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Federal criminal conspiracy.

 A. Agreement
 B. Illegal Goal
 C. Knowledge, Intent, and Participation
 D. Overt Act
 A. Statute of Limitations
 B. Variance
 C. Multiplicitous Indictment
 D. Withdrawal
 E. Other Defenses
 A. Evidentiary Issues
 B. Sixth Amendment Issues
 A. Vicarious Liability
 B. Joinder and Severance
 C. Acquittal of Other Co-Conspirators


Under 18 U.S.C. [section] 371 (the "Act") it is a crime to conspire to commit any offense against the United States or to defraud the United States. (1) A conspiracy is distinct from the substantive crime contemplated by the conspiracy (2) and is charged as a separate offense. (3) Acquittal on a conspiracy charge does not bar prosecution based on the substantive offense. (4) Likewise, acquittal of the substantive offense does not necessarily bar conviction on the conspiracy count (5) unless the government's theory of illegal conspiracy depends upon the defendant's knowledge of and assistance with the substantive count. (6)

The Supreme Court described the gravity of the conspiracy offense:
 [f]or two or more to ... combine together to commit ... a breach
 of the criminal laws is an offense of the gravest character,
 sometimes quite outweighing, in injury to the public, the mere
 commission of the contemplated crime. It involves deliberate
 plotting to subvert the laws, educating and preparing the
 conspirators for further and habitual criminal practices. And it
 is characterized by secrecy, rendering it difficult of detection,
 requiring more time for its discovery, and adding to the importance
 of punishing it when discovered. (7)

Conspiracy, the prosecutor's "darling," (8) is one of the most commonly charged federal crimes. (9) The offense of conspiracy is construed broadly by courts and, consequently, is applied by prosecutors to a variety of situations. (10) "[I]t is clear that a conspiracy charge gives the prosecution certain unique advantages and that one who must defend against such a charge bears a particularly heavy burden." (11)

In addition to [section] 371, specific provisions in numerous federal statutes also proscribe conspiracy. (12) These provisions attach to the particular substantive offenses specified in the statute in which they appear. Section 371, on the other hand, applies generally to any conspiracy where the goal is to "commit any offense against the United States, or to defraud the United States" (13) and criminalizes any agreement to violate a civil or criminal federal law. (14)

Nonetheless, the essential features of a conspiracy--secrecy and concealment (15)--make conspiracies difficult to prosecute, especially if the conspiracy is successful. Consequently, the law lessens the government's burden of proving the essential elements by requiring only a showing of the "essential nature of the plan and [the conspirators'] connections with it" to ensure that conspirators do not "go free by their very ingenuity." (16)

Section II of this article outlines the basic elements of a conspiracy offense under [section] 371. Section III sets forth the defenses available to challenge charges brought under the statute. Section IV presents the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys various procedural and substantive rules regarding enforcement of the statute. Finally, section VI discusses sentencing for a conspiracy conviction.


Criminal conspiracy has four elements, each of which the prosecution must prove beyond a reasonable doubt. (17) A conspiracy exists where there is: (i) an agreement between at least two parties (ii) to achieve an illegal goal (iii) where the parties possess knowledge of the conspiracy and with actual participation in the conspiracy and (iv) where at least one conspirator committed an overt act in furtherance of the conspiracy. (18)

A. Agreement

The first element and the "essence" of a conspiracy "is the existence of an agreement to commit an unlawful act." (19) The agreement must be between two or more persons (20) agreeing to work together toward a common goal. (21) However, it is not necessary for the government to prove a formal agreement. (22) The existence of a conspiratorial agreement may be demonstrated through circumstantial evidence (23) or may be inferred from the defendants' actions, (24) including by prior participation in criminal activities. (25) Knowledge of, and participation in, a conspiracy satisfies the agreement prong in the absence of an express agreement. (26) However, "a defendant's mere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in the conspiracy, even if the defendant has knowledge of the conspiracy." (27)

The bilateral conspiracy requirement of [section] 371 requires at least two non-governmental actors. (28) An agreement between two actors, one of whom is a government agent, cannot support a conspiracy conviction. (29) However, a government agent can serve as a link between a true conspirator and a defendant if the conspiracy involves criminal actors who know that multiple conspirators beyond the government agent are involved. (30)

