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Conspiracy 101

This site is chiefly about jury instructions, but from time to time I like to use the site to illustrate the point that much of your research on federal issues can be done using federal pattern jury instructions. You can, for example, use this material to put together a credible discussion of current conspiracy law, as I have done below.

A conspiracy is a joint commitment to an endeavor which, if completed, would satisfy all of the elements of the underlying substantive criminal offense. Ocasio v. United States, 136 S.Ct. 1423, 1429 (2016). A conspirator need not agree to commit or facilitate each and every part of the substantive offense, so long as there is a specific intent that the underlying crime be committed by some member of the conspiracy. Id. In fact, conspirators may be convicted even if they are incapable of committing the substantive offense themselves. Id. at 1432.

Many criminal statutes have their own conspiracy clauses. Examples include civil rights conspiracy, 18 U.S.C. § 241, money laundering conspiracy, 18 U.S.C. § 1956(h), and narcotics conspiracies, 21 U.S.C. §§ 846, 963. Criminal offense statutes that do not have conspiracy clauses may be prosecuted under the general conspiracy statute, 18 U.S.C. § 371.

Some conspiracy statutes (including § 371) require proof of the commission of an overt act in furtherance of the conspiracy. An overt act is any act, lawful or unlawful, done to carry out the goals of the conspiracy. Pattern Crim. Jury Instr. 7th Cir. 5.08(A) (2018). Many of the statutes that have conspiracy clauses are silent on whether an overt act is required. Unless there is significant legislative history to the contrary, these statutes do not require proof of an overt act. See, e.g., Whitfield v. United States, 543 U.S. 209 (2005).

"[W]here substantiation of a conspiracy charge requires proof of an overt act, it must be shown both that the conspiracy still subsisted [within the limitations period]... and that at least one overt act in furtherance of the conspiratorial agreement was performed within the period." Grunewald v. United States, 353 U.S. 391, 396-97 (1957).

There is no requirement that all members of a conspiracy be charged, named, or known. Pattern Crim. Jury Instr. 6th Cir. 3.06 (2019). "It is no defense to a conspiracy charge that success was impossible because of circumstances that the defendants did not know about." Pattern Crim. Jury Instr. 6th Cir. 3.13 (2019). See also United States v. Jimenez Recio, 537 U.S. 270, 274 (2003).

"Before being convicted of conspiracy, an individual must conspire with at least one co-conspirator. There can be no conspiracy when the only person with whom the defendant allegedly conspired was a government [agent] [informant] who secretly intended to frustrate the conspiracy." Mod. Crim. Jury Instr. 9th Cir. 8.26 (2017) (this is called a "Sears charge").

The acts or statements of any member of a conspiracy are treated as the acts or statements of all the members of the conspiracy, if these acts or statements were performed or spoken during the existence of the conspiracy and to further the objectives of the conspiracy, and are consequently admissible under Fed. R. Evid. 801(d)(2)(E). See also Mod. Crim. Jury Instr. 3rd Cir. 6.18.371K (2015).

Defendants sometimes defend against conspiracy charge by arguing that any conspiracy shown by the evidence was unconnected from the conspiracy charged in the indictment, that is, the defense will argue that there were multiple conspiracies, and the prosecution will argue that it was a single conspiracy. To prove a single conspiracy, the government must prove that each of the conspirators agreed to participate in what they knew or should have known was a single group activity directed toward a common objective (a single agreement on an overall objective). Multiple conspiracies are separate agreements operating independently of each other. A single conspiracy may exist, however, when there is a continuing core agreement that attracts different members at different times with different sub-groups committing acts in furtherance of an overall objective. Mod. Crim. Jury Instr. 3rd Cir. 6.18.371K (2015). See also Blumenthal v. United States, 332 U.S. 539, 558 (1948). This is sometimes called a "hub-and-spoke" conspiracy. Mod. Crim. Jury Instr. 3rd Cir. 6.18.371K Comment (2015).

Withdrawal from a conspiracy occurs when there have been "[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators." United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65 (1978).

  1. Withdrawal terminates a defendant's liability for the post-withdrawal acts of co-conspirators. Consequently, if the conspiracy statute requires an overt act, and the defendant withdraws before any conspirator commits an overt act, the defendant is not guilty of conspiracy.
  2. Withdrawal may also have the effect of placing the defendant's conduct outside the statute of limitations.
  3. Finally, withdrawal may be a defense to substantive offenses committed by other co-conspirators (see the discussion of Pinkerton liability below).

Mod. Crim. Jury Instr. 3rd Cir. 6.18.371J-1 Comment (2015). Withdrawal, at least for the second type of defense (statute of limitations), is an affirmative defense. Smith v. United States, 568 U.S. 106 (2013).

The Pinkerton doctrine, from Pinkerton v. United States, 328 U.S. 640, 645-48 (1946), provides that a conspirator is responsible for offenses committed by another conspirator if:

  1. The conspirator was a member of the conspiracy when the offense was committed
  2. The offense was committed in furtherance of the conspiracy
  3. The offense was a foreseeable consequence of the conspiracy

The Fifth and Tenth Circuits take the view that elements two and three may be proved in the disjunctive; the doctrine applies if the offense is committed in furtherance or where it was foreseeable. Pattern Crim. Jury Instr. 5th Cir. 2.17 Note (2015) (noting circuit split); Pattern Crim. Jury Instruct. 10th Cir. 2.21 (2018). The other circuits require proof in the conjunctive. The Eleventh Circuit requires proof of "willful" membership. Pattern Crim. Jury Instr. 11th Cir. OI O13.5 (2019).

This doctrine applies to conspiracies charged under the general conspiracy statute, 18 U.S.C. § 371, and to conspiracies charged under specific statutes. Mod. Crim. Jury Instr. 3rd Cir. 7.03 Comment (2014). The doctrine is available even if the government did not charge conspiracy in the indictment. Id. "A defendant is not liable under the Pinkerton theory for an additional conspiracy offense committed by his confederates, but only for a substantive offense." Pattern Crim. Jury Instr. 5th Cir. 2.17 Note (2015).


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