specific conspiracy offenses,
but this article focuses on general federal conspiracy
under § 371. The general federal conspiracy statute differs from more specific stat-
utes in that it requires at least one conspirator to commit an overt act in furtherance
of the conspiracy.
A conspiracy offense is treated distinctly because it often 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 dis-
covery, and adding to the importance of punishing it when discovered.
A conspiracy is distinct from the substantive crime contemplated by the conspir-
and may be charged regardless of whether the underlying substantive offense
A defendant’s acquittal on a conspiracy charge does not bar
prosecution on the substantive offense,
and similarly, an acquittal on the
2. See, e.g., 15 U.S.C. § 1 (conspiracy to restrain trade); 18 U.S.C. § 224 (conspiracy to bribe in the context of
defraud federal government through fraudulent claims); 18 U.S.C. § 1962(d)
(conspiracy to violate any provision
of Racketeer Influenced and Corrupt Organization Act); 18 U.S.C. § 2384
(conspiracy to take harmful acts
witness tampering); 18 U.S.C. § 1349
(conspiracy to commit bank fraud, wire fraud, mail fraud, securities and
commodities fraud, or health care fraud); 21 U.S.C. § 846
(drug trafficking conspiracies).
3. Compare § 371, with Salinas v. United States, 522 U.S. 52, 63 (1997) (stating that there is no overt act
requirement for a RICO conspiracy in § 1962(d)) and United States v. Shabani, 513 U.S. 10, 13–14 (1994)
(stating that there is no overt act requirement for conspiracy to violate the Controlled Substances Act, 21 U.S.C.
(1915)); see also United States v. Jimenez Recio, 537 U.S. 270, 275 (2003) (“The conspiracy poses a ‘threat to
the public’ over and above the threat of the commission of the relevant substantive crime—both because the
‘[c]ombination in crime makes more likely the commission of [other] crimes’ and because it ‘decreases the
probability that the individuals involved will depart from their path of criminality.’” (quoting Callanan v. United
States, 364 U.S. 587
, 593–94 (1961) (alteration in original))); Neal Katyal, Conspiracy Theory, 112 YALE L.J.
1307, 1315–24 (2003) (analyzing the effect of group mentality on the commission of crimes).
5. See United States v. Felix, 503 U.S. 378, 389–90 (1992) (explaining that conspiracy is a partnership in
crime distinct from any substantive offense); see also United States v. Fornia-Castillo, 408 F.3d 52, 69 (1st Cir.
2005) (noting that conspiracy and the substantive offense are charged separately and distinctly for double
6. Salinas, 522 U.S. at 65 (1997) (“It is elementary that a conspiracy may exist and be punished
whether . . . the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so
punishable in itself.” (quoting Callanan, 364 U.S. at 594)).
7. See, e.g., United States v. Ward, 486 F.3d 1212, 1223 (11th Cir. 2007) (“Conspiracy and mail fraud are not
the same offense, and the fact that [the defendant] was acquitted of conspiracy is not inconsistent with his being a
member of a more limited mail fraud scheme.” (quoting United States v. Funt, 896 F.2d 1288
, 1294 n.4 (11th Cir.
1990))); see also United States v. Bearden, 265 F.3d 732, 736 (8th Cir. 2001) (holding that acquittal on a
conspiracy charge did not bar retrial on the underlying mail fraud offense).
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