18 USC 371 Conspiracy Charges: Federal Defense Guide

18 USC 371 Conspiracy Charges: What Federal Defendants Need to Know

You didn’t rob the bank. You didn’t even know your co-defendant was gonna rob the bank. But irregardless of what you did or didn’t do, the prosecutor is charging you with bank robbery under Pinkerton liability—and your gonna face 20 years in federal prison for a crime you didn’t commit. This ain’t some legal technicality. This is how 18 USC 371 conspiracy charges actually works in federal court.

Most defendants doesn’t understand Pinkerton liability until they’re sitting in front of a federal judge hearing they’re responsible for crimes committed by people they barely knows. Its too late by then. This article gonna show you what 18 USC 371 conspiracy charges really means—the elements prosecutors needs to prove, how Pinkerton liability makes you responsible for other people’s crimes, and when you still got options to fight back or negotiate a better outcome.

What is 18 USC 371 Conspiracy?

The federal conspiracy statute, 18 U.S.C. § 371, has two separate prongs—what lawyers calls the “offense clause” and the “defraud clause.” Under the offense clause, the government can charge you if two or more persons conspires to commit any federal offense. Under the defraud clause, they can charge you if you conspires to defraud the United States or any federal agency. Both charges is governed by the same statute, but they works different in practice.

Here’s what prosecutors needs to prove for a 18 USC 371 conviction:

• Agreement: Two or more people agreed to commit a federal crime or defraud the U.S. government
• Overt Act: At least one conspirator took an affirmative step toward executing the conspiracy
• Intent: You knew the plan was unlawful and intentionally joined it

The maximum sentence under 18 USC 371 is five years in federal prison plus fines. But here’s what defense lawyers doesn’t tell you until its too late: that 5-year maximum is a trap. Most defendants is charged with conspiracy plus the substantive offenses that was the object of the conspiracy. These sentences runs consecutively, not concurrent. So even though the statute says “5 years max,” your actually looking at 15-20+ years when the judge stacks you’re conspiracy sentence on top of the bank robbery, wire fraud, or drug trafficking charges.

There IS one exception—if the object of the conspiracy is a misdemeanor, you’re conspiracy sentence can’t exceed the misdemeanor’s maximum (usually 1 year). But federal prosecutors doesn’t charge conspiracy to commit misdemeanors. They charges conspiracy to commit serious felonies, and then they adds Pinkerton liability on top to multiply you’re exposure.

This is different then drug conspiracy or RICO conspiracy, which doesn’t even require an overt act. Under 21 USC 846 (drug conspiracy) or 18 USC 1962(d) (RICO conspiracy), the agreement itself is enough. No overt act needed. And the penalties is much worse—often life in prison based off the drug quantity or racketeering conduct.

The Overt Act Requirement (It’s Easier to Satisfy Than You Thinks)

Defendants always tells me: “I didn’t do anything illegal, so how can they charge me with conspiracy?” The answer is gonna shock you. The overt act doesn’t need to be illegal. Irregardless of whether the act itself violates any law, if it was done in furtherance of the conspiracy, it satisfies the overt act requirement.

I seen clients convicted based off these “overt acts”:

• Buying a prepaid cell phone at Walmart
• Renting a car from Enterprise
• Opening a bank account
• Attending a meeting at Starbucks
• Making a phone call to discuss “business”
• Buying a pack of cigarettes and handing them to a co-conspirator as a signal

None of these acts is illegal. But when prosecutors proves they was done “in furtherance of the conspiracy,” they satisfies the overt act element. And here’s the critical part: only ONE conspirator needs to commit the overt act. It doesn’t have to be you. If you’re co-defendant bought the burner phone, that’s enough to complete the conspiracy—even if you was at home sleeping when he done it.

The overt act also has to happen after the agreement is formed. You can’t be convicted based off acts that occurred before the conspiracy existed. But once any conspirator takes that first step—even a completely legal step like buying a phone—the conspiracy is complete. At that point, withdrawal ain’t a defense to the conspiracy charge itself. It only protects you from future crimes committed by co-conspirators (we gonna cover that in detail below).

Pinkerton Liability: The Hidden Danger That Destroys Most Defenses

This is where federal conspiracy cases turns into nightmares. Pinkerton liability—named after the Supreme Court case Pinkerton v. United States (1946)—makes you criminally responsible for ALL crimes committed by ANY co-conspirator in furtherance of the conspiracy. Irregardless of whether you committed the crime personally, knew about it, agreed to it, or was even present when it happened.

