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Federal Criminal Conspiracy

NCJ Number
American Criminal Law Review Volume: 48 Issue: 2 Dated: Spring 2011 Pages: 663-695
Julia N. Sarnoff
Date Published
33 pages
This article discusses the provisions of, defenses against, and issues related to violations of section 371 of Title 18 of the U.S. Code, which makes it a crime to conspire to commit any offense against the United States or to defraud the United States.
A review of the provisions of this statute notes that a conspiracy is distinct from the substantive crime contemplated by the conspiracy and may be charged whether or not the underlying substantive offense actually occurred. A criminal conspiracy has four elements, each of which must be proven beyond a reasonable doubt. A conspiracy exists when there is an agreement between at least two parties to achieve an illegal goal in which the parties have knowledge of and participated in the conspiracy, and at least one conspirator committed an overt act in furtherance of the conspiracy. Among the defenses outlined in responding to conspiracy charges are those that involve the statute of limitations, variance, multiplicitous indictment, insufficient indictment, and withdrawal from the conspiracy. One of the related issues discussed pertains to the co-conspirator hearsay rule. Under Rule 801(d)(2)(E) of the Federal Rules of Evidence, a "statement is not hearsay if . . . the 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." Before a court allows admission of a hearsay statement by a co-conspirator, the prosecution must prove three elements by a preponderance of the evidence: the existence of a conspiracy; the declarant's and defendant's participation in it; and that the hearsay statement was made during the course of an in furtherance of the conspiracy. Other issues discussed pertain to vicarious liability, joinder and severance, acquittal of other co-conspirators, and sentencing. 171 notes


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