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Federal Criminal Conspiracy

NCJ Number
American Criminal Law Review Volume: 49 Issue: 2 Dated: Spring 2012 Pages: 739-772
Laura Waters
Date Published
34 pages
This article reviews elements of the offense of Federal criminal conspiracy, as well as related legal defenses, the co-conspirator hearsay rule, parties and liability, and sentencing.
Criminal conspiracy has four elements, each of which the prosecution must prove beyond a reasonable doubt. A conspiracy exists when there is an agreement between at least two parties to achieve an illegal goal; when the parties have knowledge of and participate in the conspiracy; and when at least one conspirator committed an overt act in furtherance of the conspiracy. In addition to challenging the conspiracy charge because of failure to prove the specific elements of the offense, defendant may also contest the charge based on the statute of limitation; variance; multiplicitous indictment; insufficient indictment; withdrawal; and various other defenses. Defendants are entitled to present inconsistent defenses. This article addresses the five defenses and discusses the strength of miscellaneous defenses. Conspiracy-trial prosecutors often include testimony by co-conspirators in order to ensure a conviction, because co-conspirators often are the best witnesses to the conspiracy. One section of this article discusses the co-conspirator exception to the 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 an opposing party and . . . was made by the party's co-conspirator during and in furtherance of the conspiracy." Regarding parties and liability, conspirators can be charged, convicted, and sentenced for both the substantive crimes and the conspiracy offense. One section of this article discusses the vicarious liability of a defendant for acts of co-conspirators; analyzes issues raised by joinder and severance of multiple defendants; and discusses the effect on a defendant of the acquittal of other co-conspirators. Regarding sentencing, consecutive sentences can be imposed for conspiracy and substantive offense convictions. 174 notes


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