What are the Federal Conspiracy Charges?

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A common tactic by federal prosecutors is to bring conspiracy charges against a defendant. Conspiracy is a rather broad type of crime that can be used to describe many types of illegal conduct.

Conspiracy charges are tough for the defense. A criminal defense lawyer who has a client charged with conspiracy must work hard to investigate the evidence that the government has. Also, the defense needs to investigate the role that the feds think that each person had in the alleged conspiracy.

In a federal charge, a conspiracy is proven if there was any type of an agreement to commit a federal crime between at least two people. And, at least one of those people made some type of overt act to enact the conspiracy.

In a conspiracy charge, the feds do not have to prove to the judge that there was a written agreement to commit a conspiracy. The prosecutor can prove there was a conspiracy just by showing that the people who were involved in the plot were working together to commit a crime. It is not necessary for two people to say that they agree to commit a criminal conspiracy. Instead, the agreement can be implicit, or shown by actions of two or more people working together. For example, two parties may appear at transactions and negotiations to further the conspiracy, such as a meeting.

The general statute for conspiracy can be found in 18 USC 371. This statute makes it a criminal act to engage in a conspiracy to defraud the US government. It also makes it a crime to engage in a conspiracy that violates any federal law.

The US Code also has other provisions that make other types of conspiracy a crime. For instance, 21 USC 846 makes it a crime to commit any type of conspiracy to manufacture or distribute controlled substances. Also, 18 USC 1951, which outlaws committing robbery in interstate commerce, also has a provision related to conspiracy.

Federal courts have held that someone can be in a conspiracy with another, even if those two people never met. As long as one person knew that another person was doing some kind of act to further the conspiracy, a crime is being committed. This interpretation of the law has widespread consequences. It means that in a larger, sprawling conspiracy where many of the actors do not know the others, most of those involved can still be charged and convicted for conspiracy.

It should be noted that federal conspiracy charges can be abused by the government in some cases. For example, it is possible for a conspiracy offense to be prosecuted in federal court just because two people agree to rob a convenience store, and one of them bought a mask to wear for the robbery.

One serious consequence of conspiracy charges is that someone who had a very minor role in the conspiracy could be held responsible for the crimes of a person who had a much bigger role. This can be particularly true in drug cases. A person who had a very small role in a drug charge could have to serve a mandatory minimum sentence for the large amount of drugs in the crime.

Penalties for Federal Conspiracy Charges

All federal conspiracy charges may be punished by a fine of $250,000 for one person and $500,000 for a group or organization. Also, conspiracy charges can form the basis of a restitution or forfeiture order. There are several statutes covering conspiracies under US law that prohibit specific types of conspiracies, such as:

  • Drug trafficking, which can be punished by the same types of penalties as drug trafficking
  • Terrorist conspiracies, which can be punished the same as engaging in terrorist actions
  • Racketeering, which can be punished by the same things as the RICO charge you face
  • Conspiracies to commit other federal offenses may be punished by up to five years in federal prison

Elements of Conspiracy

For a federal charge of conspiracy to result in a conviction, the government must first prove that two or more people agreed to commit the crime. This agreement need not be a formal one in writing. All that is needed is that all parties had an understanding to engage in an illegal plan of some sort. Second, all parties to the conspiracy must have had the intention of committing the crime at the center of the conspiracy. This means that someone who had no idea they were participating in a crime may not be charged with the federal crime of conspiracy.

For example, if two brothers agree to rob a local bank and they ask their sister to drive them to the local bank and do not tell her they intend to commit this crime, she cannot be charged with conspiracy. The intent requirement under federal law does not mandate that each person knew all details of the crime. Nor is it required that all members of the conspiracy knew each other. If you understand the act that is being planned is criminal and you proceed, you could be charged.

In most states and under federal law, being convicted of conspiracy requires you to have committed an overt act that was intended to further the crime. The overt act does not have to have been the actual crime, nor does it need to be an illegal act. The act must be simply a step that you took to make the criminal objective become reality. For example, if you are involved in a conspiracy to rob a bank, buying a gun legally to use in the robbery would be considered an overt act to further the crime. That act would have to take place after the group agreed to the criminal conspiracy. Actions that were taken before an agreement would not qualify as an overt act.

Defenses for Conspiracy Charges

The federal government must prove that you voluntarily took part in the alleged conspiracy. If they cannot show that you did so, you cannot be convicted. So, a good defense attorney will attempt to show that you did not knowingly participate in the plot.

Another common line of defense in drug conspiracy cases is to see if the search/seizure of drugs was legal. If the drugs were taken from a car, the defense will need to see if the officer acted legally in his search of the vehicle. If drugs were found in a house, the defense must verify that the search was done legally, either with a warrant or via probable cause or consent.

It also is possible for defendants charged with this federal crime to raise a defense of withdrawal or abandonment. To do this effectively, you must show that you communicated a withdrawal to the co-conspirators and took action to withdraw yourself from the conspiracy. Also, you have to have gotten out of the conspiracy before it was completed. Critically, you must have made an effort to cut ties with your co-conspirators. If you are found to be still communicating with them or helping them in any manner, this could complicate a withdrawal defense.

Possible examples of withdrawing from the criminal conspiracy are:

  • Telling other people in the conspiracy that you do not want to take part in the crime
  • Going to law enforcement and telling them about the conspiracy
  • Any other acts you take that are inconsistent with furthering the conspiracy and are communicated in a way that will probably reach other conspiracy members

You also may raise an entrapment defense. Entrapment simply means you were persuaded to participate in a conspiracy by someone in law enforcement or a government agent, and you would not have otherwise been involved in such a criminal matter. You have to show that the idea for the conspiracy was generated by a law enforcement officer and not from you. Also, you must show you were persuaded to participate in said conspiracy by a police officer. Last, before you were persuaded, you cannot have had any intention of committing a crime.

Problems with Conspiracy Charges

Conspiracy charges are used aggressively by federal prosecutors to convict people for crimes when they lack the evidence to convict them for other crimes. This can raise valid constitutional concerns and also issues around valid evidence:

  • Federal conspiracy laws test the First Amendment because it lets federal prosecutors use protected acts, such as speech, attending meetings and having group ties, against you. It can be argued by the defense that a person is being prosecuted for an unpopular tie or questionable speech.
  • Evidentiary rules can violate federal laws that you are only liable for your own actions. Statements and actions might be attributed to a co-conspirator who did not directly say or do any of the criminal things being alleged. Courts are often very liberal as far as admitting evidence of association. Prosecutors may file charges of conspiracy just to be able to use evidence that is only tangentially connected to you.
  • It is not always clear whether a defendant really wanted to commit the crime or to even conspire with other parties about the crime. It is possible for charges for conspiracy to be pressed against a big talker or someone who expresses opinions that are not popular. Judges may give instructions to juries that encourage a conspiracy conviction simply based upon things you said that are ambiguous and difficult to interpret as criminal behavior.

Federal prosecutors have a great degree of latitude in bringing conspiracy charges against various people in a criminal enterprise. It is common for defendants who were minor players in a conspiracy to receive long prison sentences, thus it is important for anyone so charged to be represented by qualified defense counsel.


  • Why Criminal Conspiracy Prosecutions Can Be Unfair. (n.d.). Retrieved from http://www.scholarsstrategynetwork.org/brief/why-criminal-conspiracy-prosecutions-can-be-unfair-%E2%80%93-and-how-fix-problems