Congressional Research Center Conspiracy Law, January 2016.

Federal Conspiracy Law: A Brief Overview
Charles Doyle
Senior Specialist in American Public Law
January 20, 2016
Congressional Research Service

7-5700
www.crs.gov
R41223
Summary
Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and
some of the former Enron executives have at least one thing in common: they all have federal
conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to
engage in some form of prohibited conduct. The crime is complete upon agreement, although
some statutes require prosecutors to show that at least one of the conspirators has taken some
concrete step or committed some overt act in furtherance of the scheme. There are dozens of
federal conspiracy statutes. One, 18 U.S.C. 371, outlaws conspiracy to commit some other federal
crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct.
General Section 371 conspiracies are punishable by imprisonment for not more than five years;
drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their
underlying substantive offenses, and thus are punished more severely than are Section 371
conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for
organizations); most may serve as the basis for a restitution order, and some for a forfeiture order.
The law makes several exceptions for conspiracy because of its unusual nature. Because many
united in crime pose a greater danger than the isolated offender, conspirators may be punished for
the conspiracy, any completed substantive offense which is the object of the plot, and any
foreseeable other offenses which one of the conspirators commits in furtherance of the scheme.
Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is
committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations
does not begin to run until the last overt act committed for its benefit. Since conspiracy is a
separate crime, it may be prosecuted following conviction for the underlying substantive offense,
without offending constitutional double jeopardy principles; because conspiracy is a continuing
offense, it may be punished when it straddles enactment of the prohibiting statute, without
offending constitutional ex post facto principles. Accused conspirators are likely to be tried
together, and the statements of one may often be admitted in evidence against all.
In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting.
Unlike aiding and abetting, however, it does not require commission of the underlying offense.
Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a
conspirator may be punished for both.
An abridged version of this report without footnotes and most citations to authority is available as
CRS Report R41222, Federal Conspiracy Law: A Sketch, by Charles Doyle.
Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 3
Two or More Persons....................................................................................................................... 4
Agreement ....................................................................................................................................... 5
One or Many Overlapping Conspiracies ......................................................................................... 7
Overt Acts ........................................................................................................................................ 8
Conspiracy to Defraud the United States ........................................................................................ 8
When Does It End?........................................................................................................................ 10
Sanctions ........................................................................................................................................ 11
Imprisonment and Fines ........................................................................................................... 11
Restitution ............................................................................................................................... 12
Forfeiture ................................................................................................................................. 13
Relation of Conspiracy to Other Crimes ....................................................................................... 14
Aid and Abet ........................................................................................................................... 14
Attempt.................................................................................................................................... 15
Solicitation .............................................................................................................................. 16
Procedural Attributes ..................................................................................................................... 17
Statute of Limitations .............................................................................................................. 17
Venue ....................................................................................................................................... 18
Joinder and Severance (One Conspiracy, One Trial) .............................................................. 18
Double Jeopardy and Ex Post Facto........................................................................................ 19
Co-conspirator Declarations .................................................................................................... 20
Contacts
Author Contact Information .......................................................................................................... 23
Introduction
Terrorists, drug traffickers, mafia members, and corrupt corporate executives have one thing in
common: most are conspirators subject to federal prosecution.1 Federal conspiracy laws rest on
the belief that criminal schemes are equally or more reprehensible than are the substantive
offenses to which they are devoted. The Supreme Court has explained that a collective criminal
agreement[a] partnership in crimepresents a greater potential threat to the public than
individual delicts. Concerted action both increases the likelihood that the criminal object will be
successfully attained and decreases the probability that the individuals involved will depart from
their path of criminality.2 Moreover, observed the Court, [g]roup association for criminal
purposes often, if not normally, makes possible the attainment of ends more complex than those
which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the
particular end toward which it has embarked.3 Finally, [c]ombination in crime makes more
likely the commission of crimes unrelated to the original purpose for which the group was
formed.4 In sum, the danger which a conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise.5 Congress and the courts have fashioned
federal conspiracy law accordingly.6
Zacarias Moussaoui was convicted of conspiring to commit the terrorist attacks that occurred on September 11, 2001,
United States v. Moussaoui, 591 F.3d 263, 266 (4th Cir. 2010); Wadih El-Hage was convicted of conspiring to bomb
the U.S. embassies in Kenya and Tanzania, In re Terrorist Bombings, 552 F.3d 93, 107 (2d Cir. 2008).
Members of an Atlanta street gang were convicted of conspiring to engage in drug trafficking, among other offenses,
United States v. Flores, 572 F.3d 1254, 1258 (11th Cir. 2009); motorcycle gang members were convicted of conspiracy
to traffic in drugs, United States v. Deitz, 577 F.3d 672, 675-76 (6th Cir. 2009).
Dominick Pizzponia was convicted on racketeering conspiracy charges in connection with the activities of the
Gambino organized crime family of La Cosa Nostra, United States v. Pizzonia, 577 F.3d 455, 459 (2d Cir. 2009);
Michael Yannotti was also convicted on racketeering conspiracy in connection with activities of the Gambino Crime
Family, United States v. Yannotti, 541 F.3d 112, 115-16 (2d Cir. 2008).
Jeffrey Skilling, a former Enron Corporation executive, was convicted of conspiracy to commit securities fraud and
mail fraud, United States v. Skilling, 554 F.3d 529, 534 (5th Cir. 2009); Bernard Ebbers, a former WorldCom, Inc.
executive, was likewise convicted of conspiracy to commit securities fraud, United States v. Ebbers, 458 F.3d 110, 112
(2d Cir. 2006).
2
Iannelli v. United States, 420 U.S. 770, 778 (1975), quoting Callanan v. United States, 364 U.S. 587, 593-94 (1961).
3
Id.
4
Id.
5
Id.
There have long been contrary views, e.g., Sayre, Criminal Conspiracy, 35 HARVARD LAW REVIEW 393, 393 (1922)(A
doctrine so vague in its outlines and uncertain in its fundamental nature as criminal conspiracy lends no strength or
glory to the law; it is a veritable quicksand of shifting opinion and ill-considered thought); Hyde v. United States, 222
U.S. 347, 387 (1912)(Holmes, J, with Lurton, Hughes 7 Lamarr, JJ.)(dissenting)(And as wherever two or more have
united for the commission of a crime there is a conspiracy, the opening to oppression thus made is very wide indeed. It
is even wider if success should be held not to merge the conspiracy in the crime intended and achieved), both quoted
in substantial part in Katyal, Conspiracy Theory, 112 YALE LAW JOURNAL 1307, 1310 n. 6 (2003).
6
Federal prosecutors have used, and been encouraged to use, the law available to them, Harrison v. United States, 7
F.2d 259, 263 (2d Cir. 1925)([C]onspiracy, that darling of the modern prosecutors nursery); United States v.
Reynolds, 919 F.2d 435, 439 (7th Cir. 1990)([P]rosecutors seem to have conspiracy on their word processors as Count
I); Chesney, Terrorism, Criminal Prosecution, and the Preventive Detention Debate, 50 SOUTH TEXAS LAW REVIEW
669, 684 (2009)(What options do prosecutors have in the terrorism-prevention scenario when [other charges] are
unavailable for lack of evidence linking the suspect to a designated foreign terrorist organization? One possibility is
conspiracy liability).
The United States Code contains dozens of criminal conspiracy statutes. One, 18 U.S.C. 371,
outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit
some specific form of misconduct, ranging from civil rights violations to drug trafficking.7
Conspiracy is a separate offense under most of these statutes,8 regardless of whether conspiracy
accomplishes its objective.9 The various conspiracy statutes, however, differ in several other
respects. Section 371 and a few others require at least one conspirator to take some affirmative
step in furtherance of the scheme. Most have no such explicit overt act requirement.10
Section 371 has two prongs. One outlaws conspiracy to commit a federal offense; a second,
conspiracy to defraud the United States. Section 371 conspiracy to commit a federal crime
requires that the underlying misconduct be a federal crime. Section 371 conspiracy to defraud the
United States and a few others have no such prerequisite.11 Section 371 conspiracies are
punishable by imprisonment for not more than five years. Elsewhere, conspirators often face
more severe penalties.12
These differences aside, federal conspiracy statutes share much common ground because
Congress decided they should. As the Court observed in Salinas, When Congress uses wellsettled terminology of criminal law, its words are presumed to have their ordinary meaning and
definition. [When] [t]he relevant statutory phrase is to conspire, [w]e presume Congress
intended to use the term in its conventional sense, and certain well-established principles
follow.13
These principles include the fact that regardless of its statutory setting, every conspiracy has at
least two elements: (1) an agreement (2) between two or more persons.14 Members of the
conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of
the common plot.15 Moreover, statements by one conspirator are admissible evidence against all.16
Conspiracies are considered continuing offenses for purposes of the statute of limitations and
venue.17 They are also considered separate offenses for purposes of sentencing and of challenges
7
18 U.S.C. 241 (civil rights conspiracies); 21 U.S.C. 846 (drug trafficking conspiracies).
Iannelli v. United States, 420 U.S. 770, 777 (1975).
9
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003); United States v. Salahuddin, 765 F.3d 329, 341 (3d Cir.
2014); United States v. Wolff, 796 F.3d 972, 975 (8th Cir. 2015).
10
Whitfield v. United States, 543 U.S. 209, 219 (2005)(18 U.S.C. 1956(h)conspiracy to commit money laundering
has no overt act requirement); United States v. Shabani, 513 U.S. 10, 13-4 (1994)(21 U.S.C. 846conspiracy to violate
the Controlled Substances Acthas no overt act requirement).
11
E.g., 18 U.S.C. 956 (conspiracy in the U.S. to commit certain violent acts overseas, acts which ordinarily are crimes
under the laws of the place where they occur but which need not be separate federal crimes for purposes of a
prosecution under 956). Although it is generally known for its proscription against conspiracies to violate other
federal laws, 371 also outlaws conspiracies to defraud the United States. Conviction under the defraud portion of 371
does not require that the underlying misconduct be a separate federal crime.
12
The 20-year maximum penalties of 1956 apply to conspiracies to launder and to the underlying laundering offense
alike, 18 U.S.C. 1956(h). The penalties that apply to drug trafficking under 21 U.S.C. 841 (up to life imprisonment)
apply with equal force to conspiracies to traffic, 21 U.S.C. 846.
13
Salinas v. United States, 522 U.S. 52, 63 (1997).
14
United States v. Jimenez Recio, 537 U.S.270, 274 (2003).
15
Pinkerton v. United States, 328 U.S. 640, 647 (1946); Smith v. United States, 133 S. Ct. 714, 719 (2013); United
States v. Cruse, 805 F.3d 795, 817 (7th Cir. 2015); United States v. Cornell, 780 F.3d 616, 631-32 (4th Cir. 2015).
16
F.R.Evid. 801(d)(2)(E).
17
Toussie v. United States, 397 U.S. 112, 122 (1970)(statute of limitations begins to run with the last overt act in
furtherance of the conspiracy); Whitfield v. United States, 543 U.S. 209, 218 (2005)(venue is proper in any district in
which an overt act in furtherance of the conspiracy was committed).
8
under the Constitutions ex post facto and double jeopardy clauses.18 This is a brief discussion of
the common features of federal conspiracy law that evolved over the years, with passing
references to some of the distinctive features of some of the statutory provisions.
Background
Although it is not without common law antecedents, federal conspiracy law is largely of
Congresss making. It is what Congress provided, and what the courts understood Congress
intended. This is not to say that conspiracy was unknown in pre-colonial and colonial England,19
but simply that it was a faint shadow of the crime we now know. Then, it was essentially a narrow
form of malicious prosecution, subject to both a civil remedy and prosecution.20 In the late 18th
and early 19th centuries, state courts and legislatures recognized a rapidly expanding
accumulation of narrowly described wrongs as conspiracy. The patchwork reached a point
where one commentator explained that there were few things left so doubtful in the criminal law,
as the point at which a combination of several persons in a common object becomes illegal.21
Congress enacted few conspiracy statutes prior to the Civil War. It did pass a provision in 1790
that outlawed confining the master of a ship or endeavoring revolt on board.22 This, Justice Story,
sitting as a circuit judge, interpreted to include any conspiracy to confine the prerogatives of the
master of ship to navigate, maintain, or police his ship.23 The same year, 1825, Congress outlawed
conspiracies to engage in maritime insurance fraud.24 Otherwise, there were no federal conspiracy
statutes until well after the mid-century mark.
18
Salinas v. United States, 522 U.S. 52, 65 (1997)(conspiracy is a distinct evil, dangerous to the public, and so
punishable in itself); United States v. Felix, 503 U.S. 378, 390 (1992)([T]he commission of the substantive offense
and a conspiracy to commit it are separate and distinct offenses ... [a]nd the plea of double jeopardy is no defense to a
conviction for both offenses); United States v. Munoz-Franco, 487 F.3d 25, 55 (1st Cir. 2007)(For continuing
offenses such as the bank fraud and conspiracy charges at issue here, however, the critical question is when the
conduct ended. As we have explained, where a continuing offense straddles the old and new law ... applying the new
is recognized as constitutionally sound. In other words, a conviction for a continuing offense straddling enactment of a
statute will not run afoul of the Ex Post Facto clause unless it was possible for the jury, following the courts
instructions, to convict exclusively on pre-enactment conduct)(here and hereafter internal citations and quotation
marks have been omitted unless otherwise indicated).
19
See generally, Bryan, THE DEVELOPMENT OF THE ENGLISH LAW OF CONSPIRACY (1909); Winfield, The History of
Conspiracy and Abuse of Legal Process, CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY (1921); Sayre, Criminal
Conspiracy, 35 HARVARD LAW REVIEW 393 (1922).
20
IV BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 136 (1769)(transliteration supplied)(A conspiracy also
to indict an innocent man of felony falsely and maliciously, who is accordingly indicted and acquitted, is a farther
abuse and perversion of public justice; for which the party injured may either have a civil action by writ of the
conspirators ... or the conspirators, for there must be at least two to form a conspiracy, may be indicted at the suit of the
king).
21
III CHITTY, A PRACTICAL TREATISE ON THE CRIMINAL LAW 1138 (3d Am. ed. 1839) noting that conspiracy included
combinations to commence suits against a person with a view to extorting money from him or to manufacture a base
material in the form and color of genuine indigo, with the intent to sell it as indigo or to cheat a man by making him
drunk and playing falsely at cards with him, but did not include combinations to obtain money from a bank by
drawing their checks on the bank when they have no funds there or to cheat and defraud a man by selling him an
unsound horse. Of course, this is not a situation limited to the law of conspiracy.
22
Act of April 30, 1790, ch. IX, 12, 1 Stat. 114 (1790).
23
United States v. Hamilton, 26 Fed.Cas. 259, 260 (C.C.D.Mass. 1825)(No. 15,346).
24
Act of March 3, 1825, ch.65, 23, 4 Stat. 122 (1825)(conspiracy to cast away, burn, or otherwise destroy, ship or
vessel ... with intent to injure any person ... that hath underwritten ... any policy of insurance thereon.).
During the War Between the States, however, Congress enacted four sweeping conspiracy
provisions, creating federal crimes that have come down to us with little substantive change. The
first, perhaps thought more pressing at the beginning of the war, was a seditious conspiracy
statute.25 Shortly thereafter, Congress outlawed conspiracies to defraud the United States through
the submission of false claim,26 and followed that four years later with prohibitions on
conspiracies to violate federal law or to defraud the United States.27
Subsequent conspiracy statutes, though perhaps no less significant, were more topically focused.
The Reconstruction civil rights conspiracy provisions,28 the Sherman Act anti-trust provisions,29
and the drug and racketeering statutes30 may be the best known of these. All of them begin the
same waywith an agreement by two or more persons.
Two or More Persons

