A conspiracy means an agreement between two or more persons to do something unlawful or violate federal law. It could be any federal law. The “agreement” alone is the criminal act, along with an overt act, that may be prosecuted and punished regardless if the substantive crime occurs. The agreement alone is not enough. A conspiracy does require that some overt act must also be undertaken. A conspiracy to commit a federal offense is generally punishable equal to the underlying offense.

An overt act is any statement or act that is knowingly done by one or more of the conspirators in an effort to accomplish a purpose of the conspiracy. It need not be in violation of the law or be a crime itself. Additionally, the other conspirators need not join or participate in it or even know about it. The conduct may be as innocent as traveling to another city, placing a phone call, crossing the street, or stopping payment on a check, as long as it is in furtherance of the conspiracy.

A conspirator can be held liable for all reasonably foreseeable crimes committed by his or her co-conspirators in furtherance of the conspiracy even if he did not personally commit or agree to those crimes. That is called “Pinkerton Liability”.

Conspiracy is frequently used by federal prosecutors allowing them to charge conduct that does not amount to commission of a full substantive offense, yet under guideline sentencing, allows admission of evidence that would not otherwise be available to the prosecutor. It can overcome jurisdictional and statute of limitation problems and provides an alternative for jurors when proof of the substantive offense is lacking.


Types of Conspiracies

There are generally two different types of conspiracies: 1. to commit an offense against the United States and 2. to defraud the United States. They each are different types of misconduct and involve different elements of proof. The Offense Clause involves a conspiracy to commit a recognized federal crime (substantive offense). The Defraud Clause is not confined to the common law definition of fraud but reaches any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of government.

Some conspiracies are called wheel or hub and spoke conspiracies, in which a single person or group forms the hub and deals individually with two or more other people or groups that are outside the hub. These separate spokes meeting at a common center constitute a wheel conspiracy only if those spokes are in turn connected. Alternatively a chain conspiracy is a linear progression of actors.

An agreement exclusively between the defendant and a government agent or informant does not establish a conspiracy. This is known as the “Sears Rule”.



Knowing Participation – The government must present evidence from which it can be reasonably inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it.

Mere Presence – A defendants mere presence at the scene of a criminal act or association with the conspirators does not constitute intentional participation in the conspiracy and is insufficient to prove aiding and abetting even if the defendant has knowledge of the crime.

Withdrawal from a conspiracy before any overt act is committed is also a valid defense. If an overt act has been committed before withdrawal, the defendant may be found guilty of conspiracy, but liability is limited to the criminal conduct occurring up to the time of the withdrawal. To withdraw a conspirator must take some affirmative action either to defeat or disavow the purpose of the conspiracy. An example of a valid withdrawal is reporting their actions to law enforcement.

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