In addition, the Wharton's Rule (31) doctrine states that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy if the commission of the crime itself requires the participation of two persons. (32) If, however, the number of actual conspirators exceeds the number required to commit the substantive offense, the government may charge the conspiracy separately. (33)

Corporations, their officers, agents, or employees can conspire with one another in violation of [section] 371. (34) The intra-corporate conspiracy doctrine generally does not apply to criminal cases under [section] 371 because it would prohibit holding a corporation acting on its own liable under conspiracy charges by allowing the corporation to hide behind its corporate veil. (35)

B. Illegal Goal

The second element of a federal conspiracy is the presence of an illegal goal. (36) Specifically, the government must establish that the aim of the conspiracy was to defraud or hinder a lawful federal government objective (the "defraud clause") (37) or to violate a federal law (the "offense clause"). (38)

The language of [section] 371's "defraud" clause is "not confined to fraud as that term has been defined in the common law." (39) Section 371 broadened the definition of fraud under conspiracy. (40) Under [section] 371, fraud reaches "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the] government." (41)

The language in Hammerschmidt v. United States (42) requires that the means to defraud be dishonest. (43) However, in cases both prior and subsequent to Hammerschmidt, the Supreme Court has upheld conspiracy convictions that did not specifically charge dishonest or deceptive means in the indictment. (44) Some circuits have affirmed convictions on conspiracy counts absent allegations of fraud or dishonesty, (45) while other circuits require such a showing. (46)

The "offense" clause of [section] 371 is not limited to offenses committed against the United States or its agents; it applies to any conspiracy that does or is intended to violate federal law. (47) The object of the conspiracy must be the violation of a specific federal statute in order to fall within the offense clause. (48) Concert of action is sufficient to prove this element, and thus it is not necessary that the conspirators intend for the conspiracy to violate federal law or know that the conspiracy will violate federal law. (49) In cases where the offense and defraud clauses overlap, an indictment must charge a violation of either the offense or defraud clause. (50) However, a defendant charged with a violation of the offense clause may also be charged under the broader defraud clause, as long as the indictment provides sufficient notice of the charges. (51)

C. Knowledge, Intent, and Participation

The third element is that the defendant knew of the conspiratorial agreement and voluntarily participated in it. (52) The defendant's knowing participation in the conspiracy can also be inferred from circumstantial evidence. (53) The government need not prove the defendant knew all the details (54) or objectives (55) of the conspiracy, or that the defendant knew the identity of all the participants in the conspiracy. (56) Acts committed by the defendant that furthered the objectives of the conspiracy are often sufficient to demonstrate that the defendant was a knowing participant. (57)

Alternatively, once the government proves the existence of a conspiracy and the defendant's intent to further it, evidence of only a "slight connection" between the defendant and the conspiracy is required to show that the defendant was a knowing member of the conspiracy. (58) However, several circuits, recognizing the due process limitations on convicting a defendant for acts of co-conspirators where the defendant had only a slight connection to the conspiracy, have based culpability on the foreseeability of co-conspirator's actions. (59) Deliberate avoidance of knowledge does not preclude a finding of intent with respect to the conspiracy. (60)

D. Overt Act

The fourth element of a federal conspiracy charge is the performance of an overt act in furtherance of the conspiracy. (61) The purpose of the overt act requirement is to demonstrate that the conspiracy was operative, rather than a mere scheme in the minds of the actors. (62) The overt act need not be unlawful, (63) nor need it be the substantive offense charged in the indictment. (64) Furthermore, the defendant need not personally have committed the overt act but may be held liable for the acts of a co-conspirator. (65) Certain types of conspiracies, however, do not require such an overt act. (66)

The Pinkerton (67) rule sets out a theory of vicarious liability whereby the reasonably foreseeable overt acts of one co-conspirator committed in furtherance of the conspiracy are attributable to the other conspirators. (68) The Circuits generally find a defendant liable for acts committed by his co-conspirators both prior to and during the defendant's participation. (69) However, a defendant cannot be held criminally liable for substantive offenses committed by others involved in the conspiracy before he joined (70) or after he withdrew from the conspiracy. (71)


Defendants can challenge conspiracy charges by claiming a failure to prove the specific elements of the offense (72) or by contesting the charge on more general grounds. The general grounds upon which a defense to a conspiracy charge can be based include: (i) statute of limitations; (ii) variance; (iii) multiplicitous indictment; and (iv) withdrawal. Part E addresses a number of other defenses.