There are no one-man conspiracies.31 At common law where husband and wife were considered
one, this meant that the two could not be guilty of conspiracy without the participation of some
third person.32 This is no longer the case.33 In like manner at common law, corporations could not
be charged with a crime.34 This too is no longer the case. A corporation is criminally liable for the
crimes, including conspiracy, committed at least in part for its benefit, by its officers, employees
and agents.35 Moreover, a corporation may be criminally liable for intra-corporate conspiracies, as
long as at least two of its officers, employees, or agents are parties to the plot.36
Notwithstanding the two-party requirement, no co-conspirator need have been tried or even
identified, as long as the government produces evidence from which the conspiracy might be
25
Act of July 31, 1861, c. 33, 12 Stat. 284 (1861), as amended 18 U.S.C. 2384.
Act of March 2, 1863, c.67, 1, 3, 12 Stat. 696, 698 (1863), as amended, 18 U.S.C. 286.
27
Act of March 2, 1867, c.169, 30, 14 Stat. 484 (1867)(that if two or more persons conspire either to commit any
offence against the laws of the United States, or to defraud the United States in any manner whatever, and one or more
of said parties to said conspiracy shall do any act to effect the object thereof, the parties to said conspiracy shall be
deemed guilty of a misdemeanor, and on conviction thereof shall be liable to a penalty of not less than one thousand
dollars and not more than ten thousand dollars, and to imprisonment not exceeding two years. And when any offence
shall be begun in one judicial district of the United State and completed in another, every such offence shall be deemed
to be committed in either of the said districts, and may be dealt with, inquired of, tried, determined and punished in
either of the said district, in the same manner as if it had been actually and wholly committed therein), as amended 18
U.S.C. 371.
28
Act of April 20, 1871, c. 22, 2, 17 Stat. 13, 14 (1871), as amended, 18 U.S.C. 241.
29
Act of July 2, 1890, c. 647, 1, 2, 3, 26 Stat. 209 (1890), as amended, 15 U.S.C. 1, 2, 3.
30
P.L. 91-513, Tit. II, 406, 84 Stat. 1265 (1970), as amended, 21 U.S.C. 846, and P.L. 91-452, Tit. IX, 901(a), 84
Stat. 942 (1970), as amended, 18 U.S.C. 1962(d), respectively.
31
Rogers v. United States, 340 U.S. 367, 375 (1951)(at least two persons are required to constitute a conspiracy);
United States v. Dumeisi, 424 F.3d 566, 580 (7th Cir. 2005)(the elements of the crime of conspiracy are not satisfied
unless one conspires with at least one true co-conspirator).
32
Dawson v. United States, 10 F.2d 106, 107 (9th Cir. 1926).
33
United States v. Dege, 364 U.S. 51, 54-5 (1960).
34
I BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 464 (1765)(transliteration supplied)(punctuation in the
original)(a corporation cannot commit treason, or felony, or other crime, in its corporate capacity: though its
members, may, in their distinct individual capacities).
35
United States v. Agosto-Vega, 617 F.3d 541, 552-53 (1st Cir. 2010); United States v. Singh, 518 F.3d 236, 249-51 (4th
Cir. 2008); United States v. Hughes Aircraft Co., 20 F.3d 974, 978-80 (9th Cir. 1994).
36
United States v. Sain, 141 F.3d 463, 474-75 (3d Cir. 1998); United States v. Stevens, 909 F.2d 431, 432-35 (6th Cir.
1990).
26
inferred.37 Even the acquittal of a co-conspirator is no defense,38 although no conviction is

possible if all but one alleged conspirator are acquitted.39 Moreover, a person may conspire for
the commission of a crime by a third person though he himself is legally incapable of committing
the underlying offense.40
On the other hand, two people may not always be enough. The so-called Whartons Rule placed a
limitation on conspiracy prosecutions when the number of conspirators equaled the number of
individuals necessary for the commission of the underlying offense.41 Under federal law, the rule
stands as an exception to the general principle that a conspiracy and the substantive offense that
is its immediate end do not merge upon proof of the latter.42 And under federal law, the rule
reaches no further than to the types of offenses that gave birth to its recognitiondueling,
adultery, bigamy, and incest.43
Agreement
It is not enough, however, to show that the defendant agreed only with an undercover officer to
commit the underlying offense, for there is no agreement on a common purpose in such cases.44
As has been said, the essence of conspiracy is an agreement, an agreement to commit some act
condemned by law either as a separate federal offense or for purposes of the conspiracy statute.45
The agreement may be evidenced by word or action; that is, the government may prove the
existence of the agreement either by direct evidence or by circumstantial evidence from which the
agreement may be inferred.46 Relevant circumstantial evidence [may] include[]: the joint
37
United States v. Mitchell, 792 F.3d 581, 582-83 (5th Cir. 2015); United States v. Mann, 701 F.3d 274, 296 (8th Cir.
2012); United States v. Price, 258 F.3d 539, 545 (6th Cir. 2001); United States v. Contreras, 249 F.3d 595, 598 (7th Cir.
2001).
38
United States v. Ross, 703 F.3d 836, 883 (6th Cir. 2012); United States v. Lo, 447 F.3d 1212, 1226 (9th Cir. 2006);
United States v. Johnson, 440 F.3d 1286, 1294-295 (11th Cir. 2006); United States v. Morton, 412 F.3d 901, 904 (8th
Cir. 2005).
39
United States v. Tyson, 653 F.3d 192, 207 (3d Cir. 2011).
40
Salinas v. United States, 522 U.S. 52, 64 (1997); United States v. Moussaoui, 591 F.3d 263, 297 (4th Cir. 2010);
United States v. Zichettello, 208 F.3d 72, 99 (2d Cir. 2000).
41
United States v. Wright, 506 F.3d 1293, 1298 n.4 (10th Cir. 2007)(Whartons Rule is that an agreement by two
persons to commit a particular crime cannot be prosecuted as conspiracy when the crime is of such a nature as to
necessarily require the participation of two persons for its commission).
42
Iannelli v. United States, 420 U.S. 770, 781-82 (1975); United States v. Bornman, 559 F.3d 150, 156 (3d Cir. 2009).
43
United States v. Bornman, 559 F.3d at 156 (In the classic Whartons Rule offensesadultery, bigamy, incest, and
duelingthe harms attendant upon the commission of the substantive offense are restricted to the parties in the
agreement. Hence, Whartons Rule has no applicability here [to bribery]); United States v. Hines, 541 F.3d 833, 838
(8th Cir. 2008)(Whartons Rule ... applies when there is a general congruence of the conspiracy agreement and the
completed substantive offense. This general congruence exists when the parties to the agreement are the only persons
who participate in commission of the substantive offense, ... the immediate consequences of the crime rest on the
parties themselves rather than on society at large, and when the agreement that attends the substantive offense does not
appear like to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert).
44
United States v. Paladin, 748 F.3d 438, 449 n.8 (1st Cir. 2014); United States v. Beyl, 725 F.3d 643, 649 (7th Cir.
2013); United States v. Edmonds, 679 F.3d 169, 175 (4th Cir. 2012); United States v. Williams, 547 F.3d 1187, 1195 n.7
(9th Cir. 2008).
45
United States v. Jimenez Recio, 537 U.S.270, 274 (2003), citing, Iannelli v. United States, 420 U.S. 770, 777 (1975);
United States v. Cruse, 805 F.3d 795, 811 (7th Cir. 2015)(emphasis in the original)([T]he agreement is essential evil at
which the crime of conspiracy is directed); United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015)(Conspiracy
is a partnership in criminal purposes. The gist of the crime is the confederation or combination of minds).
46
United States v. Toll, 804 F.3d 1344, 1355 (11th Cir. 2015); United States v. Collins, 799 F.3d 554, 589 (6th Cir.
2015); United States v. Boykin, 704 F.3d 939, 948 (8th Cir. 2015); United States v. Alejandro-Montanez, 778 F.3d 352,
(continued...)
appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the

