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Article Excerpt
I. INTRODUCTION
II. ELEMENTS OF THE OFFENSE A. Agreement B. Illegal Goal C. Knowledge, Intent, and Participation D. Overt Act III. DEFENSES A. Statute of Limitations B. Variance C. Multiplicitous Indictment D. Insufficient Indictment E. Withdrawal F. Other Defenses IV. CO-CONSPIRATOR HEARSAY RULE A. Evidentiary Issues B. Sixth Amendment Issues V. PARTIES AND LIABILITY A. Vicarious Liability B. Joinder and Severance C. Acquittal of Other Co-Conspirators VI. SENTENCING
I. INTRODUCTION
Under 18 U.S.C. [section] 371, it is a crime to conspire to commit any offense against the United States or to defraud the United States. (1) A conspiracy offense sometimes poses a greater danger to society than a substantive offense committed by a single individual. The Supreme Court explained:
[f]or two or more to ... combine together to commit ... a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered. (2) A conspiracy is distinct from the substantive crime contemplated by the conspiracy (3) and may be charged whether or not the underlying substantive offense occurred. (4) While acquittal on a conspiracy charge does not bar prosecution based on the substantive offense; (5) acquittal of the substantive offense may bar conviction on the conspiracy count. (6) Section 371 applies generally to a conspiracy possessing the goal to "commit any offense against the United States, or to defraud the United States" (7) and criminalizes any agreement to violate a civil or criminal federal law. (8) Numerous federal statutes also identify specific conspiracy offenses. (9) A conspiracy to violate a civil law must inflict actual damage on the civil plaintiff. Such a requirement does not exist, however, for conspiracies to violate criminal laws. (10) Conspiracy is applied by prosecutors to a variety of situations, (11) making it one of the most commonly charged federal crimes. (12) Because it can be difficult to define the temporal scope of the conspiracy, (13) courts remain wary of conspiracy charges spanning time periods outside of the statute of limitations of the substantive offense. (14) Courts also recognize, however, the essential features of a conspiracy--secrecy and concealment (15)--make it difficult to prosecute, especially if the conspiracy is successful. The government, therefore, may establish the "essential nature of the plan and [defendants'] connections with it" through circumstantial evidence and inferences to ensure that conspirators do not "go free by their very ingenuity." (16) When the government seeks to prove the elements of a conspiracy by inference, it must prove each element beyond a reasonable doubt. (17) Section II of this article outlines the basic elements of a conspiracy offense under [section] 371. Section III sets forth defenses available to challenge charges brought under the statute. Section IV presents evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys various procedural and substantive rules regarding enforcement amongst multiple parties. Finally, Section VI discusses sentencing for a conspiracy conviction.
II. ELEMENTS OF THE OFFENSE
Criminal conspiracy has four elements, each of which the prosecution must prove beyond a reasonable doubt. (18) A conspiracy exists where there is: (i) an agreement between at least two parties; (ii) to achieve an illegal goal; (iii) where the parties possess knowledge of the conspiracy and with actual participation in the conspiracy; and (iv) where at least one conspirator committed an overt act in furtherance of the conspiracy. (19)
A. Agreement
The first element and the "essence" of a conspiracy "is an agreement to commit an unlawful act." (20) The agreement must be between two or more people, which may include married spouses, (21) working together toward a common goal. (22) Corporations, their officers, agents, or employees are considered individual actors under [section] 371, so the "intracorporate conspiracy doctrine" generally does not apply. (23)
Due to the secretive nature of a conspiracy, the government need not prove a formal agreement (24) but can demonstrate its existence through circumstantial evidence (25) or by inference from the defendants' actions. (26) Individual defendants may implicitly enter into an agreement to commit a larger conspiracy if they knew, or should have known, others were committing analogous actions. (27)
The bilateral conspiracy requirement of [section] 371 requires at least two actors. (28) A defendant, however, does not need to know the identity of other conspirators. (29) If there are only two actors, neither may be a government agent. (30) A government agent can serve as a link between a true conspirator and defendant if defendant knew, or should have known, the conspiracy involved conspirators beyond the government agent. (31)
