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What’s a Criminal Conspiracy?

Put simply, a criminal conspiracy is an agreement to commit an unlawful act.  The agreement itself is the crime, but at least one co-conspirator must take an “overt act” in furtherance of the conspiracy.  Under the federal conspiracy statute:

  • The agreement by two or more persons is the essence of the crime. If there is no agreement, there can be no conspiracy.
  • The co-conspirators must agree to commit a federal crime or to defraud the United States or any federal agency in any manner and for any purpose.
  • At least one co-conspirator must take an overt act in furtherance of the conspiracy.

The overt act itself need not be unlawful, and not all members of the conspiracy are required to take an overt act; one co-conspirator’s overt act is enough.  For example, one co-conspirator’s rental of a van – a perfectly legal act – to be used in a bank robbery is sufficient for his co-conspirators to be held criminally accountable for their agreement to rob the bank, even if no other steps are taken.

A co-conspirator must have knowledge of the agreement and its unlawful objectives, but it isn’t necessary for a conspiracy to succeed in its unlawful objective.  A defendant can be convicted of conspiracy, yet be acquitted of the substantive crime he conspired to commit.

If the facts support it, a prosecutor will almost always charge conspiracy.  It is frequently included along with securities fraud, bank fraud, insurance fraud, and mail or wire fraud charges in white collar criminal cases.  In one year alone, federal prosecutors charged conspiracy in nearly 1,000 cases.

A conspiracy charge provides the government with numerous advantages.  For one, every member of the conspiracy is responsible for the criminal acts of others taken in furtherance of the conspiracy, so a conspiracy charge can dramatically enhance the consequences of a guilty verdict for any single defendant.  For another, evidentiary rules are relaxed for the statements of co-conspirators, making it easier for prosecutors to present the jury with incriminating evidence.

To withdraw from a conspiracy, an individual must take some action to make clear his departure from the conspiracy, such as reporting the conspiracy to authorities.  An individual who withdraws from a conspiracy can be held accountable for acts committed while he was a member but not those committed after he withdraws.

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