relationship among codefendants; mutual representation of defendants to third parties; and other
evidence suggesting unity of purpose or common design and understanding among conspirators
to accomplish the objects of the conspiracy.47
The lower federal appellate courts have acknowledged that evidence of a mere buyer-seller
relationship is insufficient to support a drug trafficking conspiracy charge. Some do so under the
rationale that there is no singularity of purpose, no necessary agreement, in such cases: the
buyers purpose is to buy; the sellers purpose is to sell.48 Others do so to avoid sweeping mere
one-time customers into a large-scale trafficking operation.49 Still others do so lest traffickers and
their addicted customers face the same severe penalties.50 All agree, however, that purchasers may
be liable as conspirators when they are part of a larger scheme.51
(...continued)
358 (1st Cir. 2015).
47
United States v. Wardell, 591 F.3d at 1287-288.
48
United States v. Donnell, 596 F.3d 913, 924-25 (8th Cir. 2010); see also, United States v. Boykin, 794 F.3d 939, 949
th
(8 Cir. 2015)(Because the crime of conspiracy requires a concert of action among two or more persons for a common
purpose, the mere agreement of one person to buy what another agrees to sell, standing alone, does not support a
conspiracy conviction); United States v. Cruse, 805 F.3d 795, 811 (7th Cir. 2015); United States v. Bacon, 598 F.3d
772, 777 (11th Cir. 2010)( ... the joint objective necessary for a conspiracy conviction is missing where the conspiracy
is based simply on an agreement between a buyer and a seller for the sale of drugs).
49
United States v. Lapier, 796 F.3d 1090, 1095 (9th Cir. 2015)(A conviction for conspiracy cannot be based solely on
the purchase of an unlawful substance, even though such a transaction necessarily involves an agreement between at
least two parties, the buyer and the seller. Rather, conspiracy requires proof of an agreement to commit a crime other
than the crime that consists of the sale itself. Were the rule otherwise, every narcotics sale would constitute a
conspiracy); United States v. Bostick, 791 F.3d 127, 139-40 (D.C.Cir. 2015)([A] jury may properly find a conspiracy,
rather than a buy-sell agreement, where the evidence shows that a buyer procured or a seller sold drugs with knowledge
of the overall existence of the conspiracy. Among the factors demonstrating such knowledge are the existence of
repeated, regular deals; drug quantities consistent with redistribution; and the extension of credit to the buyer); United
States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010)(When the alleged coconspirators are in a buyer-seller relationship,
however, we have cautioned against conflating the underlying buy-sell agreement with the drug-distribution agreement
that is alleged to form the basis of the charge conspiracy. To support a conspiracy conviction there must be sufficient
evidence of an agreement to commit a crime other than the crime that consists of the sale itself).
50
United States v. Parker, 554 F.3d 230, 234-35 (2d Cir. 2009)(As a literal matter, when a buyer purchases illegal
drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the
seller to the buyer. According to the customary definition, that would constitute a conspiracy with the alleged objective
of a transfer of drugs. Our case law, however, has carved out a narrow exception to the general conspiracy rule for such
transactions.... [If] an addicted purchaser, who acquired drugs for his own use and without intent to distribute it to
others, were deemed to have joined a conspiracy with his seller for the illegal transfer of the drugs from the seller to
himself, the purchaser would be guilty of substantially the same crime, and liable for the same punishment, as the
seller. The policy to distinguish between transfer of an illegal drug and the acquisition of possession of the drug would
be frustrated. The buyer-seller exception thus protects a buyer or transferee from the severe liabilities intended only for
transferors); see also, United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012).
51
United States v. Lapier, 796 F.3d at 1095 (Lapiers buyer-seller argument fails because the evidence established that
his relationships with both Boucher and Kanyid not only involved the purchase of drugs, but an agreement to further
distribute them); United States v. Brock, 789 F.3d 60, 64 (2d Cir. 2015)(Although we have avoided listing factors to
guide what is a highly-specific fact inquiry into whether the circumstances surrounding a buyer-seller relationship
establish an agreement to participate in a distribution conspiracy, we have identified certain factors relevant to the
analysis, including whether there was prolonged cooperation between the parties, a level of mutual trust, standardized
dealings, sales on credit, and the quantity of drugs involved); United States v. Gallegos, 784 F.3d 1356, 1360 (10th Cir.
2015)([U]nlike in Evans, where the evidence demonstrated the defendant obtained crack-cocaine from a member of
the conspiracy on a single occasion and solely for her personal use, the evidence here established Gallegos repeatedly
procured methamphetamine from Resendiz on Juarezs behalf, knowing full well Juarez planned to distribute it. Under
those circumstances, the buyer-seller rule does not apply).
Again, in most cases the essence of conspiracy is agreement. Nevertheless, mere association,
standing alone, is inadequate; an individual does not become a member of a conspiracy merely
associating with conspirators known to be involved in crime.52
One or Many Overlapping Conspiracies

The task of sifting agreement from mere association becomes more difficult and more important
with the suggestion of overlapping conspiracies. Criminal enterprises may involve one or many
conspiracies. Some time ago, the Supreme Court noted that [t]hieves who dispose of their loot to
a single receivera single fencedo not by that fact alone become confederates: They may,
but it takes more than knowledge that he is a fence to make them such.53 Whether it is a fence,
or a drug dealer, or a money launderer, when several seemingly independent criminal groups
share a common point of contact, the question becomes whether they present one overarching
conspiracy or several separate conspiracies with a coincidental overlap. In the analogy suggested
by the Court, spokes with a common hub need an encompassing rim to function as a wheel.54
When several criminal enterprises overlap, they are one overarching conspiracy or several
overlapping conspiracies depending upon whether they share a single unifying purpose and
understandingone common agreement.55
In determining whether they are faced with a single conspiracy or a rimless collection of
overlapping schemes, the courts will look for the existence of a common purpose ... (2)
interdependence of various elements of the overall play; and (3) overlap among the
participants.56 Interdependence is present if the activities of a defendant charged with
conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a
whole.57
52
United States v. Wardell, 591 F.3d at 1288; see also United States v. Paz-Alvarez, 799 F.3d 12, 26 n.12 (1st Cir.
2015); United States v. Pasha, 797 F.3d 1122, 1137 (D.C.Cir. 2015); United States v. Lapier, 796 F.3d 1090, 1095 (9th
Cir. 2015).
53
Kotteakos v. United States, 328 U.S. 750, 755 (1946).
54
Id. at 754-55(As the Circuit Court of Appeals said, there were at least eight, and perhaps more, separate and
independent groups, none of which had any connection with any other, though all dealt independently with Brown as
their agent. As the Government puts it, the pattern was that of separate spokes meeting at a common center, though, we
may add, without the rim of the wheel to enclose the spokes).
55
United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009)(Separate transactions are not necessarily separate
conspiracies, so long as the conspirators act in concert to further a common goal. If a defendants actions facilitated the
endeavors of other co-conspirators, or facilitated the venture as a whole, a single conspiracy is established); United
States v. Baldridge, 559 F.3d 1126, 1136 (10th Cir. 2009)(emphasis in the original) (A single conspiracy does not exist
solely because many individuals deal with a common central player. What is required is a shared single criminal
objective, not just similar or parallel objectives between similarly situated people).
56
United States v. Calderon, 578 F.3d 78, 89 (1st Cir. 2009); see also, United States v. Lapier, 796 F.3d at 1100; United
States v. Bostick, 791 F.3d 127, 137-38 (D.C.Cir. 2015). The test is a little different when the question deals with a
succession of conspiracies or conspiratorial segments, see e.g., United States v. Pierre, 795 F.3d 847, 849-50 (8th Cir.
2015)(In determining whether separately-charged conspiracies are really a single conspiracy, this court applies a
totality of the circumstances test. In applying that test, our cases consider: (1) the timing of the alleged conspiracies;
(2) the identity of alleged co-conspirators; (3) the offenses charged in the indictments; (4) the overt acts charged or
other description of the offenses charged which indicate the nature and scope of the activity charged; and (5) the
locations of the alleged conspiracies); United States v. Rivera, 800 F.3d 1, 45 (1st Cir. 2015).
57
United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009); see also, United States v. Acosta-Gallardo, 656 F.3d
1109, 1124 (10th Cir. 2011).
If this common agreement exists, it is of no consequence that a particular conspirator joined the
plot after its inception as long as he joined it knowingly and voluntarily.58 Nor does it matter that
a defendant does not know all of the details of a scheme or all of its participants, or that his role is
relatively minor.59
Overt Acts
Conviction under 18 U.S.C. 371 for conspiracy to commit a substantive offense requires proof
that one of the conspirators committed an overt act in furtherance of the conspiracy. 60 More than a
few federal statutes, however, have a conspiracy component that does not include an explicit
overt act requirement.61 Whether these statutes have an implicit overt act requirement can be
determined only on a statute-by-statute basis.62 Even there, however, the courts have sometimes
reached different conclusions.63 In the case of prosecution under other federal conspiracy statutes
that have no such requirement, the existence of an overt act may be important for evidentiary and
procedural reasons. The overt act need not be the substantive crime which is the object of the
conspiracy, an element of that offense, or even a crime in its own right.64 Moreover, a single overt
act by any of the conspirators in furtherance of plot will suffice.65
Conspiracy to Defraud the United States

