In addition to the typical underlying federal offenses (i.e. drug trafficking), a conspiracy is similarly subject to federal prosecution as a separate offense. Conspiracy charges can carry significant penalties, so if you are charged with a conspiracy, it is important to retain an attorney experienced in handling these matters.
What is a Conspiracy?
A conspiracy is generally an agreement between two or more individuals to engage in some sort of illegal conduct. The “crime” of conspiracy is completed upon finalizing the agreement (and an overt act in some instances, as discussed below). Accordingly, a defendant can be found guilty of conspiracy even if the underlying crime (that which was allegedly planned) was never completed.
There are several federal statutes addressing conspiracies. The “catch-all” conspiracy statute is found at 18 U.S.C. § 371 which makes it illegal for “two or more persons to conspire […] to commit any offense against the United States.” Section 371 conspiracies are punishable by a term of imprisonment of not more than five (5) years and/or a fine of not more than $250,000.
21 U.S.C. § 846 specifically addresses conspiracies to commit drug trafficking offenses. Under Section 846, it is unlawful for any person to “attempt or conspire to commit any offense defined in [the Controlled Substances Act].” Section 846 conspiracies are punishable by the same penalties prescribed for the underlying offense. For example, if a defendant entered a conspiracy to import 100 kilograms of cocaine, he or she would be subject to the penalties of actually importing the cocaine, despite not actually doing so.
Conspirators are also responsible for foreseeable crimes of co-conspirators, even if they did not expressly agree to undertake the action (i.e. individual is shot during the commission of an armed bank robbery – although a defendant agreed only to the armed robbery, an individual being harmed was foreseeable so every co-conspirator would be responsible for that harm).
In short, in order to prove a conspiracy, the Federal Government has to generally establish three elements: 1) an unlawful agreement (between two or more individuals) to commit an offense; 2) the defendant’s knowing and willing participation, and 3) an overt act in furtherance of the conspiracy. United States v. Vinson, 852 F.3d 333, 352 (4th Cir. 2017).
“Two or More Persons”
As discussed above, a conspiracy requires an agreement between two or more individuals. An individual alone cannot enter into a conspiracy. Importantly, the existence of the conspiracy, rather than the particular identity of the conspirators, is the essential element of the crime.” United States v. Am. Waste Fibers Co., 809 F.2d 1044, 1046 (4th Cir. 1987) (per curiam) (citing United States v. Davis, 679 F.2d 845, 851 (11th Cir. 1982). What this means is that, despite the two-person requirement, a defendant can be found guilty of a conspiracy even if no other co-conspirators are ever identified. The Federal Government is not required to identify any co-conspirators to obtain a conviction, and a jury or judge is able (but not required) to infer that a conspiracy existed based on the available evidence.
What Does It Mean to Enter An “Agreement”
Even when there are two or more persons involved, the Government has to show the existence of some sort of “agreement.” Such an agreement can be established by the words and/or actions of the relevant parties. In other words, the “agreement” can be express or implied.
The Government, however, must show the defendant and co-conspirators entered into an agreement with knowledge of its illegal purpose. United States v. Arbane, 446 F.3d 1223, 1230 (11th Cir. 2006). It is not enough to show that the defendant was present and/or simply otherwise associated with someone engaged in criminal activity.
Overt Act
Some, but not all, federal conspiracy statutes contain an “overt act” requirement. One of such statutes is Section 371 (discussed above). This means that the defendant must have made some sort of act in furtherance of the conspiracy, but this “overt act” not need be the underlying criminal offense.
Other statutes, however, do not require an overt act. For example, 21 U.S.C. § 846, the federal drug conspiracy statute, does not require an overt act. See United States v. Shabani, 514 U.S. 10 (1994).
Non-Exhaustive List of Potential Defenses
- Withdrawal from Conspiracy: In some cases, a defendant may be able to argue that he/she withdrew from the conspiracy before either the underlying crime was committed and/or before he/she made any overt act in furtherance of the conspiracy.
- Mere Presence/No Agreement: As discussed above, a defendant can argue that although he knew the individuals that carried out the underlying offense, he/she never entered into the agreement. This defense can be used even if the defendant had knowledge of the crime, so long as he/she did not come to any sort of “agreement” as it relates to the underlying offense.
- Lack of Knowledge of Criminal Activity/Underlying Conspiracy: A defendant may also be able to argue that he was not aware of the presence of any conspiracy, although his acts unknowingly furthered its purported goals.
Consult With Our Team
If you or a loved one is facing federal conspiracy charges, it is important that you retain an attorney well-versed in this area of law. Contact our office for a free consultation.