Conspiracy Theory Versus Conspiracy Fact

This article will address the legal definition of "conspiracy."  If you watch the news, or read articles on the internet, you will hear people regularly throw around the term "conspiracy theory."  Most people don't realize the difference between theory and fact, nor how a theory can become a fact.  Remember, theories are ideas.  However, when criminal investigators find (or receive) real evidence that people have committed a crime, or are currently planning a crime, then investigators are no longer dealing with theory.  To always characterize ideas as "crazy theories" is naïve. Calling something a "conspiracy theory" doesn't mean it isn't real or legit.

Oxford Dictionary definitions:

"Conspiracy" - /kənˈspɪrəsi/ noun: (1) a secret plan by a group to do something unlawful or harmful, and (2) the action of plotting or conspiring.

"Theory" - /ˈθɪəri/ noun:  an idea used to account for a situation or justify a course of action.

A legal explanation of "criminal conspiracy" in Federal law follows.  It is important for citizens to understand that Federal Special Agents and U.S. Attorneys must adhere to the law to successfully investigate, and subsequently prosecute a conspiracy case.  [Note:  Individual U.S. States also have conspiracy statutes for violation of State law. This article only addresses violation of the U.S. law.]

18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States.

The Elements:  If two or more persons conspire either to commit any offense [note: persons can be charged with conspiracy for any Federal criminal or civil 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.

There are five essential elements the government must prove beyond a reasonable doubt to establish a violation of § 371. A conspiracy exists when:

1. Two or more persons;

2. Intentionally;

3. Agree;

4. To violate federal law or defraud the United States;

5. Commit an overt act in furtherance of the agreement.

Once these elements have been met, the crime of conspiracy is complete. It is important to note, once any co-conspirator commits an overt act in furtherance of the agreement, all co- conspirators may be prosecuted for conspiracy whether or not they know about the overt act, or even if they take no further steps to accomplish their ultimate goal.

Two or More Persons:  A conspiracy requires the participation of “two or more persons.” The persons need to be capable of forming the necessary criminal intent to agree to the objects of the conspiracy. One person cannot conspire with himself or an undercover law enforcement officer or a cooperating informant. Because a government agent or a cooperating informant does not truly intend to commit the ultimate crime of the conspiracy, they cannot be counted as a conspirator. Likewise, individuals who do not have the mental capacity to form the criminal intent to conspire may not be one of the required two or more persons in a conspiracy. Minors and mentally ill persons could fall into this category as well.

Co-conspirators need not meet, and they need not know each other’s identities, but they must be aware of, or must reasonably foresee, each other’s existence and roles. For example, in a conspiracy to hijack goods, the person who steals a tractor-trailer from a truck stop may not know the person who provided advice as to when the tractor-trailer could be easily taken, nor would he necessarily know the person who was purchasing the stolen goods. Furthermore, as long as there are at least two members to the conspiracy involved at all times, the conspiracy continues, even if the members change and the original members have withdrawn and are no longer involved in the conspiracy.

Knowledge and Intent:  The government must prove that the defendant had knowledge of the conspiracy and intended to participate in it.

Knowledge:  To be a party to a conspiracy, an individual must know of the conspiracy’s existence and its overall plan or purpose. However, each conspirator need not know all of the details of the plan. While the defendant must know that at least one other person is involved in the conspiracy (so that an agreement is possible), there is no requirement that the defendant know the identity, number, or role of all co-conspirators. Secrecy and concealment are often features of a successful conspiracy. Accordingly, the law allows for the conviction of individuals without requiring that they have knowledge of all of the details of the conspiracy or of all of the members participating in it.

Intent:  The defendant must intend to participate in the conspiracy. The government must present evidence that the defendant joined the conspiracy voluntarily, by agreeing to play some part in it with the intent to help it succeed. Showing that a defendant was aware of the plan or that the defendant approved of the plan is not enough by itself to prosecute. The defendant’s intent to participate in the conspiracy must be proven. A defendant’s intent may be proven through circumstantial evidence, such as the defendant’s relationship with other members of the conspiracy, the length of the association between the members, the defendant’s attitude and conduct, and the nature of the conspiracy. Acts committed by the defendant that furthered the objective of the conspiracy are strong circumstantial evidence that the defendant was a knowing and willing participant in the conspiracy.