Let me give you a real-world example based off cases I seen. You agrees to help your friend move some boxes from one apartment to another. You doesn’t know what’s in the boxes—you just thinks your helping a friend move. Those boxes has 10 kilograms of cocaine. Your friend sells the cocaine to an undercover agent. During the deal, your friend pulls a gun and threatens the agent. Now the feds arrests everyone.

Here’s what you’re charged with under Pinkerton liability:

• Conspiracy to distribute cocaine (20 years mandatory minimum based off drug quantity)
• Distribution of cocaine (the actual sale your friend made while you was at home)
• Possession with intent to distribute (even though you never touched the drugs)
• Use of a firearm in furtherance of drug trafficking (5-year mandatory consecutive, even though you didn’t have the gun and didn’t know about it)

You’re total exposure: 45+ years in federal prison for helping move boxes. This ain’t theoretical. This is how Pinkerton liability actually works in federal court.

The three-prong test prosecutors uses to establish Pinkerton liability is pretty simple:

1. A conspiracy existed between you and the co-conspirators
2. During the course of the conspiracy, one or more co-conspirators committed substantive crimes
3. Those crimes was committed in furtherance of the conspiracy and was reasonably foreseeable

That “reasonably foreseeable” language is suppose to be a limitation. Courts says you can’t be held liable for crimes that was outside the scope of the conspiracy or that couldn’t of been anticipated. But in practice, federal judges interprets “reasonably foreseeable” real broad. If you was involved in a drug conspiracy, violence is “reasonably foreseeable” even if no one ever mentioned violence. If you was involved in a fraud conspiracy, money laundering is “reasonably foreseeable” even if you doesn’t know how bank accounts works.

Here’s what most defendants doesn’t realize: Pinkerton liability is almost exclusively a federal doctrine. If you was charged in state court, most states doesn’t recognize Pinkerton. They requires the government to prove you actually aided and abetted the crime—that you took some affirmative action to help. But federal prosecutors doesn’t need to prove that. They just needs to prove you was a member of the conspiracy, and then everything anyone done in furtherance of that conspiracy gets charged to you.

Between you and I, this is the most dangerous part of federal conspiracy law. I has seen defendants with no criminal history, who never touched a drug or fired a gun, sentenced to 20+ years because of what their co-defendants done. And the prosecutors doesn’t even feels bad about it—they argues this is how conspiracy law is suppose to work.

The Withdrawal Defense: Timing is Everything (And You’re Probably Too Late)

Every defendant facing conspiracy charges asks me: “Can I withdraw from the conspiracy and beat this case?” The answer is almost always no—not because withdrawal ain’t a valid defense, but because by the time you’re arrested and charged, its way too late to withdraw.

Federal courts recognizes withdrawal as a defense, but only for crimes committed AFTER you withdrew. Withdrawal is NOT a defense to the conspiracy charge itself once an overt act has been committed. Let me explains how this works, because defense lawyers gets this wrong all the time.

Here’s the timeline:

• Day 1: You and two friends agrees to rob a bank (conspiracy formed)
• Day 2: Friend #1 buys a ski mask at Walmart (overt act—conspiracy is now complete)
• Day 3: You tells both friends “I’m out, I doesn’t want nothing to do with this” and stops all contact (attempted withdrawal)
• Day 10: Friends rob the bank without you

What you’re liable for:

• ✓ Conspiracy to commit bank robbery (because the conspiracy was complete on Day 2 when the overt act occurred)
• ✗ Bank robbery itself (if you successfully withdrew on Day 3, you’re NOT liable under Pinkerton for the robbery on Day 10)

Most defendants thinks “I withdrew, so I beats the whole case.” Wrong. You still gets convicted of conspiracy. Withdrawal only shields you from Pinkerton liability for crimes committed after you withdrew. That’s still valuable—it can be the difference between 5 years (conspiracy only) and 25 years (conspiracy + bank robbery). But you’re not walking away clean.

Now here’s the hard part: proving withdrawal. You needs to show two things:

1. Affirmative act inconsistent with the conspiracy: You took steps to disassociate yourself from the conspiracy’s goals. Saying “I’m out” ain’t enough if you keeps hanging around the conspirators or accepting money from the scheme.
2. Communication to ALL co-conspirators: You notified every member of the conspiracy in a way reasonably calculated to reach them. A text message to one guy doesn’t count if there’s 10 people in the conspiracy.

