Conspiracy to Defraud the United States – 18 U.S.C. § 371

What Is Conspiracy Under 18 U.S.C. § 371?

18 U.S.C. § 371 is the primary federal conspiracy statute. It makes it a federal crime for two or more people to agree to either:

Commit an offense against the United States; or
Defraud the United States or a federal agency

And at least one conspirator must commit an overt act to further the agreement.

Importantly, the underlying crime need not be completed. A person can be convicted of conspiracy even if the planned offense never occurs.

Because conspiracy is an “agreement crime,” federal prosecutors frequently use it to expand liability, increase sentencing exposure, and charge multiple defendants in complex cases.

What Does “Defraud the United States” Mean?

Under 18 U.S.C. § 371, defrauding the United States does not require direct financial loss. It includes schemes that:

Obstruct lawful government functions
Interfere with federal agencies
Impair regulatory enforcement
Deceive federal programs

Examples may include:

Tax-related schemes
Fraud against federal benefit programs
Obstruction of federal investigations
Interference with federal contracts

The statute is broad and often applied in white-collar investigations.

Elements Prosecutors Must Prove

To secure a conviction under 18 U.S.C. § 371, federal prosecutors must prove beyond a reasonable doubt:

Agreement

Two or more individuals knowingly agreed to commit a federal crime or defraud the United States.

A written agreement is not required. Prosecutors may rely on circumstantial evidence such as communications, coordinated actions, or financial transactions.

Overt Act

At least one conspirator committed an overt act in furtherance of the conspiracy.

An overt act can be minor. It does not have to be illegal itself. Examples include:

Purchasing supplies
Sending emails
Opening bank accounts
Conducting surveillance

Once one conspirator commits the overt act, all members of the conspiracy may be held responsible.

Knowledge and Intent

The defendant knowingly participated in the unlawful plan and intended to help accomplish its objective.

If any of these elements are missing, the charge may fail.

Why Conspiracy Charges Are Powerful for Prosecutors

Federal prosecutors often charge conspiracy in addition to substantive crimes because:

It expands criminal liability
It allows the introduction of co-conspirator statements
It increases sentencing leverage
It broadens admissible evidence
It ties multiple defendants together

In complex federal cases, conspiracy often becomes the central charge.

Common Federal Conspiracy Charges

Conspiracy charges frequently appear in cases involving:

Drug trafficking
Witness tampering
Healthcare fraud
Securities fraud
Bank fraud
Money laundering
Tax offenses
Consumer products
Racketeering (RICO)
Counterfeiting
Embezzlement

How Conspiracy Relates to RICO

The Racketeer Influenced and Corrupt Organizations Act (RICO) addresses organized criminal enterprises engaged in a pattern of racketeering activity.

Under 18 U.S.C. § 1962(d), conspiracy to violate RICO may be charged.

RICO cases often require proof of:

An enterprise
A pattern of racketeering activity
At least two predicate acts within ten years

Conspiracy charges under § 371 may overlap with RICO in large federal prosecutions involving multiple defendants and coordinated criminal conduct.

Related Federal Conspiracy Statutes

18 U.S.C. § 371 is the general conspiracy statute, but numerous specialized conspiracy statutes exist, including:

18 U.S.C. § 241 – Conspiracy against civil rights
18 U.S.C. § 286 – Conspiracy to defraud with false claims
18 U.S.C. § 1117 – Conspiracy to murder
18 U.S.C. § 1349 – Conspiracy to commit fraud
18 U.S.C. § 1962(d) – RICO conspiracy
21 U.S.C. § 846 – Drug conspiracy
21 U.S.C. § 963 – Conspiracy to import/export controlled substances

Federal prosecutors often charge multiple conspiracy counts in the same indictment.

Under 31 U.S.C. § 5324, making cash deposits below $10,000 with the purpose of avoiding a federal reporting requirement (structuring) is a federal felony.

Failing to register as a foreign agent under the Foreign Agents Registration Act can result in federal criminal charges under various statutes, potentially leading to substantial fines and imprisonment.

Penalties Under 18 U.S.C. § 371

Penalties depend on the nature of the underlying offense.

If the Underlying Offense Is a Felony

Up to 5 years in federal prison
Criminal fines
Supervised release

If the Underlying Offense Is a Misdemeanor

The penalty cannot exceed the maximum sentence of the underlying misdemeanor.

In many cases, defendants face both conspiracy charges and substantive charges, increasing overall sentencing exposure.

Federal Sentencing Considerations

Federal courts apply the United States Sentencing Guidelines. Sentencing may consider:

Role in the offense
Amount of financial loss
Number of victims
Sophisticated means
Obstruction of justice
Acceptance of responsibility
Criminal history

Conspiracy cases often involve guideline enhancements that substantially increase potential prison time.

Common Legal Defenses

Effective defense strategies focus on undermining one or more required elements.

Lack of Agreement

If the defendant never entered into an actual agreement, no conspiracy exists.

Mere association with others is not enough.

No Overt Act

If prosecutors cannot prove an overt act in furtherance of the conspiracy, the charge may fail.

Lack of Intent

If the defendant did not knowingly and intentionally join the conspiracy, criminal liability cannot attach.

Withdrawal from the Conspiracy

If a defendant withdrew from the conspiracy before the overt act or before the offense was completed, it may limit liability.

Insufficient Evidence

Many conspiracy cases rely on cooperating witnesses, informants, or recorded communications. Credibility challenges may create reasonable doubt.

Frequently Asked Questions

Can I be charged with conspiracy if the crime never happened?

Yes. The underlying crime need not be completed for conspiracy charges to apply.

Do prosecutors need a written agreement?

No. An agreement may be proven through circumstantial evidence.

Can I be guilty if someone else committed the overt act?

Yes. Once one conspirator commits an overt act, all members may be held liable.

Is conspiracy always a felony?

Not always. If the underlying offense is a misdemeanor, penalties are limited to that misdemeanor's maximum punishment.

Why are conspiracy charges so common in federal cases?

They allow prosecutors to connect multiple defendants and broaden liability, particularly in large investigations.

Why Federal Conspiracy Charges Require Immediate Defense

Conspiracy charges are often filed after lengthy federal investigations involving:

Wiretaps
Financial tracing
Grand jury subpoenas
Cooperating witnesses
Undercover operations

Early intervention by federal defense counsel may allow:

Pre-indictment negotiations
Suppression of unlawfully obtained evidence
Strategic cooperation discussions
Motion practice challenging the indictment
Favorable plea negotiations

Federal conspiracy cases are complex and require strategic, experienced representation.

Charged Under 18 U.S.C. § 371?

If you are under investigation or charged with conspiracy to defraud the United States, the consequences can include prison time, financial penalties, reputational harm, and long-term federal supervision.

Federal prosecutors must prove every element beyond a reasonable doubt. A thorough defense requires aggressive investigation, strategic motion practice, and careful analysis of the government's evidence.

Contact an experienced federal criminal defense attorney immediately to protect your rights and begin building a defense strategy tailored to your case.

Eisner Gorin LLP is here to help. Schedule your consultation at (818) 781-1570 or contact us here. Our law firm is based in Los Angeles.

Federal Conspiracy