Federal Conspiracy Charges Under 18 USC 371: The Prosecutor’s Favorite Weapon
So your probably staring at an indictment charging conspiracy to defraud the United States or conspiracy to commit some federal offense and your confused because you didn’t actually DO the crime. Maybe you had conversations about potential illegal activity. Maybe you associated with people who committed crimes. Or maybe your just connected to broader scheme without personal participation. Look, we get it. Your ABSOLUTELY CONFUSED how you can be guilty of conspiracy without committing substantive offense. And you should be TERRIFIED! Because federal conspiracy law is the prosecutor’s most powerful weapon – catching people who never committed underlying crimes and carrying same penalties as completed offenses!
What Is Federal Conspiracy Under 18 USC 371?
Let me explain the legal trap ensnaring you. Section 371 has two prongs: conspiracy to commit federal offense, and conspiracy to defraud United States – BOTH carry 5 years prison!
The elements seem simple but are interpreted BROADLY: (1) two or more persons, (2) intentionally, (3) make an agreement, (4) to violate federal law or defraud U.S., and (5) commit overt act in furtherance! Each element is twisted to capture maximum defendants!
Here’s what’s really scary – conspiracy is “inchoate” crime meaning punishes agreement itself, not completed crime! Even if underlying offense never occurs! Even if it’s impossible to commit! Just agreement plus one overt act = federal felony!
“Defraud the United States” prong is even broader! Doesn’t require financial loss to government – just “interfering with lawful government functions”! Filing false tax return? Defrauding IRS! Lying to FDA? Defrauding agency! Evading regulations? Defraud! We’ve seen defendants convicted for regulatory violations they didn’t know were crimes!
What Is the “Agreement” Element?
Agreement doesn’t require formal contract or even explicit discussion!
Can be tacit understanding or implied from conduct! Never discussed plan but both acted consistently? That’s agreement! Circumstantial evidence of “meeting of minds” suffices! We’ve seen conspiracies found based on phone call patterns alone!
Don’t need to know all co-conspirators or even know conspiracy exists! Just need to agree with one other person about general unlawful objective! Joined conspiracy unknowingly? Still guilty! One client joined “business” not knowing it was fraud – convicted of conspiracy!
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(212) 300-5196Single conspiracy versus multiple conspiracies is CRITICAL! Prosecutor charges one huge conspiracy to use co-conspirator statements! Defense wants multiple smaller conspiracies to limit liability! Courts use “totality of circumstances” test!
“Wheel” conspiracies have hub (organizer) and spokes (participants)! “Chain” conspiracies have sequential distribution! Determining structure affects who’s liable for what! We’ve fought successfully to sever defendant from larger conspiracy!
What Is the Overt Act Requirement?
Overt act seems like protection but actually isn’t!
ANY act by ANY conspirator in furtherance suffices – even legal acts! Don’t need to be participant in overt act! Don’t need to know about it! Someone else’s actions satisfy requirement!
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
Overt act can be trivial! Phone call, email, bank deposit, travel, meeting – ANYTHING advancing conspiracy goals! One case: overt act was “defendant woke up and went to work”! Because work was part of fraud scheme!
Your college roommate asked you to help him find a supplier for counterfeit goods, and you made a few phone calls on his behalf before deciding you wanted nothing to do with it. Six months later, federal agents showed up at your door with a conspiracy indictment naming you and eight other people in a large-scale counterfeiting ring you barely knew existed.
How can I be charged with conspiracy when I made a couple of phone calls and then walked away from the whole thing?
Under 18 USC 371, the government only needs to prove that you entered into an agreement with at least one other person to commit a federal offense and that at least one member of the conspiracy took an overt act in furtherance of it — those phone calls likely qualify. Withdrawal from a conspiracy is a defense, but the burden falls on you to prove you took affirmative steps to disavow the agreement, not just that you quietly stopped participating. The prosecution loves conspiracy charges precisely because they can sweep in peripheral players and use co-conspirator statements against everyone under Federal Rule of Evidence 801(d)(2)(E). We would need to examine exactly what you said on those calls, whether your actions demonstrated a true agreement to join the scheme, and whether we can establish a clear point of withdrawal to sever your liability from the later conduct of the group.
This is general information only. Contact us for advice specific to your situation.
Note: many federal conspiracy statutes DON’T require overt act! Drug conspiracies under 21 USC 846? No overt act needed! Just agreement! Makes those conspiracies even easier to prove!
The overt act need not be crime itself! Perfectly legal activity becomes overt act if done in furtherance! We’ve seen defendants convicted where overt act was buying office supplies for fraudulent business!