Federal law contains several statutes that outlaw defrauding the United States. Two of the most
commonly prosecuted are 18 U.S.C. 286, which outlaws conspiracy to defraud the United States
58
United States v. Hawkins, 796 F.3d 843, 867 (8th Cir. 2015); United States v. Moran, 778 F.3d 942, 960 (11th Cir.
2015); United States v. Njoku, 737 F.3d 55, 63-64 (5th Cir. 2013).
59
United States v. Reed, 575 F.3d 900, 924 (9th Cir. 2009)(Once a conspiracy is established, only a slight connection
to the conspiracy is necessary to support conviction. The term slight connection means that a defendant need not have
known all the conspirators, participated in the conspiracy from its beginning, participated in all its enterprises, or
known all its details); United States v. Martin, 803 F.3d 581, 588 (11th Cir. 2015); United States v. Flores-Rivera, 787
F.3d 1, 26 (1st Cir. 2015); United States v. Wallace, 759 F.3d 486, 491 (10th Cir. 2014).
60
18 U.S.C. 371 (and one or more of such persons do any act to effect the object of the conspiracy); United States v.
Conti, 804 F.3d 977, 979-80 (9th Cir. 2015); United States v. Ngige, 780 F.3d 497, 503 (1st Cir. 2015); United States v.
Salahuddin, 765 F.3d 329, 338 (3d Cir. 2014); United States v. Mathis, 738 F.3d 719, 735 (6th Cir. 2014).
61
United States v. Pascacio-Rodriguez, 749 F.3d 353, 361-362 (5th Cir. 2014)([A] survey of federal conspiracy
statutes reveals that Congress has sometimes required an overt act, but more often it has not. The general federal
conspiracy provision, which applies to conspiracy to commit any offense against the United States, or to defraud the
United States ... in any manner or for any purpose, requires an overt act. In more specifically tailored conspiracy
statutes, the majority do not require an overt act. A review of conspiracy provisions that might generally be described a
pertaining to nonviolent crimes reveals that at least 15 such provisions require an overt act, while at least 99 do not.
Among the federal statutes that deal with conspiracies to commit crimes that arguably would be within the definition of
a crime of violence ... eight).
62
United States v. Salahuddin, 765 F.3d at 338, quoting, Whitfield v. United States, 543 U.S. 209, 214 (2005)(With
this in mind, the Whitfield Court distilled the following rule: if a statutory text is modeled on 371, the general
conspiracy statute, it gets an overt-act requirement, but if it is modeled on the Sherman Act ... which omits any
express overt-act requirement, it dispenses with such a requirement).
63
See e.g., United States v. Salahuddin, 765 F.3d at 339 (noting a split in the circuits over the question of whether the
Hobbs Act conspiracy prosecution requires proof of an overt act in face of statutory silence).
64
Braverman v. United States, 317 U.S. 49, 53 (1942); United States v. Kozeny, 667 F.3d 122, 132 (2d Cir. 2011);
United States v. Rehak, 589 F.3d 965, 971 (8th Cir. 2009); United States v. Soy, 454 F.3d 766, 768 (7th Cir. 2006);
United States v. Lukens, 114 F.3d 1220, 1222 (D.C.Cir. 1997).
65
United States v. LaSpina, 299 F.3d 165, 176 (2d Cir. 2002); United States v. Schlei, 122 F.3d 944, 975 (11th Cir.
1997); United States v. Nelson, 66 F.3d 1036, 1044 (9th Cir. 1995).
through the submission of a false claim, and 18 U.S.C. 371, which in addition to conspiracies to
violate federal law, outlaws conspiracies to defraud the United States of property or by
obstructing the performance of its agencies. Section 371 has an overt act requirement.66 Section
286 does not.67 The general principles of federal conspiracy law apply to both.68
The elements of conspiracy to defraud the United States under 18 U.S.C. 371 are (1) an
agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in
furtherance of the conspiracy committed by one of the conspirators.69 The fraud covered by the
statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful
functions of any department of the Government70 by deceit, craft or trickery, or at least by
means that are dishonest.71 The plot must be directed against the United States or some federal
entity; a scheme to defraud the recipient of federal funds is not sufficient.72 The scheme may be
designed to deprive the United States of money or property, but it need not be so; a plot
calculated to frustrate the functions of an entity of the United States will suffice.73
In contrast, a second federal statute, 18 U.S.C. 286, condemns conspiracies to defraud the United
States of money or property through submission of a false claim.74 The elements of a Section 286
violation are that the defendant entered into a conspiracy to obtain payment or allowance of a
claim against a department or agency of the United States; (2) the claim was false, fictitious, or
fraudulent; (3) the defendant knew or was deliberately ignorant of the claims falsity,
fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it;
and (5) the defendant voluntarily participated in the conspiracy.75 Conviction does not require
proof of an overt act in furtherance of the conspiracy.76
66
18 U.S.C. 371 (If two or more persons conspire ... and one or more of such persons do any act to effect the object
of the conspiracy ... ).
67
United States v. Saybolt, 577 F.3d 195, 202 (3d Cir. 2009); United States v. Dedman, 527 F.3d 577, 594 n.7 (6th Cir.
2008); United States v. Lanier, 920 F.2d 887, 892 (11th Cir. 1991); but see, United States v. Baldwin, 774 F.3d 711, 721
(11th Cir. 2014)(18 U.S.C. 286 provides that ... [t]o prove the conspiracy element, the government was required to
show ... the commission of an overt act in furtherance of it).
68
See generally Goldstein, Conspiracy to Defraud the United States, 68 YALE LAW JOURNAL 405 (1958).
69
United States v. Conti, 804 F.3d 977, 979-80 (9th Cir. 2015); United States v.Mubayyid, 658 F.3d 35, 52 (1st Cir.
2011); United States v. Root, 585 F.3d 145, 157 (3d Cir. 2009); United States v. World Wide Moving, N.V., 411 F.3d
502, 516 (4th Cir. 2005).
70
Tanner v. United States, 483 U.S. 107, 128 (1987), citing, Dennis v. United States, 384 U.S. 855, 861 (1966);
Glasser v. United States, 315 U.S. 60, 66 (1942); Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); and
Haas v. Henkel, 216 U.S. 462, 479 (1910); see also, United States v. Rodman, 776 F.3d 638, 642 (9th Cir. 2015).
71
Glasser v. United States, 315 U.S. at 66; Hammerschmidt v. United States, 265 U.S. at 188; United States v. Conti,
804 F.3d at 980.
72
Tanner v. United States, 483 U.S. 107, 128-32 (1987); United States v. Mendez, 528 F.3d. 811, 814-15 (11th Cir.
2008).
73
Hammerschmidt v. United States, 265 U.S. at 188 (It is not necessary that the government shall be subjected to
property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by
misrepresentation); United States v. Ballistrea, 101 F.3d 827, 832 (2d Cir. 1996)(This provision not only reaches
schemes which deprive the government of money or property, but also is designed to protect the integrity of the United
States and its agencies); United States v. Dean, 55 F.3d 640, 647 (D.C. Cir. 1995)(If the governments evidence
showed that Dean conspired to impair the functioning of the Department of Housing and Urban Development, no other
form of injury to the Federal Government need be established for the conspiracy to fall under 371).
74
Whoever enters into any agreement, combination, or conspiracy to defraud the United States, or any department or
agency thereof, by obtaining or aiding to obtain the payment or allowance of any false, fictitious, or fraudulent claim,
shall be fined under this title or imprisoned not more than ten years, or both, 18 U.S.C. 286.
75
United States v. Dedman, 527 F.3d 577, 593-94 (6th Cir. 2008). At least one other circuit also includes a materiality
requirement, that is, the false, fictitious, or fraudulent assertion must be one which naturally has a material effect on the
(continued...)
When Does It End?