Wharton's Rule (32) states, absent legislative intent to the contrary, an agreement by two people to commit a particular crime cannot be prosecuted as a conspiracy if the commission of the crime itself requires the participation of two people. (33) Wharton's Rule does not apply, however, if the crime could have been committed by one person, (34) if the number of actual conspirators exceeds the number required to commit the substantive offense, (35) or if the consequences of the conspiracy rest on "society at large" rather than the parties themselves. (36)
B. Illegal Goal
The second element of a federal conspiracy is the presence of an illegal goal. (37) Specifically, the government must establish that the aim of the conspiracy was either to defraud or hinder a lawful federal government objective (the "defraud clause") (38) or to violate a federal law (the "offense clause"). (39) Evidence of prior or uncharged acts not connected to the conspiracy may be admitted if it creates a reasonable inference of knowledge of the substantive offense charged. (40)
The language of [section] 371's "defraud clause" is "not confined to fraud as that term has been defined in the common law." (41) Unlike common law, under [section] 371 the government need not suffer pecuniary loss to prove a conspiracy to defraud (42) because fraud reaches "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the] government." (43)
The "offense clause" of [section] 371 is not limited to offenses committed against the United States or its agents; (44) it applies to any conspiracy that does, or is intended to, violate a specific federal statute. (45) It is not necessary that the conspirators knew or intended for the conspiracy to violate federal law. (46)
If a defendant indicted for violating a federal statute is also charged with conspiracy to defraud, the government need not prove the elements of the substantive offense to prove the conspiracy (47) as long as the indictment provides sufficient notice of the charges. (48)
C. Knowledge, Intent, and Participation
The third element of a conspiracy states that the defendant must have knowledge of the conspiratorial agreement and have voluntarily participated in it. (49) The defendant's conscious participation in the conspiracy may be inferred from circumstantial evidence. (50) The government need not prove the defendant knew all the details of, (51) objectives of, (52) or identity of all the other participants in the conspiracy. (53) Besides acts included in the underlying substantive offense, other acts the defendant committed in furtherance of the objectives of the conspiracy are often sufficient to demonstrate defendant was a knowing participant. (54) However, "a defendant's mere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in the conspiracy," even if the defendant had knowledge of the conspiracy. (55)
Most circuits hold that if the government proves beyond a reasonable doubt the conspiracy's existence, the defendant's intent to further the conspiracy, and his knowledge of the conspiracy, it need only prove a "slight connection" between defendant and the conspiracy. (56) The Fifth (57) and Eleventh (58) Circuits are internally split as to application of the rule. Deliberate avoidance of knowledge does not preclude a finding of intent with respect to the conspiracy. (59)
D. Overt Act
The fourth element of a federal conspiracy charge under [section] 371 is the performance of an overt act in furtherance of the conspiracy. (60) Not all federal conspiracy statutes require an overt act. (61) The purpose of the overt act requirement is to demonstrate that the conspiracy was operative, rather than a mere scheme in the minds of the actors. (62) The overt act need not be unlawful, (63) nor need it be the substantive offense charged in the indictment. (64)
The Pinkerton (65) rule sets out a theory of vicarious liability whereby reasonably foreseeable overt acts of one co-conspirator committed in furtherance of the conspiracy are attributable to the other conspirators. (66) A defendant is liable for overt acts committed by his co-conspirators both prior to and during the defendant's participation. (67) However, this proposition only applies to acts related directly to the conspiracy. The Pinkerton doctrine also does not apply to substantive offenses committed by co-conspirators in the course of the conspiracy when defendant is only slightly connected to the conspiracy. (68)
III. DEFENSES
In addition to challenging the conspiracy charge because of failure to prove the specific elements of the offense, defendants may also contest the charge based on: (i) the statute of limitations; (ii) variance, (iii) multiplicitous indictment; (iv) insufficient indictment; (v) withdrawal; and (vi) various other defenses. Defendants are entitled to present inconsistent defenses. (69) In this Section, A through E address the five enumerated defenses, and F discusses the strength of miscellaneous defenses.
