A conspiracy is considered a separate and distinct offense from the underlying substantive offense contemplated by the conspiracy. (“Basic to criminal law principles is the concept that the commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses.”) 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. Id.
However, 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. See and compare, (Evidence insufficient to support a finding that son of main defendant in murder-for hire prosecution, who was present at planning meetings and at meeting after murder was committed, knowingly and intentionally participated in conspiracy with father; mere presence at meetings and knowledge of conspiracy alone insufficient to convict of conspiracy), (Holding that evidence that two defendants knew of planned bank robbery and were present when main defendant surveyed town and entered bank to plan robbery insufficient without more to show that defendants participated in conspiracy); (Mere presence at site of conspiratorial activity is insufficient to establish defendant’s knowing participation in conspiracy, as is defendant’s mere association or familial relationship with a coconspirator).