Federal Conspiracy
| Statute: | 18 U.S.C. § 371 |
| U.S. Code: | Title 18, Chapter 19 |
| Max Prison: | 5 years (general) / varies by offense-specific statutes |
| Max Fine: | $250,000 |
| Guidelines: | USSG §2X1.1 |
| Base Level: | Same as underlying offense |
| Agencies: | FBI, DEA, ATF, IRS-CI |
| Related: | Wire Fraud, Drug Trafficking, RICO |
Federal conspiracy is a distinct criminal offense that punishes agreements to commit crimes, regardless of whether the underlying crime is actually completed. The general federal conspiracy statute is 18 U.S.C. § 371, though many federal statutes contain their own conspiracy provisions with penalties matching the underlying offense.[1]
Conspiracy is one of the most frequently charged federal offenses because it allows prosecutors to hold all members of a criminal enterprise responsible for the group's actions and to prosecute individuals even when the target crime was never completed.
Types of Conspiracy Charges
General Conspiracy (18 U.S.C. § 371)
Section 371 creates two types of general conspiracy:
Conspiracy to Commit a Federal Offense: An agreement by two or more persons to commit any offense against the United States, plus an overt act in furtherance of the conspiracy.
Conspiracy to Defraud the United States: An agreement to defraud the United States or any agency thereof in any manner or for any purpose.[1]
Maximum penalty: 5 years imprisonment (unless the underlying offense is a misdemeanor, in which case the penalty cannot exceed that for the misdemeanor).
Offense-Specific Conspiracy Statutes
Many federal criminal statutes contain their own conspiracy provisions that carry the same penalties as the underlying offense:
| Statute | Offense | Maximum Penalty |
|---|---|---|
| 18 U.S.C. § 1349 | Wire/Mail/Bank Fraud Conspiracy | Same as underlying offense (20-30 years) |
| 21 U.S.C. § 846 | Drug Conspiracy | Same as underlying offense (life possible) |
| 18 U.S.C. § 1956(h) | Money Laundering Conspiracy | Same as underlying offense (20 years) |
| 18 U.S.C. § 241 | Conspiracy Against Civil Rights | 10 years (life if death results) |
| 18 U.S.C. § 1962(d) | RICO Conspiracy | 20 years |
Offense-specific conspiracy statutes generally do not require proof of an overt act.[2]
Elements of Conspiracy
General Conspiracy Elements
To convict under 18 U.S.C. § 371, the government must prove:
- Agreement: Two or more persons agreed to commit an offense against the United States or to defraud the United States
- Knowledge and Intent: The defendant knowingly joined the conspiracy with intent to further its objectives
- Overt Act: At least one conspirator committed an overt act in furtherance of the conspiracy[3]
The Agreement
The agreement need not be formal, written, or even explicitly stated. Circumstantial evidence of a "meeting of the minds" is sufficient. The government must show that the conspirators shared a common objective and knew they were working together to achieve it.
Knowledge and Intent
The defendant must have known about the conspiracy and intentionally joined it. Mere presence during criminal activity or association with conspirators is insufficient. However, the defendant need not know all the details of the conspiracy or all other members.[4]
Overt Act
For § 371 conspiracies, the government must prove at least one overt act—any act by any conspirator in furtherance of the conspiracy. The act need not be illegal in itself (e.g., making a phone call, renting a car). Only one overt act is needed, not one by each conspirator.
Offense-specific conspiracy statutes (like drug conspiracy under § 846) typically do not require proof of an overt act.[2]
Statutory Penalties
| Conspiracy Type | Maximum Imprisonment | Maximum Fine |
|---|---|---|
| General conspiracy to commit offense (§ 371) | 5 years | $250,000 |
| Conspiracy to defraud U.S. (§ 371) | 5 years | $250,000 |
| Drug conspiracy (§ 846) | Same as substantive offense | Same as substantive offense |
| Wire/Mail fraud conspiracy (§ 1349) | Same as substantive offense | Same as substantive offense |
| RICO conspiracy (§ 1962(d)) | 20 years | $250,000 |
The 5-year cap under § 371 often leads prosecutors to charge offense-specific conspiracy when available, as those statutes typically carry higher penalties.