A. Statute of Limitations

As no provision of [section] 371 provides an express statute of limitations for conspiracy charges, the general five-year limitation for non-capital offenses applies. (73) The five-year limitation period also applies to the conspiracy provisions of other federal statutes, unless they expressly provide otherwise. (74) A conspiracy ends when the central criminal purpose of the conspiracy has been attained. (75) The statute of limitations runs from the date of the last overt act committed in furtherance of the conspiracy. (76) Continued concealment of prior acts in furtherance of the conspiracy after the objective has been attained does not extend the statute of limitations. (77)

B. Variance

"Variance" refers to a situation in which the conspiracy proved at trial differs from the conspiracy charged in the indictment. (78) Variance is a violation of the Sixth Amendment requirement that a criminal defendant be given adequate notice of the charges against him. (79) At trial, the jury determines whether there is a variance between the number of conspiracies charged in the indictment and the number proven at trial. (80) Unless the change is a matter of form rather than substance, an indictment may not be amended to correct the variance, except by resubmission to the grand jury. (81) However, this is a difficult argument on which to succeed on appeal because courts will only reverse a conviction for variance if the variance is material and the defendant's substantial rights (82) were prejudiced. (83)

C. Multiplicitous Indictment

A multiplicitous indictment arises when a single conspiracy is charged as more than one count. (84) Such a defect violates the Double Jeopardy Clause of the Fifth Amendment (85) because it charges a defendant multiple times for what is substantively one crime, (86)

D. Withdrawal

To effectively withdraw from a conspiracy, a conspirator must do more than merely cease participation; the conspirator must commit "[a]ffirmative acts inconsistent with the object of the conspiracy and [communicate them] in a manner reasonably calculated to reach co-conspirators." (87) To prevent any overt act in furtherance of the conspiracy from being attributed to a co-conspirator, he must unequivocally withdraw, (88) The statute of limitations begins to run from the time of the withdrawal. (89) Most circuits place the burden of proof, or at least the burden of production, on the defendant to show actual withdrawal. (90)

E. Other Defenses

There are several other defenses to a charge of federal criminal conspiracy. Incompetence (91) and coercion or duress (92) are potentially successful affirmative defenses but require unique factual circumstances to prove. A claim that an indictment is insufficient because it does not contain all elements of the offense charged may succeed. (93) However, failure of the conspiracy to achieve its illegal goal (94) and factual impossibility (95) are generally not effective defenses to conspiracy charges. The entrapment defense is also only rarely successful. (96)


Conspiracy trials often include testimony by co-conspirators to assure a conviction because co-conspirators often are the best witnesses to the conspiracy. (97) For this reason, this section briefly discusses the co-conspirator exception to the hearsay rule. (98) Part A addresses evidentiary issues, and Part B reviews Sixth Amendment concerns.

A. Evidentiary Issues

Under Rule 801(d)(2)(E) of the Federal Rules of Evidence ("Rule 801"), "a statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." (99)

To determine the admissibility of a co-conspirator's statement, a court may look at the content of the statement itself but must also consider independent evidence. (100) Courts should examine "the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the content of the statement." (101)

Before a court allows admission of a hearsay statement by a co-conspirator, the government must prove three elements by a preponderance (102) of the evidence: (i) the existence of a conspiracy; (103) (ii) the declarant's and defendant's participation in it; (104) and (iii) that the hearsay statement was made during the course of and in furtherance of the conspiracy. (105) Any statement by a co-conspirator that promotes the main objectives of the conspiracy is considered to be in furtherance of the conspiracy. (106) Once this determination has been made, any witness can recount the statement, regardless of whether or not the statement was originally made to a member of the charged conspiracy, (107) The Supreme Court has not designated an order of proof for trial courts to follow in determining whether the standard has been met. (108) Some circuits have held that the trial court may admit a co-conspirator's statement before receiving the government's proof of the elements required under Rule 801. (109) Indeed, these circuits have held that a separate hearing outside the presence of the jury is not necessary; if the government fails to meet its burden of proof during its presentation of the case, an instruction to the jury to disregard the statement is sufficient to negate any prejudice to the defendant that may have occurred. (110) Out-of-court statements by co-conspirators may be admissible under Rule 801(d) even if the defendant is not formally charged with conspiracy in the indictment. (111) However, when conspiracy is not charged, judges are more likely to admit a co-conspirator's statement if the conspiracy is closely related or "factually intertwined" with the crime for which the defendant is charged. (112)

