Federal Conspiracy Law: A Brief Overview Page: 5 of 26

                                
Federal Conspiracy Law: A Brief Overview

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.'
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.'0
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." 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 well-
settled 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.""
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. '" Members of the
conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of
the common plot. '" 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).
8 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. 846-conspiracy to violate
the Controlled Substances Act-has no overt act requirement).
" 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 (4h 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).

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