A. Statute of Limitations
Because no provision of [section] 371 provides an express statute of limitations for conspiracy charges, the general five-year limitation for non-capital offenses applies. (70) The five-year limitation period also applies to the conspiracy provisions of other federal statutes, unless they expressly provide otherwise. (71) A conspiracy ends when the central criminal purpose of the conspiracy has been attained or when all parties withdraw from the agreement. (72) Yet, if an agreement between conspirators still exists, a conspiracy does not automatically terminate because the government has intervened to frustrate the conspiracy's object. (73)
The statute of limitations runs from the date of the last overt act committed in furtherance of the conspiracy. (74) If the statute does not have an overt act requirement, the government must prove the conspiracy was still in existence in the five-year period. (75) Unlike acts intended to conceal a conspiracy, concealment of prior acts performed in the course of a conspiracy are not viewed as continuing the conspiracy's operation (76) and are not admissible as co-conspirator hearsay statements. (77)
B. Variance
Variance refers to a situation in which the conspiracy proved at trial is materially different from the conspiracy charged in the indictment. (78) Constructive amendment and variance are related but not identical defenses because constructive amendment is a per se violation of the Fifth Amendment while variance is not. (79) Fatal variance occurs when there is a violation of the Sixth Amendment requirement that a criminal defendant be given adequate notice of the charges against him. (80) However, it is difficult for a defendant to prevail on this theory. (81) If the variance is a matter of form, it need not be amended; if it is a matter of substance, the indictment may only be amended by resubmission to the grand jury. (82) A variance may also be cured by a jury instruction informing the jury that if it finds multiple conspiracies, evidence of one conspiracy cannot be used in considering another conspiracy. (83) At trial, the jury determines whether there is a variance between the number of conspiracies charged in the indictment and the number proven. (84) On appeal, courts will only reverse a conviction if the variance is substantially prejudicial (85) to a defendant's substantial rights. (86) A defendant's substantial rights may be affected if: (i) the defendant is not apprised of the charges he would have to defend against at trial; (87) (ii) evidence of conspiracy is introduced at trial when the defendant was not a party to the conspiracy; (88) or (iii) the defendant may be exposed to double jeopardy. (89)
C. Multiplicitous Indictment
A multiplicitous indictment arises when a single conspiracy is charged as more than one count. (90) Because of the dangers posed by multiplicitous indictments, the jury must receive a limiting instruction to remedy any undue prejudice to the defendant. (91) Conviction and sentencing on more than one count alleged in the multiplicitous indictment violates the Double Jeopardy Clause of the Fifth Amendment. (92) However, under [section] 371, a defendant may be charged with and convicted of both conspiracy and the underlying substantive offense without violating double jeopardy. (93)
D. Insufficient Indictment
A claim that an indictment is insufficient because it does not contain all elements of the offense charged may succeed. (94) The Fifth Amendment guarantees that a defendant will not be prosecuted based on indictment that is not specific enough to apprise him of the charges he must defend against at trial. (95) Even if an indictment contained a plain error, it must affect the defendant's substantial fights to be overturned. (96)
E. Withdrawal
To effectively withdraw from a conspiracy, a conspirator must not only cease participation, but must also engage in "affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators." (97) Unless he unequivocally withdraws, a conspirator can still be held liable for co-conspirators' actions. (98) The statute of limitations begins to run from the time of the withdrawal. (99) Defendant bears the burden of proof to demonstrate actual withdrawal. (100)
F. Other Defenses
There are several other defenses to a charge of federal criminal conspiracy. Insanity (101) and coercion or duress (102) are potentially successful affirmative defenses, but require unique factual circumstances.
A defense theory that the conspiracy failed to achieve its illegal goal generally fails. (103) Factual impossibility, (104) which is not a defense, is distinct from "hybrid" legal impossibility, (105) which is a defense in some circuits. (106) Many other circuits question, if not eschew, the "hybrid" legal impossibility defense. (107) Pure legal impossibility, however, is always a defense. (108) The entrapment (109)--or entrapment by estoppel (110)--defense is only rarely successful.
IV. CO-CONSPIRATOR HEARSAY RULE
Conspiracy trial prosecutors often include testimony by co-conspirators to ensure a conviction because co-conspirators often are the best witnesses to the conspiracy. (111) For this reason, this section briefly discusses the co-conspirator exception to the hearsay rule. (112) Part A addresses evidentiary issues, and Part B reviews Sixth Amendment concerns.
