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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!
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!
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!
Single 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!
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!
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!
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!
This doctrine is the MOST dangerous aspect of conspiracy!
Under Pinkerton v. United States, conspirators are liable for ALL foreseeable crimes by ANY co-conspirator – even if you personally didn’t participate!
Example: You agree to fraud scheme! Co-conspirator commits wire fraud, mail fraud, money laundering, tax evasion in furtherance! YOUR guilty of ALL those crimes under Pinkerton even though you didn’t commit them!
“Foreseeable” is defined BROADLY! If crime was natural and probable consequence of conspiracy, you’re liable! Don’t need to have contemplated specific crime – just type of crime! We’ve seen defendants convicted of murders they didn’t commit because “foreseeable” in drug conspiracy!
This creates sentences FAR exceeding what you personally did! Conspirator A does 10 crimes, Conspirator B does 5, Conspirator C does 2 – ALL three are liable for all 17 crimes! Sentencing guideline calculations MULTIPLY based on co-conspirator conduct!
Pinkerton limits exist but courts rarely apply them! Crime must be “reasonably foreseeable” and “in furtherance”! If co-conspirator goes on personal revenge mission unrelated to conspiracy? Maybe not Pinkerton! But prosecutors always argue it was “in furtherance”!
This hearsay exception DEVASTATES defendants!
Under Federal Rule of Evidence 801(d)(2)(E), co-conspirator statements admissible if made during and in furtherance of conspiracy – even though hearsay!
What this means: Prosecutor plays recording of Co-conspirator A saying “we’re defrauding customers”! That statement is admissible against YOU even though you weren’t present and its hearsay! Co-conspirator becomes prosecutor’s witness WITHOUT being present!
“In furtherance” interpreted broadly! Statements to co-conspirators, outsiders, even victims can be “in furtherance”! Bragging about crimes? Courts say that’s recruiting future help! Lying to cover up? Advancing conspiracy by preventing detection!
Court must find by preponderance that conspiracy existed and defendant was member BEFORE admitting statements! But judges almost always admit them “subject to later proof”! Jury hears devastating statements before court formally rules admissible!
We’ve challenged these by showing statements were NOT in furtherance – just idle talk, exaggerations, or made after conspiracy ended! Timing is critical! Statement made after conspiracy accomplished? Not admissible!
Withdrawal is POSSIBLE but incredibly difficult!
Withdrawal requires affirmative act – either make “clean breast” to authorities OR communicate disassociation to co-conspirators! Can’t just stop participating!
“Clean breast” means confessing to law enforcement! But that requires admitting guilt! Creates catch-22 – admit conspiracy to withdraw but admission proves guilt! Most defendants can’t risk confession!
Communicating disassociation to co-conspirators also difficult! Must affirmatively renounce! Just stopping participation isn’t enough! Must take action that “disavows or defeats the purpose” of conspiracy!
Even successful withdrawal doesn’t make you innocent of conspiracy! Still guilty of conspiracy up to withdrawal point! Withdrawal only: (1) starts statute of limitations running, (2) ends Pinkerton liability for future acts, (3) stops co-conspirator statements from being admissible!
We’ve won withdrawal defenses when clients reported crimes to authorities, withdrew from business, told co-conspirators they wanted no part! But prosecutors fight hard claiming withdrawal ineffective!
Five-year statute of limitations applies to Section 371 conspiracies!
But conspiracy is “continuing crime” – statute runs from LAST overt act, not first! Conspiracy from 10 years ago? If last overt act was 3 years ago, still within limitations!
This makes old conspiracies chargeable! Any co-conspirator’s act restarts clock for ALL conspirators! Even if you stopped participating 8 years ago, if someone else did overt act 4 years ago, your still within limitations!
Withdrawal starts statute running as to you individually! Another reason withdrawal is important! But must prove withdrawal was effective!
Concealment of conspiracy can extend limitations! “Conspiracy to defraud” includes fraud to hide fraud! Some circuits hold concealment activity is separate conspiracy extending limitations!
Drug conspiracies and other specific conspiracies may have different limitations periods! Some have NO statute of limitations if involve murder! Check specific statute!
Several defenses exist but all are difficult!
Impossibility is NO defense – even if underlying crime couldn’t be completed, conspiracy still chargeable! One case: defendants conspired to bribe government official who was actually undercover agent! Impossible to succeed but conspiracy valid!
Wharton’s Rule prevents charging conspiracy when crime REQUIRES two people – adultery, dueling, bigamy, incest can’t be conspiracy because need exactly two people! But rule has limited application in federal court!
Lack of agreement is best defense! If no real meeting of minds, no conspiracy! We’ve won by showing defendant was victim of fraud, not participant! Or that others misled defendant about true nature of scheme!
Lack of knowledge also defense! Must know you’re joining illegal agreement! Mere association with criminals isn’t enough – must intend to further illegal objective! We’ve shown clients provided innocent services without knowledge of conspiracy!
Entrapment by estoppel if government agent authorized conduct! We’ve used when government informant told defendant activity was legal! Rare but occasionally successful!
Single conspiracy versus multiple conspiracies – if defendant only in smaller separate conspiracy, not liable for larger conspiracy’s acts! We fight hard on this at trial!
Look, we’re not your typical lawyers who plead clients guilty to conspiracy without understanding exposure. We’re former federal prosecutors who CHARGED conspiracy cases and know EXACTLY how to attack each element!
We understand how to sever defendants from larger conspiracies! We know when to challenge co-conspirator statements! We can prove withdrawal or lack of agreement! Most importantly, we fight Pinkerton liability that makes clients responsible for others’ crimes!
Other lawyers don’t challenge conspiracy charges aggressively because they’re “just agreement”! They don’t understand how co-conspirator statements work! They miss withdrawal defenses! Their ignorance leads to decades in prison for clients who barely participated!
Call us RIGHT NOW at 212-300-5196
Conspiracy investigations move FAST – indict multiple defendants simultaneously!
Former federal prosecutors – Conspiracy defense experts – Available 24/7!
Don’t underestimate conspiracy charges! “Just conspiracy” is prosecutor-speak for “we’ll charge you with everything your co-conspirators did”! Conspiracy multiplies liability through Pinkerton! Allows hearsay through co-conspirator statements! Creates group liability for individual acts!
Remember – federal conspiracy isn’t about what you did, its about what prosecutors claim you agreed to and what your alleged co-conspirators did. One agreement, one overt act, one co-conspirator’s statement can mean life in prison. You need someone who understands conspiracy’s unique dangers and how to fight them. Call us NOW before conspiracy charge becomes life sentence!
Very diligent, organized associates; got my case dismissed. Hard working attorneys who can put up with your anxiousness. I was accused of robbing a gemstone dealer. Definitely A law group that lays out all possible options and best alternative routes. Recommended for sure.
- ROBIN, GUN CHARGES ROBIN
NJ CRIMINAL DEFENSE ATTORNEYS