Conspiracy Charge – How Does The Prosecutor Prove It?

Posted on May 30, 2023

Two gentlemen shaking hands. — Informants who agree - but never intend - to commit a crime are not liable for conspiracy.

A criminal conspiracy charge can be filed against you if

you and at least one other person agree to commit a crime,
you intend to commit the crime, and
you or a co-conspirator make an overt act in furtherance of the crime.

You can be liable for conspiracy even if you never act unlawfully on your own. Depending on the state and circumstances, conspiracy can be

a felony or
a misdemeanor.

Let’s break down each of these components of conspiracy law:

1. The agreement

The agreement to commit a crime is often referred to as the essential component of a conspiracy charge.¹ The agreement does not have to be

in writing or even
spoken out loud.²

Law enforcement does not even need to have direct evidence of its existence. The agreement can be implied from your conduct.³ While

the essential terms of the conspiracy have to be agreed upon,
the precise details do not.⁴

Multiple parties

The agreement does, however, have to be between you and at least one other person who intends to commit the crime. You do not have to be part of the conspiracy from its inception – you can join later on and still be liable for conspiracy.⁵

However, there is no requirement that co-conspirators have to be aware of each other’s identities, or even that they exist.⁶ These are often so-called “hub-and-spoke” conspiracies.

For example: Frank independently conspires with Allen, Bob, Claire, Drake, and Elaine to commit a white collar crime. Even though none of these other people know of each other, they are all co-conspirators.

2. An intention to commit the crime

To be liable for conspiracy, you have to intend to commit the crime.

This means that if you secretly intend to not play your part in the crime, like undercover police officers and informants, you are not liable for conspiracy.

It also means that you are not liable if you were a part of the agreement but

withdrew or
agreed only as a joke.⁷

3. Overt act

Generally, there has to be an overt act that furthers the objective of the conspiracy. However, conspiracy laws in a few states, like South Carolina, do not require this element.⁸ The overt act requirement is also missing in a small set of conspiracy laws that deal with certain crimes.⁹

Any act that moves the conspiracy forward satisfies this element. It does not have to be as substantial as the act necessary to amount to an attempted crime.

It can be as insubstantial as making a phone call.¹⁰ The overt act also does not need to be done by you – overt acts by other co-conspirators suffice.¹¹ It does not even have to be an illegal act, so long as it furthers the conspiracy.¹²

Even in conspiracy cases where an overt act is not required, prosecutors frequently use it as evidence of the agreement.

What are the penalties?

The penalties of a conspiracy conviction depend on the state and on the type of criminal case you conspired to commit.

California

In California, for example, conspiracy is a wobbler offense. It can be charged as either a felony or as a misdemeanor.

Felony penalties

It will be charged as a felony whenever you conspired to commit a criminal act that is a felony. A conviction carries the same penalties as the felony that was conspired. If multiple felonies were the object of the conspiracy, a conviction carries the penalties of the most severe criminal charge or unlawful act.

Misdemeanor penalties

If the underlying crime is a misdemeanor, the conspiracy conviction would carry up to:

1 year in county jail, and/or
$10,000 in fines.¹³

Federal penalties

Similarly, federal conspiracy charges generally carry different penalties for felonies and misdemeanors. If the conspiracy was to commit a federal crime that is a felony, a conviction carries up to 5 years in federal prison.

If the object was to commit a misdemeanor under federal law, the punishment for conspiracy is the same as the conspired misdemeanor.¹⁴

What are some legal defenses to a conspiracy case?

There are 3 main legal defenses that you can raise against a conspiracy charge:

there was no agreement,
there was no overt act in furtherance of the agreement, and
you withdrew from the conspiracy.

However, it is not a defense that you are charged with conspiracy based on an overt act by a co-conspirator who has been acquitted.¹⁵

1. There was no agreement

Law enforcement has to prove that there was an agreement. Raising reasonable doubts about the existence of an agreement is often an effective defense.

Federal cases

However, a unique aspect of conspiracy charges makes this defense difficult to establish. Unlike in other cases, prosecutors in federal conspiracy cases can use out-of-court statements made by co-conspirators against you.¹⁶

These statements are normally considered hearsay. Though in conspiracy cases, conspirators are considered to speak and act on each other’s behalf.¹⁷ This makes these statements admissible.

Therefore, prosecutors can use statements made by co-conspirators that indicate the presence of an agreement.¹⁸ Those statements can even have been made before you joined the conspiracy.¹⁹

2. There was no overt act

When the conspiracy statute requires it, prosecutors also have to show that an overt act was made in furtherance of the conspiracy. It is not enough to merely plan to conspire and commit the crime. Someone has to take a step towards the alleged objective.

Showing that this did not happen can be a strong defense.

3. You withdrew from the conspiracy

It is also a defense that you effectively withdrew from the conspiracy to commit the crime.

What amounts to an effective withdrawal from the conspiracy depends on the jurisdiction. Generally, though, you have to:

notify your co-conspirators that you are abandoning the conspiracy, or
take an affirmative step of abandonment, like notifying the police of the plan.²⁰

This often has to be done before an overt act has been committed.²¹

Legal References:

Iannelli v. United States, 95 S.Ct. 1284 (1975). See also Model Penal Code Section 5.03.
United States v. Amiel, 95 F.3d 135 (2d Cir. 1996).
Iannelli v. United States.
United States v. Sharif, 817 F.2d 1375 (9th Cir. 1987).
United States v. Burchinal, 657 F.2d 985 (8th Cir. 1981).
Blumenthal v. United States, 68 S.Ct. 248 (1947).
Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
See South Carolina Code Annotated 16-17-410 and State v. Fleming, 133 S.E.2d 800 (1963).
See, for example, 21 USC 846 (dealing with federal drug conspiracy).
United States v. Fellabaum, 408 F.2d 220 (7th Cir. 1969).
United States v. Reyes, 302 F.3d 48 (2d Cir. 2002).
Castro v. United States, 296 F.2d 540 (5th Cir. 1961).
California Penal Code 182 PC.
18 USC 371.
United States v. Andrews, 850 F.2d 1557 (11th Cir. 1988).
Federal Rule of Evidence 801(d)(2)(E).
Anderson v. United States, 94 S.Ct. 2253 (1974).
Bourjaily v. United States, 107 S.Ct. 2775 (1987).
United States v. Diaz, 176 F.3d 52 (2d Cir. 1999).
United States v. Piper, 298 F.3d 47 (1st Cir. 2002).
People v. Hill, 3 Cal.App.4th 16 (1992).

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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