Statements made by co-conspirators prior to the time the defendant joined the conspiracy may be admissible against the defendant (113) because the defendant "[takes] the conspiracy as he [finds] it." (114) The statement of a co-conspirator made to an undercover agent before an arrest is also considered to be in furtherance of the conspiracy, (115) but an admission or confession made after an arrest is not. (116) Additionally, courts have held that casual comments and narratives are not in furtherance of the conspiracy and therefore, not admissible. (117) Finally, statements regarding past conduct are not in furtherance of the conspiracy. (118)

B. Sixth Amendment Issues

The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the right to confront witnesses at trial. (119) The application of a two-pronged test to determine the admissibility of hearsay testimony usually protects this right by requiring: (i) the declarant must be unavailable to testify; and (ii) the statement must bear independent "indicia of reliability." (120) However, the Supreme Court abolished this test with respect to determinations of admissibility of co-conspirator hearsay statements, holding that the Confrontation Clause requires neither proof of the unavailability of the declarant co-conspirator (121) nor any independent inquiry into the reliability of the proffered statement. (122)


Conspirators can be charged, convicted, and sentenced for both the substantive crime(s) and the conspiracy offense. (123) Part A discusses the vicarious liability of a defendant for acts of her co-conspirators; Part B analyzes issues raised by joinder and severance of multiple defendants; and Part C discusses the effect on a defendant of the acquittal of other co-conspirators.

A. Vicarious Liability

Under the Pinkerton (124) rule of vicarious liability, conspirators may be held liable for any foreseeable overt acts committed by a co-conspirator in furtherance of the conspiracy. (125) Some circuits have extended the rule of vicarious liability to corporations in criminal cases, creating an exception to the "intracorporate conspiracy doctrine." (126) At the same time, some courts have attempted to limit Pinkerton liability, (127) After establishing the existence of a conspiracy, most courts require only "slight evidence" (128) connecting the defendant to the conspiracy for a conviction; (129) however, the Seventh and Eleventh Circuits have required "substantial evidence" to connect the defendant to the on-going conspiracy, citing due process concerns. (130) B. Joinder and Severance

The prosecutor must decide whether to try co-conspirators jointly or separately. Although joint trials create the danger that the fact-finder will not be able to distinguish the more guilty parties from other less culpable co-conspirators, (131) conspiracy charges usually provide a proper basis for joinder. (132) Severance will be granted only if a defendant can make "a strong showing of prejudice." (133)

C. Acquittal of Other Co-Conspirators

Traditionally, under the "rule of consistency," if co-conspirators were tried together, one conspirator could not be convicted under [section] 371 if all the other conspirators were acquitted. (34) Today, most circuit courts have rejected this rule. (135) The Tenth and Seventh Circuits have expressed doubts about the continued validity of the rule, but as of yet have not expressly rejected it. (136) However, even in those circuits which apply the consistency rule, if the indictment alleges that unknown persons participated in the conspiracy and the evidence supports their participation, then the named defendant may still be convicted of the conspiracy. (137)


Consecutive sentences can be imposed for conspiracy and substantive offense convictions. (138) The Supreme Court has even held that "the conspiracy can be punished more harshly" (139) than the substantive offense.

The United States Sentencing Guidelines ("Guidelines") provide rules governing the sentencing ranges for a conspiracy conviction and contain specific provisions applicable to particular conspiracies. (140) Additionally, a general catchall provision applies to all conspiracies not covered by a specific offense provision. (141)

The base offense level for a conspiracy count requires decreasing the base offense level of the underlying offense by three unless defendant completed all acts necessary for the underlying offense. (142) If the participants in a conspiracy completed the intended offense, or were about to complete it but for an interruption beyond the participants' control, a slightly different formulation applies for calculating base offense levels. (143)

If the defendant is convicted on a single conspiracy count to commit more than one substantive offense, each offense will be analyzed as a separate count of conspiracy. (144) Adjustments from the specific offense guideline "for any intended offense conduct that can be established with reasonable certainty" are also considered. (145) Under the Guidelines, a downward adjustment is available if the defendant is a "minor" or "minimal" participant. (146) Conversely, if the defendant is a manager or supervisor, an upward adjustment is available. (147)

