What Is The Crime Of Conspiracy?

The federal crime of conspiracy occurs when two or more people agree and plan to engage in criminal activity. When it comes to conspiracy, the agreement to commit a crime is the essence of the criminal act; if there is no agreement amongst the co-conspirators, there can be no conspiracy. In most jurisdictions, in order to be charged with conspiracy, one of the co-conspirators must also take an act in furtherance of the conspiracy.

For example, let us say Jim and Jeremy decide to rob a bank. Jim rents a van to transport all the money and to use as the “getaway car”. The moment Jim and Jeremy agreed to rob the bank, they became co-conspirators. Once Jim rented the van, he then completed an act to help further the underlying crime of robbery. Therefore, in most jurisdictions, both Jim and Jeremy could be charged with conspiracy to commit robbery, whether they actually went through with robbing the bank or not.

What Does Federal Law Say?

While there are dozens of federal conspiracy laws, they all fall under the same basic premise. The main federal conspiracy statute, 18 U.S.C. § 371, states this underlying principle:

“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”

Members of the conspiracy can also be held liable for all foreseeable crimes committed by their fellow co-conspirators, and statements made to law enforcement or in court by one conspirator can be used against the other co-conspirators.

One of the main factors in proving conspiracy is that the government must be able to prove some agreement in fact existed to commit an act condemned by law. Conspiracy law requires that that agreement to commit a crime must be a true agreement, and not a pretend or “feigned” agreement.

This protects undercover officers and informants from being guilty of conspiracy. Additionally, mere association is not enough to meet the elements of the crime of conspiracy. This means, that just because someone may associate with known criminal does not mean they can be charged as co-conspirators without further evidence of their involvement in planning the crime.

The Overt Act Requirement

Under federal conspiracy law there must be an “overt act in furtherance of the conspiracy” in order for a conspiracy conviction. What exactly constitutes a sufficient “overt act” will depend on several factors, including the underlying crime and the number of people involved in planning the crime.

An overt act simply means that once an agreement has been reached to commit a crime, there must be an additional step taken to further the crime in order to be convicted of conspiracy. Remember, it isn’t a requirement that the intended crime actually be committed; but rather, any act done in furtherance of the crime will suffice.

In the Jim and Jeremy example above, the renting of the “getaway car” would constitute an act in furtherance of robbing the bank. Under federal conspiracy law, not all of the co-conspirators must commit an overt act. The single overt act of one co-conspirator is sufficient to bind the others.  The government must show an overt act in order to obtain a conviction.   

Penalties For Conspiracy

The punishment for conspiracy under federal law can be severe. As stated above, a defendant convicted under 18 U.S. Code § 371 can be facing up to five years in federal prison and up to $250,000 in fines (up to $500,000 for criminal organizations).

The federal sentencing guidelines will greatly influence the type of punishment given, as federal judges are required to impose sentences that are no less than the mandatory minimum and no more than the mandatory maximum for each crime.

In some instances, however, conspirators who played a leadership role or are considered “ring leaders” may receive special enhanced penalties for their role in the conspiracy. Similarly, when it comes to terrorism plots, conspirators can also be subject to harsher penalties than the normal recommended punishment.

Defenses To Conspiracy

Withdrawal – In some instances it may be possible for a federal conspiracy defendant to show that he or she abandoned or withdrew from the crime and therefore stopped participating in the conspiracy early enough as to not be guilty of the crime. This defense is not available however, to defendants whose motivation to abandon or withdraw was the risk of being caught. In order to claim withdrawal as a defense, the defendant must be able to show the prosecution that he or she had a voluntary “change of heart” and decided not to participate further.

Lack of Knowledge – Another common defense to federal conspiracy charges is the lack of knowledge defense. Simply put, in order to assert this defense, a defendant must be able to show he or she had no knowledge of the conspiracy, or that it a conspiracy was even taking place.

Impossibility – Although the defense of impossibility is rarely used, it is possible to assert under the right circumstances.  The defense of impossibility states that although the conspirators may have in fact planned to carry out an act they believe is illegal, a defendant cannot be convicted of conspiracy if the underlying act is in fact, not a crime at all. If there is no law prohibiting the underlying conduct, then the crime of conspiracy to commit that act is impossible.  In other words, a person can’t be guilty of conspiring to do something that’s not illegal. 

If you’ve been indicted, charged or are currently under investigation for federal conspiracy crimes, you should contact the defense attorneys at The Federal Defenders immediately.  Our lawyers are committed to doing everything within their power to assist individuals who have been indicted for federal crimes build the best defense possible. We rely on our years of combined experience to help our clients receive fair treatment under the law.


The law is very nuanced. Federal prosecutors have almost unlimited advantages and resources at their disposal. Having attorneys on your team that understand the law, keep abreast of legal developments in the law, have the experience dealing with the complexities of federal statutes and, finally, possess the skills to stand before a jury to make a compelling case on behalf of a client are not just important qualities, they’re critical. At The Federal Defenders. we pride ourselves on being advocates for our clients. With decades of experience with all variety and manner of federal criminal issues and defenses, we understand what it takes to put our clients in a winning position. For a free and confidential consultation, call us today at (800) 712-0000. Just like our toll-free number, we operate nationwide.