applies to acts related directly to the conspiracy. Defendant cannot be held criminally liable for substantive offenses committed by others involved in the conspiracy before defendant joined or after he withdrew. (69) The Pinkerton doctrine also does not apply to substantive offenses committed by co-conspirators in the course of the conspiracy when...

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