A criminal conspiracy exists when two or more people agree to commit a criminal offense and take a concrete step toward its completion. The conduct need not itself be a crime. But it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. A judge or jury may convict a person of conspiracy, even if the crime never reaches completion.
For example, Ryan, Ava, and Brandon plan a bank robbery. They first visit the bank to assess its security. They decide what each will do at the scene. Finally, they pool their money and buy a gun. Law enforcement can charge all three with conspiracy to commit robbery based on their preparatory acts. It does not matter whether they ever commit or attempt to commit the robbery.
This article discusses the different elements of the crime of conspiracy. It will provide examples under federal and state law, including possible penalties and defenses.
The 'Agreement' Requirement
You might be wondering how exactly an agreement between two co-conspirators comes together. There's no need for formalities. For instance, in the above example, Ryan does not have to tell Ava and Brandon in unequivocal terms, "I agree to commit a crime with you," although that statement would surely be a prosecutor's dream. Instead, a court can imply an agreement from the circumstances, such as when the conspiracy members meet and plan the crime.
The Element of 'Intent'
As with other specific intent crimes, a person's intention is key. But the court will also care about the mental states of the alleged partners in crime. Other individuals in the conspiracy must agree, and all must intend to achieve the outcome.
Merely associating with people known to be involved in criminal acts doesn't make you a co-conspirator. For instance, just because your friend tells you he is going to burglarize a house doesn't mean you are part of the conspiracy. You would need to agree to be involved in the illegal act. Acting as a getaway driver would be one way to further the conspiracy. Helping scope out the property ahead of time would also show criminal intent.
The 'Overt Act' Requirement
In most jurisdictions, at least one co-conspirator must take some overt act to further the agreement. For a bank robbery, a conspirator could rent a car to use in the crime. The requirement of an overt act prevents police officers from arresting people for merely talking about a crime.
If three drunken friends at a bar speculate about how they would rob a bank together, and none of them ever undertakes any sort of action, there's no criminal conspiracy. Likely, the intent requirement also wouldn't be satisfied in that scenario.
Federal Conspiracy Law
The federal crime against conspiracy (18 U.S.C. Section 371) includes the following elements:
- Two or more persons conspire;
- To commit an offense against the United States, to defraud the United States, or any agency thereof; and
- One (or more) of such persons do an act to effect the object of the conspiracy
The basis of federal conspiracy charges may occur in reference to any number of criminal offenses. They often show up in the prosecution of public officials or in cases of white-collar crimes like fraud.
For example, Henry and his daughter Sally are doctors running a health care clinic. They devise a scheme where they falsely diagnose patients with an illness that requires treatment with an expensive prescription drug. They recruit "patients," promising a kickback for their cooperation. They then seek reimbursement from a federal program like Medicare for the full cost of each patient's treatment. In reality, they don't purchase the drug quantity made in the reimbursement request, as they do not need it for their "patients."
The government will argue that Henry and Sally conspired to defraud the United States with this plan to get unlawful reimbursement. By creating false treatment records and bills, they took an overt act to further the conspiracy. Even if the Medicare office suspects something and does not grant the first reimbursement, they could face federal conspiracy charges based on their actions.
Under the federal conspiracy statute, a conspiracy conviction is punishable by up to five years imprisonment in addition to fines. Prosecutors commonly charge conspiracy whenever two or more offenders act in tandem. A person can be convicted both of an underlying crime and of conspiracy to commit it. A court can issue separate punishments for each offense. In the case above, if Henry and Sally succeeded in their efforts and conned the government out of thousands of dollars, they may face more prison time for committing the underlying crime.
State Conspiracy Law
Each state also has its own crime of conspiracy. For example, under Texas Penal Code Section 15.02, a person commits the crime of criminal conspiracy when:
- With intent to commit a felony;
- They agree with one or more persons;
- That one or more of them engage in conduct that would constitute a criminal offense;
- And one or more of them performs an overt act in furtherance of the agreement
With each state law, the elements of conspiracy will be similar. But criminal penalties for the crime may vary. In Texas, the crime of conspiracy will be charged at one category lower than the most serious felony that is the object of the conspiracy. If that crime is a state jail (lowest) felony, then the conspiracy charge will be a Class A misdemeanor. In contrast, Pennsylvania sets the same grade and degree for the conspiracy charge as the most serious offense that is the object of the conspiracy.
Some states reserve the conspiracy charge for only target offenses that are felonies. Others permit the State to pursue conspiracy no matter the degree of the underlying offense.
Legal Defenses to Conspiracy
Criminal defense attorneys point to several possible defenses common in conspiracy cases. These include:
- No agreement: In this defense, the attorney denies that there was any agreement in the first place. The defendant may testify that they were not part of any plan to commit a crime. In the alternative, the attorney may seek to challenge the testimony of state witnesses.
- No intent to commit crime: In this scenario, the defense may admit that two or more persons talked about a crime in hypothetical terms. They claim that there was no coordination or plan showing an intent to go further. In another version of this defense, the defendant may claim they were unaware that the parties were discussing a crime or illegal act. The state must prove intent (like every element of the crime) beyond a reasonable doubt to convict.
- No overt act: Here, the defendant will attempt to show that the state's evidence does not include an overt act taken in furtherance of the conspiracy. If none of the scheming parties moves forward in some clear manner, there is no crime.
- Withdrawal from the conspiracy: The defendant claims that they voluntarily withdrew their support from the parties' agreement and communicated the withdrawal to the others in the alleged conspiracy.
- Coercion: This is akin to saying that the defendant's conduct was not voluntary. Someone used force or threat of force to make them agree or take action.
Charged With Criminal Conspiracy? Talk to an Attorney
If you've been charged with conspiracy under state or federal law, you'll need a strong advocate on your side. Consider speaking with a knowledgeable attorney who has experience representing criminal defendants. You want someone who knows the law and can help you achieve a just outcome.
Contact a criminal defense lawyer near you today to get started.