The Supreme Court set limits to upward departures in Apprendi v. New Jersey, (148) which held that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. (149) Application of Apprendi has since been limited to exclude cases in which the defendant's increased sentence was still within acceptable statutory range. (150) Through a flood of litigation, the rule in Apprendi v. New Jersey has been largely clarified, although a few questions remain open, such as how courts will interpret necessary terms within the Guidelines in light of the Apprendi holding. (151)

The Guidelines respond to the concept of vicarious liability by the inclusion of the phrase "conduct for which the defendant would be otherwise accountable." (152) Thus, for purposes of establishing the offense level for sentencing, acts of co-conspirators that are reasonably foreseeable to the defendant and done in furtherance of the conspiracy are attributable to the defendant. (153)

(1.) 18 U.S.C. [section] 371 (2000). The statute states in full:
 If two or more persons conspire either to commit any offense
 against the United States, or to defraud the United States,
 or any agency thereof in any manner or for any purpose, and
 one or more of such persons do any act to effect the object
 of the conspiracy, each shall be fined under this title or
 imprisoned not more than five years, or both. If, however, the
 offense, the commission of which is the object of the conspiracy,
 is a misdemeanor only, the punishment for such conspiracy
 shall not exceed the maximum punishment provided for such

Id.; see also H.R. REP. No. 80-304, at 28 (1947) (discussing origin of 18 U.S.C. [section] 371).

(2.) See United States v. Threadgill, 172 F.3d 357, 367 (5th Cir. 1999) (stating that it is well settled law that committing a crime and conspiring to commit a crime are wholly separate and distinct offenses); United States v. Kubick, 20 F.2d 1117, 1129 (9th Cir. 1999) ("The crime of conspiracy is entirely separate from completed substantive offense completed pursuant to the conspiracy, and its appropriately punished as a separate offense." (quoting United States v. Inakufu, 938 F.2d 972, 973-74 (9th Cir. 1991))); United States v. Marden, 872 F.2d 123, 126 (5th Cir. 1989) ("[W]hat distinguishes conspiracy from a substantive offense is the required proof of an agreement to commit the offense; and an attempt to commit a substantive offense need not involve an agreement with anyone.").

(3.) See Pinkerton v. United States, 328 U.S. 640, 643 (1946) (stating "conspiracy is a partnership in crime" distinct from any substantive offense).

(4.) See, e.g., United States v. Stevens, 909 F.2d 431,431-32 (11th Cir. 1990) (reversing conspiracy conviction while affirming false claims and false statements convictions); United States v. Pappas, 445 F.2d 1194 (3d Cir. 1971) (holding that acquittal on conspiracy to defraud a bank and the FDIC did not preclude a charge of falsifying documents at a subsequent trial).

(5.) See United States v. Campbell, 64 F.3d 967, 975-76 (5th Cir. 1995) (finding defendant's acquittal for involvement in co-conspirator's fraudulent pledge to a bank does not bar conviction for conspiracy to commit bank fraud); United States v. Hughes Aircraft Co., 20 F.3d 974, 978-79 (9th Cir. 1994) (affirming conviction of conspiracy to make false statements despite acquittal of two counts of making false statements); see also Bill Miller, Campaign Probe Dealt Setback, WASH. POST, Sept. 11, 1998, at A4 (discussing the preservation of conspiracy charge despite dismissal of five other charges constituting underlying offense).

(6.) Campbell, 64 F.3d at 975-77 (establishing where defendant's knowledge of substantive offense was required for him to conspire, acquittal on substantive count would mandate acquittal on conspiracy charge).

(7.) Pinkerton, 328 U.S. at 644 (quoting United States v. Rabinowich, 238 U.S. 78, 88 (1915)); see also Developments in the Law: Criminal Conspiracy, 72 HARV. L. REV. 922, 924-25 (1959) [hereinafter Developments] (explaining the state has a strong interest in stamping out conspiracy beyond the commission of substantive offenses because of "antisocial potentialities" of conspiracy and likelihood that additional substantive offenses will result).

(8.) Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925) (stating courts are wary when prosecutors add conspiracy count in order to increase penalty for substantive offense).

