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NOTE: After December 21, 2018, the effective date of the First Step Act (P.L. 115- 391), the U.S. criminal justice system has experienced numerous adjustments. Consequently, the following page has new material to clarify how low-level offenders can earn credits for time served.

18 U.S. Code § 371

Most conspiracy cases are charged under the general conspiracy statute, 18 U.S. Code § 371. In a conspiracy case, the prosecution must prove all of the following elements beyond a reasonable doubt for the jury to find the defendant guilty:

  1. An agreement;
  2. An unlawful object (ie, a criminal offense);
  3. Knowledge and intent; and
  4. An overt act in furtherance of the conspiracy.

Conspiracy is an inchoate crime, meaning that a person can be guilty of conspiracy before the criminal offense ever takes place. Reduced to two elements, a conspiracy is really just an agreement plus some act that furthers or enables the conspiracy.

The critical issue in trial is proof of an agreement. The prosecution will fail without proof of an agreement. The best defense can be denying that an agreement was made.

The law does not require written agreement. Rather, it can be written, verbal, or even unspoken, as long as there is an agreement. It is a question for the jury to decide whether an agreement was made, and the proof is usually circumstantial evidence.

One key to the agreement is proof of knowledge. The U.S. Attorney has to prove that the parties to the agreement knew what the purpose was. That is, each person to the agreement must know that the objective of the agreement is to commit a crime. Where a person did not know what the purpose was, they may be not guilty.

Also, the parties to the agreement must knowingly act to further or enable the conspiracy. If the evidence at trial is that the defendant took action without knowing that it would enable a conspiracy, then they may be not guilty.

A frequent problem arises where the defendant did not agree to the manner in which the conspiracy was carried out. It may seem that a defendant cannot be guilty of conspiracy where they were ignorant of the conspiracy’s true purpose or uninformed about the nature and extent of the conspiracy.

For example, if the defendant did not agree to commit any additional crimes, it is arguable that they did not agree to the conspiracy. The same is true if the defendant did not agree to participate in the conspiracy with other people.

The law, however, is not on the defendant’s side on these issues. Federal prosecutors only have to prove that the defendant knew about the conspiracy and took some action to further it.

The fact that the defendant did not know every detail about the conspiracy is usually not a defense. Typically, it does not matter if additional crimes took place, as long they were done as part of the conspiracy.

The fact that other people were involved unknown to the defendant is not a defense either. It is possible to convict a defendant for conspiracy, even if the identity of other parties were unknown to the defendant.

Withdrawing from the agreement

The only true defense to conspiracy is that the defendant withdrew from the agreement. Furthermore, the defendant must communicate their withdrawal to the co-conspirators and take some action inconsistent with the conspiracy. Not only must the defendant disavow the agreement, they must also take affirmative action to defeat the purpose of the conspiracy.

In the absence of a valid defense, federal prosecutors may be able to convict the defendant for conspiracy. If that happens, conspiracy is usually punishable by up to five years in prison. Though the defendant may qualify for up to 54 days of credit for each year of their sentence, unless they were involved in terrorism or other violent crimes.

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