Pinkerton Liability
One of the most significant aspects of conspiracy law is Pinkerton liability, established by the Supreme Court in Pinkerton v. United States (1946). Under this doctrine:
Each conspirator is liable for the substantive crimes of co-conspirators if:
- The crimes were committed in furtherance of the conspiracy, AND
- The crimes were reasonably foreseeable as a natural consequence of the conspiracy[5]
Practical Impact:
- You can be convicted of crimes you didn't personally commit
- If you join a drug conspiracy, you may be liable for a co-conspirator's murder during a drug deal gone wrong
- You're responsible for the full scope of reasonably foreseeable conduct
Limiting Pinkerton:
- The crime must be in furtherance of the conspiracy (not purely personal)
- The crime must be reasonably foreseeable
- Withdrawal from the conspiracy cuts off future Pinkerton liability
- Some circuits limit Pinkerton to minor participants
Pinkerton liability is a major reason why conspiracy is charged so frequently—it allows prosecutors to hold all participants responsible for the worst conduct within the conspiracy, dramatically increasing exposure.
Federal Sentencing Guidelines
Conspiracy is sentenced under USSG §2X1.1, which ties the offense level to the underlying substantive offense.
Base Offense Level
The base offense level for conspiracy is the same as for the object offense—the crime the conspirators agreed to commit. For example:
- Conspiracy to commit wire fraud: sentenced under §2B1.1 (fraud guideline)
- Drug conspiracy: sentenced under §2D1.1 (drug guideline)
- Conspiracy to commit money laundering: sentenced under §2S1.1 (money laundering guideline)[6]
Relevant Conduct
All reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy are attributable to each conspirator for sentencing purposes. This means a defendant's sentence can be based on drug quantities handled by co-conspirators, fraud losses caused by the conspiracy as a whole, or other conduct the defendant did not personally perform but was reasonably foreseeable.[7]
Role Adjustments
Conspirators may receive role adjustments based on their participation:
- Leaders/Organizers: +2 to +4 levels
- Managers/Supervisors: +2 to +3 levels
- Minor Participants: -2 levels
- Minimal Participants: -4 levels
Key Legal Principles
Single vs. Multiple Conspiracies
Courts analyze whether defendants participated in one large conspiracy or multiple smaller conspiracies. Relevant factors include:
- Common objective
- Overlap in participants
- Interdependence of activities
Being charged as part of a larger conspiracy than the defendant actually joined can be challenged as a variance.[8]
Withdrawal
A conspirator may withdraw by:
- Taking affirmative steps to disavow or defeat the conspiracy's objective
- Communicating withdrawal to co-conspirators
Withdrawal does not eliminate liability for the conspiracy itself, but stops the running of the statute of limitations and ends Pinkerton liability for subsequent acts of co-conspirators.
Duration
A conspiracy continues until its objectives are either accomplished or abandoned. The statute of limitations begins to run from the last overt act in furtherance of the conspiracy.
Notable Cases
United States v. Manafort (2018)
Paul Manafort was convicted of conspiracy to defraud the United States and conspiracy to obstruct justice, among other charges. The conspiracy involved hiding foreign income and failing to register as a foreign agent. He was sentenced to 7.5 years.[9]
Operation Varsity Blues (2019)
Dozens of parents, coaches, and administrators were charged with conspiracy to commit mail fraud and honest services fraud in the college admissions scandal. The case demonstrated how conspiracy charges allow prosecution of all participants in a coordinated scheme, including actress Lori Loughlin and fashion designer Mossimo Giannulli.[10]
Drug Conspiracy Cases
Drug conspiracy (21 U.S.C. § 846) is among the most frequently charged federal offenses. Major cases include:
- Cartel leaders charged with conspiracy to distribute tons of narcotics
- Street-level dealers charged based on conspiracy with their suppliers
- Money couriers charged with drug conspiracy for handling proceeds
Statistics
According to the United States Sentencing Commission:
- Conspiracy charges appear in approximately 90% of multi-defendant federal cases
- Drug conspiracy is the single most commonly sentenced federal offense
- General conspiracy (§ 371) is charged in approximately 2,000 cases annually
- The median sentence for conspiracy varies dramatically by the underlying offense[11]
Defenses
No Agreement
The defendant may argue there was no agreement—only parallel conduct by individuals pursuing their own interests, or a mere buyer-seller relationship that does not constitute conspiracy.
