What a conspiracy charge means
A conspiracy is an agreement between two or more people to commit a crime. The Supreme Court has said that committing a crime and conspiring to commit it are separate and distinct offenses, so a person can be charged with both.
Federal law has a general conspiracy statute and several specific ones. Which statute is charged affects what the government must prove and the possible sentence.
The agreement is a separate crime from the offense it aims at.
The general conspiracy statute, 18 U.S.C. § 371
Section 371 covers two kinds of agreements: to commit any offense against the United States, or to defraud the United States or any of its agencies. The second form is often used in tax and government program cases.
Section 371 also requires that one or more of the conspirators do some act to carry out the plan, often called an overt act. The maximum sentence is five years, and if the object of the conspiracy is only a misdemeanor, the punishment cannot exceed the maximum for that misdemeanor.
Conspiracy statutes and penalties
| Charge | What it covers | Maximum prison term |
|---|---|---|
| Conspiracy, 18 U.S.C. § 371 | Agreeing to commit a federal offense or to defraud the United States, plus an act to carry it out | 5 years |
| Drug conspiracy, 21 U.S.C. § 846 | Attempting or agreeing to commit a federal drug offense | The same as the underlying drug offense, including any mandatory minimum |
| Fraud conspiracy, 18 U.S.C. § 1349 | Attempting or agreeing to commit mail, wire, bank, health care or other fraud offenses in that chapter | The same as the underlying fraud offense |
| RICO conspiracy, 18 U.S.C. § 1962(d) | Agreeing to violate the RICO statute | 20 years, or life if based on racketeering activity that carries life |
The specific statutes matter because they can carry far higher penalties than section 371. In United States v. Shabani, the Supreme Court held that the drug conspiracy statute does not require proof of an overt act, in contrast to section 371.
Liability for what others did
Under Pinkerton v. United States, a conspirator can be held responsible for crimes a co-conspirator commits in furtherance of the conspiracy. The Court recognized a limit: a different case arises if the crime could not be reasonably foreseen as a necessary or natural consequence of the agreement.
This is why the scope of the agreement matters so much. What a person agreed to, when they joined and what they could foresee can decide how much of a large case is attributed to them.
How conspiracy cases are usually built
- InvestigationAgents collect messages, financial records and recorded calls, sometimes over years.
- CooperatorsPeople charged early may agree to testify against others.
- IndictmentA grand jury often charges many defendants in one indictment.
- DiscoveryThe defense reviews large volumes of evidence for each person’s actual role.
- Plea or trialEach defendant decides separately whether to resolve the case or go to trial.
Where these cases are often defended
Every case turns on its own facts. Issues that frequently matter include:
- Agreement. Whether the evidence shows an actual agreement, or only that the person knew, worked with or was related to people who were involved.
- Knowledge of the goal. Whether the person understood the unlawful purpose of the plan.
- Scope and timing. When the person joined, what they agreed to and which acts fall outside that agreement.
- Foreseeability. Whether crimes committed by others were reasonably foreseeable to this person.
- Cooperating witnesses. The credibility and motives of co-defendants who testify for the government.
How Kaufman Legal Group can help
Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience.
In multi-defendant cases, the team works to separate the client’s actual conduct from the larger case, challenges how much is attributed to the client and prepares to test cooperating witnesses at trial. The first consultation is free and confidential.