So your probably facing federal conspiracy charges under 18 USC 371 and your ABSOLUTELY CONFUSED because you didn’t actually commit the crime they’re charging. Maybe you had discussions with people about illegal activity but never followed through. Maybe there’s allegations you agreed to participate in fraud scheme. Or maybe prosecutors claim your mere presence and knowledge makes you part of conspiracy. Look, we get it. Your COMPLETELY OVERWHELMED by these charges. And you should be! Because conspiracy under 18 USC 371 carries 5 YEARS in federal prison just for AGREEING to commit crime and conspiracy is called “prosecutor’s darling” because it’s incredibly easy to prove and makes you responsible for EVERYTHING your coconspirators did even if you didn’t participate!
What Is Federal Conspiracy Under 18 USC 371?
Let me explain the charge that ensnares more defendants than almost any other federal crime. Section 371 criminalizes conspiracy to commit any federal offense OR conspiracy to defraud United States! Two separate types of conspiracy in one statute!
The statute requires simple elements that prosecutors love: agreement between two or more people plus one overt act in furtherance! Agreement can be informal, tacit, even implied from conduct – doesn’t need written contract or explicit discussion! Just mutual understanding to violate law!
Here’s what’s really scary – the crime is complete as soon as agreement made AND any conspirator takes even minor overt act! Don’t need to succeed in committing underlying crime! Don’t even need to attempt it! Agreement plus one small act by anyone is enough!
Overt act can be COMPLETELY LEGAL act! Buying supplies, making phone call, opening bank account, sending email! Doesn’t need to be criminal act itself – just needs to be step toward completing conspiracy! Buying groceries could be overt act if conspiracy involves using groceries for illegal purpose!
What’s Difference Between Conspiracy to Commit Offense vs Defraud?
Two separate conspiracy types charged under same statute!
Conspiracy to commit offense means agreement to violate specific federal criminal statute! Agreeing to commit wire fraud, drug trafficking, robbery, murder – any federal crime! This is “Klein conspiracy” after Supreme Court case interpreting it!
Klein conspiracy elements: (1) agreement to violate federal law (2) knowledge of illegal objective (3) voluntary participation (4) overt act! Must prove you agreed to specific criminal objective! Generic agreement to “do something illegal” isn’t enough – must be agreement to commit particular federal crime!
Conspiracy to defraud United States means agreement to interfere with or obstruct legitimate government functions by deceit or dishonest means! Don’t need to agree to violate specific criminal statute – just need agreement to impede government function through deceptive means! This is “Haas conspiracy”!
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(212) 300-5196Defraud conspiracy is BROADER than Klein conspiracy! Covers conduct that might not violate specific statute but interferes with IRS tax collection, customs enforcement, SEC investigations, any federal agency function! Prosecutors use when conduct doesn’t fit neat criminal statute!
Both carry same 5-year maximum penalty! Prosecutors often charge BOTH types for same conduct! Agreeing to commit tax evasion violates specific statute (Klein conspiracy) AND defrauds IRS’s tax collection function (Haas conspiracy)! Two conspiracy counts for same agreement!
What Must Government Prove for Conspiracy?
Elements seem simple but each has complex requirements!
Must prove AGREEMENT between two or more people! Agreement can be proven circumstantially! Court looks for mutual understanding – doesn’t need formal contract or written terms! Can infer agreement from coordinated actions, parallel conduct, common goal!
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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.
Agreement need NOT be explicit! “Tacit or mutual understanding” satisfies element! If you and coconspirator act in coordinated way toward common illegal goal, jury can infer agreement existed! Pattern of behavior suggesting coordination proves agreement!
Must prove you KNEW about conspiracy and VOLUNTARILY joined it! Mere presence at meetings or association with conspirators isn’t enough – must show you knowingly participated! But knowledge can be inferred from your actions and statements!
Your college roommate asked you to help him find buyers for what turned out to be counterfeit luxury goods, and you introduced him to three people before realizing the products were fake. Now a federal grand jury has indicted you for conspiracy under 18 USC 371, even though you stopped helping the moment you learned the truth.
Can I really be charged with federal conspiracy when I withdrew from the scheme as soon as I found out it was illegal?
Under 18 USC 371, prosecutors only need to prove that you voluntarily entered an agreement to commit a federal offense and that at least one overt act was taken in furtherance of that agreement — your introductions to potential buyers likely satisfy that overt act requirement. While withdrawal from a conspiracy can be a valid defense, it does not undo your earlier participation; you must demonstrate that you took affirmative steps to disavow the conspiracy and communicated that withdrawal to your co-conspirators, as established in Smith v. United States, 568 U.S. 106 (2013). The burden of proving withdrawal falls on you as the defendant, not on the prosecution. An experienced federal defense attorney can evaluate whether your timeline of involvement and the specific facts surrounding your exit give you a strong withdrawal defense or whether negotiating with prosecutors may be the better strategic path.
This is general information only. Contact us for advice specific to your situation.
Must prove at least ONE overt act by ANY conspirator! Once any member of conspiracy does something in furtherance, ALL members guilty of conspiracy! You personally don’t need to commit overt act – coconspirator’s act makes you guilty!
Overt act requirement is INCREDIBLY easy to satisfy! Can be innocent-seeming act like making phone call, meeting at restaurant, withdrawing cash from bank! Doesn’t need to be substantial step or crime itself!