The Agreement:  The essence of any conspiracy is the agreement. With conspiracy, the mere agreement to violate the law or defraud the United States becomes criminal, once an overt act in furtherance of that agreement is committed by a co-conspirator. Seldom, if ever, is there proof of a formal agreement, and the agreement does not have to be put into words, either oral or written. The agreement is often established through circumstantial evidence and may only be shown to be a mutual understanding. Association with members of a conspiracy helps to establish a defendant’s willing participation. However, mere presence at the scene is by itself not enough to establish an agreement. An individual can be present with others that are known to be co-conspirators without intending to join or further the objects of the conspiracy.

An individual can also do something to help the conspiracy without actually joining. For example, an individual may rent an apartment to members of a conspiracy. The conspirators use the apartment to set up their “bookmaking” operation. The apartment owner has aided the conspiracy. However, absent a showing that he had a stake in the venture (doubled the rent) or knew of the conspiracy and intended to help it by providing a hiding place, he has not joined in the agreement. Mere presence or helping without joining in the agreement are common defenses to conspiracy charges. Efforts must be made to establish a defendant’s joining in the agreement. This can be shown directly by co-conspirators’ testifying about the defendant’s role in the organization or indirectly by documenting a series of acts or events that demonstrate that the defendant acted in concert with and therefore must have been in agreement with other members of the conspiracy.

Unlawful or Fraudulent Means or Objective:  To successfully prosecute under § 371, either the objective of the conspiracy or the means to accomplish the objective must be (1) an offense against the United States or (2) must involve defrauding the United States. If neither the objective nor the means to accomplish the objective violate federal law or defraud the United States, a prosecution under § 371 is not possible. Note that the objective of the conspiracy does not have to be a crime. It is sufficient to show that the contemplated objective would defraud, impede, impair, defeat, or obstruct the proper functions of the United States Government. This could be accomplished through a scheme such as “bid-rigging” or through an agreement to obstruct the regulatory functions of a government agency.

It is not a defense that the objective of a conspiracy is factually impossible to achieve. For example, if the objective of the conspiracy is to kill an individual who, unknown to the conspirators, is already dead, then it is factually impossible for the conspirators to carry out their plan. However, the conspiracy charge is complete the moment the first overt act in furtherance of the agreement is committed by a co-conspirator.

The Overt Act:  Once an agreement has been made, one of the conspirators must commit an “overt act” in furtherance of the agreement to complete the crime of conspiracy. The overt act demonstrates that the conspirators have moved from a “thought” crime to one of action. Instead of simply talking about the crime, the conspirators have actually taken a step towards making it a reality. An overt act shows that the agreement is not dormant but is actually being pursued by the conspirators.

Only one overt act must be committed to complete the offense of conspiracy. An overt act is any act done for the purpose of advancing or helping the conspiracy. For example, if two individuals agree to rob a bank and then one of them purchases ski masks to use in a robbery and the other then steals guns to use in the robbery, each co-conspirator has committed an overt act in furtherance of the agreement. Either act would be sufficient to complete the offense of conspiracy to rob the bank. A single overt act is sufficient to complete the conspiracy for all members to the agreement, including those who join the conspiracy after it has begun. The overt act must be committed by a member of the conspiracy and must occur after the agreement. The government may not rely on acts committed before the agreement to complete the conspiracy.

The overt act need not be a criminal act. For example, the overt act may be preparatory in nature, such as buying a car or mask to use in a bank robbery.

If the substantive offense (the bank robbery) is actually committed, that offense may be used as the overt act necessary to complete the conspiracy. Thus, if two persons agree to rob a bank and do so without any intervening overt acts, the bank robbery would be the overt act necessary to complete the conspiracy.

The Law of Conspiracy:  In addition to the elements to be proved in conspiracy cases, there is significant law that officers should know when undertaking a conspiracy investigation. The following sections provide additional legal principles to guide their investigations.

