New Jersey Federal Conspiracy Defense Lawyer

Conspiracy has been called the “darling of the modern prosecutor’s nursery.” It is the most commonly charged offense in many federal districts, including the District of New Jersey, because it gives prosecutors enormous advantages. A conspiracy charge lets the government charge people who never committed the underlying crime, introduce statements by other alleged conspirators, try many defendants together and hold each person responsible for the foreseeable acts of others. If you have been charged with or are being investigated for a federal conspiracy, you need a New Jersey federal conspiracy defense lawyer who understands how to challenge the government’s theory of an agreement and the scope of your involvement.

At Keith Oliver Criminal Law, we represent defendants charged in federal conspiracy cases of every kind, from fraud and tax schemes to drug and firearms conspiracies, in the federal courthouses in Newark, Trenton and Camden.

What Is a Federal Conspiracy?

A conspiracy is an agreement between two or more people to commit a crime. The agreement itself is the crime. It does not need to be written or spoken in so many words; prosecutors commonly ask juries to infer an agreement from circumstantial evidence such as coordinated actions, phone and text records, financial transfers and surveillance. But there must be a genuine meeting of the minds. An agreement with a government agent or confidential informant alone does not count, because the informant does not actually intend to commit the crime.

The General Conspiracy Statute – 18 U.S.C. § 371

Section 371 makes it a crime for two or more persons to conspire either to commit any offense against the United States or to defraud the United States or any of its agencies in any manner or for any purpose. To convict, the government must prove:

1. An agreement between two or more persons to commit a federal offense or to defraud the United States;
2. That the defendant knowingly and willfully joined the agreement, knowing its objective; and
3. That at least one conspirator committed an overt act in furtherance of the conspiracy.

The overt act can be minor and lawful in itself, such as making a phone call, renting a car or opening a bank account. The maximum penalty under § 371 is five years in prison (or one year if the object of the conspiracy is only a misdemeanor).

Offense-Specific Conspiracy Statutes

Congress has also enacted conspiracy provisions tied to particular crimes. These usually carry the same penalties as the underlying offense and many do not require proof of an overt act:

• 21 U.S.C. § 846 – conspiracy to violate the Controlled Substances Act, carrying the same mandatory minimums as the drug offense itself. See our page on federal drug charges.
• 18 U.S.C. § 1349 – conspiracy or attempt to commit mail, wire, bank, health care or securities fraud.
• 18 U.S.C. § 1956(h) – money laundering conspiracy.
• 18 U.S.C. § 1962(d) – RICO conspiracy. See our RICO defense page.
• 18 U.S.C. § 924(o) – conspiracy to commit certain firearms offenses.
• 18 U.S.C. § 1951 – Hobbs Act robbery or extortion conspiracy.

Penalties for Federal Conspiracy

The penalty depends entirely on which statute is charged. A § 371 conspiracy tops out at five years, but a drug conspiracy involving one kilogram or more of heroin, five kilograms or more of cocaine or 400 grams or more of a fentanyl mixture triggers a ten-year mandatory minimum and a maximum of life. Fraud conspiracies under § 1349 carry up to 20 years, or 30 if a financial institution is affected.

Prosecutors frequently charge both a conspiracy count and the substantive offenses. Because conspiracy and the completed crime are separate offenses, a defendant can be convicted and sentenced for both, although the Sentencing Guidelines group closely related counts so the guideline range is not simply doubled.

Why Conspiracy Charges Are So Powerful

The Co-Conspirator Hearsay Rule

Under Federal Rule of Evidence 801(d)(2)(E), statements made by a co-conspirator during and in furtherance of the conspiracy can be admitted against every member, even if the defendant never heard them. Recorded calls, text messages and emails between other people can therefore become evidence against you. Before such statements are used, the court must find by a preponderance of the evidence that a conspiracy existed and that both the declarant and the defendant were members. Challenging that foundation is an important defense tactic.

Pinkerton Liability

Under Pinkerton v. United States (1946), a conspirator can be convicted of substantive crimes committed by another member if the crimes were committed in furtherance of the conspiracy, were within its scope and were reasonably foreseeable as a necessary or natural consequence of the agreement. This doctrine can expose a minor participant to liability for serious crimes he did not personally commit.

Relevant Conduct at Sentencing

At sentencing, the guidelines hold each defendant accountable for the conduct of others that was within the scope of the jointly undertaken criminal activity, in furtherance of it and reasonably foreseeable. The Third Circuit requires the court to determine the scope of what the particular defendant agreed to undertake, not simply the full scope of the entire conspiracy. In drug cases, this often decides whether a mandatory minimum applies; in fraud cases, it determines the loss figure. Narrowing relevant conduct is frequently the most valuable work defense counsel does.

Joint Trials and Cooperators

Conspiracy indictments often name many defendants, and co-defendants who plead guilty early may become cooperating witnesses in exchange for a motion under U.S.S.G. § 5K1.1 for a reduced sentence. Being tried alongside others, or against the testimony of former associates, presents special challenges that require experienced trial counsel.