Conspiracy is a crime which begins with a scheme and may continue on until its objective is
achieved or abandoned.77 A conspiracy is thought to continue as long as overt acts continue to be
committed in furtherance. This will ordinarily include distribution of the conspiracys spoils.78 As
a general rule, however, overt acts of concealment do not extend the life of the conspiracy beyond
the date of the accomplishment of its main objectives.79 The rule does not apply when
concealment is one of the main objectives of the conspiracy.80 The liability of individual
conspirators continues on from the time they joined the plot until it ends or until they withdraw.81
The want of an individuals continued active participation is no defense as long as the underlying
conspiracy lives and he has not withdrawn.82 An individual who claims to have withdrawn must
show either that he took some action to make his departure clear to his co-conspirators or that he
disclosed the scheme to the authorities.83 The burden that he has withdrawn rests with the
defendant.84 Withdrawal terminates the defendants liability for post withdrawal acts of his coconspirators, but he remains guilty of conspiracy. 85
(...continued)
governments decision to pay or deny the claim, United States v. Saybolt, 577 F.3d 195, 201-204 (3d Cir. 2009).
76
(11th Cir. 2014)(18 U.S.C. 286 provides ... To prove the conspiracy element, the government was required to show
... the commission of an overt act in furtherance of it).
77
United States v. Payne, 591 F.3d 46, 69 (2d Cir. 2010)(Conspiracy is a continuing offense ... one that involves a
prolonged course of conduct; its commission is not complete until the conduct has run its course); United States v.
Caldwell, 589 F.3d 1323, 1330 (10th Cir. 2009).
78
United States v. Morgan, 748 F.3d 1024, 1036-37 (10th Cir. 2014); but see, United States v. Rutigliano, 790 F.3d
389, 400 (2d Cir. 2015)(We [have] held that interest payments made ... over an indefinite and prolonged period
eventually ceased to be overt acts in furtherance of a conspiracy. [We] thus recognize[] an exception to the ordinary
rule ... that a conspirators receipt of anticipated benefits within the of limitations period can, by itself, constitute an
overt act in furtherance of an ongoing conspiracy).
79
United States v. Bornman, 559 F.3d 150, 153 (3d Cir. 2009), citing Grunewald v. United States, 353 U.S. 391, 413
(1957); United States v. Turner, 548 F.3d 1094, 1097 (D.C. Cir. 2008).
80
United States v. Upton, 559 F.3d 3, 10 (1st Cir. 2009); United States v. Weaver, 507 F.3d 178, 185-86 (3d Cir. 2007).
81
United States v. Hodge, 594 F.3d 614, 619 (8th Cir. 2010); United States v. Caldwell, 589 F.3d at 1330; United States
v. Egbert, 562 F.3d 1092, 1098 (10th Cir. 2009).
82
Smith v. United States, 133 U.S. 714, 721 (2013)(emphasis in the original)([A] defendants membership in the
conspiracy, and his responsibility for its acts, endures even if he is entirely inactive after joining it); United States v.
Bostick, 791 F.3d 127, 143 (D.C.Cir. 2015); United States v. Ngige, 780 F.3d 497, 503 (1st Cir. 2015).
83
United States v. Bostick, 791 F.3d at 143; United States v. Ortega, 750 F.3d 1020, 1024 (8th Cir. 2014)(To establish
withdrawal from a conspiracy the defendant has the burden to demonstrate that he took affirmative action by making a
clean breast to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his
coconspirators); United States v. Morgan, 748 F.3d 1024, 1037 (10th Cir. 2014).
84
Smith v. United States, 133 S. Ct. 714, 720 (2013); United States v. Bostick, 791 F.3d at 143; United States v.
Ortega, 750 F.3d at 1024.
85
Smith v. United States, 133 S. Ct. at 719; see also, United States v. Salazar, 751 F.3d 326, 330-31 (5th Cir. 2015);
United States v. Smith, 749 F.3d 465, 498 (6th Cir. 2014).
10
Sanctions
Imprisonment and Fines
Section 371 felony conspiracies are punishable by imprisonment for not more than five years and
a fine of not more than $250,000 (not more than $500,000 for organizations).86 Most drug
trafficking, terrorism, racketeering, and many white collar conspirators face the same penalties as
those who committed the underlying substantive offense.87
The United States Sentencing Guidelines greatly influence the sentences for federal crimes.
Federal courts are bound to impose a sentence within the statutory maximums and minimums.
Their decision of what sentence to impose within those boundaries, however, must begin with a
determination of the sentencing recommendation under the guidelines.88 Reasonableness
standards govern review of their sentencing decisions,89 and a sentence within the Sentencing
Guidelines range is presumed reasonable.90
The Sentencing Guidelines system is essentially a scoring system. Federal crimes are each
assigned a numerical base offense level and levels are added and subtracted to account for the
various aggravating and mitigating factors in a particular case. Thus, for example, providing
material support to a terrorist organization, 18 U.S.C. 2339B, has a base offense level of 26,
which may be increased by 2 levels if the support comes in the form of explosives,91 and may be
increased or decreased still further for other factors. The guidelines designate six sentencing
ranges of each total offense level; the appropriate range within the six is determined by extent of
the offenders criminal record. For instance, the sentencing range for a first-time offender with a
total offense level of 28 would be imprisonment for between 78 and 97 months (Category I);
while the range for an offender in the highest criminal history category (Category VI) would be
imprisonment for between 140 and 175 months.92
The base offense level for conspiracy is generally the same as that for the underlying offense,
either by operation of an individual guideline,93 or by operation of the general conspiracy
86
18 U.S.C. 371, 3571. An offender may fined twice of the amount of the gain or loss associated with the offense, even
when such a fine would exceed the otherwise applicable $250,000/$500,000 maximums, 18 U.S.C. 3571(b)(2), (d).
87
E.g., 21 U.S.C. 846 (Any person who ... conspires to commit any offense defined in [the Controlled Substances Act]
shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the
... conspiracy); 18 U.S.C. 2339B (Whoever knowingly provides material support or resources to a foreign terrorist
organization.... or conspires to do so, shall be fined under this title, or imprisoned not more than 15 years, or both); 18
U.S.C. 1962(d), 1963(a)((d) It shall be unlawful for any person to conspire to violate any of the [racketeering]
provisions of subsection (a), (b), or (c) of this section.... (a) Whoever violates any provision of section 1962 ... shall be
fined under this title, or imprisoned for not more than 20 years ... or both); 18 U.S.C. 1349 (Any person who ...
conspires to commit any offense under this chapter [relating to mail fraud, wire fraud, etc.] shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the object of ... the conspiracy).
88
Gall v. United States, 552 U.S. 38, 49 (2007).
89
Gall v. United States, 552 U.S. at 46, citing United States v. Booker, 543 U.S. 220, 260-62 (2005).
90
Rita v. United States, 551 U.S. 338, 347 (2007); United States v. Collins, 799 F.3d 554, 596 (6th Cir. 2015)(finding
procedurally and substantively reasonable a sentence within the Sentencing Guideline range of 324 months for
conspiracy to manufacture and distribute methamphetamine); United States v. Garcia, 774 F.3d 472, (8th Cir. 2014)
(finding procedurally and substantively reasonable within a Sentencing Guideline range of 292 months for conspiracy
to distribute methamphetamine).
91
U.S.S.G. 2M5.3(a), (b).
92
U.S.S.G. Sentencing Table.
93
E.g., U.S.S.G. 2D1.1 (drug trafficking).
11
guideline.94 In any event, conspirators who play a leadership role in an enterprise are subject to an
increase of from 2 to 4 levels,95 and those who play a more subservient role may be entitled to
reduction of from 2 to 4 levels.96 In the case of terrorism offenses, conspirators may also be
subject to a special enhancement that sets the minimum total offense level at 32 and the criminal
history category at VI (regardless of the extent of the offenders criminal record).97 An example
from a wire fraud score card appears in the margin.98
The Sentencing Guidelines also address the imposition of fines below the statutory maximum.
The total offense level dictates the recommended fine range for individual and organizational
defendants. For instance, the fine range for an individual with a total offense level of 28 is
$12,500 to $125,000.99 The recommended fine range for an organization with a total offense level
of 28 is $6,300,000 (assuming the loss or gain associated with the organization offense exceeds
the usual $500,000 ceiling).100
Restitution
A conspiracy conviction may result in a restitution order in a number of ways:101 as part of a plea
bargain;102 as a condition of probation or supervised release;103 or by operation of a restitution
94
U.S.S.G. 2X1.1.
U.S.S.G. 3B1.1.
96
U.S.S.G. 3B1.2.
97
U.S.S.G. 3A1.4. E.g., United States v. Stewart, 590 F.3d 93, 136 (2d Cir. 2009)(The district court initially
calculated Yousrys Guidelines range based on a total offense level of 28 criminal history category of I, for a range of
78 to 97 months. According to the government, Yousrys applicable Guidelines range should have been enhanced in
accordance with the terrorism enhancement provided by the Guidelines, U.S.S.G. 3A1.4. The district court concluded
to the contrary that the terrorism enhancement did not apply to Yousry because he did not act with the requisite state of
mind.).
98
United States v. Alisuretove, 788 F.3d 1247, 1253 (10th Cir. 2015): Base Offense Level: The base offense level for
a violation of 18 U.S.C. 1349 is found in USSG 2X1.1. According to USSG 2X1.1(a), the base offense level is
based on the base offense level for the substantive offense, plus any adjustments from such guideline for any intended
offense conduct that can be established with reasonable certainty. In this case, the substantive offense is Wire Fraud, 18
U.S.C. 1343. The base offense level for which is found in USSG 2B1.1. That section provides that an offense
involving theft, fraud or counterfeit instruments base offense level is 7, if the defendant was convicted of an offense
referenced to this guideline; and that offense of conviction has a statutory maximum term of imprisonment of 20 or
more year[s].
The defendant in this case is convicted of Conspiracy to Commit Wire Fraud; therefore, the defendants base offense
level is 7. USSG 2B1.1(a)(1). Additionally, if the offense involved 250 or more victims, increase by 6 levels. USSG
2B1.1(b)(2)(C). There are a total of 19 financial institutions that are identified as victims in this case in addition to
276 individuals whose accounts were compromised; therefore, 6 levels are added.
Additionally, if the loss was more than $200,000 but less than $400,000, 12 levels are added. USSG
2B1.1(b)(1)(G). The total intended loss in this case has been identified as $360,856.80. Additionally, if the offense
involved sophisticated means, increase by 2 levels. USSG 2B1.1(b)(10)(C). As cited in the offense conduct, the
defendants would travel from the Seattle, Washington, area to place a debit card skimmer on the inside of gas pumps
with the intent to capture the card data and pin number.
The defendants would retrieve the data from the skimming device and place it on a card through a computer, to
withdraw[] money from the victims[] bank accounts at numerous ATMs. Pursuant to USSG 2B1.1(b)(11)(B), if the
offense involved the production of any unauthorized access device, increase by 2 levels. The defendants in this case
produced numerous fraudulent debit cards to make withdrawals from various ATMs; therefore, 2 levels are added;
[resulting in a total offense level of 26.]
99
U.S.S.G. 5E1.2.
100
U.S.S.G. 8C2.4.
101
See generally CRS Report RL34138, Restitution in Federal Criminal Cases.
102
18 U.S.C. 3663(a)(3), 3663A(c)(2); United States v. Elson, 577 F.3d 713, 724-25 (6th Cir. 2009)(Elsons plea
(continued...)
95
12
statute.104 The federal criminal code features two general restitution statutes and a handful of
others for restitution for specific offenses.105 Section 3663A calls for mandatory restitution
following conviction for a federal crime of violence, fraud, or other crime against property.106
Section 3663 authorizes discretionary restitution following conviction for other offenses in
federal criminal code or drug trafficking offenses. The individual restitution statutes sometimes
make mandatory restitution that might otherwise be discretionary107 and sometimes make
procedural adjustments that deviate from the norm.108 Section 3663A specifically requires
restitution for any person directly harmed by a crime that involves a scheme, conspiracy, or
pattern of criminal activity. 109
Forfeiture
Whether property confiscation flows as a natural consequence of a conspiracy depends on the
underlying substantive offense. The general civil forfeiture statute, 18 U.S.C. 981, lists a series of
substantive offenses for which forfeiture is authorized. Some of the offenses bring conspiracy
with them; others do not.110 The general criminal forfeiture statute, 18 U.S.C. 982, takes the same
approach.111 Several criminal statutes feature their own forfeiture provisions; the Controlled
Substances Act (CSA) and RICO are perhaps the most notable of these.112 Forfeiture follows as a
(...continued)
agreement explicitly provides that Elson will pay restitution to victims of the conspiracy to defraud orchestrated by
Richard D. Schultz (J.A. 209), which is an offense different from his offense convictionconspiracy to obstruct a
grand jury investigation.... Accordingly, the district court properly ordered Elson to pay restitution to the victims of the
conspiracy to defraud Schultzs creditors).
103
18 U.S.C. 3563(b)(2), 3583(d).
104
E.g., 18 U.S.C. 1593, 1954(b)(restitution for harm caused by a violation of the federal human trafficking laws
including conspiracy to traffic).
105
A third general provision, 3664, provides the procedural framework for issuance and enforcement of restitution
orders.
106
It also requires restitution following conviction for an offense under 21 U.S.C. 856(a)(maintaining drug-involved
premises); under 18 U.S.C. 1365 (consumer product tampering); or under 18 U.S.C. 670 (theft of medical products), 18
U.S.C.. 3663A(c)(ii), (iii), (iv).
107
E.g., 18 U.S.C. 228(d)(mandatory restitution for failure to pay child support); 1593 (mandatory restitution for
human trafficking offenses); 2248(mandatory restitution for sexual abuse offenses); 2259 (mandatory restitution for
child pornography offenses); 2323(c)(mandatory restitution for certain copyright offenses); 2327 (mandatory restitution
for telemarketing fraud); 21 U.S.C. 853(q)(mandatory restitution for amphetamine or methamphetamine manufacturing
offenses).
108
E.g., 18 U.S.C. 43(c)(restitution covering various costs associated with the criminal interference with animal
enterprises); 2264 (restitution covering various costs associated with federal domestic violence offenses).
109
18 U.S.C. 3663A(a)(2).
110
E.g.,18 U.S.C. 981(a)(1)(C)(emphasis added)(The following property is subject to forfeiture to the United States:
... (C) Any property, real or personal, which constitutes or is derived from proceeds traceable to ... any offense
constituting specified unlawful activity (as defined in section 1956(c)(7) of this title [which includes all the money
laundering and racketeering predicate offenses], or a conspiracy to commit such offense).
111
E.g., 18 U.S.C. 982(a)(2)(calling for the confiscation of proceeds realized from a violation of, or a conspiracy to
(A) section ... 1341, 1343, 1344 of this title [relating to mail, wire and bank fraud], affecting a financial institution); 18
U.S.C. 982(a)(8)(calling for the confiscation of proceeds from, and property used to facilitate or promote, an offense
under section ... 1341, or 1343, or of a conspiracy to commit such an offense, if the offense involves telemarketing).
Civil forfeitures are accomplished through civil proceedings in which the property is treated as the defendant; criminal
forfeitures are accomplished as part of the criminal proceedings against the property owner, United States v. Ursery,
518 U.S. 267, 275 (1996); see generally CRS Report 97-139, Crime and Forfeiture, Crime and Forfeiture.
112
21 U.S.C. 854, 881 (CSA criminal and civil forfeiture); 18 U.S.C. 1963(a)(RICO criminal forfeiture).
13
consequence of conspiracy to violate either of these statutes.113 Other free-standing, conspiracyenveloping statutes apply to human trafficking offenses,114 theft of trade secrets,115 child
pornography,116 and interstate transportation of a child for unlawful sexual purposes,117 to name a
few.
Relation of Conspiracy to Other Crimes