And here’s the worst part: you has the burden of proving withdrawal by a preponderance of the evidence. The government doesn’t have to disprove it—you has to prove it. This comes from the Supreme Court case Smith v. United States (2013), where the Court said withdrawal is an affirmative defense that “rested firmly on the defendant.”

Irregardless of how compelling you thinks you’re withdrawal evidence is, federal judges is skeptical. They sees defendants who claims they withdrew but kept living off conspiracy proceeds, or who “withdrew” but didn’t tell nobody, or who only withdrew when they thought the feds was onto them. If you doesn’t have clear, contemporaneous evidence of withdrawal—emails, text messages, recorded phone calls where you explicitly tells co-conspirators you’re out—you’re withdrawal defense is gonna fail.

There IS one big exception: statute of limitations. If you withdrew more than 5 years before you was indicted, and you can prove it, you has a complete defense to the conspiracy charge. The conspiracy statute of limitations runs from the last overt act by any conspirator. But if you withdrew 6 years ago and the conspiracy continued without you, the government can’t prosecute you because you’re outside the limitations period. This is one of the few situations where withdrawal actually beats the conspiracy charge itself.

Renunciation Doesn’t Work in Federal Court (Even If You Tried to Stop the Crime)

Some states recognizes what’s called a “renunciation defense.” Under the Model Penal Code, if you completely and voluntarily renounces the conspiracy and takes affirmative steps to prevent the crime from happening—like calling the police and telling them about the plan—you gets a complete defense to conspiracy charges. Many, many state courts has adopted this approach.

Federal courts doesn’t recognize renunciation. Period.

I seen cases where defendants called the FBI, told agents about the conspiracy, provided detailed information, and tried to stop the crime from occurring. They still got convicted of conspiracy. Once the agreement is formed and an overt act occurs, the crime is complete under federal law. Irregardless of what you done after that—even if you successfully prevented the target crime from happening—you’re still guilty of conspiracy.

The logic is this: conspiracy punishes the agreement itself, not just the completed crime. You agreed to commit a federal offense, and someone took a step toward doing it. That’s the crime. What happens after don’t matter for guilt, only for sentencing.

Now, if you renounces the conspiracy and cooperates with the government, you might gets a sentence reduction under the substantial assistance provisions (we gonna cover that below). But renunciation ain’t a defense that gets you acquitted. Its just a mitigating factor that might convince a prosecutor to offer you a better plea deal or a judge to gives you a lower sentence.

This is one of the big differences between state and federal conspiracy law. If you was charged in state court in New York, New Jersey, California, or other Model Penal Code states, renunciation might of worked. In federal court, it doesn’t help you beat the charge—it only helps you reduce the damage.

The Agreement Element: It’s Easier to Prove Than You Thinks

Defendants always tells me: “We never agreed to nothing! There’s no written contract, no handshake, no explicit plan. How can they prove conspiracy?” The answer is gonna frustrate you: federal law doesn’t require a formal agreement. Irregardless of whether you signed a document, shook hands, or explicitly said “let’s commit this crime together,” prosecutors can prove conspiracy through circumstantial evidence.

An agreement can be inferred from conduct. If you was present at meetings where the crime was discussed, if you made phone calls to co-conspirators at key times, if you accepted money from the scheme, if you took any action consistent with the conspiracy’s goals—courts gonna finds you agreed to participate.

Here’s examples of circumstantial evidence prosecutors uses to prove agreement:

• Phone records: You called Co-Defendant A right before he made a drug deal, then called Co-Defendant B right after
• Text messages: You texted “OK” in response to a message about “handling business tomorrow”
• Financial transactions: You deposited money into an account controlled by a co-conspirator
• Presence at meetings: Surveillance shows you was at a restaurant where conspirators met three times
• Association with known conspirators: You was seen with the ringleader multiple times during the conspiracy period

None of these things, by itself, proves conspiracy. But when prosecutors puts them together and tells a story to the jury, juries finds agreements. You doesn’t need to know all the co-conspirators. You doesn’t need to know all the details of the plan. You just needs to know the conspiracy’s general objectives and takes some action showing you agreed to participate.

Here’s what makes federal conspiracy cases even more dangerous: the co-conspirator hearsay exception. Once prosecutors proves a conspiracy existed (which is a low bar, as we just discussed), statements by ANY co-conspirator made during and in furtherance of the conspiracy is admissible against you at trial—even if you wasn’t there when the statement was made.