(9.) In fiscal year 1997, 4502 out of 70,114 defendants charged in federal court faced conspiracy charges under 18 U.S.C. [section] 371. Telephone Interview with John Scalia, Bureau of Statistics (Sept. 21, 1998). Another 15,630 were charged under 21 U.S.C. [section] 846 or [section] 963. Id.

(10.) See Krulewitch v. United States, 336 U.S. 440, 445-47 (1949) (Jackson, J., concurring) (describing conspiracy as "elastic, sprawling and pervasive offense"); see also United States v. Licciardi 30 F.3d 1127, 1131 (9th Cir. 1994) (Attempts by prosecutors "to broaden the already pervasisve and wide-sweeping nets of conspiracy prosecutions" are viewed "with disfavor." (citing Grunewald v. United States, 353 U.S. 391, 404 (1957))); United States v. Reynolds, 919 F.2d 435, 439 (7th Cir. 1990) (noting conspiracy charge is inevitable yet pointless, but "rare is the case omitting such a charge"); United States v. Minarik, 875 F.2d 1186, 1192 (stating that indictments under a conspiracy charge must be carefully scrutinized because of the possibility that the charges' wide nets will ensnare the innocent as well as the guilty). See generally Developments, supra note 7, at 922 (discussing development of crime of conspiracy).

(11.) United States v. Stoner, 98 F.3d 527, 533 (10th Cir. 1996) (providing adequate notice to defendant is particularly important under conspiracy allegations because of unstructured nature of crime (quoting WAYNE R. LAFAVE AND AUSTIN W. SCOTT, JR., CRIMINAL LAW [section] 6.4(b), at 526 (2d ed. 1986))).

(12.) E.g., 15 U.S.C. [section] 1 (2000) (conspiracy to restrain trade); 18 U.S.C. [section] 224 (2000) (conspiracy to bribe in sporting events); 18 U.S.C. [section] 241 (2000) (conspiracy to deprive persons of their civil rights); 18 U.S.C. [section] 286 (2000) (conspiracy to defraud federal government with fraudulent claims); 18 U.S.C. [section] 351 (d) (2000) (conspiracy to kidnap, assault, or assassinate members of Congress and members-elect); 18 U.S.C. [section] 372 (2000) (conspiracy to assault or impede federal officer); 18 U.S.C. [section] 794(c) (2000) (conspiracy to provide defense information to foreign government); 18 U.S.C. [section] 1201(c) (2000) (conspiracy to kidnap); 18 U.S.C. [section] 1962(d) (2000) (conspiracy to violate any provision of Racketeer Influenced and Corrupt Organization Act); 18 U.S.C. [section] 2384 (2000) (conspiracy to commit treason, sedition, and subversive activities); 21 U.S.C. [section] 846 (2000) (conspiracy to violate Controlled Substances Act); 21 U.S.C. [section] 963 (2000) (conspiracy to import or export controlled substance).

(13.) 18 U.S.C. [section] 371 (2000).

(14.) See United States v. Hutto, 256 U.S. 524, 528-29 (1921) (noting the predecessor statute to [section] 371 made it crime to conspire to violate any civil or criminal federal law); United States v. Tuohey, 867 F.2d 534, 536 (9th Cir. 1989) (asserting [section] 371 applies to both civil and criminal offenses); United States v. Curry, 681 F.2d 406, 423 (5th Cir. 1982) (affirming that non-criminal offense can be grounds for conspiracy but noting that conspiracy conviction for misdemeanor cannot exceed maximum sentence for violation of that misdemeanor); United States v. Wiesner, 216 F.2d 739, 741-42 (2d Cir. 1954) (same). Therefore, although the violation of a civil law can result in a conspiracy conviction allowing for criminal penalties, to be subject to a civil conspiracy penalty a defendant must have inflicted actual damage on the plaintiff (which is not required under criminal conspiracy). See West v. Carson, 49 F.3d 433, 436 (8th Cir. 1995) (holding that when the jury found the defendants did not deprive the plaintiff of his civil rights, there could be no conspiracy because no actual damage occurred).