No Knowledge or Intent
The defendant may argue they did not know about the conspiracy's illegal objectives or did not intend to join it. Mere presence or association is insufficient.
Withdrawal
Affirmative acts to disavow the conspiracy and communication to co-conspirators can limit liability for subsequent acts, though not for the conspiracy itself.
Variance
If the evidence proves multiple smaller conspiracies rather than the single large conspiracy charged, the defendant may argue prejudicial variance.
Statute of Limitations
The general 5-year statute of limitations runs from the last overt act. If the defendant withdrew or the conspiracy ended more than 5 years before indictment, charges may be time-barred.
See also
Frequently Asked Questions
Q: What is federal conspiracy?
Federal conspiracy is an agreement between two or more persons to commit a federal crime or to defraud the United States. It is a separate offense from the underlying crime and can be prosecuted even if the target crime was never completed.
Q: What is the sentence for federal conspiracy?
Under the general conspiracy statute (18 U.S.C. § 371), the maximum is 5 years. However, offense-specific conspiracy statutes (for drug, wire fraud, RICO, etc.) carry the same penalties as the underlying offense—potentially decades or life imprisonment.
Q: What is Pinkerton liability?
Under Pinkerton v. United States, each conspirator is liable for crimes committed by co-conspirators if those crimes were in furtherance of the conspiracy and reasonably foreseeable. This means you can be convicted of crimes you didn't personally commit.
Q: What is an overt act?
An overt act is any act by any conspirator in furtherance of the conspiracy. It need not be illegal itself—making a phone call or renting a car can suffice. General conspiracy requires proof of an overt act; most offense-specific conspiracy statutes do not.
Q: Can I be convicted of crimes I didn't personally commit?
Yes. Under Pinkerton liability, each conspirator is responsible for substantive crimes committed by co-conspirators if those crimes were in furtherance of the conspiracy and reasonably foreseeable. This is a major reason conspiracy is so frequently charged.
Q: How do I withdraw from a conspiracy?
Withdrawal requires affirmative steps to disavow the conspiracy and communication to co-conspirators. Withdrawal stops Pinkerton liability for future acts and starts the statute of limitations, but does not eliminate liability for the conspiracy itself.
Q: What if I only knew part of the conspiracy?
You do not need to know all details or all participants to be guilty of conspiracy. If you knew the essential nature of the conspiracy and intentionally joined it, you are liable for the full conspiracy and all reasonably foreseeable acts of co-conspirators.
References
- ↑ 1.0 1.1 18 U.S.C. § 371.
- ↑ 2.0 2.1 Whitfield v. United States, 543 U.S. 209 (2005).
- ↑ Iannelli v. United States, 420 U.S. 770 (1975).
- ↑ Blumenthal v. United States, 332 U.S. 539 (1947).
- ↑ Pinkerton v. United States, 328 U.S. 640 (1946).
- ↑ United States Sentencing Commission, USSG §2X1.1 (2024).
- ↑ United States Sentencing Commission, USSG §1B1.3 (2024).
- ↑ Kotteakos v. United States, 328 U.S. 750 (1946).
- ↑ U.S. Department of Justice, "Paul J. Manafort Convicted," August 2018.
- ↑ U.S. Department of Justice, "Charges Unsealed in Nationwide College Admissions Scam," March 2019.
- ↑ United States Sentencing Commission, 2023 Annual Report and Sourcebook of Federal Sentencing Statistics.
White Collar Crimes: Wire Fraud · Mail Fraud · Tax Evasion · Money Laundering · Bank Fraud · Healthcare Fraud · Securities Fraud · Aggravated Identity Theft · Embezzlement · Bribery · Insurance Fraud · Mortgage Fraud
Other Federal Offenses: Drug Trafficking · Illegal Reentry · Felon in Possession · RICO · Conspiracy · False Statements · Obstruction of Justice · Child Exploitation