Example: Joe tells Mike on a recorded phone call: “Me and Tony is gonna rob the bank on Friday. You’re in charge of getting the getaway car.” You’re Tony. You wasn’t on that phone call. You doesn’t even know Joe said this. But at trial, the government plays that recording and tells the jury: “See, Joe said Tony was part of the conspiracy.” That statement comes in against you under Federal Rule of Evidence 801(d)(2)(E).

This is devastating at trial. The government doesn’t just gets to use your own statements against you—they gets to use statements by people you barely knows, on phone calls you wasn’t on, about plans you didn’t hear about. As long as the statement was made “during and in furtherance of” the conspiracy, it’s admissible. And juries doesn’t understand the difference between “Joe said Tony did it” and actual evidence that Tony did it. They hears your name on a wiretap, and they assumes you’re guilty.

Should You Fight or Cooperate? An Honest Assessment

This is the conversation every defendant facing conspiracy charges needs to has with their lawyer—but many, many defense lawyers doesn’t give you straight answers because they wants you to pay for a trial. So let me gives you the honest assessment you needs to hear.

Federal conspiracy trials has a conviction rate over 90%. That ain’t because federal juries is biased or because judges is unfair. Its because conspiracy law is stacked in the government’s favor. The agreement element is easy to prove with circumstantial evidence. Pinkerton liability makes you responsible for crimes you didn’t commit. The co-conspirator hearsay exception lets in statements you never heard. And most conspiracy cases has wiretaps, cooperating witnesses, and financial records that’s hard to explain away.

But—and this is important—that doesn’t mean you shouldn’t fight. There IS cases worth taking to trial. Here’s when you should seriously considers fighting:

• Weak evidence of agreement: If the government’s case is based off you being in the wrong place at the wrong time, with no phone calls, no texts, no financial transactions, no statements connecting you to the conspiracy—fight it.
• No overt act by you: If all the overt acts was committed by other people and there’s no evidence you knew about them or participated, you might beats the case on lack of knowledge.
• Statute of limitations: If you can prove you withdrew or stopped participating more than 5 years before the indictment, you has a complete defense.
• Illegal wiretaps: If the government’s case depends on wiretap evidence and you’re lawyer can suppress it (because agents didn’t follow proper procedures), the case might collapse.
• Lying informants: If the main evidence against you comes from a confidential informant who has reasons to lie (he’s facing his own charges, he’s getting paid, he’s told inconsistent stories), you might wins at trial.

On the other hand, here’s when cooperation usually makes more sense then fighting:

• Strong wiretap evidence: If you’re on tape discussing the conspiracy, agreeing to participate, or taking actions in furtherance—you’re probably gonna lose at trial.
• Multiple cooperators: If three other co-defendants has already pled guilty and agreed to testify against you, the jury is gonna hear “everyone says you was involved” from multiple witnesses.
• Pinkerton liability for serious crimes: If you’re facing 20+ years because of crimes committed by co-conspirators (even though you didn’t commit them personally), cooperation might be you’re only realistic path to a reasonable sentence.
• Financial records: If there’s bank records, wire transfers, or financial transactions directly linking you to the conspiracy, those is hard to explain at trial.

Cooperation in federal conspiracy cases usually means proffer sessions with prosecutors where you tells them everything you knows about the conspiracy, followed by substantial assistance under U.S. Sentencing Guidelines §5K1.1. If you provides substantial assistance and prosecutors files a 5K1.1 motion, you can gets a sentence reduction of 30-50% or more. I seen defendants facing 20 years gets sentenced to 5-7 years because they cooperated early and provided valuable information.

But cooperation ain’t without risks. Once you starts talking to the feds, anything you says can be used against you if you doesn’t follow through. If you lies during proffer sessions, you can be charged with obstruction or false statements. And if you cooperates but refuses to testify at trial, you might not gets the full benefit of the 5K1.1 motion.

Between you and I, most federal conspiracy cases doesn’t go to trial for a reason. The government’s conviction rate is too high, and the penalties is too severe to gamble on a jury. But that doesn’t mean you should just plead guilty to whatever the prosecutor offers. You needs a lawyer who’s gonna investigate the case, challenge the evidence, file suppression motions, and negotiate from a position of strength. Sometimes the best result ain’t an acquittal—its getting the government to dismiss the most serious charges or agrees to a sentence that lets you sees you’re family again before you’re 60 years old.

