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Federal Conspiracy Law Podcast Transcript (18 USC §371)

J. Hello! I am John Seaman, an attorney assigned to the FLETC, Legal Division at Glynco, GA. I came to the FLETC LGD in 2006 from ICE where I served as an Assistant Chief Counsel for 10 years. With me today is Michelle Story.

M. Hello, I am Michelle Story. I am also an instructor with the FLETC, and I have been in the Legal Division since 2007. I previously worked with the City of Atlanta as a prosecutor for 6 years.

J. We are here today to discuss Conspiracy law. Specifically, we are going to talk about the general Conspiracy statute found at 18 United States Code § 371. In a separate podcast, we will also discuss Party Offenses which are found in Title 18 United States Code §§ 2(a), 2(b), 3 and 4.

M. John, what is a Conspiracy?

J. A Conspiracy can be described generally as a sort of partnership in crime. Legally, a Conspiracy exists when 2 or more persons join together and form an agreement to violate the law, and then act on that agreement. The crime of Conspiracy was created to address the inherent dangers posed to society when people come together and join forces to commit criminal acts. An important feature of the Conspiracy statute is that it enables the investigator to get beyond the first layer of visible members to find and prosecute the “brains” behind a criminal scheme or organization. Specific federal anti-conspiracy statutes are found throughout federal law. State statutes also contain anti-conspiracy laws. This podcast will focus exclusively on the general Conspiracy statute found at Title 18 USC § 371.

M. What are the elements of a conspiracy?

J. Well, there are basically 5 elements for the crime of Conspiracy. Those elements are: 1. You must have 2 or more persons who 2. Intentionally 3. make an agreement 4. to violate federal law or defraud the United states, and then 5. Commit some overt act in furtherance of the agreement. Based on these elements, we know that the crime of Conspiracy is a specific- intent crime. In other words Michelle, the government must prove that these 2 or more persons intentionally entered into an agreement to commit some criminal offense. This means that in proving that there are two (2) or more person involved, undercover officers and confidential informants would not count because they would not have the requisite criminal intent. Also, the overt act done in furtherance of the agreement must occur AFTER the agreement has been reached.

M. So, anytime 2 or more people are involved in a crime, there’s a Conspiracy?

J. Well, only if the government can prove that those involved entered into some agreement to commit the crime and that there was some overt act committed after the agreement was reached to help it succeed. Many times this “agreement” will be proven by circumstantial evidence. For example, if it can be shown that a participant is receiving some direct benefit from the illegal activity, this is a good indication that the person is a part of the Conspiracy. In addition, the overt act that follows the agreement doesn’t necessarily have to be an illegal act. It just has to be some act that demonstrates that the agreement is now being acted upon.

M. What is the penalty?

J. The general Conspiracy statute provides a maximum punishment of not more than five (5) years, as well as a fine up to $250,000.00 for a felony offense. For a misdemeanor offense, the maximum punishment cannot exceed the maximum possible punishment for the misdemeanor.

M. You said the crime of Conspiracy requires that there be an actual agreement to violate federal law or defraud the government. Tell me more about this “Agreement”?

J. Yes. The Agreement is the essence of any Conspiracy. One important thing to keep in mind is that the crime of Conspiracy is different and distinct from the substantive or underlying crime. In other words, a person can be prosecuted and convicted for the underlying crime AND for Conspiracy to commit that crime. Just having an agreement between two or more persons to commit a criminal offense is not, in itself, a Conspiracy. There MUST be some overt act in furtherance of the agreement committed AFTER the Agreement has been reached.

M. What do you mean, an “overt act?”

J. The final element of the crime of Conspiracy under Title 18, U.S.C. § 371 is the Overt Act. The Overt Act is some affirmative act done by one or more of the co- conspirators. The Overt Act, done in furtherance of the Agreement demonstrates that Agreement has advanced from merely talk to action. In other words, instead of simply talking about the crime, the conspirators have actually taken a step towards making it a reality. The Overt Act MUST come after the Agreement we have been talking about. Once the Overt Act occurs, the crime of Conspiracy is “complete” and can be charged under Title 18 U.S.C. § 371. It’s important to understand that the crime of Conspiracy does NOT merge with the substantive offense, so can be charged separately from the substantive offense.

M. What are the advantages to using the Conspiracy statute?

J. Another advantage for law enforcement is based on the theory of vicarious liability. Participants in a conspiracy become criminally responsible for the reasonably foreseeable acts of any co-conspirators committed during the Conspiracy and in furtherance of the Conspiracy. In the case of Pinkerton v. United States, 328 U.S. 640 (1946)), the US Supreme Court ruled that all members of a conspiracy can be charged for crimes committed by their co- conspirators that are within the scope of the conspiracy and are a reasonably foreseeable consequences of the conspiracy. The benefit of this is that all reasonably foreseeable criminal acts committed by any of the co-conspirators, and reasonably related to the Conspiracy, can be introduced at trial. This is true even though those on trial may not have directly participated in the acts. In addition, statements made by co-conspirators during and in furtherance of a conspiracy are not considered to be hearsay, so can be used at trial against other members of the Conspiracy.

M. Based on what you have said so far, does this mean that a person must be in the Conspiracy from its beginning to be charged with Conspiracy?

J. No. The law recognizes that an individual may join an on-going conspiracy. We call this a “late joiner.” If a person joins an on-going conspiracy, there is no requirement for another overt act to be committed, only that the person intentionally join in the agreement. A “late joiner” is criminally responsible for the Conspiracy, and for any reasonable foreseeable criminal acts done by any of the co-conspirators while the “late joiner” is a member of the Conspiracy. In other words, a “late Joiner” would not be criminally responsible for criminal acts by co-conspirators committed prior to his joining the Conspiracy.

M. What if an individual is part of a Conspiracy and wants out...can he withdraw from the Conspiracy?

J. Yes. Just as the law recognizes that a person can join an on-going conspiracy, the law also recognizes that an individual may withdraw from a Conspiracy prior to its completion. Withdrawal from a Conspiracy requires more than simply no longer participating. To withdraw from a Conspiracy, there are two basic requirements: First – the person must do some affirmative act inconsistent with the goals of the Conspiracy. Unless the co-conspirator can demonstrate that he quit the Conspiracy, his or her participation in the Conspiracy is presumed to continue. Second – the co-conspirator must do some affirmative act that is reasonably calculated to communicate to a fellow co-conspirator, or law enforcement, that he has withdrawn from the Conspiracy. Withdrawal from a Conspiracy is an affirmative defense that must be raised and proven by the defendant.

M. Well, it certainly sounds as though the general Conspiracy statute offers investigators and prosecutors some very important advantages for combating criminal activities.

J. That is absolutely true Michelle. By utilizing the general Conspiracy statute found at Title 18, USC § 371, law enforcement can begin investigating criminal activity in its early stages, and may prosecute BEFORE the underlying crime takes place. In addition, prosecutors may be able to charge defendants simultaneously and present evidence against all the participants in the Conspiracy.

M. Well John, thank you for this overview of the general Conspiracy statute.

J. You’re welcome Michelle. And if any of our listeners are interested, I have also prepared a podcast on Party offenses where I discuss how individuals who provide assistance to criminals can be criminally charged. Thanks again for listening.