18 USC 371 Conspiracy Charges.

18 U.S.C. § 371 applies to conspiracies to (i) commit or attempt to commit, or to aid or abet, any offense against the United States or (ii) defraud the United States or any agency thereof in any manner or means. Because 18 U.S.C. § 371 is a “catch-all” statute, the government may use it to prosecute various types of alleged schemes. To establish a Section 371 conspiracy, the government may also prove that there is a conspiracy targeted at a federal agency and that the conspiracy is aimed at impeding the function of the federal government through deceptive or dishonest means. The government may then choose to prosecute the scheme as a “conspiracy to defraud the United States” rather than as a “conspiracy to commit” a specific federal offense.

In order to prove that there is a conspiracy under Section 371, the government must also prove that at least two persons formed the conspiracy. While any number of people (so long as there are at least two) may form a conspiracy, conspiracies involving a single individual are not possible.

The government must further prove that the defendant knowingly and voluntarily joined the conspiracy. To establish this, the government must prove that the defendant (i) had an awareness of the conspiracy’s object; (ii) knew that his or her participation in the conspiracy would assist in achieving that object; and, (iii) voluntarily decided to join the conspiracy. This means that the government must be able to prove that the defendant joined the conspiracy for the purpose of assisting in the achievement of the conspiracy’s object.

Finally, Section 371 requires that at least one conspirator engaged in an overt act that advanced the conspiracy’s object. The overt act does not need to be criminal in nature, nor does it need to be the culmination of the conspiracy; it simply needs to advance the object of the conspiracy.

How can circumstantial evidence separate a § 371 agreement from association or parallel conduct?

18 U.S.C. § 371. To establish a conspiracy, the government must prove that the defendant knowingly and voluntarily joined the conspiracy. However, the defendant does not need to have knowledge of every conspiracy participant or need to have been aware of every aspect of the alleged criminal scheme.

The government may rely on direct evidence, such as oral or written communications, to prove the existence of a criminal agreement. Alternatively, the government may rely on circumstantial evidence, which is evidence of the defendant’s relationship with the other alleged conspirators and the defendant’s role in the alleged criminal scheme.

While circumstantial evidence can be sufficient to establish a § 371 conspiracy, there are several types of circumstantial evidence that are insufficient to establish a § 371 conspiracy on their own. This includes mere association with suspected criminals and parallel conduct. While each of these factors can play a role in the government’s conspiracy case, the government will not be able to establish a conspiracy with these factors alone. Specifically, the government must still prove that the defendant knowingly and voluntarily joined the agreement to commit the underlying crime or defraud the United States.

The existence of an overt act is another element of the offense. The overt act must advance the object of the conspiracy, but it does not need to independently violate federal criminal law. As a result, the overt act can be anything from making a phone call to creating a bank account. Even though the overt act must advance the object of the alleged conspiracy, it does not need to be the culmination of the conspiracy. The overt act can also be

Which object determines whether prosecutors use § 371, an offense-specific conspiracy statute, or RICO conspiracy?

18 U.S.C. § 371 is a catch-all conspiracy statute. Consequently, prosecutors may use this statute to prosecute many different types of alleged schemes. However, there are several specific conspiracy statutes that govern the types of schemes prosecutors commonly pursue under § 371. If the object of an alleged conspiracy is to commit one of the underlying offenses governed by a specific statute, then prosecutors will often use the specific statute instead of § 371. For example, while prosecutors could potentially use Section 371 to prosecute a drug conspiracy, 18 U.S.C. § 846 covers conspiracies to manufacture, distribute, or possess controlled substances, and prosecutors will typically use that statute. Similarly, 18 U.S.C. § 1956(h) governs conspiracies to commit specified money-laundering transactions, and 18 U.S.C. § 1349 governs conspiracies to commit specified fraud offenses.

What is the difference between a conspiracy under Section 371 and a RICO conspiracy under Section 1962(d)?

