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Attempt and Conspiracy

Federal Attempt and Conspiracy Laws - 18 U.S.C. § 1349

You may feel overwhelmed or confused if you've been federally charged with attempt and conspiracy. This page will guide you through the law in simple terms so that you can understand the implications of 18 U.S.C. § 1349 and what you can expect as your case moves forward.

18 U.S.C. § 1349, entitled Attempt and Conspiracy, allows the government to prosecute cases where federal fraud was attempted but ultimately unsuccessful.

Federal Attempt and Conspiracy Laws - 18 U.S.C. § 1349

Here is the specific wording of the statute: “Anyone who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

This means that regardless of whether the federal crime was committed or not, the penalties will be the same. This statute is a powerful government weapon for exposing targets of federal investigations and provides harsh criminal penalties.

As mentioned, the penalties for committing attempting or conspiring to commit a federal crime are the same.

Further, this applies to all crimes listed in Chapter 63 of Title 18 of the United States Code, such as bank fraud, health care fraud, securities fraud, mail fraud, and wire fraud. Our federal criminal defense lawyers will examine this statute in more detail below.

What Is Considered an “Attempt” or “Conspiracy?”

Interestingly there is no specific verbiage defining these two words in 18 U.S.C. § 1349. If we look at judicial precedent established in prior federal attempt and conspiracy cases, we can identify the standard elements the defendant will be judged against.

For “attempts,” the prosecution will try to prove two factors, both of which must be met to secure a guilty verdict:

  • Intent to commit the underlying offense; and
  • Substantial steps were taken toward committing the offense (beyond mere preparation)

To obtain a conviction for an attempt under 18 U.S.C. 1349, the federal prosecutor must prove both elements of the crime.

If you intend to commit a criminal offense, it does not rise to the level of a criminal attempt. Similarly, doing something that is a substantial step toward a federal crime without criminal intent is not sufficient to establish criminal liability.

What Is Considered an “Attempt” or “Conspiracy?”

However, the attempt statute of 18 U.S.C. 1349 does provide government authorities with broad prosecutorial discretion, and attempt charges are widespread in federal fraud investigations.

Intent and substantial steps are subject to interpretation, meaning that “attempt” charges during federal fraud investigations are often brought forward. Still, to convict, the evidence must establish both elements.

There is no clear definition for what constitutes a substantial step, other than it cannot be simple preparation; in other words, the defendant must have taken an action that would directly lead to the offense, however incomplete.

While attempt charges pertain to fraud cases with a singular defendant, “conspiracy” prosecutions are typically more significant in scope, involving two or more people and sometimes entire organizations (i.e., companies, charities).

Federal prosecutors can establish the existence of a conspiracy in different ways. These cases are also judged based on the prosecution's ability to establish two criteria:

  • Two or more individuals agreed to commit an underlying offense,
  • An overt act was further taken toward committing the offense.

Conspiracy charges are prevalent during federal fraud investigations because fraud schemes frequently involve multiple people working in tandem. Healthcare providers and other people under criminal investigation for fraud-related crimes must consider the possibility of conspiracy charges.

Just like an attempt, successful completion of the conspiracy is not required to establish a conspiracy liability. This is one of the primary reasons prosecutors frequently pursue conspiracy charges in federal fraud investigations.

What Are Some Additional Charges?

Attempt and conspiracy can be filed in conjunction with any fraud offense statute in Chapter 63, Title 18 of the U.S. Code. It is regularly charged alongside:

  • 18 U.S.C. § 371 – Conspiracy,
  • 18 U.S.C. § 666 — Government program fraud,
  • 18 U.S.C. § 1341 — Mail fraud,
  • 18 U.S.C. § 1343 — Wire fraud,
  • 18 U.S.C. § 1344 — Bank fraud,
  • 18 U.S.C. § 1347 — Health care fraud,
  • 18 U.S.C. § 1348 — Securities and commodities fraud.

What Are the Penalties?

Federal crimes will often bring hefty fines and lengthy incarceration, such as:

  • Fines of up to $1,000,000,
  • Up to 30 years in state prison,
  • Reimbursement to U.S. Attorney for their prosecution expenses.

Fees and sentences depend on the type of fraud committed — or attempted, in the case of 18 U.S.C. § 1349. For example, bank fraud tends to carry harsher penalties than mail fraud.

What Are the Legal Defenses Against Attempt and Conspiracy?

While the penalties can be severe and worrying, individuals charged under statute 18 U.S.C. § 1349 still have several strong defense strategy options.

Perhaps there was no intention to commit the crime. For attempt charges, proving intent is sometimes easier said than done. As with all criminal cases, the burden of proof is on the prosecution.

Concrete evidence of intent can be subjective and may not be enough to convict. Lack of intent is one of the top defenses against U.S.C. § 1349.

Legal Defenses Against Attempt and Conspiracy

Perhaps we can argue there was no agreement made. Conspiracy convictions require proof that the defendant agreed with another party (or several) to commit fraud. An individual facing conspiracy charges may consider challenging the assertion that they ever entered into such an agreement.

Perhaps we can make an argument there were no further steps taken. If it is established that there was intent (or an agreement), the next logical defense is to fight the allegation that there had ever been a substantial step (or overt act) taken toward the execution of the crime.

The drawback to this defense is that the loose definition of these terms means that the standard of proof may vary from case to case. If the evidence is conclusive, entering a plea deal for a lighter sentence may be an option. 

If you are the target of a federal criminal investigation, you need to reach out to a seasoned federal criminal defense attorney immediately.

We have decades of experience handling federal cases in California and across the United States at Eisner Gorin LLP. You can contact us for an initial case consultation by calling (877) 781-1570 or using the contact form.

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