Unknown to Other Conspirators.

Conspiracy Elements & § 371 Requirements

• The Role of Overt Acts in Federal Conspiracy
• Drug Conspiracy Exception (21 U.S.C. § 846)
• Conspiracy Basics: Agreement & The Two-Person Minimum
• Co-Conspirator Identification & Prior Prosecution
• Knowing Joinder vs. Knowing Everyone

Can You Belong to a Conspiracy Without Knowing Who Else Joined? Under 18 U.S.C. § 371, to establish a conspiracy, the government must prove “a meeting of minds” to commit a crime. Prosecutors must prove that you knowingly and voluntarily joined an agreement with at least one other person to carry out a criminal plan. The government must also show that a conspirator performed an “overt act” in furtherance of that agreement.

However, many federal conspiracy statutes do not include a requirement to prove an overt act, and federal conspiracy charges generally require proving an agreement involving at least two legally capable participants. For instance, drug conspiracy prosecutions under 21 U.S.C. § 846 do not require the government to prove an overt act, but they do require proof of a “conspiracy” as this term is used in the context of the relevant statutes.

Our federal conspiracy defense team includes lawyers. We can build defenses that cut through the government’s theories of prosecution, and we can defend against criminal liability in a broad range of scenarios.

Among other things, a defendant does not have to have been separately prosecuted, and co-conspirators do not need to have been identified individually. However, as we discussed above, the government must prove that at least two people have agreed to join the criminal enterprise, and the government must prove that it is “more than one person” who are involved.

The fact that a co-conspirator has not been identified or separately prosecuted is not an available defense in a federal conspiracy case, but you are not automatically liable for a conspiracy simply because you know about a criminal plan. Federal conspiracy laws are designed to target criminal enterprises, not individual criminals. They have all the same flaws as the substantive laws they are designed to supplement, and they all require proof of a “knowing and voluntary” agreement to carry out a crime.

Even so, under 18 U.S.C. § 371 and various other federal statutes, it is possible to join a conspiracy without knowing everyone involved or knowing all the details of the criminal scheme. With this in mind, federal conspiracy laws are designed to target criminal enterprises, and this means that they apply to any individual who is part of the scheme. However, they do not impose criminal liability upon a defendant simply because a criminal plot exists.

So, while not knowing every co-conspirator does not beat a criminal charge, you still have important defenses to fall back on when facing federal conspiracy charges.

How Can a Minor Participant or a Buyer Become Part of the Same Conspiracy?

Even if the defendant’s role in the criminal enterprise was minor, if it was knowing and voluntary, this is sufficient to establish criminal liability for conspiracy under 18 U.S.C. § 371 and related federal criminal laws. “The Government is not required to prove that a defendant knew all his co-conspirators or all of the details of the conspiracy; moreover, guilt may be established even by proof that a defendant played only a minor role in the conspiracy.” In other words, a minor role does not by itself prevent a defendant from being targeted as a conspirator in a federal criminal case.

Mere presence at a crime scene cannot, by itself, establish a conspiratorial agreement. Also, “Mere association with conspirators or those involved in a criminal enterprise is insufficient to prove defendant’s participation or membership in a conspiracy.” is not enough to satisfy the element of a knowing and voluntary agreement to commit a crime.

These are common issues to raise when facing federal conspiracy charges. If the government cannot prove that your participation in the criminal enterprise was voluntary and knowledgeable, there is no basis to convict you of conspiracy.

Similarly, an agreement to commit a crime with only an undercover federal law-enforcement officer generally cannot establish a federal conspiracy.

In most drug conspiracy cases, a simple buyer-seller relationship between two people is not enough to make the buyer a co-conspirator. The buyer must have joined a broader conspiracy in which the parties’ interdependence helped further the conspiracy’s purpose.

A drug purchaser who joins a conspiracy is one who knowingly joins in a drug trafficking scheme that goes beyond the individual’s own needs and/or purchases drugs with the intent to redistribute them.

