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18 U.S.C. § 371 - Conspiracy to Defraud the United States

18 U.S. Code 371 is a general statute that codifies federal conspiracy laws. Because conspiracy charges can be prosecuted even if no crime was committed, these can be brutal accusations for defendants and their legal representation to fight.

If an underlying crime is committed, conspiracy charges are often charged in conjunction. This allows federal prosecutors to compound sentencing or better their chances of a conviction. If you have been charged with criminal conspiracy, here is what you should know.

Conspiracy to Defraud the United States - 18 U.S.C. § 371

Federal prosecutors file conspiracy charges that cover a range of alleged criminal conduct.  They are often challenging to defend, and a federal criminal lawyer must thoroughly investigate the evidence to develop a defense strategy.

An 18 U.S.C. 371 conspiracy to commit a federal crime occurs when two or more people agree to commit a particular crime, and at least one person overtly acts to further the conspiracy.

The term “conspiracy” is often confusing in the federal criminal justice system. For instance, the government does not have to prove there was any written agreement between two or more people.

Instead, federal prosecutors can prove there was a conspiracy by showing that the people involved worked together to commit a federal offense. Simply put, conspiracy is an agreement crime that says it is wrong to pursue a goal.

What confuses many about conspiracy is that it doesn't quite say exactly what the wrong is. The conspiracy statute under 18 U.S.C. 371 criminalizes schemes to defraud the United States and conspiracy to violate other federal laws. Let's review further below.

What Does the Law Say?

18 U.S.C. 371 defines conspiracy to commit an offense or defraud the United States, stating, “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… 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.”

The conspiracy statutes require at least two or more co-conspirators to “do any act to effect” to accomplish the underlying goal, which is called the “overt act” requirement.

What does that mean? Put simply, an agreement alone is not enough. Somebody has to take a direct step or act toward accomplishing the goal, such as buying weapons to commit the crime or conducting surveillance on a location where the offense will be committed, etc.,

Of note is that when one conspirator does the required act, all co-conspirators become guilty of the conspiracy crime.

What Is Considered Conspiracy?

Breaking this down, three standards must be met to qualify as conspiracy under 18 U.S.C. 371, including:

  • First, two (or more) people must conspire, or agree, to commit a federal crime;
  • Second, one (or more) of these same people must make an overt act toward the completion of the agreed-upon crime;
  • Third, the individual was aware of the unlawfulness of the plan.

If even one of these conditions is not met, it cannot be considered a criminal conspiracy.

For example, two people can knowingly discuss committing a crime or defrauding the United States without repercussions. But as soon as one of those people takes a step toward the crime's actual commission, it could be considered conspiracy.

What Are the Related Statutes?

Because 18 U.S.C. 371 is the general statute for federal conspiracy, it stands to reason that many related codes are more specific. These include, but are not limited to:

  • 18 U.S.C. 241 — Conspiracy against civil rights;
  • 18 U.S.C. 286 — Conspiracy to defraud with fraudulent claims;
  • 18 U.S.C. 372 — Conspiracy to impede or injure an officer;
  • 18 U.S.C. 373 — Conspiracy to commit a crime of violence;
  • 18 U.S.C. 956 — Conspiracy to kill, kidnap, or damage foreign property;
  • 18 U.S.C. 1117 — Conspiracy to murder;
  • 18 U.S.C. 1201(c) — Conspiracy to kidnap;
  • 18 U.S.C. 1349 — Conspiracy to commit fraud;
  • 18 U.S.C. 1962(d) — Conspiracy to racketeer
  • 18 U.S.C. 2384 — Seditious conspiracy;
  • 21 U.S.C. 846 — Conspiracy to make or distribute a controlled substance
  • 21 U.S.C. 963 — Conspiracy to import or export a controlled substance.

What Are Some Common Conspiracy Crimes?

The underlying common federal offenses for which 18 U.S.C. 371 can apply to a conspiracy conviction include the following:

What Are the Penalties?

Penalties for 18 U.S.C. 371 violations heavily depend on the underlying offense. If the crime has been committed, the defendant may face charges for the illegal act and conspiracy to commit the act.

  • If the underlying offense is a felony, the defendant will generally be facing a fine and up to 5 years of incarceration — but it can be more when considering the severity of the crime;
  • If the underlying offense is a misdemeanor, the penalties cannot exceed those for it.

The underlying offenses of most criminal conspiracy cases prosecuted at the federal level are felonies. Misdemeanors are typically seen at the state level under laws like California Penal Code 182 PC.

What are the Legal Defenses for Conspiracy?

Many of the most effective defenses for 18 U.S.C. 371 violations involve casting doubt on the required legal standards for criminal conspiracy. Examples of this include:

  • Lack of agreement — if the defendant never entered into a deal with a separate party, no conspiracy could have been committed;
  • No overt act taken — because the definition of “overt act” is subjective, it may be beneficial to argue that any actions taken do not meet the threshold of overt;
  • No intent— if it can be proven that the defendant never intended to follow through with the crime, it does not rise to the standard of conspiracy.

If an underlying offense has been committed, those charges will likely take priority as the defendant's legal team plans its defense.

Legal Defenses for Federal Conspiracy

Evidence in these cases can be more subject to interpretation than others, making it highly advisable to retain a federal defense lawyer with experience handling criminal conspiracy cases.

Our federal criminal defense lawyers can use various legal strategies to fight the case for the best possible outcome. Defending federal conspiracy charges typically depends on making federal prosecutors prove each element of the conspiracy's definition beyond a reasonable doubt.

We can investigate, present, and advocate evidence, whether in pretrial motions, plea bargaining, or at trial, that reasonable doubt exists, which gives you the best chance at a favorable outcome.  

Eisner Gorin LLP is a Los Angeles-based law firm that provides legal representation across the United States on federal criminal issues. Contact us for a case evaluation via phone or fill out the contact form.

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