What to Do Right Now If You’re Facing Conspiracy Charges

If you been charged with 18 USC 371 conspiracy, or if you thinks you might be under investigation, here’s what you needs to do immediately:

DO NOT talk to federal agents without a lawyer present. Agents gonna tell you “we just wants to hear your side of the story” or “this is your chance to clear things up.” Its a trap. Anything you says will be used against you—and if you contradicts anything they already knows from wiretaps or cooperators, they’ll charge you with false statements (18 USC 1001) on top of the conspiracy charge. Irregardless of how friendly they seems, politely tell them: “I wants to cooperate, but I needs to speak to a lawyer first.”

DO NOT talk to co-defendants. If you’re already charged, the government is monitoring you’re phone calls, reading you’re emails, and possibly recording you’re conversations in jail. If you’re not charged yet but you knows others is under investigation, assume law enforcement is listening. Anything you says to co-defendants about “getting stories straight” or “what to tell the feds” is gonna be used as evidence of consciousness of guilt and obstruction of justice.

DO NOT destroy evidence. Don’t delete text messages, throw away burner phones, or shred documents. That’s a separate obstruction charge (18 USC 1512) that carries up to 20 years. Federal agents has already preserved most electronic evidence through search warrants to phone companies and internet providers. Destroying evidence doesn’t help you—it just gives prosecutors another charge to stack on top of the conspiracy.

DO hire a federal criminal defense lawyer immediately. Not a state court lawyer who “also handles federal cases.” Not a lawyer who says “I seen a conspiracy case once.” You needs someone who practices in federal court regularly, knows the local prosecutors and judges, and has experience with 18 USC 371 conspiracy cases specifically. Early intervention matters—if you’re lawyer gets involved before indictment, there’s sometimes opportunities to convince prosecutors not to charge you, or to charge lesser offenses.

DO preserve all communications and documents. Don’t destroy evidence, but do makes sure you has access to everything that might helps you’re defense. Bank statements, text messages, emails, calendar entries showing where you was on key dates—these things can sometimes proves you wasn’t involved or didn’t know about the conspiracy. Gives everything to you’re lawyer so they can investigates properly.

Why Spodek Law Group for Federal Conspiracy Defense?

At Spodek Law Group, we understands that federal conspiracy charges is some of the most serious charges you can face. We doesn’t sugarcoat the risks—Pinkerton liability is real, the conviction rate is high, and the sentences is severe. But we also knows when the government’s case has weaknesses, when cooperation makes sense, and when fighting is worth it.

Todd Spodek and our team has defended conspiracy cases in the Southern District of New York (SDNY), Eastern District of New York (EDNY), District of New Jersey (DNJ), and federal courts nationwide. We knows how to:

• Challenge wiretap evidence through suppression motions
• Cross-examine cooperating witnesses who’s lying to save themselves
• Negotiate substantial assistance agreements that actually reduces sentences
• Identifies weaknesses in the government’s proof of agreement or overt acts
• Fights Pinkerton liability by showing crimes was outside the scope or not reasonably foreseeable

We offers 24/7 availability because federal investigations doesn’t wait for business hours. If agents shows up at you’re door with a search warrant, if you gets a target letter from the U.S. Attorney’s Office, if you’re arrested on conspiracy charges—we responds immediately.

We doesn’t take every case. If we doesn’t think we can helps you, we’ll tell you straight. But if we takes you’re case, we fights. We investigates from day one—we doesn’t wait for the government to builds their case and then reacts. We knows that aggressive early defense can sometimes means the difference between indictment and declination, between 20 years and 5 years, between conviction and acquittal.

Contact Spodek Law Group today for a free consultation. We’ll reviews you’re case, explains you’re options, and gives you the honest assessment you needs. Don’t face federal conspiracy charges alone. Your freedom is on the line.

The Reality of 18 USC 371 Conspiracy Charges

Federal conspiracy law is broader and more dangerous then most defendants realizes. The agreement element is easy to prove with circumstantial evidence. The overt act can be something completely legal like buying a phone. Pinkerton liability makes you responsible for crimes you didn’t commit, didn’t know about, and wasn’t present for. Withdrawal is difficult and usually comes too late. And the 5-year statutory maximum is misleading when you’re actually facing consecutive sentences for conspiracy plus substantive offenses.

If you’re facing 18 USC 371 charges, you needs to understand these realities—and you needs experienced federal defense counsel who knows how to navigates this complex area of law. Irregardless of whether you fights the charges at trial or negotiates a cooperation agreement, the decisions you makes right now is gonna determines whether you spends 5 years or 25 years in federal prison.

Don’t wait. Contact Spodek Law Group today at (212) 300-5196 or through our website. We offers free consultations, and we’re available 24/7 for federal criminal emergencies. You’re future depends on the defense you mounts right now.