A Section 371 conspiracy is distinct from a RICO conspiracy under 18 U.S.C. § 1962(d) in several key respects. Most importantly, to establish a RICO conspiracy, the government must prove that the defendant knowingly agreed to further the affairs of an enterprise through a pattern of racketeering activity; it need not prove that the defendant personally committed or agreed to commit two predicate acts. Section 371, by contrast, only requires a criminal agreement and an overt act. To establish a Section 371 conspiracy, the government does not need to establish that a defendant joined a “criminal enterprise” or that he or she participated in a “pattern of racketeering activity.” Other differences between Section 371 and Section 1962(d) include:

• Proof: The government must prove that an overt act advancing the conspiracy’s object has been committed in order to establish a Section 371 conspiracy. The government does not need to prove that an overt act has been committed in order to establish a RICO conspiracy under Section 1962(d).
• Defenses: Withdrawal principles may apply to both Section 371 and Section 1962(d) conspiracy charges, particularly when a defendant claims to have withdrawn before the applicable limitations period, although withdrawal generally does not erase liability for completed conspiracy offenses.
• Sentencing: In many cases, the sentencing consequences under Section 371 will be severe. However, defendants convicted under Section 1962(d) will generally face more severe sentencing consequences.
• Limitations on Prosecution: The government may be able to prosecute a conspiracy under Section 371 even if the defendants did not complete the conspiracy’s object, whereas the government will be unable to prosecute under Section 1962(d) unless the conspiracy was in furtherance of an “enterprise.”

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What are the § 371 maximum, limitations period, and Guidelines sentencing risks?

The maximum penalties under Section 371 depend on whether the object of the conspiracy was a felony or a misdemeanor. If the object of the conspiracy was a covered felony or to defraud the United States, then the maximum penalty under Section 371 is five years of federal imprisonment. If the object of the conspiracy was only a misdemeanor, then the maximum punishment under Section 371 is the maximum punishment allowed under the misdemeanor offense in question.

The federal limitations period generally applies to Section 371 prosecutions. Unless a different statute applies (with many statutory offenses having a five-year federal limitations period), the general federal limitations period is five years. However, because the statute of limitations for a Section 371 conspiracy generally begins to run on the date of the last overt act in furtherance of the conspiracy, defendants facing criminal charges under Section 371 can still face liability for conduct that occurred many years before the federal investigation.

Under the federal sentencing guidelines, judges consider several factors when determining a defendant’s sentence in a Section 371 conspiracy case. For example, judges will often consider relevant-conduct principles, which allow the government to argue for a longer sentence based on conduct that falls outside of the defendant’s individual conduct. For example, if a co-conspirator engaged in conduct that was reasonably foreseeable, then the defendant may be held responsible for that conduct if it was within the scope of the jointly undertaken criminal activity, in furtherance of it, and reasonably foreseeable in connection with it, even if the defendant did not personally commit it.

As a result, a defendant convicted under Section 371 may still be subject to a lengthy prison sentence, even if the defendant only played a minor role in the conspiracy. For example, a defendant convicted of Section 371 conspiracy involving a variety of criminal acts may face sentencing based on a variety of factors, including all of the unlawful acts committed by all of the conspiracy’s participants.

Can withdrawal, duress, or acquittal limit § 371 liability for the conspiracy and related crimes?

A defendant’s conviction under Section 371 will be separate from conviction for the underlying substantive offense. Consequently, federal prosecutors may charge Section 371 conspiracies alongside the underlying federal offense, though the statute of limitations will not be tolled in order to preserve the conspiracy charge.

In order to defend against liability for the commission of an offense under Section 371, it will be important to develop a robust defense strategy and prepare to argue the relevant affirmative defenses to the court. For conspiracy cases, common affirmative defenses include:

• Withdrawal: In most cases, a defendant will not be able to assert a “withdrawal” defense in order to limit liability for a Section 371 conspiracy. However, under certain circumstances, a defendant facing federal charges may be able to assert the withdrawal defense. To do so, the defendant will need to affirmatively prove to the court that he or she took steps to leave the conspiracy, and made this clear to the other alleged participants, at some point before the conspiracy’s object was achieved.
• Duress: Under the duress defense, defendants may be able to avoid criminal liability if the defendant was coerced into joining the conspiracy. When facing a Section 371 prosecution, defendants asserting duress generally must show that they participated in the conspiracy because of an unlawful and imminent threat of death or serious bodily injury and had no reasonable legal alternative.
• Entrapment: Entrapment is another possible affirmative defense under Section 371. To succeed with an entrapment defense, the defendant must demonstrate that the federal government induced him or her to enter into the conspiracy, and that he or she would not have otherwise entered into the conspiracy.
• Acquittal: Defendants who are charged with both Section 371 conspiracy and the underlying substantive offense may be able to limit their liability if they are acquitted of one of the charges. However, the effect of an acquittal will depend on the defendant’s individual circumstances and the specifics of the underlying substantive offense.

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Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.