A conspiracy is “an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and [often] action or conduct that furthers the agreement; a combination for an unlawful purpose.” Black’s Law Dictionary 329 (8th ed. 2005). Conspiracy always involves two or more people, because a person cannot conspire with himself. United States v. Moss, 591 F.2d 428, 434 (8th Cir. 1979). It is a separate offense from the crime that is the object of the conspiracy, and the conspiracy ends when either the unlawful act has been committed or when the agreement has been abandoned. Id. It does not automatically end if the object of the conspiracy is defeated. Id.
The statute that deals primarily with conspiracy is 18 U.S.C. § 371 (2007), but there are some statutes that deal with conspiracies for specific unlawful acts, the most common being 18 U.S.C. § 1956(h) (2007) (money laundering), and 21 U.S.C. § 846 (2007) (controlled substances). Many times, a defendant will be charged with conspiracy along with the actual crime the defendant is accused of committing. For example, see United States v. Walsh, 75 F.3d 1 (1st Cir. 1996) (defendant charged with conspiracy, bank fraud, and making false statements); Huff v. United States, 301 F.2d 760 (5th Cir. 1962) (defendants charged with conspiracy, and wire fraud); United States v. Buschman, 386 F. Supp. 822 (E.D. Wis. 1975) (defendant charged with conspiracy, and interstate transportation of stolen goods).
Other times, the defendant will be charged with only one count of conspiracy. See, for example, Coluccio v. United States, 313 F. Supp. 2d 150 (E.D.N.Y. 2004) (defendant charged with conspiracy to defraud the United States government); United States v. Fantin, 130 F. Supp. 2d 385 (W.D.N.Y. 2000) (defendant charged with one count of conspiracy to commit wire and mail fraud).
18 U.S.C. § 371 (2007)
The Crime It is a violation of section 371 for “two or more persons” to conspire
to commit any offense against the United States, or
” to defraud the United States, or any agency thereof in any manner or for any purpose, if one or more of such persons does any act to effect the object of the conspiracy. 18 U.S.C. § 371 (2007).
The punishment for a violation of section 371 is
imprisonment for not more than five years,
or both. 18 U.S.C. § 371 (2007).
If the offense contemplated is a misdemeanor, the punishment shall not exceed the maximum punishment provided for such misdemeanor. Id.
Case Law Interpreting Section 371 United States v. Bicaksiz,
194 F.3d 390 (2d Cir. 1999)”An essential element of the crime of conspiracy is an agreement. In other words, ‘unless at least two people [agree], no one does. When one of two persons merely pretends to agree, the other party, whatever he may believe, is in fact not conspiring with anyone.'” Bicaksiz at 399 (quoting United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir. 1977)).
United States v. Stavroulakis,
952 F.2d 686 (2d Cir. 1992)The defendant in this case was convicted, in part, for conspiring with another individual to launder money. Stavroulakis at 688. On appeal, he argued that “the government failed to prove a conspiracy to violate the money laundering statute, as there was no proof of an agreement on the essential nature of the conspiracy.” Id. In short, he argued that the conviction could not stand “because he believed the money came from narcotics while [his co-conspirator] believed it came from gambling.” Id. at 690. The court disagreed. There is no requirement that the conspirators agree on every detail of the venture, but “there must be proof beyond a reasonable doubt that they agreed on the essential nature of the plan.” Id. (quoting Blumenthal v. United States, 332 U.S. 539, 557 (1947)). Ancillary aspects of the conspiracy do not need to be agreed on because the “policies underlying conspiratorial liability could easily be thwarted by the careful compartmentalization of information, and ‘conspirators would go free by their very ingenuity,’ if it were required that they agree on all details of the scheme.” Id. Instead, the focus is on the essence of the underlying illegal objective. Id.