Conspiracy is a completed crime upon agreement, or upon agreement and the commission of an
overt act under statutes with an overt act requirement. Conviction does not require commission of
the crime that is the object of the conspiracy.118 On the other hand, conspirators may be
prosecuted for conspiracy, for any completed offense which is the object of the conspiracy, as
well as for any foreseeable offense committed in furtherance of the conspiracy.119
Aid and Abet

Anyone who aids, abets, counsels, commands, induces, or procures the commission of a federal
crime by another is punishable as a principal, that is, as though he had committed the offense
himself.120 On the other hand, if the other agrees and an overt act is committed, they are
conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the
other commits the offense, they are equally punishable for the basic offense. Typically, the same
evidence will support both a conspiracy and an aiding and abetting conviction.121 The two are
clearly distinct, however, as the Ninth Circuit has noted:
The difference between the classic common law elements of aiding and abetting and a
criminal conspiracy underscores this material distinction, although at first blush the two
appear similar. Aiding and abetting the commission of a specific crime, we have held,
includes four elements: (1) that the accused had the specific intent to facilitate the
commission of a crime by another, (2) that the accused had the requisite intent to commit
the underlying substantive offense, (3) that the accused assisted or participated in the
commission of the underlying substantive offense, and (4) that the principal committed
the underlying offense. As Lopez emphasized, the accused generally must associate[ ]
himself with the venture ... participate[ ] in it as something he wish[es] to bring about,
and [sought by] his action to make it succeed.
By contrast, a classic criminal conspiracy as charged in 18 U.S.C. 371 is broader. The
government need only prove (1) an agreement to engage in criminal activity, (2) one or
113
CSA outlaws conspiracy to violate its provisions and calls for civil and criminal confiscation of property associated
with a violation of any its proscriptions, including conspiracy, 21 U.S.C. 846, 853, 881. RICO likewise outlaws
conspiracy to violate its provisions and requires confiscation of property association with its provisions, including
conspiracy, 18 U.S.C. 1962(d), 1963(a).
114
18 U.S.C. 1594 (civil and criminal forfeiture).
115
18 U.S.C. 1831, 1832, 1834 (criminal forfeiture).
116
18 U.S.C. 2251(e), 2252(b), 2252A(b), 2253 (criminal forfeiture), 2254 (civil forfeiture).
117
18 U.S.C. 2423(e), 2428 (civil and criminal forfeiture).
118
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003); United States v. Salahuddin, 765 F.3d 329, 341 (3d Cir.
2014); United States v. Wolff, 796 F.3d 972, 975 (8th Cir. 2015).
119
Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); Smith v. United States, 133 S. Ct. 714, 719 (2013); United
States v. Cruse, 805 F.3d 795, 817 (7th Cir. 2015); United States v. Cornell, 780 F.3d 616, 631-32 (4th Cir. 2015).
120
18 U.S.C. 2.
121
United States v. Rodriguez, 553 F.3d 380, 391 (5th Cir. 2008).
14
more overt acts taken to implement the agreement, and (3) the requisite intent to commit
the substantive crime. Indeed, a drug conspiracy does not even require commission of an
overt act in furtherance of the conspiracy.
Two distinctions become readily apparent after a more careful comparison. First, the
substantive offense which may be the object in a 371 conspiracy need not be
completed. Second, the emphasis in a 371 conspiracy is on whether one or more overt
acts was undertaken. This language necessarily is couched in passive voice for it matters
only that a co-conspirator commit the overt act, not necessarily that the accused herself
does so. In an aiding and abetting case, not only must the underlying substantive offense
actually be completed by someone, but the accused must take some action, a substantial
step, toward associating herself with the criminal venture. 122
Attempt
Conspiracy and attempt are both inchoate offenses, unfinished crimes in a sense. They are forms
of introductory misconduct that the law condemns lest they result in some completed form of
misconduct.123 Federal law has no general attempt statute.124 Congress, however, has outlawed
attempt to commit a number of specific federal offenses.125 Like conspiracy, a conviction for
attempt does not require the commission of the underlying offense.126 Both require an intent to
commit the contemplated substantive offense.127 Like conspiracy, the fact that it may be
impossible to commit the target offense is no defense to a charge of attempt to commit it.128
122
United States v. Hernandez-Orellana, 539 F.3d 994, 1006-1007 (9th Cir. 2008)(emphasis in the original).
123
United States v. Rehak, 589 F.3d 965, 971 (8th Cir. 2009); United States v. Iribe, 564 F.3d 1155, 1160 (9th Cir.
2009).
124
United States v. Hite, 769 F.3d 1154, 1162 (D.C.Cir. 2015); United States v. Douglas, 525 F.3d 225, 251 (2d Cir.
2008).
125
E.g., 18 U.S.C.32(b)(4)(attempts to sabotage commercial aircraft), 33 (attempts to sabotage commercial motor
vehicles); 37(a) (attempted violation at international airports), 43(a)(2)(C)(attempted violence directed at animal
enterprises), 81 (attempted arson within the special maritime or territorial jurisdiction of the United States), 175
(attempt use of biological weapons), 351(c)(attempted murder or kidnapping of a Member of Congress), 1512
(attempted obstruction of justice), 1956 (attempted money laundering). There are dozens of other attempt statutes in
Title 18 of the United States Code and many others scattered throughout the other titles.
126
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003)(internal citations omitted)([T]he essence of a conspiracy
is an agreement to commit an unlawful act. That agreement is a distinct evil, which may exist and be punished whether
or not the substantive crime ensues); United States v. Salahuddin, 765 F.3d 329, 341 (3d Cir. 2014)(The goal of the
conspiracyhere, obtaining something of value under color of official rightneed not be achieved for a conspiracy
conviction); United States v. Wolff, 796 F.3d 972, 975 (8th Cir. 2015)([S]uccess is not an essential element of
attempted crimes); United States v. Williams, 698 F.3d 374, 382 (7th Cir. 2012)(A person who demonstrates by his
conduct that he has the intentional and capability of committing a crime is punishable even if his plan was thwarted);
United States v. Macias-Valencia, 510 F.3d 1012, 1014 (9th Cir. 2007)(conspiracy and attempt are inchoate crimes that
do not require completion of the criminal objective).
127
United States v. Wolff, 796 F.3d at 974 (attempt); United States v. Hite, 769 F.3d 1154, 1162 (D.C.Cir. 2014)
(attempt); United States v. Cruse, 805 F.3d 795, 811 (7th Cir. 2015)(Conspiracy has two elements: (1) agreement to
commit an unlawful act; and (2) the defendant must have knowingly and intentionally joined that agreement); United
States v. Paz-Alvarez, 799 F.3d 12, 21 (1st Cir. 2015)([T]he evidence must establish that the defendant both intended
to join the conspiracy and intended to effectuate the objects of the conspiracy).
128
United States v. Williams, 553 U.S. 285, 300 (2008)(As with other inchoate crimesattempt and conspiracy, for
exampleimpossibility of completing the crime because the facts we not as the defendant believed is not a defense);
United States v. Temkin, 797 F.3d 682, 690 (9th Cir. 2015)([F]actual impossibility is not a defense to an inchoate
offense, such as the attempt for which Temkin was convicted); United States v. Rehak, 589 F.3d at 971 (Factual
impossibility is not a defense to an inchoate offense such as conspiracy or attempt).
15
Unlike conspiracy, attempt can be committed by a single individual.129 Attempt only becomes a
crime when it closely approaches a substantive offense. Conspiracy becomes a crime far sooner.
Mere acts of preparation will satisfy the most demanding conspiracy statute, not so with
attempt.130 Conspiracy requires, at most, no more than an overt act in furtherance; attempt, a
substantial step to completion.131 Moreover, unlike a conspirator, an accused may not be
convicted of both attempt and the underlying substantive offense.132
An individual may be guilty of both conspiring with others to commit an offense and of
attempting to commit the same offense, either himself or through his confederates.133 In some
circumstances, he may be guilty of attempted conspiracy. Congress has outlawed at least one
example of an attempt to conspire in the statute which prohibits certain invitations to conspire,
that is, solicitation to commit a federal crime of violence, 18 U.S.C. 373.
Solicitation
Section 373 prohibits efforts to induce another to commit a crime of violence under
circumstances strongly corroborative of intent to see the crime committed.134 Section 373s
crimes of violence are federal felon[ies] that [have] as an element the use, attempted use, or
threatened use of physical force against property or against the person of another.135 Examples of
strongly corroborative circumstances include the defendant offering or promising payment or
another benefit in exchange for committing the offense; threatening harm or other detriment for
refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the
commission of the offense, or making explicit that the solicitation is serious; believing or
knowing that the persons solicited had previously committed similar offenses; and acquiring
weapons, tools, or information for use in committing the offense, or making other apparent
preparations for its commission.136 As is the case of attempt, [a]n individual cannot be guilty of
129
United States v. Iribe, 564 F.3d at 1160 (Each of those crimes contains an element that the other does not:
Conspiracy does not require a substantial step, while attempt does not require an agreement).
130
United States v. Faust, 795 F.3d 1243, 1248 (10th Cir. 2015)(To prove attempt, the government had to show that
the defendant took a substantial step towards the commission the ultimate crime, and that such step was more than mere
preparation); United States v. Larive, 794 F.3d 1016, 1019 (8th Cir. 2015); United States v. Howard, 766 F.3d 414,
419-26 (5th Cir. 2014).
131
United States v. Faust, 795 F.3d at 1248; United States v. Larive, 794 F.3d at 1019; United States v. Howard, 766
F.3d at 419-26.
132
United States v. Rivera-Relle, 333 F.3d 914, 921 n.11 (9th Cir. 2003)(Unlike conspiracy, the prosecution may not
obtain convictions for both the completed offense and the attempt if the attempt has in fact been completed. The
attempt is an offense included in the completed crime, and, therefore, cannot support a separate conviction and
sentence).
133
United States v. Iribe, 564 F.3d at 1161 (Here, Defendant conspired to commit an actual kidnapping. He also
committed a substantial step toward kidnapping. Thus, he was properly convicted of both conspiring to kidnap and
attempting to kidnap).
134
18 U.S.C. 373(a); United States v. Dvorkin, 799 F.3d 867, 878 (7th Cir. 2015)(internal quotation marks
omitted)(To prove a violation of 373(a), the government must establish (1) with strong corroborative circumstances
that a defendant intended for another person to commit a violent federal crime, and (2) that a defendant solicited or
otherwise endeavored to persuade the other person to carry out the crime).
135
18 U.S.C. 373(a); United States v. Korab, 893 F.2d 212, 215 (9th Cir. 1989)(Section 373(a) encompasses only
solicitations of federal felonies).
136
United States v. Hale, 448 F.3d 971, 983 (7th Cir. 2006), citing, United States v. McNeil, 887 F.2d 448, 450 (3d Cir.
1989); see also, United States v. Dvorkin, 799 F.3d 867, 879 (7th Cir. 2015)(Evidence sufficient to strongly
corroborate a defendants intent includes, but is not limited to, evidence showing that the defendant: (1) offered or
promised payment or some other benefit to the person solicited; (2) threatened to punish or harm the solicitee for
failing to commit the offense; (3) repeatedly solicited the commission of the offense or expressly stated his seriousness;
(continued...)
16
both the solicitation of a crime and the substantive crime.137 Although the crime of solicitation is
complete upon communication with the requisite intent, renunciation prior to commission of the
substantive offense is a defense.138 The offenders legal incapacity to commit the solicited offense
himself, however, is not a defense.139
Procedural Attributes
Statute of Limitations
The statute of limitations for most federal crimes is five years. 140 The five-year limitation applies
to the general conspiracy statute, 18 U.S.C. 371, and to the false claims conspiracy statute, 18
U.S.C. 286. Section 371 requires proof of an overt act;141 Section 286 does not.142 For conspiracy
offenses with an overt act requirement, the statute of limitations begins with completion of the
last overt act in furtherance of the conspiracy.143 For conspiracy offenses with no such
requirement, the statute of limitations for an individual conspirator begins when he effectively
withdraws from the scheme, when the conspiracy accomplishes the last of its objectives, or swhen
it is abandoned.144
(...continued)
(4) knew or believed that the person solicited had previously committed a similar offense; or (5) acquire weapons, tools
or information, or made other preparations, suited for use by the solicitee).
137
United States v. Korab, 893 F.3d 212, 213 (9th Cir. 1989).
138
18 U.S.C. 373(b)(It is an affirmative defense to a prosecution under this section that, under circumstances
manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of
the crime solicited. A renunciation is not voluntary and complete if it is motivated in whole or in part by a decision to
postpone the commission of the crime until another time or to substitute another victim or another but similar objective.
If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a
preponderance of the evidence); see also, United States v. Dvorkin, 799 F.3d at 880.
139
18 U.S.C. 373(c)(It is not a defense to a prosecution under this section that the person solicited could not be
convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or
irresponsible, or because he is immune from prosecution or is not subject to prosecution).
140
18 U.S.C. 3282. A few crimes, such as certain terrorism and child abuse offenses have special longer statute of
limitations, e.g., 18 U.S.C. 3283, 3286. Capital offenses may be tried at any time, 18 U.S.C. 3281.
141
18 U.S.C. 371 ( ... and one or more of such persons do any act to effect the object of the conspiracy ... ); United
States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009); United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009);
United States v. Kingrea, 573 F.3d 186, 195 (4th Cir. 2009).
142
(11th Cir. 2014)(emphasis added)(To prove the conspiracy element [of 286], the government was required to show
the existence of an agreement to achieve an unlawful objective, the defendants knowing and voluntary participation in
the conspiracy, and the commission of an overt act in furtherance of it).
143
United States v. Bennett, 765 F.3d 887, 895 (8th Cir. 2014); United States v. Chhun, 744 F.3d 1110, 1122 (9th ?Cir.
2014); United States v. Stewart, 744 F.3d 17, 21 (1st Cir. 2014).
144
Smith v. United States, 133 S. Ct. 714, 717 (2013)(A defendant who withdraws outside the relevant statute-oflimitations period has a complete defense to prosecution); United States v. Heard, 709 F.3d 413, 427 (5th Cir. 2013);
United States v. Guevara, 706 F.3d 38, 45-6 (1st Cir. 2013); United States v. Seher, 562 F.3d 1344, 1364 (11th Cir.
2009)(prosecution under 18 U.S.C. 1956(h) which has no overt act requirement)(The government satisfies the
requirements of the statute of limitations for a non-overt act conspiracy if it alleges and proves that the conspiracy
continued into the limitations period. A conspiracy is deemed to continue as long as its purposes have neither been
abandoned nor accomplished, and no affirmative showing has been made that it has terminated).
17
Venue
The presence or absence of an overt act requirement makes a difference for statute of limitations
purposes. For venue purposes, it does not. The Supreme Court has observed in passing that this
Court has long held that venue is proper in any district in which an overt act in furtherance of the
conspiracy was committed, even where an overt act is not a required element of the conspiracy
offense.145 The lower federal appellate courts are seemingly of the same view, for they have
found venue proper for a conspiracy prosecution wherever an overt act occursunder overt act
statutes and non-overt act statutes alike.146
Joinder and Severance (One Conspiracy, One Trial)

