A conspiracy is defined under 18 U.S.C. § 371 as an agreement between two or more parties to commit a federal crime. Because the accused does not have to successfully carry out its objective to be charged and convicted, conspiracy is referred to as an “inchoate” crime. Federal law penalizes conspiracies under 18 U.S.C. § 371 as misdemeanors or felonies, depending on the classification of the underlying federal crimes.

Federal crimes that often give rise to conspiracy charges include:

Because conspiracy is defined as the act of conspiring to commit a crime, which is a separate offense from the underlying substantive crime, defendants can be charged with conspiracy in addition to the crime supporting the conspiracy charge..

Who Can Be Charged with Conspiracy?

Any legal person can be charged with conspiracy under 18 U.S.C. § 371 including corporations, unincorporated associations, and other types of organizations. This means that a conspiracy can exist between any combination of two persons, whether they are individuals or entities. Entities can be held liable for the actions of their officers, employees, and agents when they conspire to commit a federal offense, at least in part, for the entity’s benefit.

Elements of Conspiracy

To convict a defendant of conspiracy the government must prove the following:

  • There was an agreement between at least two persons to achieve the same goal;
  • The goal of that agreement was to violate federal law or defraud the federal government;
  • The agreement was entered into knowingly and voluntarily; and
  • An overt act was made in furtherance of the agreement.

The Agreement

The most fundamental aspect of a conspiracy charge is the agreement. Nevertheless, to support a conspiracy charge, an agreement need not be formal or in-depth and its existence can be inferred from the circumstances. This allows prosecutors to charge someone with conspiracy based on circumstantial evidence, even without proof that a co-conspirator ever communicated a plot to commit a crime.

Overt Act

In addition to proving the existence of an agreement, prosecutors must show that at least one party to the conspiracy made an overt act in furtherance of the substantive crime. This requirement serves to ensure convictions are based on actual plans to commit a crime, as distinguished from “mere talk.”

The overt act does not have to be illegal and is often something innocuous, such as:

  • Making a phone call;
  • Meeting with someone;
  • Sending an email or text message;
  • Traveling to another location; or
  • Opening a bank account.

Typically, any act in furtherance of the crime is enough for a conviction.

Penalty and Sentencing Under 18 U.S.C. § 371

Penalties for conspiracy convictions include:

  • Up to five years imprisonment; and
  • A fine of up to:
    • $250,000 for individuals, and up to $500,000 for organizations; or, alternatively
    • Twice the total gain or loss resulting from the offense, regardless of whether that amount exceeds the above limits of $250,000 and $500,000.

Defending Against a Conspiracy Charge

Conspiracy under 18 U.S.C. § 371 is a commonly charged crime. Federal prosecutors sometimes bring conspiracy charges because they allow for presentation of a broader scope of evidence than would be permissible if the government charged only the underlying crime.

If you have been charged with conspiracy, be aware that the government has substantial resources to draw upon in conspiracy cases. Law enforcement agencies such as the FBI, DEA, Department of Labor, and the IRS sometimes devote significant time, energy, and manpower to these types of investigations.

When confronting a conspiracy charge, the earlier you find competent, experienced legal counsel the better. In addition to constructing the best defense possible while conducting a thorough investigation of the charges against you and of the evidence, your attorney functions as a buffer between you and law enforcement.

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