General Conspiracy - 18 U.S.C. § 371

A conspiracy is considered a separate and distinct offense from the underlying substantive offense contemplated by the conspiracy.  To prove a conspiracy under 18 U.S.C. § 371, the government must prove beyond a reasonable doubt (1) an agreement among two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement. A violation of § 371 is punishable by a fine and imprisonment of up to five years, or both.

Since the offense of conspiracy is a specific intent crime, "[t]he government must . . . prove beyond a reasonable doubt that each defendant had a ‘deliberate, knowing, specific intent to join the conspiracy.’"  To establish this requisite intent, the evidence of knowledge must be substantial, clear and unequivocal, not slight. In other words, the government must prove that a defendant knowingly and intentionally joined the charged conspiracy, knowing the conspiracy’s aims and intending to achieve them.  Merely showing that a defendant has a general knowledge about criminal activity does not prove that he or she agreed to become part of the conspiracy.  The law is clear that mere presence at the scene of a crime or conspiratorial activity, or mere association with a co-conspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity.

(a) Pinkerton Co-conspirator Vicarious Liability Theory

It is important to remember that a defendant charged in a conspiracy may also be convicted of individual substantive offenses under the co-conspirator vicarious liability theory first sanctioned by the United States Supreme Court in the case of United States v. Pinkerton.  Under Pinkerton, a defendant may be held liable for acts committed by his or her coconspirators that were within the scope and in furtherance of the conspiracy, and were reasonably foreseeable.  As such, "[e]ach party to a continuing conspiracy may be vicariously liable for substantive criminal offenses committed by a co-conspirator during the course and in the furtherance of the conspiracy, notwithstanding the party's non-participation in the offenses or lack of knowledge thereof."

"Liability will not lie [under Pinkerton], however, if the substantive crime ‘did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.’"  The determination of whether an act is reasonably foreseeable is an objective test.  A reasonably foreseeable act is an act that a reasonable person who knew everything that the defendant knew at the time he or she entered the conspiracy, or agreed to expand the objectives of the conspiracy, would have been able to know in advance with a fair degree of probability.  And while the application of the Pinkerton doctrine to a particular set of facts is ultimately a jury question, the burden of proving foreseeability under the circumstances of each individual case remains squarely on the government.  Finally, appellate courts have cautioned trial court’s against unwarranted expansions of Pinkerton that run afoul of the Constitution.

(b) Conspiring with a Corporation

Also, the law is clear that a corporation can conspire with its own directors, officers and employees for purposes of criminal liability under § 371.  "[T]he original purpose of the corporate entity fiction was to expand rather than shrink corporate responsibility by making a corporation answer for the negligent acts of its agents.  ‘The fiction was never intended to prohibit the imposition of criminal liability by allowing a corporation or its agents to hide behind the identity of the other.’"  As such, a corporation can be charged, convicted and sentenced under § 371 for conspiring with its own employees and agents to violate the law.

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H. MANUEL HERNANDEZ, P.A.
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