Three rules of the Federal Rules of Criminal Procedure govern joinder and severance for federal
criminal trials. Rule 8 permits the joinder of common criminal charges and defendants.147 Rule 12
insists that a motion for severance be filed prior to trial.148 Rule 14 authorizes the court to grant
severance for separate trials as a remedy for prejudicial joinder.149
The Supreme Court has pointed out that [t]here is a preference in the federal system for joint
trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice
system. They promote efficiency and serve the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts.150 In conspiracy cases, a conspiracy charge combined with
substantive counts arising out of that conspiracy is a proper basis for joinder under Rule 8(b).151
Moreover, the preference in a conspiracy trial is that persons charged together should be tried
together.152 In fact, it will be the rare case, if ever, where a district court should sever the trial of
145
Whitfield v. United States, 543 U.S. 209, 218 (2005).

United States v. Hsiung, 778 F.3d 738, 746 (9th Cir. 2015); United States v. Bradley, 644 F.3d 1213, 1255 (11th Cir.
2011); United States v. Tzolov, 642 F.2d 314, 319-20 (2d Cir. 2011) (each of these cases involves conspiracy which
carries an overt act requirement); United States v. Rodriguez-Lopez, 756 F.3d 422, 429-30 (5th Cir. 2014); United States
v. Watson, 717 F.3d 196, 198 (D.C.Cir. 2013); United States v. Banks, 706 F.3d 901, 904-905 (8th Cir. 2013) (each of
these cases involves conspiracy under 21 U.S.C. 846 which does not include an overt act requirement).
147
(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more
offenses if the offenses chargedwhether felonies or misdemeanors or bothare of the same or similar character, or
are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.
(b) Joinder of Defendants. The indictment or information may charge 2 or more defendants if they are alleged to
have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or
offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be
charged in each count, F.R.Crim.P. 8.
148
The following must be raised before trial: ... (D) a Rule 14 motion to sever charges or defendants, F.R.Crim.P.
12(b)(3)(D). If the motion is denied, the courts will require that the motion be renewed at the close of the presentation
of evidence or it will be considered waived, United States v. Williams, 553 F.3d 1073, 1079 (7th Cir. 2009); United
States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008).
146
(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial
appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants
trials, or provide any other relief that justice requires.
(b) Defendants Statements. Before ruling on a defendants motion to sever, the court may order an attorney for the
government to deliver to the court for in camera inspection any defendants statement that the government intends to
use as evidence, F.R.Crim.P. 14.
150
Zafiro v. United States, 506 U.S. 534, 537 (1993); see also, United States v. Straker, 800 F.3d 570, 626 (D.C.Cir.
2015).
151
United States v. Williams, 553 F.3d 1073, 78-79 (7th Cir. 2009).
152
United States v. McDonnell, 792 F.3d 478, 494 (4th Cir. 2015); United States v. Anderson, 783 F.3d 727, 743 (8th
(continued...)
149
18
alleged co-conspirators.153 The Supreme Court has reminded the lower courts that a district
court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.154 The Court noted that the risk may be more
substantial in complex cases with multiple defendants, but that less drastic measures, such as
limiting instructions, often will suffice to cure any risk of prejudice.155 Subsequently lower
federal appellate court opinions have emphasized the curative effect of appropriate jury
instructions.156
Double Jeopardy and Ex Post Facto

