Federal Conspiracy Statute (18 U.S.C. § 371)
Citation
18 U.S.C. § 371 — the general federal conspiracy statute. Two independent clauses cover distinct types of conspiratorial agreements.
Two Clauses
1. Offense Clause
Conspiracy to commit any offense against the United States (i.e., any federal crime).
2. Defraud Clause
Conspiracy to defraud the United States or any agency thereof — construed broadly to reach agreements to obstruct, impede, or impair any legitimate function of the government through deceit, craft, trickery, or dishonest means.
- Haas v. Henkel (1910): the defraud clause extends beyond conspiracies to cheat the government out of money; it covers interference with any lawful governmental function.
- The defraud clause is notably broad and has been used in tax, regulatory, and public integrity cases.
Elements
Offense Clause
- Agreement between two or more persons
- To commit an offense against the United States
- Overt act in furtherance of the conspiracy committed by at least one conspirator
Defraud Clause
- Agreement between two or more persons
- To obstruct, impede, or impair a legitimate function or agency of the United States by deceit, craft, or trickery
- Overt act in furtherance of the conspiracy
Key Concepts
Agreement
The essence of conspiracy; requires a meeting of minds on the common objective. Does not need to be formal or explicit — circumstantial evidence of a tacit understanding suffices. The government need not prove every conspirator knew all details or all co-conspirators.
Overt Act
Any act — legal or illegal — taken in furtherance of the conspiracy. Only one conspirator needs to commit the overt act to satisfy the element for all members. The overt act need not be criminal itself.
Pinkerton Liability
Pinkerton v. United States (1946): each conspirator is liable for the substantive offenses committed by co-conspirators in furtherance of the conspiracy and reasonably foreseeable as a natural consequence of it, even without direct participation. This doctrine significantly expands criminal exposure for all members of a conspiracy.
Venue
Proper in any district where the agreement was made or where any overt act in furtherance of the conspiracy occurred.
Withdrawal
A conspirator may withdraw by taking a complete and affirmative act — either communicating withdrawal to co-conspirators or making a timely disclosure to law enforcement. Effects:
- Tolls the statute of limitations as to the withdrawing defendant from the date of withdrawal.
- Does not eliminate liability for crimes committed before withdrawal.
- Mere cessation of activity is insufficient; must be an affirmative step.
Wharton’s Rule
Where the target offense by definition requires two or more participants (e.g., bribery, adultery, incest, bigamy), a conspiracy charge requires more parties than are necessary to commit the underlying offense. Rationale: punishing the agreement separately would be duplicative where the agreement is already implicit in the substantive offense.
Penalties
- Up to 5 years imprisonment if the target offense is a felony.
- Up to 1 year imprisonment (misdemeanor conspiracy) if the target offense is a misdemeanor.
- Fines and restitution also available.
Relationship to Other Conspiracy Statutes
| Statute | Context |
|---|---|
| 18 U.S.C. § 1956 | Money laundering conspiracy |
| 18 U.S.C. § 1962(d) | RICO conspiracy — see RICO (18 U.S.C. §§ 1961–1968) |
| 21 U.S.C. § 846 | Drug trafficking conspiracy (no overt act required) |
§ 371 remains the general workhorse conspiracy statute in federal white-collar and public corruption cases.