United States v. Cohen,
583 F.2d 1030 (8th Cir. 1978)The indictment in Cohen charged that the defendants willfully and knowingly conspired with each other and an unindicted co-conspirator to cause to be delivered by mail certain obscene materials. Cohen at 1034. “In order to convict on [a] conspiracy charge … the jury must find (1) an agreement, (2) a combination of two or more persons, (3) an unlawful purpose, and (4) that at least one of the conspirators committed an overt act in furtherance of the conspiracy.” Id. at 1039. Furthermore, a conspiracy, “once established, is presumed to continue until the contrary is established.” Id. at 1040.
18 U.S.C. § 1956(h) (2007)
It is a crime under section 1956(h) for “any person” to conspire to violate 18 U.S.C. § 1956 or 1957.
A violation of section 1956(h) is punishable in the same manner as if the offense had actually been committed.
Case Law Interpreting Section 1956(h)Whitfield v. United States,
125 S. Ct. 687 (2005) (No. 03-1293).This case presented the question “whether conviction for conspiracy to commit money laundering ¼ requires proof of an overt act in furtherance of the conspiracy.” Whitfield at 689. The court held that it did not. Certiorari was granted so that the Court could resolve a circuit split about whether an overt act is required. The Eleventh Circuit, relying on United States v. Shabani, 513 U.S. 10 (1994), determined that proof of an overt act is not required. Whitfield at 690 (citing United States v. Hall, 349 F.3d 1320, 1324 (2003)). Other circuits, however, took the opposite position. Id. (citing United States v. Wilson, 249 F.3d 366, 379 (5th Cir. 2001); United States v. Hildebrand, 152 F.3d 756, 762 (8th Cir. 1998)).
The Court determined that, “where Congress had omitted from the relevant conspiracy provision any language expressly requiring an overt act, the Court would not read such a requirement into the statute.” Id. at 691. An attempt was also made to classify section 1956(h) as a penalty-enhancing provision rather than a separate offense, which would require the Government to prosecute money laundering conspiracies under section 371, but allow enhanced penalties under section 1956(h). Id. at 692. The court found this reasoning “untenable” for two reasons. First, the text of section 1956(h) is sufficient to establish an offense; the language is almost identical to that found in 21 U.S.C. § 846, the statute at issue in Shabani, which “indisputably created an offense.” Id. Second, the argument that section 1956(h) is merely a penalty-enhancing provision would require a violation of section 371 be proved; “the text of [section] 1956(h) fails to provide any cross reference to [section] 371. Mere use of the word ‘conspires’ surely is not enough to establish the necessary link between these two separate statutes.” Id.
21 U.S.C. § 846 (2007)
The CrimeThe language in 21 U.S.C. § 846 is similar to the language in 18 U.S.C. § 1956(h). It is a violation of section 846 for a person to attempt or conspire to commit any offense defined in title 21
The PunishmentThe punishment under section 846, is also similar to the punishment provisions of section 1956(h). A violation of section 846 is punishable in the same manner as if the offense had actually been committed.
Case Law Interpreting Section 846United States v. Shabani, 513 U.S. 10 (1994).This case deals with the question of whether section 846, “the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy.” Shabani at 11. Unsurprisingly, the Court concluded that it did not. Id. The defendant was charged with conspiracy to distribute cocaine in violation of section 846. Id. The indictment, however, failed to allege the commission of an overt act in furtherance of the conspiracy, which, the defendant argued, was an essential element of the offense. Id. Certiorari was granted to resolve the conflict among the circuits whether proof of an overt act is required. Id. at 12. The Court determined that the language does not require “that an overt act be committed to further the conspiracy, and [it has] not inferred such a requirement from congressional silence in other conspiracy statutes.” Id. at 13. Since 18 U.S.C. § 371 “contains an explicit requirement that a conspirator ‘do any act to effect the object of the conspiracy’ ¼ Congress’ silence in [section] 846 speaks volumes. After all, the general conspiracy statute preceded and presumably provided the framework for the more specific drug conspiracy statute.” Id. at 14.