Conspiracy is a common charge in federal white collar criminal cases. Because conspiracy law allows federal prosecutors to charge people for conduct that does not amount to the commission of a full criminal offense, a charge of conspiracy is often included in an indictment along with charges for the underlying offense (ex, mail fraud or health care fraud), and can be used as a plea bargaining tool by prosecutors to secure a conviction on an otherwise weak or defensible charge.

A conspiracy charge can be tough to beat. Federal conspiracy law allows admission of evidence that would not usually be available to prosecutors, such as co-conspirator statements; surmounts jurisdictional and statute of limitations problems; and, provides an alternative for jurors when proof of the underlying conviction is lacking. Conspiracy statutes provide for sentencing to be the same as that for the underlying crime of offense, and the sentencing guidelines punishes a defendant as though the contemplated conduct had fully occurred.

But all hope is not lost – it is possible to beat a conspiracy charge by understanding the nature of the crime itself and building a solid defense.

Elements of a Conspiracy Crime

There are 3 elements the government must prove to establish a conspiracy: (1) an agreement to commit an unlawful act; (2) the defendant's knowledge of the agreement and voluntary participation in it; and, (3) an overt act by at least one of the co-conspirators in furtherance of the conspiracy.

Agreement

The crime of conspiracy requires an agreement between two or more people to do something unlawful. The essence of the crime is the agreement to violate the law and an illegal conspiracy may exist and be punished whether or not the underlying crime actually occurs. There must be a meeting of the minds for a common plan in order for a conspiracy to exist. The government is not required to prove the specific details of a plan, only that the conspirators agreed to the plan's essential nature.

Some courts have provided the metaphor of a wheel to illustrate the concept of a conspiracy, whereby a single person or group forms the hub in the center of the wheel and deals individually with two or more other people or groups that stem outwardly from the hub, i.e., the spokes. These separate spokes collectively constitute a “wheel” conspiracy only if those spokes are in-turn enclosed by a rim. The spokes need not cross or interact with each other, it is enough that there is a connection in the center and that there is a common goal or purpose when all of the spokes are combined.

A conspiratorial agreement may be proven by circumstantial evidence and the plan may be inferred from a development and organization of circumstances. The government may also allege and prove a conspiracy between the defendant and an unknown or unnamed person, but an agreement exclusively between the defendant and a government agent or informant does not establish a conspiracy.

Knowing Participation

The government must prove that the defendant had some knowledge of the conspiracy's objectives, but there is no requirement that a defendant know every objective of the conspiracy. Oftentimes, the government will argue “willful blindness” – that the defendant intentionally avoided knowing of the existence of the conspiratorial scheme alleged in the indictment – to try to prove that he/she knowingly joined and participated in the conspiracy.

Overt Act

An overt act is any statement or act that is knowingly done by one or more of the conspirators in an effort to further the goal of the conspiracy – it does not have to be in violation of the law or be a crime itself. The conduct may be as innocent as traveling to another city, placing a phone call, or stopping payment on a check. The other conspirators need not join or participate in an overt act, or even know about it. Proof of a single overt act is sufficient to sustain a conviction for conspiracy.

Defenses

There are a number of defenses that can be developed to fight against a conspiracy charge. A defendant's mere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in the conspiracy and is insufficient to prove aiding and abetting even if the defendant has knowledge of the crime. Withdrawal from a conspiracy before any overt act is committed is a valid affirmative defense to a conspiracy charge, and liability is limited to criminal conduct occurring up to the time of withdrawal in cases where withdrawal occurred after the commission of an overt act. Legal impossibility can also be a valid defense if the agreement is to do something which is not a crime or not otherwise a prohibited object of a conspiracy.