The Doctrine of Merger/Double Jeopardy:  A conspiracy charge is a separate and distinct offense from the crime being planned and does not “merge” with the substantive offense, should it ultimately be committed. The Doctrine of Merger holds that inchoate offenses (offenses committed that lead to another crime) such as solicitation and attempts to commit crimes “merge” into the substantive offense if that offense is committed. Unlike those inchoate offenses, conspiracy does not “merge” into the substantive offense. Conspiracy to commit a substantive offense has different elements than the substantive offense and will survive a double jeopardy challenge when both are charged using the exact same evidence. Thus, if there is a conspiracy to rob a bank and the bank is ultimately robbed, the offense of conspiracy to rob the bank and bank robbery can both be charged.

Pinkerton Theory of Vicarious Liability:  Conspirators are criminally responsible for the reasonably foreseeable acts of any co-conspirator that are committed while they are members of the conspiracy and that are in furtherance of the overall plan. This is known as the Pinkerton Theory of “vicarious liability.” For example, if the plan was to smuggle counterfeit computer software into the United States, bribing a Customs and Border Protection Officer would be a reasonably foreseeable act. In such a case, each conspirator would be liable for the substantive act of bribery, regardless of who actually committed the bribery. If an act was not a reasonably foreseeable consequence of the overall plan, a co-conspirator could not be held liable for that act unless he or she was the individual who actually committed it. One benefit of this rule is that all foreseeable acts of the conspiracy can be introduced at trial even though those on trial may not have participated in the acts. The lesson regarding conspiracy that most criminals learn the hard way is that they must choose their co-conspirators wisely, because the reasonably foreseeable act of a co- conspirator is the act of all, when the act is committed in furtherance of the agreement.

Late Joiners to a Conspiracy:  The law recognizes that an individual may join a conspiracy after it has begun, but before it has been terminated. Such an individual is referred to as a “late joiner” to the conspiracy. “Late joiners” do not have to commit an overt act, but only have to join an ongoing conspiracy. “Late joiners” take the conspiracy as they find it. Late joiners are not only criminally liable for the conspiracy they joined, but also for any reasonably foreseeable acts committed by any co-conspirator while the “late joiner” is a member of the conspiracy. “Late joiners” are not criminally responsible for the criminal offenses of co- conspirators committed prior to their joining the conspiracy. Nonetheless, the prior acts of the co-conspirators are admissible at the trial of the “late joiner,” in order to show the existence of the conspiracy.

Withdrawal from a Conspiracy:  Just as the law recognizes that individuals may join a conspiracy after it begins, the law also recognizes that conspirators may withdraw from the conspiracy prior to its termination. Withdrawal from a conspiracy requires more than simply no longer participating. A valid withdrawal from a conspiracy has two basic requirements. First, the conspirator must perform some affirmative act inconsistent with the goals of the conspiracy. Unless a conspirator produces affirmative evidence of withdrawal, his or her participation is presumed to continue. Second, the affirmative act must be reasonably calculated to be communicated to at least one other known conspirator or law enforcement personnel. Withdrawal is an affirmative defense, which means the burden is on the defendant to prove that he has withdrawn.

If a conspirator validly withdraws from a conspiracy, the statute of limitations (explained below) on the conspiracy charge for that person will begin to run the date of the withdrawal. Further, the withdrawal of a conspirator does not generally change the status of the remaining members. The valid withdrawal of a single conspirator from a two-person conspiracy, however, will result in the termination of the conspiracy, because the requisite “two or more persons” are no longer present. Once a valid withdrawal occurs, the withdrawing defendant will escape liability for any subsequent criminal acts of the remaining conspirators but remains liable for conspiracy and for any criminal acts committed while a member of the conspiracy. Only by withdrawing from the agreement before the commission of the overt act will the individual escape liability for a conspiracy charge.

Statute of Limitations - 18 U.S.C. § 3282:  The statute of limitations for conspiracy is five years and can run from various dates depending on the facts of each case. The statute of limitations begins to run from the date the conspiracy is completed, terminated, or abandoned. The statute of limitations can also run from the date the last overt act was committed in furtherance of the conspiracy (e.g., dividing the money from the bank robbery). The conspiracy itself may, depending on the nature of the agreement, continue past achieving the objective, in order to conceal the crime or to destroy or suppress evidence. In such cases, the statute of limitations would be extended and would not start to run until such time as the last overt act (i.e., the last act of concealment) occurs. For substantive offenses committed during the timeframe of the conspiracy, the statute of limitations begins to run from the date the substantive offense was committed.