Federal criminal conspiracy.

AuthorAftuck, Scott A.
PositionTenth Survey of White Collar Crime

The general federal conspiracy statute makes it a crime for "two or more persons [to] conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose."(1) It is distinct from the substantive crime contemplated and is charged as a separate offense.(2) Conspiracy is one of the most commonly charged federal crimes.(3)

The Supreme Court has described the gravity of the conspiracy offense:

For two or more to confederate and combine together to commit or cause to be committed 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.(4)

In addition to section 371, there are specific provisions proscribing conspiracy in more than twenty federal statutes.(5) These provisions attach to the particular substantive offenses of the statute in which they appear. Section 371, on the other hand, is generally applicable to any conspiracy where the goal is to "commit any offense against the United States, or to defraud the United States."(6) It proscribes any agreement to violate a civil or criminal federal law.(7)

Section 371's "defraud" clause broadly applies to "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the federal] government.'"(8) It is not necessary that the conspiracy subject the government to property or pecuniary loss.(9)

The essential features of a conspiracy, secrecy and concealment,(10) make conspiracies difficult to prosecute, especially if they are successful. Consequently, the law lessens the government's burden of proving the essential elements by only requiring a showing of the "essential nature of the plan" and "[the conspirators'] connections with it" to ensure that conspirators do not "go free by their very ingenuity."(11)

Section one of this article introduces the basic elements of the offense of conspiracy under section 371. Defenses available to challenge charges brought under the statute are discussed in section two of the article, and various procedural and substantive rules regarding enforcement of the statute are surveyed in section three. The final section discusses the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges.

  1. Elements of the Offense

    There are four elements necessary for proving a criminal conspiracy, each of which the prosecution must prove beyond a reasonable doubt.(12) A conspiracy exists where: (1) there is an agreement between the parties; (2) to achieve an illegal goal; (3) with knowledge of the conspiracy and with actual participation in the conspiracy; and (4) at least one conspirator committed an overt act in furtherance of the conspiracy.(13)

    1. Agreement

      The first essential element that the government must prove to establish a conspiracy is existence of an agreement between two or more persons(14) to work together toward a common goal. Co-conspirators may enter the agreement at any time during the course of the conspiracy.(15) The "essence" of a conspiracy "is an agreement to commit an unlawful act."(16) However, it is not necessary for the government to prove a formal agreement.(17) An understanding among conspirators is sufficient to constitute an agreement,(18) and this element may be proven through circumstantial evidence(19) or may be inferred from the defendant's actions.(20) The existence of a conspiratorial agreement may also be proven by evidence of previous similar criminal activities.(21)

      Under section 371, an agreement between only two actors, one of whom is a government agent, cannot support a conspiracy conviction.(22) However, a government agent, often a government informant, can serve as a link between a true conspirator and a defendant.(23)

    2. Illegal Goal

      The second essential element in a federal conspiracy charge is that the conspiracy had an illegal goal.(24) To convict a defendant on a federal conspiracy charge, the government must establish that the aim of the conspiracy was to violate a federal law or to defraud or hinder a lawful federal government objective.(25) While the "statutory language [of section 371] is not confined to fraud as that term has been defined in the common law"(26) and although the Supreme Court's language in Hammerschmidt v. United States(27) seemed to require that the means to defraud be dishonest,(28) Supreme Court cases both prior and subsequent to Hammerschmidt have upheld conspiracy convictions which did not charge dishonest or deceptive means.(29) Some circuits have affirmed convictions on conspiracy counts absent allegations of fraud or dishonesty,(30) while other circuits require such a showing.(31) It is not necessary that the conspirators intend or know that the conspiracy will violate federal law; a concert of action is sufficient to prove this element.(32)

    3. Intent and Participation

      The third element the government must prove is that the defendant knew of the conspiratorial agreement and voluntarily participated in it.(33) The government need not prove that the defendant knew all the details(34) or objectives(35) of the conspiracy, or that the defendant knew the identity of all the participants in the conspiracy.(36) The criminal intent to commit the substantive offense is established by the formation of the conspiracy.(37) Thus, the existence of a conspiracy and a defendant's participation in it can be inferred from the circumstances and "need not be proved by direct evidence."(38) Acts committed by the defendant which furthered the objectives of the conspiracy are often sufficient to show that the defendant was a knowing participant.(39) Once the government proves the existence of a conspiracy, only "slight connection" evidence may be needed to show that the defendant was a member of the conspiracy.(40) Deliberate avoidance of knowledge does not preclude involvement in the conspiracy.(41)

    4. Overt Act

      The fourth essential element of a federal conspiracy charge is an overt act in furtherance of the conspiracy.(42) The function of the overt act requirement is to demonstrate that the conspiracy was operative rather than merely a scheme in the minds of the actors.(43) The act need not be a criminal one,(44) and the overt act which was either attempted or accomplished need not be the substantive offense charged in the indictment.(45)

      The theory of vicarious liability holds that reasonably foreseeable overt acts of one co-conspirator, which are committed in furtherance of the conspiracy, are attributable to the other conspirators.(46) In establishing liability for the conspiracy charge, the circuit courts generally find vicarious liability for acts committed by co-conspirators prior to as well as during the defendant's participation.(47) However, a defendant cannot be held criminally liable for substantive offenses committed by others involved in the conspiracy before joining it(48) or after ending participation in the conspiracy.(49)


    Defendants can challenge conspiracy charges by claiming a failure to prove the specific elements of the offense(50) or by contesting the charge on more general grounds.

    1. Statute of Limitations

      Since no provision of section 371 provides an express statute of limitations for conspiracy, the general five year limitation for non-capital offenses applies.(51) The five year limitation period also applies to conspiracy provisions of other federal statutes unless they expressly provide otherwise.(52) The statute of limitations runs from the date of the last overt act committed in furtherance of the conspiracy.(53) A conspiracy ends when the central criminal purpose of the conspiracy has been attained.(54) However, continued concealment of prior acts in furtherance of the conspiracy after the objective has been attained does not extend the statute of limitations(55) or satisfy the requirements of Federal Rule of Evidence 801 for co-conspirator hearsay admissibility.(56)

    2. Insufficiency of the Indictment

      An indictment must contain the elements of the offense charged,[57] and is sufficient if it sets forth the offense using the words of the statute itself. (58) The indictment must be specific enough to apprise the defendant of the charges he or she must defend against at trial so that the Fifth Amendment is not violated.(59) If an objection to an indictment is untimely, courts will view the indictment as valid.(60)

    3. Variance

      An indictment violates the Sixth Amendment requirement of adequate notice(61) when the conspiracy charged in the indictment varies from the conspiracy proven at trial.(62) Yet a court will reverse a conviction for variance only if the defendant's substantial rights(63) were prejudiced.(64) The jury determines whether there is a variance between the number of conspiracies charged in the indictment and the number proven at trial.(65) An indictment may not be amended to correct the variance except by resubmission to the grand jury,(66) unless the change is a matter of form rather than substance.(67)

    4. Multiplicitous Indictment

      A multiplicitous indictment defense arises when a single conspiracy offense is charged in more than one count.(68) Such a defect violates the double jeopardy clause of the Fifth Amendment.(69)

    5. Insufficient Evidence

      The accused may also defend against conspiracy charges by alleging that the government has failed to establish a conspiracy,(70) or has failed to establish the requisite elements of the conspiracy.(71)

    6. Withdrawal

      Withdrawal from a conspiracy requires more...

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