Because conspiracy is a continuing offense, it stands as an exception to the usual ex post facto
principles. Because it is a separate crime, it also stands as an exception to the usual double
jeopardy principles.
The ex post facto clauses of the Constitution forbid the application of criminal laws which punish
conduct that was innocent when it was committed or punish more severely criminal conduct than
when it was committed.157 Increasing the penalty for an ongoing conspiracy, however, does not
offend ex post facto constraints as long as the conspiracy straddles the date of the legislative
penalty enhancement.158
The double jeopardy clause of the Fifth Amendment declares that no person shall be subject for
the same offence to be twice put in jeopardy of life or limb.159 This prohibition condemns
successive prosecutions, successive punishments, and successive use of charges rejected in
acquittal.160
(...continued)
Cir. 2015); United States v. Fazio, 770 F.3d 160, 166 (2d Cir. 2014).
153
United States v. Spotted Elk, 548 F.3d 641, 658 (8th Cir. 2008); United States v. Fazio, 770 F.3d at 165-66 (A
districts decision to deny severance is virtually unreviewable and will be overturned only if a defendant can
demonstrate prejudice so severe that his conviction constituted a miscarriage of justice ) .
154
Zafiro v. United States, 506 U.S. at 539; see also, United States v. Straker, 800 F.3d at 626; United States v.
Hawkins, 796 F.3d 843, 861 (8th Cir. 2015)(We will not reverse a denial of a motion to sever unless the appellant
demonstrates an abuse of discretion resulting in real and clear prejudice. To satisfy this standard, Brown must show that
her defense was irreconcilable with the defense of her codefendant or that the jury was unable to compartmentalize the
evidence as it related to separate defendants).
155
Zafiro v. United States, 506 U.S. at 539.
156
United States v. Straker, 800 F.3d at 626 (Moreover, absent a dramatic disparity of evidence against defendants
whose trials might be joined, any prejudice cause by joinder is best dealt with by instructions to the jury to give
individual consideration to each defendant); United States v. Anderson, 783 F.3d at 744; United States v. Williams,
553 F.3d 1073, 1079 (7th Cir. 2009)([T]he district court gave a limiting instruction both before the presentation of the
evidence and again at closing arguments that the jury should consider the evidence regarding each defendant
separately. Such instructions are normally sufficient to cure any possibility of prejudice).
157
U.S. Const. Art.I, 9, 10; Stogner v. California, 539 U.S. 607, 612 (2003).
158
United States v. Julian, 427 F.3d. 471, 482 (7th Cir. 2005)(It is well established that a statute increasing a penalty
with respect to a criminal conspiracy which commenced prior to, but was continued beyond the effective date of the
statute, is not ex post facto as to that crime); United States v. Valladares, 544 F.3d 1257, 1270-271 (11th Cir. 2008);
United States v. Vallone, 752 F.3d 690, 694-95 (7th Cir. 2014).
159
U.S. Const. Amend. V.
160
United States v. Dixon, 509 U.S. 688, 696 (1993)(The prohibition applies both to successive punishments and to
successive prosecutions for the same offense); Yeager v. United States, 557 U.S. 110, 119 (2009)([T]he Double
Jeopardy Clause precludes [as collateral estoppel] the Government from relitigating any issue that was necessarily
(continued...)
19
For successive prosecution or punishment, the critical factor is the presence or absence of the
same offense. Offenses may overlap, but they are not the same crime as long as each requires
proof of an element that the other does not.161 Since conspiracy and its attendant substantive
offense are ordinarily separate crimesone alone requiring agreement and the other alone
requiring completion of the substantive offensethe double jeopardy clause poses no
impediment to successive prosecution or to successive punishment of the two.162
Double jeopardy issues arise most often in a conspiracy context when a case presents the question
of whether the activities of the accused conspirators constitute a single conspiracy or several
sequential, overlapping conspiracies. Multiple conspiracies may be prosecuted sequentially and
punished with multiple sanctions; single conspiracies must be tried and punished once. Asked to
determine whether they are faced with one or more than one conspiracy, the courts have said they
inquire whether:
1. the locus criminis [place] of the two alleged conspiracies is the same;
2. there is a significant degree of temporal overlap between the two conspiracies
charged;
3. there is an overlap of personnel between the two conspiracies (including
unindicted as well as indicted co-conspirators);
4. the overt acts charged [are related];
5. the role played by the defendant [relates to both];
6. there was a common goal among the conspirators;
7. whether the agreement contemplated bringing to pass a continuous result that
will not continue without the continuous cooperation of the conspirators; and
8. the extent to which the participants overlap[ped] in [their] various dealings.163
Co-conspirator Declarations
At trial, the law favors the testimony of live witnessesunder oath, subject to cross examination,
and in the presence of the accused and the juryover the presentation of their evidence in writing
or through the mouths of others. The hearsay rule is a product of this preference. Exceptions and
definitions narrow the rules reach. For example, hearsay is usually defined to include only those
(...continued)
decided by a jurys acquittal in a prior trial); United States v. Wittig, 575 F.3d 1085, 1100-101 (10th Cir. 2009)
([W]hen the only way the government can prove one of the elements of a conspiracy offense is to prove the same facts
decided against it in a prior trial on a substantive offense, collateral estoppel bars the attempt).
161
Rutledge v. United States, 517 U.S. 292, 297 (1996).
162
United States v. Felix, 503 U.S. 378, 391 (1992); United States v. Pierre, 795 F.3d 847, 852 (8th Cir. 2015); United
States v. Faulkner, 793 F.3d 752, 758 (7th Cir. 2015); United States v. Thomas, 726 F.3d 1086, 1091 (9th Cir. 2013);
United States v. Tovar, 719 F.3d 376, 383 (5th Cir. 2013).
163
United States v. Rigas, 584 F.3d 594, 610 (3d Cir. 2009)(emphasis in the original); see also, United States v. Pierre,
795 F.3d 847, 849-50 (8th Cir. 2015)(In determining whether separately-charged conspiracies are really a single
conspiracy, this court applies a totality of the circumstances test. In applying that test, our cases consider: (1) the
timing of the alleged conspiracies; (2) the identity of alleged co-conspirators; (3) the offenses charged in the
indictments; (4) the overt acts charged ... or any other description of the offense charged which indicate the nature and
scope of the activity charged; and (5) the locations of the alleged conspiracies); United States v. Wheeler, 535 F.3d
446, 449 (6th Cir. 2008)(citing factors [1] through [4] in addition to the statutory offenses charged in the indictments);
United States v. Njoku, 737 F.3d 55, 69 (5th Cir. 2013).
20
out-of-court statements which are offered in evidence to prove the truth of the matter
asserted.164
Although often referred to as the exception for co-conspirator declarations, the Federal Rules of
Evidence treats the matter within its definition of hearsay. Thus, Rule 801(d)(2)(E) of the Federal
Rules provides that an out-of-court statement is not hearsay if ... (2) The statement is offered
against a party and is ... (E) a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.
To admit a co-conspirator declaration into evidence under the Rule, a court must find: (1) the
conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator
made the proffered statements in furtherance of the conspiracy.165 The court, however, may
receive the statement preliminarily subject to the prosecutions subsequent demonstration of its
admissibility by a preponderance of the evidence.166 As to the first two elements, a coconspirators statement without more is insufficient; there must be some extrinsic evidence
sufficient to delineate the conspiracy and corroborate the declarants and the defendants roles in
it.167 As to the third element, [a] statement is in furtherance of a conspiracy if it is intended to
promote the objectives of the conspiracy.168 A statement is in furtherance, for instance, if it
describes for the benefit of a co-conspirator the status of the scheme, its participants, or its
methods.169 Bragging, or mere idle chatter or casual conversation about past events, however, is
not considered a statement in furtherance of a conspiracy.170
Under some circumstances, evidence admissible under the hearsay rule may nevertheless be
inadmissible because of Sixth Amendment restrictions. The Sixth Amendment provides, among
other things, that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him. The provision was inspired in part by reactions to the
trial of Sir Walter Raleigh, who argued in vain that he should be allowed to confront the alleged
co-conspirator who had accused him of treason.171 Given its broadest possible construction, the
confrontation clause would eliminate any hearsay exceptions or limitations.172 The Supreme
Court in Crawford v. Washington explained, however, that the clause has a more precise reach.
164
F.R.Evid. 801(c).
United States v. Warman, 578 F.3d 320, 335 (6th Cir. 2009); United States v. Haire, 806 F.3d 991, 997 (8th Cir.
2015); United States v. Hough, 803 F.3d 1181, 1193 (11th Cir. 2015); United States v. Morgan, 748 F.3d 1024, 1036
(10th Cir. 2014).
166
United States v. Paz-Alvarez, 799 F.3d 12, 29 (1st Cir. 2015); United States v. Haire, 806 F.3d at 997; United States
v. Warman, 578 F.3d at 335.
167
United States v. Mitchell, 596 F.3d 18, 23 (1st Cir. 2010); United States v. Liera, 585 F.3d 1237, 1245-246 (9th Cir.
2009); United States v. Benson, 591 F.3d 491, 502 (6th Cir. 2010).
168
United States v. Warman, 578 F.3d at 338; United States v. Flores, 572 F.3d 1254, 1264 (11th Cir. 2009).
169
United States v. Tamman, 782 F.3d 543, 553 (9th Cir. 2015); United States v. Meeks, 756 F.3d 1115, 1119 (8th Cir.
2014); United States v. Alviar, 573 F.3d 526, 545(7th Cir. 2009)(In conspiracy cases statements that are part of the
information flow between conspirators intended to help each perform his role satisfy the in furtherance requirement of
Rule 801(d)(2)(E)).
170
United States v. Warman, 578 F.3d at 338.
171
Crawford v. Washington, 541 U.S. 36, 44, 52 (2004)(One of Raleighs trial judges later lamented that the justice of
England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh. Through a series of
statutory and judicial reforms, English law developed a right of confrontation that limited these abuses.... Raleighs trial
has long been thought as a paradigmatic confrontation violation).
172
If taken literally, the Clause would bar all hearsay, or at least all hearsay uttered by a declarant unavailable for
examination at trial, Trachtenberg, Coconspirator, Coventurers, and the Exception Swallowing the Hearsay Rule,
61 HASTINGS LAW JOURNAL 581, 637 (2010).
165
21
The clause uses the word witnesses to bring within its scope only those who testify or whose
accusations are made in a testimonial context. In a testimonial context, the confrontation clause
permits use at trial of prior testimonial accusations only if the witness is unavailable and only if
the accused had the opportunity to cross examine him when the testimony was taken.173 The
Court elected to leave for another day any effort to spell out a comprehensive definition of
testimonial,174 but has suggested that the term includes affidavits, depositions, prior
testimony, or confessions [, and other] statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available for
use at a later trial.175
Since Crawford, the lower federal courts have generally held that the confrontation clause poses
no obstacle to the admissibility of the co-conspirator statements at issue in the cases before them,
either because the statements were not testimonial;176 were not offered to establish the truth of the
asserted statement;177 or because the clause does not bar co-conspirator declarations generally.178
173
Crawford v. Washington, 541 U.S. at 68 (Where nontestimonial hearsay is at issue, it is wholly consistent with the
Framers design to afford the States [and Congress] flexibility in their development of hearsay law ... as would an
approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is
at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination).
174
Id.
175
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009), quoting Crawford v. Washington, 541 U.S. at 51-2
(2004).
176
United States v. Hyles, 521 F.3d 946, 960 (8th Cir. 2008)(Neither ... were ... formal statements, nor were [the]
statements elicited in response to government interrogation. In other words, they did not bear testimony. Therefore,
Crawford is inapplicable); United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008)(Blue Birds reported
utterance was not a statement of fact, but a proposal of a future course of action (i.e., what to say in the future), uttered
not to any official, but to a co-defendant. Blue Birds reported words were not testimonial, and therefore Froggs
account of them could not have violated Spotted Elks Sixth Amendment rights); United States v. Figueroa, 729 F.3d
267, 267 n.14 (3d Cir. 2013); United States v. Morgan, 748 F.3d 1024, 1038 (10th Cir. 2014); United States v. Wilson,
788 F.3d 1298, 1316 (11th Cir. 2015).
177
United States v. Cesareo-Ayala, 576 F.3d 1120, 1127-128 (10th Cir. 2009)(The government contends that Mendez
statements in the two conversations are not hearsay and do not implicate the Confrontation Clause because they were
not offered in evidence to prove the truth of the matter asserted. We agree); United States v. Brown, 560 F.3d 754, 765
(8th Cir. 2009)(Because Williamss statement was not admitted for the truth of the matter asserted, it does not
implicate the confrontation clause).
178
United States v. Hargrove, 508 F.3d 445, 449 (7th Cir. 2007)(Under Rule 801(d)(2)(E) the statements of
coconspirators made during the course and in furtherance of the conspiracy are considered admissions by a party
opponent and are not hearsay. The use of this sort of evidence does not implicate the Confrontation Clause); United
States v. Singh, 494 F.3d 653, 659 (8th Cir. 2007)([C]o-conspirators statements made in furtherance of a conspiracy
and admitted under Rule 801(d)(2)(E) are generally non-testimonial and, therefore, do not violate the Confrontation
Clause as interpreted by the Supreme Court); but see United States v. Warman, 578 F.3d 320, 346 (6th Cir. 2009)
([S]tatements of a confidential informant are testimonial in nature and therefore, may not be offered by the
government to establish the guilt of an accused absent an opportunity for the accused to cross-examine the informant);
United States v. Alaniz, 726 F.3d 586, 608 (5th Cir. 2013); United States v. Grasso, 724 F.3d 1077, 1085 n.9 (9th Cir.
2013); United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir. 2013).
22
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Charles Doyle
Senior Specialist in American Public Law
[email protected], 7-6968
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Federal Conspiracy Law: A Brief Overview

Congressional Research Service

Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

Two or More Persons

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Federal Conspiracy Law: A Brief Overview

inferred.37 Even the acquittal of a co-conspirator is no defense,38 although no conviction is

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Federal Conspiracy Law: A Brief Overview

appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the

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Federal Conspiracy Law: A Brief Overview

One or Many Overlapping Conspiracies

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Federal Conspiracy Law: A Brief Overview

Conspiracy to Defraud the United States

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

When Does It End?

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

Relation of Conspiracy to Other Crimes

Aid and Abet

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

Joinder and Severance (One Conspiracy, One Trial)

Whitfield v. United States, 543 U.S. 209, 218 (2005).

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Federal Conspiracy Law: A Brief Overview

Double Jeopardy and Ex Post Facto

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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Federal Conspiracy Law: A Brief Overview

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