Conspiracy is one of the most often prosecuted crimes in federal court. The crime of conspiracy requires an agreement between two or more persons to do something unlawful. The crux of the crime is an agreement to violate the law and may be prosecuted whether or not the agreed-to crime is actually committed. If there is no agreement, there is no crime.

The reason that conspiracy is frequently charged by federal prosecutors is because they do not have to prove conduct that amounts to commission of a full substantive offense, yet under guideline sentencing, conspiracy is punished as though the offense had fully occurred. Additionally, the law of conspiracy allows admission of evidence that would not otherwise be available to the prosecutor, overcomes jurisdictional and statute of limitations problems, and provides an alternative for jurors when proof of the substantive offense is lacking.

18 U.S.C. § 371 is the general conspiracy statute. This section defines two separate types of conspiracy: (1) an agreement “to commit any offense against the United States” and (2) an agreement to “defraud the United States.” To establish a conspiracy, the government must prove three elements: (1) an agreement to commit an unlawful act; (2) the defendant’s knowledge of the agreement and voluntary participation in it; and (3) an overt act by at least one of the coconspirators in furtherance of the conspiracy. The partners in the criminal plan must agree to pursue the same criminal objective. The government need not prove the specific details of a plan, only that the conspirators agreed to the plan’s essential nature. The requisite intent needed for a conspiracy conviction is that the defendant intended to join in the conspiracy and intended the substantive offense to be committed. A conspiratorial agreement may be proven by circumstantial evidence, and the plan may be inferred from a development and collation of circumstances.

Graphically, some conspiracies are called a wheel, or hub and spoke conspiracies, in which a single person or group forms the hub, and deals individually with two or more other people or groups that are outside the hub, the spokes. In a chain conspiracy, there is linear progression, in much the same organization as legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.

In order to a prove conspiracy, the government must present some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it. There is no requirement that a person know every objective of the conspiracy. In fact, in many cases, the government will allege that a conspirator “willfully blinded” themselves to many aspects of the conspiracy.

Conspiracy also requires proof of purposeful behavior aimed at furthering the goals of the conspiracy. Participation in the conspiracy must be proved on the basis of the defendant’s own words and actions and not on the basis of mere association or knowledge of wrongdoing. A person’s role in a conspiracy does not need to be substantial; a defendant may be convicted for even a minor role in a conspiracy, so long as that role is proved beyond a reasonable doubt. On the other hand, mere knowledge of the existence and purpose of a conspiracy does not alone establish membership in a conspiracy.

A critical requirement of any conspiracy charge is an “overt act.” An overt act is any statement or act that is knowingly done by one or more of the conspirators in an effort to accomplish a purpose of the conspiracy; it need not be in violation of the law or be a crime itself. Additionally, the other conspirators need not join or participate in it or even know about it. The conduct may be as innocent as placing a phone call, transporting money from one place to another, sending a letter or email, or accepting a wire transfer. As long as it is in furtherance of the purposes of the conspiracy, one simple overt act is all it can take.

A conspirator can be held liable for all reasonably foreseeable crimes committed by his or her coconspirators in furtherance of the conspiracy even if they did not personally commit or agree to those crimes. This is commonly referred to as “Pinkerton liability” based on the case it follows from. To prove Pinkerton liability, the government must establish that the person who committed the crime was a member of the conspiracy; that the co-conspirator committed the crime in furtherance of the conspiracy; that the defendant was a member of this conspiracy at the time and had not withdrawn from it; and that the defendant could have reasonably foreseen that one or more of the co-conspirators might commit the crime.

Different from Pinkerton liability is aiding and abetting a conspiracy, something that is also often charged by federal prosecutors.

Aiding and abetting generally requires that someone committed the charged crime, and that the defendant willfully associated themself in some way with the crime and willfully participated in it as they would in something they wished to bring about. This essentialy means that the government must prove that the defendant consciously shared the other person’s knowledge of the underlying criminal act and intended to help them.

Common Defenses to a Conspiracy Charge

There are several defenses to a charge of conspiracy. For instance, a defendant’s mere presence at or near the scene of a criminal act or association with conspirators does not constitute intentional participation in the conspiracy and is insufficient to prove aiding and abetting even if the defendant has knowledge of the crime. For instance, a passenger may not be convicted on mere presence in a car containing drugs without evidence connecting him with the contraband or conspiracy. Likewise, a trader may witness an illegal transaction take place, but there must be more to connect the trader to a conspiracy to charge them with that crime.

Another defense is withdrawal from a conspiracy before any overt is committed. If an overt act has been committed before withdrawal, the defendant may be found guilty of conspiracy, but liability is limited to the criminal conduct occurring up to the time of withdrawal. In a non-overt act conspiracy, the conspiracy is complete when the agreement itself is made and the withdrawal limits liability to the pre-withdrawal conduct, including pre-withdrawal Pinkerton liability. Withdrawal, however, is difficult to establish. A conspirator must take some affirmative action “either to defeat or disavow the purposes of the conspiracy” such as a full confession to authorities or a communication to his co-conspirators that he has abandoned the enterprise and its goals. Stated different, merely stopping and no longer participating in any activity in furtherance of a conspiracy does not constitute withdrawal.

Legal impossibility can also be a defense. If the agreement is to do something which is not a crime, or not otherwise a prohibited object of a conspiracy, then legal impossibility is a valid defense.

Possible Sentences for Conspiracy

While the general penalty for conspiracy, found in 18 USC § 371 is imprisonment of up to five years and/or a fine of up to $250,000, federal law permits in many cases for the punishment for the offense that is the substance of the conspiracy to apply. For instance, possession of a controlled substance with intent to deliver can, in some cases, result in a punishment of no less than 10 years and up to life in prison. Hence, conspiracy to commit that offense also carries that same punishment. The Sentencing Guidelines, used as a basis to determine an appropriate sentence, also treats a conspiracy charge the same as the underlying substantive offense.

Conspiracy law is among the most difficult to grasp and to defend. Brent Mayr, Paul Schiffer, and Richard Esper are all experienced federal criminal defense attorneys who know how to properly defend someone accused of a conspiracy crime. If you or a loved one are under investigation for or charged with a conspiracy offense, contact Brent Mayr, Paul Schiffer, and Richard Esper at 855-NT-GILTY (855-684-4589) to speak with them personally regarding your case.