Single Transaction Conspiracy.

The key element of any criminal conspiracy is that it requires an agreement. It is a collective offense, and it requires at least two people. This means that one person’s private plan to commit a crime cannot, and does not, support a criminal conspiracy charge. This is a fundamental distinction that separates criminal conspiracy from attempt and from the substantive offense itself. Interestingly, a criminal conspiracy charge is possible even when the planned offense never occurs or is never attempted, so long as the conspirators agreed and intended that the offense be committed. For a conspiracy charge brought under 18 U.S.C. § 371, at least one of the alleged conspirators must commit an overt act. But, an overt act for a criminal conspiracy charge need not itself be illegal. A legal overt act, such as renting a vehicle or booking a hotel room, can be sufficient to trigger a federal conspiracy charge. While most federal conspiracy statutes require the government to prove that at least one overt act was committed, that is not true in all cases. Some offense-specific conspiracy statutes do not require the government to prove that any overt act was committed.

However, in all cases, the government must be able to show that at least two people agreed to commit the underlying crime. If the government can show this, a single completed transaction can support a separate criminal conspiracy charge. This is because the agreement itself, the conspiracy, is a crime separate from the substantive offense, which can involve only one person. As a result, when the government can prove both a conspiracy and a completed substantive offense, it can charge defendants for both and seek sentencing for both as well.

How can prosecutors prove agreement when the conspiracy involved only one transaction?

To prove agreement, federal prosecutors don’t have to prove that every person involved knew every other person, or that every person knew all of the operational details of the planned offense. In fact, in most cases, they will not be able to. Additionally, an agreement does not have to be a written agreement. It does not have to be a formal agreement. It can be verbal, or it can be informal, and it can be inferred from conduct, including conduct in response to conduct by others. In federal criminal prosecutions, the government is not required to prove that conspirators met in person, and prosecutors are not required to present records of communications between conspirators. While they can, however, present such records in support of their allegations as they see fit. Ultimately, the most important factor in any federal conspiracy prosecution is the ability of federal prosecutors to establish that co-defendants acted in coordination. The government cannot establish the existence of a conspiracy based on a defendant’s mere presence during a criminal transaction. While presence at the site of the crimes, parallel conduct, and other factors can contribute to an inferential conclusion of coordination, none of these factors alone establish the existence of a conspiracy. Federal law requires the government to prove that defendants coordinated their actions; in other words, the government must prove the existence of an agreement. However, once the government can prove the existence of an agreement, it can pursue a federal conspiracy charge under a wide variety of federal statutes. One of the most challenging aspects of federal conspiracy prosecutions is the fact that the federal government is not required to have direct evidence of an agreement. In most cases, direct evidence of coordination is unavailable to prosecutors. As a result, prosecutors rely on circumstantial evidence to establish a conspiracy, and a court will usually allow circumstantial evidence to support a conspiracy conviction as well.

In most cases, federal prosecutors will attempt to establish an agreement by showing that the defendants acted in concert to execute the substantive offense, and that it is unlikely they would have done so unless they had agreed to do so. The specific circumstantial evidence that will be used to support the government’s allegations will depend upon the circumstances at hand, and a successful defense strategy will depend upon the specific defenses and arguments that are available based on the facts of your case.

When can a conspiracy conviction coexist with the completed offense?

Can a defendant be convicted of conspiracy as well as the underlying crime that the conspiracy was intended to facilitate? Yes. Although most statutory schemes do not explicitly state otherwise, federal courts have consistently held that they may convict defendants of criminal conspiracy as well as the substantive offense that flows from that conspiracy. Under the principles of Pinkerton liability, one defendant can face federal liability as a co-conspirator even though they did not help execute the underlying offense in the context of a multi-person conspiracy involving multiple acts in furtherance of the substantive offense. But this liability has limits. Under Pinkerton, defendants can be held liable for substantive acts committed by a co-conspirator during the conspiracy only if those acts:

• Were committed in furtherance of the conspiracy, and
• Were a foreseeable result of the conspiracy. Is it possible to successfully withdraw from a criminal conspiracy? Yes. But, unlike with most other forms of criminal liability, doing so requires more than simply ceasing involvement. To avoid Pinkerton liability for a co-conspirator’s substantive offense, the defendant must take affirmative steps to withdraw and communicate that withdrawal before the offense is committed. To avoid liability for a completed crime, the defendant must have withdrawn prior to the commission of that crime.