(15.) Blumenthal v. United States, 332 U.S. 539, 557 (1947) ("Secrecy and concealment are essential features of successful conspiracy. The more completely they are achieved, the more successful the crime."); see United States v. Ortega, 203 F.3d 675, 683 (9th Cir. 2000) (noting the importance of secrecy and concealment in conspiracy); United States v. Oseby, 148 F.3d 1016, 1024 (8th Cir. 1998) (stating that both secrecy and concealment are essential elements in any conspiracy); United States v. Morris, 836 F.2d 1371, 1373 (D.C. Cir. 1988) (requiring common plan, knowledge, and participation but not formal agreement).

(16.) Blumenthal, 332 U.S. at 557 (noting the law correctly allows for conspiracy conviction upon showing of nature of plan and defendant's connection to it without requiring proof of complete knowledge of plan and its participants); Curry, 977 F.2d at 1053 (same).

(17.) See United States v. Barnes, 244 F.3d 172, 175 (1st Cir. 2001) (stating conspiracy may be proven by direct or circumstantial evidence); United States v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001) (finding defendant's participation in criminal conspiracy may be established entirely by circumstantial evidence); United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000) (stating while circumstantial evidence may support jury's inference of defendant's guilt, inference is only reasonable if it is probable that conclusion flows from proven facts, and such an inference is unreasonable where the jury engages in speculation and conjecture that renders its findings a mere guess or possibility); United States v. Harmon, 194 F.3d 890, 892 (8th Cir. 1999) (stating the existence of agreement may be proved by either direct or circumstantial evidence); United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (holding the government has the burden of proving all elements beyond reasonable doubt).

(18.) 18 U.S.C. [section] 371 (setting forth elements of conspiracy); see Rahseparian, 231 F.3d at 1276 (noting elements of a conspiracy); United States v. Ferrarini, 219 F.3d 145, 155 (2d Cir. 2000) (same); United States v. Gee, 226 F.3d 885, 893 (7th Cir. 2000) (same); United States v. Peterson, 223 F.3d 756, 759 (8th Cir. 2000) (same); United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (same); United States v. Crossley, 224 F.3d 847, 856 (6th Cir. 2000) (same); United States v. Parks, 68 F.3d 860, 866 (5th Cir. 1995) (requiring government to prove following elements: agreement to pursue unlawful objective, knowing and voluntary participation by defendant, and at least one overt act committed in furtherance thereof).

(19.) Iannelli v. United States, 420 U.S. 770, 777 (1975); see United States v. Applewhaite, 195 F.3d 679, 684 (3d Cir. 1999) (finding in conspiracy indictment, the gist of offense is agreement and specific intent to commit unlawful act, and overt act when so required by statute); United States v. Pullman, 187 F.3d 816, 820 (8th Cir. 1999) (stating conspiracy is agreement to commit unlawful act and this agreement is essential evil at which the crime of conspiracy is directed); United States v. Toler, 144 F.3d 1423, 1425 (11th Cir. 1998) (stating agreement remains essential element of crime of conspiracy).

(20.) See United States v. Milligan, 17 F.3d 177, 182-83 (6th Cir. 1994) (stating government must prove agreement between two or more people).

The legal fiction that a husband and wife are one person in the eyes of the law has been abandoned for purposes of [section] 371; thus, a husband and wife are legally capable of conspiring with each other. See United States v. Dege, 364 U.S. 51, 54-55 (1960) (holding changes in status of women mandates they be treated as separate legal entities capable of conspiring with their husbands).

(21.) See United States v. Adkinson, 158 F.3d 1147, 1154 (11th Cir. 1998) (requiting the government prove there was a "meeting of the minds" to achieve an unlawful result); United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987) (asserting government must prove agreement to pursue common objective). The "common goal" criterion has been broadly defined to encompass an expansive notion of a common purpose. United States v. Morris, 46 F.3d 410, 415 (5th Cir. 1995) (noting Fifth Circuit's adoption of expansive notion of "common purpose" and giving examples). A common goal or purpose has been found in an expansive variety of situations. See United States v. Mathis, 216 F.3d 18, 23-24 (D.C. Cir. 2000) (stating that to determine whether evidence against defendants is enough to prove conspiracy the court should look to see if the defendants shared a common goal); United States v. Agofsky, 20 F.3d 866, 870-71 (8th Cir. 1994) (explaining that due to the secretive nature of conspiracies, finding a common goal among defendants is enough to demonstrate the existence of an agreement); United States v. Richerson, 833 F.2d 1147, 1153 (5th Cir. 1989) ("Given these broad 'common goals,' the common objective test may have become a mere matter of semantics."); see also United States v. Berger, 224 F.3d 107, 113 (2d Cir. 2000) (finding a single conspiracy because of common goal, but no error resulted if there were multiple conspiracies because there was not substantial variance); United States v. Rodriguez, 509 F.2d 1342, 1348 (5th Cir. 1975) (finding common goal in plan involving several participants purchasing cocaine over three years).

