Federal criminal conspiracy.

• Author: Carpiniello, Mia V.
• Position: Annual white collar crime survey

1. INTRODUCTION

   Under 18 U.S.C. section 371, it is 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) Conspiracy is distinct from the substantive crime contemplated by the conspiracy and is charged as a separate offense.(2) Acquittal on a conspiracy charge does not bar prosecution of the substantive offense.(3) Likewise, acquittal of the substantive offense does not bar conviction on the conspiracy count.(4)

   Conspiracy, coined the prosecutor's "darling,"(5) is one of the most commonly charged federal crimes.(6) The offense of conspiracy has great breadth, and prosecutors have applied it to a variety of situations.(7) Commentators note "it is clear that a conspiracy charge gives the prosecution certain unique advantages and that one who must defend against such a charge bears a particularly heavy burden."(8)

   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.(9) In addition to section 371, specific provisions proscribe conspiracy in more than twenty federal statutes.(10) These provisions attach to the particular substantive offenses of the statute in which they appear. Section 371, on the other hand, applies generally to any conspiracy where the goal is to "commit any offense against the United States, or to defraud the United States"(11) and proscribes any agreement to violate a civil or criminal federal law.(12)

   The essential features of a conspiracy--secrecy and concealment(13)--make conspiracies difficult to prosecute, especially if the conspiracies 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"(14) 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 sets forth the defenses available to challenge charges brought under the statute. Section IV presents the 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. Lastly, section IV reviews the rules governing a conspiracy conviction under the Federal Sentencing Guidelines.

2. ELEMENTS OF THE OFFENSE

   There are four elements of criminal conspiracy, each of which the prosecution must prove beyond a reasonable doubt.(16) A conspiracy exists where there is: (1) an agreement between at least two 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 commits an overt act in furtherance of the conspiracy.(17)

   1. Agreement

      The first essential element that the government must prove to establish a conspiracy is the existence of an agreement between two or more persons(18) to work together toward a common goal.(19) The "essence" of a conspiracy "is an agreement to commit an unlawful act."(20) However, it is not necessary for the government to prove a formal agreement.(21) An understanding between or among conspirators is sufficient to constitute an agreement.(22) However, "[m]ere association with conspirators" or "mere knowledge ... without cooperation" is not enough to establish a conspiracy.(23) An agreement may be proved through circumstantial evidence(24) or may be inferred from the defendants' actions.(25) The existence of a conspiratorial agreement may also be demonstrated by evidence of previous similar criminal activities.(26) Additionally, co-conspirators may enter an agreement at any time during the course of the conspiracy.(27)

      Section 371 requires a bilateral conspiracy; an agreement between two or more bona fide conspirators is a necessary element of the crime.(28) Under section 371, an agreement between only two actors, one of whom is a government agent, cannot support a conspiracy conviction.(29) However, a government agent, often a government informant, can serve as a link between a tree conspirator and a defendant.(30)

      In addition, an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy if the commission of the crime itself requires the participation of two persons.(31) If, however, the number of actual conspirators exceeds the number required to commit the substantive offense, then the government may charge the conspiracy separately.(32)

      For the purposes of section 371, the intra-corporate conspiracy doctrine generally does not apply to criminal cases because otherwise no corporation acting on its own could be held liable under conspiracy charges.(33) Therefore, corporations, their officers, agents or employees can conspire with one another in violation of section 371.(34)

      Application of the intra-corporate conspiracy doctrine in a civil rights context, however, varies among the circuits. Five circuits have extended the doctrine to actions brought pursuant to 42 U.S.C. section 1983 and have held that a corporation and its employees cannot conspire, while five other circuits "have severely limited or questioned the applicability of the doctrine in the civil rights context."(35)

   2. Illegal Goal

      The second essential element that the government must prove in a federal conspiracy charge is the presence of an illegal goal.(36) The government must establish that the aim of the conspiracy was to defraud or hinder a lawful federal government objective (the defraud clause) or to violate a federal law (the offense clause).(37)

      The language of section 371's "defraud" clause(38) is "not confined to fraud as that term has been defined in the common law."(39) Instead, "it reaches `any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the] government.'"(40)

      The Supreme Court's language in Hammerschmidt v. United States(41) seems to require that the means to defraud be dishonest.(42) However, Supreme Court cases both prior and subsequent to Hammerschmidt have upheld conspiracy convictions that did not charge dishonest or deceptive means.(43) Some circuits have affirmed convictions on conspiracy counts absent allegations of fraud or dishonesty,(44) while other circuits require such a showing.(45) It is not necessary that the conspiracy subject the government to property or pecuniary loss.(46)

      Similarly, the "offense" clause of section 371 is not limited to offenses committed against the United States or its agents; it applies to any conspiracy to violate federal law.(47) To fall within the offense clause, the object of the conspiracy must be the violation of a specific federal statute.(48) Concert of action is sufficient to prove this element, and thus it is not necessary that the conspirators intend or know that the conspiracy will violate federal law.(49) In cases where the offense and defraud clauses overlap, the indictment may charge conspiracy to defraud even when the object of the conspiracy also violates the offense clause, so long as the indictment provides sufficient

      notice of the charges.(50)

   3. Knowledge, Intent, and Participation

      The third element that the government must prove is that the defendant knew of the conspiratorial agreement and voluntarily participated in it.(51) The government need not prove the defendant knew all the details(52) or objectives(53) of the conspiracy, or that the defendant knew the identity of all the participants in the conspiracy.(54) 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."(55)

      Acts committed by the defendant that furthered the objectives of the conspiracy are often sufficient to demonstrate the defendant was a knowing participant.(56) Once the government proves the existence of a conspiracy, only a "slight connection" of evidence may be needed to show that the defendant was a member of the conspiracy.(57) Deliberate avoidance of knowledge does not preclude a finding of involvement in the conspiracy.(58)

   4. Overt Act

      The fourth and final element of a federal conspiracy charge is the performance of an overt act in furtherance of the conspiracy.(59) The function of the overt act requirement is to demonstrate that the conspiracy was actually operative, rather than a mere scheme in the minds of the actors.(60) The overt act need not be unlawful,(61) nor need it be the substantive offense charged in the indictment.(62) Furthermore, the defendant need not personally have committed an overt act but may be held liable for the acts of a co-conspirator.(63)

      The Pinkerton Rule(64) sets out a theory of vicarious liability whereby the reasonably foreseeable overt acts of one co-conspirator, committed in furtherance of the conspiracy, are attributable to the other conspirators.(65) In establishing liability for the conspiracy charge, the circuit courts generally find a defendant liable for acts committed by her co-conspirators both prior to, as well as during, the defendant's participation.(66) However, a defendant cannot be held criminally liable for substantive offenses(67) committed by others involved in the conspiracy before she...