When a defendant has already committed an overt act, which is required for liability under 18 U.S.C. § 371, a successful withdrawal requires that defendant to take affirmative steps to sever their relationship with the co-conspirators. This is usually enough to protect the defendant from liability for any subsequent acts committed by the co-conspirators, though, this is not always the case, and the most successful forms of withdrawal usually involve communicating the intent to withdraw to the co-conspirators or reporting the conspiracy to the authorities.

Which pretrial challenges can attack or narrow a federal conspiracy charge?

Entrapment is a potential defense in some federal conspiracy cases. Entrapment occurs when government agents induce a person to commit a crime when the person was not predisposed to commit the crime. If the federal government’s inducements created a criminal transaction where none would have existed otherwise, there will be a positive and strong case for entrapment, and, a skilled defense attorney can use the affirmative evidence of the government’s improper inducements and the lack of predisposed criminal intent to secure an acquittal at trial. While it is possible to avoid a criminal conspiracy conviction at trial in many federal conspiracy cases. Prosecutors will often seek dismissal for some charges in exchange for the defendant not challenging others.

In federal criminal conspiracy cases, common grounds for challenging conspiracy charges include:

• Insufficiency of the government’s evidence showing the existence of an agreement
• Insufficiency of the government’s evidence showing the defendant’s participation in the conspiracy
• Expiration of the relevant statute of limitations
• Other constitutional or statutory violations

While the federal government is also likely to be seeking dismissal of various charges in federal conspiracy cases, dismissal of conspiracy charges may be one of the most important goals of a federal criminal defense strategy. Dismissal of a conspiracy charge could force a complete reconsideration of the federal government’s case, as it would likely limit the facts and evidence available to prosecutors.

If the government illegally obtained the facts and evidence used to support its criminal conspiracy charges, it may also be possible to have that evidence suppressed before it can be used at trial. When this occurs, the government is often left with a set of charges that are unsustainable at trial, which often leads to a dismissal of the case or a substantial reduction in the charges against a defendant.

What determines the penalties for a federal conspiracy conviction?

Penalties for 18 U.S.C. § 371 convictions are outlined within the statute. The maximum sentence for a section 371 conviction is five years in federal prison (excluding the costs of the crime itself, for which defendants can be sentenced separately), and judges are required to follow the U.S. Sentencing Guidelines, as applicable. Penalties for drug conspiracies under 21 U.S.C. § 846 are more varied. Rather than specifying separate penalties, section 846, which covers drug conspiracies involving controlled substances, allows prosecutors to seek the penalties of the substantive drug offense that the conspiracy sought to commit. This means that if a defendant faces a drug conspiracy charge, the underlying offense determines the mandatory minimum sentence, if one applies. As with a drug-related substantive offense, a mandatory minimum sentence under section 846 will depend partly on the type of controlled substance involved, partly on the defendant’s criminal history, and partly on the weight of the drugs involved in the conspiracy (either in relation to a single alleged transaction or in relation to a multiple-transaction conspiracy). Drug conspiracy charges involving a large quantity of controlled substances can lead to decades in federal prison. The specifics of your situation will dictate whether a negotiated settlement or taking your case to trial is the most appropriate defense strategy. Finally, conspiracies to commit the prohibited conduct under the federal money laundering statute, 21 U.S.C. § 1956, are also punishable as federal crimes under federal law. Under 21 U.S.C. § 1956(h), money laundering conspiracies are subject to the same penalties as those who engage in the specific laundering conduct charged under section 1956. Depending on the circumstances at hand, a successful federal money laundering prosecution can lead to a fine or imprisonment for up to twenty years (or both).

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.