Federal Conspiracy Law: A Sketch
CRS Report No. R41222; 4/30/2010; Posted 5/7/2010
Author(s): Charles Doyle, Senior Specialist in American Public Law
Subject(s): Criminal Justice; Law
No. of Pages: 9
Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and
some of the former Enron executives have at least one thing in common: they all have federal
conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to
engage in some form of prohibited misconduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U.S.C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct.General Section 371 conspiracies are punishable by imprisonment for not more than 5 years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations), most may serve as the basis for a restitution order, and some for a forfeiture order.
The law makes several exceptions for conspiracy because of its unusual nature. Because many
united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any
foreseeable other offenses which one of the conspirators commits in furtherance of the scheme.
Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is
committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations
does not begin to run until the last overt committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all.
In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting.
Unlike aiding and abetting, however, it does not require commission of the underlying offense.
Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a
conspirator may be punished for both.
This is an abridged version of a longer report, CRS Report R41223, Federal Conspiracy Law: A
Brief Overview, by Charles Doyle.