A. Evidentiary Issues
Under Rule 801(d)(2)(E) of the Federal Rules of Evidence ("Rule 801"), a "statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." (113)
Before a court allows admission of a hearsay statement by a co-conspirator, the government must prove three elements by a preponderance of the evidence: (114) (i) the existence of a conspiracy; (115) (ii) the declarant's and defendant's participation in it; (116) and (iii) that the hearsay statement was made during the course of and in furtherance of the conspiracy. (117) To determine the admissibility of a coconspirator's statement, a court may look at the content of the statement itself, but must also consider independent evidence. (118) Courts should examine "the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the content of the statement." (119) Any statement by a co-conspirator that promotes the main objectives of the conspiracy is considered to be in furtherance of the conspiracy. (120)
Once this determination has been made, any witness can recount the statement, regardless of whether or not the statement was originally made to a member of the charged conspiracy. (121) Similarly, records, notes, recordings, and other documents completed by a co-conspirator may be admitted against the defendant as statements in furtherance of the conspiracy even if the defendant had no knowledge of those items. (122)
The Supreme Court has not designated an order of proof for trial courts to follow in determining whether the hearsay standard has been met. (123) Some circuits have held that the trial court may admit a co-conspirator's statement before receiving the government's proof of the elements required to establish a conspiracy under Rule 801. (124) Indeed, these circuits have held that a separate heating outside the presence of the jury is not necessary; if the government fails to meet its burden of proof during its presentation of the case, an instruction to the jury to disregard the statement is sufficient to negate any prejudice to the defendant that may have occurred. (125)
Out-of-court statements by co-conspirators may be admissible under Rule 801(d) even if the defendant is not formally charged with conspiracy in the indictment. (126) However, when conspiracy is not charged, judges are more likely to admit a co-conspirator's statement only if the conspiracy is closely related or "factually intertwined" with the crime for which the defendant is charged. (127)
Statements made by co-conspirators prior to the time the defendant joined the conspiracy may be admissible against the defendant (128) because the defendant "[takes] the conspiracy as he [finds] it." (129) The statement of a co-conspirator made to an undercover agent before an arrest is also considered to be in furtherance of the conspiracy; (130) however, an admission, confession, or guilty plea made after an arrest is not admissible. (131) This rule is based upon an assumption that an arrest serves as a withdrawal from the conspiracy and ends the individual's participation in it. (132) Additionally, courts have held that casual comments, narratives, statements made for personal gain outside the objectives of the conspiracy, as well as other "idle chatter" are not in furtherance of the conspiracy and, therefore, not admissible. (133) Finally, statements regarding past conduct are not in furtherance of the conspiracy. (134)
B. Sixth Amendment Issues
The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the fight to confront witnesses at trial. (135) In 2004, the Court overruled the application of the Ohio v. Roberts two-pronged test to determine the admissibility of hearsay testimony, finding the framework for the reliability test so unpredictable that it failed to provide any meaningful protection from core confrontation violations. (136) This did not affect the admissibility of co-conspirator hearsay statements, (137) however, since the Supreme Court had previously abolished the test with respect to determinations of admissibility of co-conspirator hearsay statements, holding that the Confrontation Clause requires neither proof of the unavailability of the declarant co-conspirator, (138) nor any independent inquiry into the reliability of the proffered statement. (139)
V. PARTIES AND LIABILITY
Conspirators can be charged, convicted, and sentenced for both the substantive crime(s) and the conspiracy offense. (140) Part A discusses the vicarious liability of a defendant for acts of her co-conspirators; Part B analyzes issues raised by joinder and severance of multiple defendants; and Part C discusses the effect on a defendant of the acquittal of other co-conspirators.
A. Vicarious Liability
Under the Pinkerton (141) rule of vicarious liability, conspirators may be held liable for any foreseeable overt acts committed by a co-conspirator in furtherance of the conspiracy. (142) Some circuits have extended the rule of vicarious liability to corporations in criminal cases, creating an exception to the "intracorporate conspiracy doctrine." (143) At the same time, some courts have attempted to limit Pinkerton liability. (144) After establishing the existence of a conspiracy, most courts require only "slight evidence" (145) connecting the defendant to the conspiracy for a conviction; (146) however, the Seventh and Eleventh Circuits have required "substantial evidence" to connect the defendant to the on-going conspiracy, citing due process concerns, (147) and the Second and Tenth Circuits have established somewhat of a middle ground. (148)
B. Joinder and Severance
The prosecutor must decide whether to try co-conspirators jointly or separately. Although joint trials create the danger that the fact-finder will not be able to distinguish the more guilty parties from other less culpable co-conspirators, (149) conspiracy charges usually provide a proper basis for joinder. (150) Severance will be granted only if a defendant can make "a strong showing of prejudice." (151)
C. Acquittal of Other Co-Conspirators
Traditionally, under the "rule of consistency," if co-conspirators were tried together, one conspirator could not be convicted under [section] 371 if all the other conspirators were acquitted. (152) Today, this rule, which never required the acquittal of the last-tried defendant if the defendants were tried separately, (153) has...
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