Defenses to Federal Conspiracy Charges

• No agreement. Parallel conduct, a buyer-seller relationship or mere association with alleged conspirators does not prove an agreement. In drug cases, the Third Circuit recognizes that a simple buyer-seller relationship, without more, is not a conspiracy.
• Lack of knowledge. The defendant must know the conspiracy’s unlawful objective. Performing ordinary work for a business without knowing about fraud is not joining a conspiracy.
• Mere presence. Being present at a location where crimes occurred, or being related to or friends with a conspirator, is not enough.
• Multiple conspiracies vs. one. If the evidence shows several smaller, separate agreements rather than the single conspiracy charged, there may be a fatal variance, and the defendant may not be accountable for the larger scheme.
• Government agent exception. An agreement solely with an undercover officer or informant is not a conspiracy.
• Withdrawal and the statute of limitations. A defendant who affirmatively withdrew more than five years before the indictment may have a complete limitations defense.
• Entrapment. When government agents induced someone who was not predisposed to commit the crime, entrapment may apply, which is a recurring issue in sting operations.

Conspiracy to Defraud the United States

The “defraud clause” of § 371 deserves special mention. It reaches agreements to interfere with or obstruct a lawful government function by deceit, craft, trickery or dishonest means, even if no money is lost. It is commonly used in tax cases (impeding the IRS), customs and import cases, government contracting cases and cases involving false statements to regulators. Because the clause is so broad, defense counsel should examine whether the government has identified a specific lawful function that was obstructed and whether the means used were truly deceptive.

Investigations Involving Multiple People

If you believe you may be part of a group under investigation, whether co-workers at a business, members of a family enterprise or associates in a social circle, the decisions you make early are critical. Agents often interview many people at once, hoping someone will cooperate first. Joint defense agreements, separate counsel for each person and careful management of communications among the people involved can protect your interests. Never discuss the investigation by text or phone with others who may be involved; those communications can become evidence of the conspiracy itself or of obstruction.

Our firm can advise you on whether to seek cooperation, whether to request a meeting with the Assistant U.S. Attorney, and how to protect yourself if co-workers or associates begin cooperating. We also represent witnesses who receive grand jury subpoenas and want to ensure they do not become targets.

Related Federal Defense Pages

Conspiracy counts appear in nearly every type of federal prosecution. Learn more about health care fraud, mail fraud, tax evasion, federal gun charges and money laundering.

Plea Negotiations in Multi-Defendant Conspiracy Cases

Most federal conspiracy cases are resolved by plea agreement, but the terms of a plea in a conspiracy case deserve extraordinary scrutiny. The government will often offer to let a defendant plead to the conspiracy count while dismissing substantive counts. That can be a good outcome, or it can be a trap if the plea agreement stipulates to a drug quantity, loss amount or role that exceeds what the defendant actually agreed to. In New Jersey, federal plea agreements typically contain a “Schedule A” setting out the parties’ guideline stipulations, and those stipulations usually control the sentencing range the judge begins with.

Negotiating the scope of relevant conduct, the defendant’s role and any applicable safety-valve relief is therefore at least as important as the choice of the count of conviction. In drug conspiracies, a defendant who meets the safety-valve criteria in 18 U.S.C. § 3553(f), as expanded by the First Step Act, can be sentenced below an otherwise mandatory minimum. In fraud conspiracies, a “minor role” adjustment can reduce the offense level by two to four levels and, combined with a narrower loss figure, may open the door to a probationary or home-confinement sentence. Decisions about whether to cooperate against others also carry serious personal and safety implications that should be weighed carefully with counsel. We help clients evaluate each option realistically, including the strength of the government’s evidence and the likely outcome at trial, before any agreement is signed.

If you have been named in a conspiracy indictment or believe you may be, call a federal defense lawyer before you speak with anyone else involved.

Related Federal Defense Guides

• Federal drug charges
• Federal wire fraud
• Federal investigations, target letters and grand jury subpoenas
• How the federal sentencing guidelines work

Frequently Asked Questions

Can I be convicted of conspiracy if the crime never happened?

Yes. Conspiracy is a separate crime from the offense that was planned. The agreement itself, plus an overt act under § 371, is enough. The underlying crime does not need to be completed or even attempted.

Do I need to know everyone in the conspiracy?

No. A person can be a member of a conspiracy without knowing all the other members or every detail of the plan, as long as he knowingly agreed to the common objective. This is why conspiracy cases often include many defendants.

Am I responsible for crimes my co-conspirators committed?

Potentially. Under the Pinkerton doctrine, a conspirator can be held liable for substantive crimes committed by co-conspirators in furtherance of the conspiracy that were reasonably foreseeable. At sentencing, relevant conduct is limited to the scope of the activity you jointly undertook.

How can I withdraw from a conspiracy?

Withdrawal requires an affirmative act, such as reporting the scheme to authorities or communicating your withdrawal to co-conspirators in a way reasonably likely to reach them. The defendant bears the burden of proving withdrawal, which can start the statute of limitations running.

What is the statute of limitations for federal conspiracy?

Usually five years, measured from the last overt act in furtherance of the conspiracy (or for no-overt-act statutes like § 846, from when the conspiracy ended). Long-running conspiracies can therefore reach conduct many years old.

Talk to a New Jersey Federal Defense Lawyer Today

Federal cases are won or lost early, often before an indictment is ever filed. If an agent has contacted you, a search warrant has been executed, or you have received a target letter or grand jury subpoena, call Keith Oliver Criminal Law at (732) 858-6959 or contact us online for a confidential consultation. We defend clients throughout New Jersey in the U.S. District Court in Newark, Trenton and Camden, with offices in Monmouth, Mercer and Somerset Counties and Jersey City. Learn more about our federal criminal defense practice and attorney Keith G. Oliver.