When disputing membership within a criminal conspiracy, courts examine several key factors:

• The nature and extent of the defendants’ involvement in the overall scheme.
• The degree of common purpose, if any.
• The extent of interdependence among participants.
• The identity of the other participants (i.e., are there other common participants?).

Along with other factors, these considerations can help establish boundaries to the alleged conspiracy and, consequently, can help protect against the criminal charges filed against a defendant.

Whether you face a criminal charge with or without a conspiracy charge, our criminal defense team can build a defense that puts a dent in the government’s theories of prosecution and protects you against criminal liability.

When Do Co-conspirators’ Statements or Unknown Crimes Reach You?

- Pinkerton liability is a legal principle that makes a defendant in a conspiracy liability for foreseeable offenses committed by co-conspirators in furtherance of the conspiracy, even if the defendant was unaware of the offenses.

• Pinkerton liability does not automatically apply to every unknown offense committed by co-conspirators.
• Federal Rule of Evidence 801(d)(2)(E) applies to the admissions of co-conspirators.
• The rule applies only to statements “made during the course and in furtherance of the conspiracy.”
• Statements made before the conspiracy existed, after the conspiracy ended, or by a conspirator who is not engaged in furtherance of the conspiracy will generally be considered hearsay. Idle conversation or retrospective bragging does not fall into this category.
• Before admitting a co-conspirator’s statements into evidence, the court must determine whether there is a conspiracy, that the defendant is a member of the conspiracy, and that the statement meets the requirements for admissibility.

At Spodek Law Group, our experienced federal conspiracy defense attorneys work closely with the court to contest the government’s arguments and protect our clients’ due process rights.

Even if you are not fully protected against co-conspirators’ statements or the consequences of co-conspirators’ criminal acts, there are other defenses you can use to fight the charges against you in court.

From the moment we speak, we will work with you to help develop an informed defense and protect you as much as possible.

When accused of a criminal conspiracy, you want a team of lawyers with the experience, insights, and resources to defend you in court. This gives us unique insight into the legal arguments and strategies that prosecutors in drug conspiracy cases are likely to use to pursue convictions against defendants.

We rely on this experience to build powerful defenses on our clients’ behalf.

What Does Withdrawal Stop, and What Can a Completed Conspiracy Still Permit?

- A conspiracy conviction does not require proof that the parties involved successfully completed the planned substantive offense. For example, if you knowingly and voluntarily agreed with a co-conspirator to distribute the illegal drug methamphetamine, but the conspiracy was busted by the FBI before the drugs could reach the street, the federal government can still prosecute both parties as drug conspirators under 21 U.S.C. § 846.

• Conversely, the federal government can also charge conspiracy alongside the completed offense arising from the agreement. If the drug conspiracy above had already reached the street, the federal government would likely charge you as a drug conspirator under 21 U.S.C. § 846, in addition to charging you with a drug offense such as: “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

When Does a Conspiracy End?

A conspiracy generally continues until it is terminated, while withdrawal by an individual member ends that member’s participation but does not necessarily terminate the conspiracy itself.

• When charged as a drug conspirator, an accused individual may be able to assert withdrawal as a defense. However, mere inactivity, failure to meet with co-conspirators, or avoiding communications with co-conspirators does not constitute withdrawal from a conspiracy.
• To effectively withdraw from a conspiracy, a conspirator must take an affirmative act inconsistent with the conspiracy’s goals and communicate it to the co-conspirators or law-enforcement authorities. When faced with a criminal conspiracy allegation, a defendant will work with a defense lawyer to determine whether any individual’s conduct constitutes an affirmative withdrawal.

Can Concealment Acts Extend a Conspiracy?

- Acts of concealment after the completion of a substantive offense generally do not prolong the conspiracy. For example, if two people agree to import a drug into the U.S. And then use a false business to hide the illegal proceeds, the act of hiding the drug’s origins after the drug has entered the country may continue the conspiracy if concealment was part of the agreed objectives.

• The government has argued to the contrary, but the case law is clear that unless there is a specific reason to prolong the conspiracy, such an argument is not sufficient. Courts will evaluate whether the act of concealment is within the scope of the original agreement when assessing if the conspiracy continues or terminates.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.