Co_conspirator Liability

Uncovering the Complexities of Conspiracy Charges in Federal Criminal Prosecutions: Everything You Need to Know

A conspiracy charge is often referred to as the “most powerful tool” at the government’s disposal because of its evidentiary advantages in holding multiple individuals accountable for their involvement in a collective criminal scheme. This article delves into the complexities of conspirator liability in federal prosecutions, discussing the definition of a conspiracy, the elements required for conviction, the application of the Federal Sentencing Guidelines, the evidentiary advantages for prosecutors, and common defenses against conspiracy charges.

Defining Conspiracy

A conspiracy is simply an agreement between two or more people to commit a federal crime, with at least one conspirator committing an overt act in furtherance of their agreement. In essence, it is a bunch or words planning an illicit outcome coupled with a simple, though not necessarily an illegal, action geared towards achieving the desired outcome. It is important to note that the conspirators need not be aware of every detail or participant in the conspiracy. Liability is established by their shared criminal objective and agreement to engage in the unlawful conduct. In some ways, a conspiracy charges serves as an umbrella charge that encompasses a wide range of criminal activities.

Elements of a Conspiracy

To secure a conspiracy conviction, the government must prove the following elements beyond a reasonable doubt:

  1. Agreement: There must be an agreement between two or more individuals to commit a federal crime. This agreement need not be formal or explicit; it can be inferred from the circumstances, such as through the conspirators’ actions or communications.
  2. Intent: Each conspirator must possess the specific intent to achieve the criminal objective. Mere knowledge of its existence or knowing association with those involved in criminal activities is insufficient to establish intent.
  3. Overt Act: At least one conspirator must commit an overt act in furtherance of the conspiracy. This act need not be criminal in itself but must be a step toward achieving the conspiracy’s objective. In some instances, such as with drug conspiracies, the overt act requirement may not be necessary.

Conspiracy Charges and Federal Sentencing Guidelines

Conspiracy charges will not only establish criminal liability, they can significantly impact a person’s potential punishment under the Federal Sentencing Guidelines. The following aspects of the guidelines are particularly relevant:

  1. Base Offense Level: The guidelines assign a base offense level to each federal crime, with higher levels corresponding to more severe offenses. In a conspiracy, the base offense level is generally the same as that of the underlying substantive offense. Since you are criminally responsible for the actions of your co-conspirators, it is not uncommon for participants in fraud or drug trafficking cases to face mandatory minimum sentencing schemes.  Those underlying offenses will serve as the starting point for guidelines analysis.
  2. Relevant Conduct: The guidelines also consider “relevant conduct” in determining a defendant’s sentence. Relevant conduct includes acts committed by the defendant and acts committed by co-conspirators that were reasonably foreseeable by the defendant and in furtherance of the conspiracy. As such, the existence of a conspiracy can lead to a defendant being held accountable for the criminal acts of others, even if they were not directly involved provided they were reasonably foreseeable. This foreseeable conduct does not need to be specifically charged, does not need to be part of a stipulated factual basis for a guilty plea and can include acquitted conduct at trial.
  3. Role Adjustments: The guidelines provide for adjustments based on the defendant’s role in the conspiracy, such as enhancements for organizers or leaders and reductions for minimal or minor participants. Since a conspiracy involves multiple people, it stand to reason that some member of the group organized the scheme and, depending upon its scope, multiple people can be deemed “leaders.”

 Evidentiary Advantages for Prosecutors

Conspiracy charges provide prosecutors with several evidentiary advantages that make proving their case easier:

  1. Co-Conspirator Statements: Under the Federal Rules of Evidence, statements made by co-conspirators in furtherance of the conspiracy are admissible against all conspirators, even if they would otherwise be considered hearsay.  This provision allows them to offer wire tap or other recorded conversations of multiple parties into evidence with out having to worry about a hearsay objection from the defense.
  2. Joint Liability: Conspirators can be held jointly and severally liable for the acts of their co-conspirators, meaning that each conspirator can be held responsible for the entire scope of the conspiracy, regardless of their individual involvement.  This allows a more minor participant to be held statutorily responsible for a higher grade of crime than their actions alone and often exposes them to harsh mandatory minimum sentences.
  3. Expanded Venue: Prosecutors can bring conspiracy charges in any federal district where an overt act in furtherance of the conspiracy occurred, providing greater flexibility in choosing the most favorable venue for prosecution.

Common Defenses to Conspiracy Charges

Defendants facing conspiracy charges may raise various defenses to challenge the government’s case:

  1. Insufficient Evidence of Agreement: The defendant may argue that the government has failed to prove the existence of an agreement to commit a federal crime. This may involve demonstrating that the alleged conspirators had no shared criminal intent, that their actions were independent rather than coordinated or, even if there was discussions about criminality, there was simply no agreement in place.
  2. Withdrawal: A defendant may claim that they withdrew from the conspiracy before its completion, thereby negating their liability. To establish withdrawal, the defendant must generally show that they took affirmative steps to disassociate themselves from the conspiracy and communicated their withdrawal to the other conspirators.
  3. Lack of Knowledge or Intent: The defendant may argue that they lacked the requisite knowledge of or intent to participate in the conspiracy. For example, a defendant might claim that they were unaware of the conspiracy’s criminal objective and that they believed they were engaging in lawful conduct- this can be true even if others did agree to commit a crime and someone’s truly innocent actions furthered their illegal objectives.
  4. Entrapment: A defendant may assert that they were entrapped by law enforcement officers who induced them to participate in the conspiracy. To establish entrapment, the defendant must show that the government induced their participation and that they were not predisposed to commit the crime.


Conspirator liability in federal prosecutions is a complex and multifaceted area of criminal law. Conspiracy charges allow the government to hold multiple individuals accountable for their collective criminal conduct, often providing prosecutors with significant evidentiary advantages. Defendants facing such charges must navigate the intricacies of the Federal Sentencing Guidelines and present robust defenses to challenge the government’s case. Understanding the intricacies of conspirator liability is essential for both prosecutors and defense attorneys alike in navigating the complexities of federal criminal prosecutions involving conspiracy charges.

Andre Belanger