Drug Trafficking Conspiracy Chicago | US Attorney | Rockford District Court

Proof of an agreement is necessary for conspiracy charges

by Sami Azhari on November 1, 2010

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

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

Conspiracy is an inchoate crime in that a person can be guilty of conspiracy before the offense that is the objective of the conspiracy ever takes place. Reduced to two elements, a conspiracy is really just 1) an agreement; and 2) 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, and the best defense may be to deny that an agreement was made.

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

One key to the agreement is proof of knowledge. The United States 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, he may be acquitted.

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 he 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 he was 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 committing additional crimes, it is arguable that the did not agree to the conspiracy. The same is true if the defendant did not agree to participate 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 all the plan’s details 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. It is possible to have a defendant found guilty of conspiracy where the identity of other parties is unknown to him.

The only defense to conspiracy is that the defendant withdrew from the agreement.

To prevail at trial, the defendant must convince the jury that he withdrew from the conspiracy by communicating his withdrawal to the co-conspirators and taking some action that is inconsistent with the conspiracy. Not only must the defendant disavow the agreement, he must also do something that defeats the purpose of the conspiracy. The defendant must take affirmative action against the conspiracy.

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