(22.) See United States v. Desena, 260 F.3d 150, 155 (2d Cir. 2001) (stating although proof of express agreement is not required, there must be proof of at least tacit understanding between parties to further violation of law); United States v. Seeran, 259 F.3d 434, 442 (6th Cir. 2001) (same); United States v. Morillo, 158 F.3d 18, 23 (1st Cir. 1998) (same); United States v. Avery, 128 F.3d 966, 970-71 (6th Cir. 1997) (same).

(23.) See Glasser v. United States, 315 U.S. 60, 80 (1942) (stating common purpose and plan may be inferred from "development and a collocation of circumstances" (quoting United States v. Manton, 107 F.2d 834, 839 (24 Cir. 1938))); United States v. Delgado, 321 F.3d 1338, 1344 (11th Cir. 2003) (stating that a conspiracy may be proven by circumstantial evidence and inferred from concert of action); United States v. Solis, 299 F.3d 420, 445-46 (5th Cir. 2002) (stating that a jury may infer the elements of a drug conspiracy from circumstantial evidence); United States v. Barragan, 263 F.3d 919, 922-23 (9th Cir. 2001) (stating "most conspiracy convictions are based on circumstantial evidence" and that "juries are allowed to draw inferences as to the existence of an agreement from the defendants' conduct" (quoting United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 (9th Cir.), amended by, 127 F.3d 1200 (9th Cir. 1997))); United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001) (noting conspiracy may be inferred from circumstantial evidence "that can reasonably be interpreted as participation in the common plan"); United States v. Cueto, 151 F.3d 620, 636 (7th Cir. 1998) (explaining that proof of the intent as well the agreement segments of a conspiracy indictment can be inferred form circumstantial evidence); United States v. Wilson, 135 F.3d 291, 306 (4th Cir. 1998) (finding circumstantial evidence is usually used to prove conspiratorial agreement because there is usually little direct evidence of agreement to conspire).

(24.) See Hamling v. United States, 418 U.S. 87, 124 (1974) (noting the existence of agreement to conspire was evidenced by defendants' common goal of sending obscene brochure through mail in violation of federal law); Salgado, 250 F.3d at 447 (stating that a plan may be inferred from defendant's actions and reactions to circumstances); United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998) (stating participating in conspiracy's common purpose and plan can be inferred from defendant's actions and reactions to circumstances, but merely being present at crime scene is insufficient to demonstrate participation); United States v. Brimley, 148 F.3d 819, 822 (7th Cir. 1998) (holding the government's evidence that showed the defendant's actions advanced purpose of conspiracy and the defendant was present at "critical junctures" of the crime was adequate basis for conviction); United States v. Bass, 121 F.3d 1218, 1220 (8th Cir. 1997) (determining agreement that lies at heart of conspiracy may be shown through the circumstantial evidence of defendant's actions).

When the government seeks to establish a conspiracy by inference, it must prove each aspect of the alleged conspiracy. See United States v. Knowles, 66 F.3d 1146, 1157 (11th Cir. 1995) (ruling inference of participation from presence alone is not sufficient for conviction, but "such an inference is permissible in evaluating the totality of the circumstances" (quoting United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994))); United States v. Stauffer, 922 F.2d 508, 515 n.7 (9th Cir. 1990) ("Mere proximity to the scene of illicit activity is not sufficient to establish involvement in the conspiracy, although presence may support such an inference when viewed in context with other evidence."); United States v. Bell, 833 F.2d 272, 275 (11th Cir. 1987) (holding mere presence and association is not sufficient to convict person of conspiracy); United States v. Cardenas-Alvarado, 806 F.2d 566, 569-70 (5th Cir. 1986) (stating evidence that places defendant in "a climate of activity that reeks of something foul" is insufficient to prove conspiracy); United States v. Percival, 756 F.2d 600, 610 (7th Cir. 1985) (holding there must at least be evidence to support inference that defendant in some way "joined and participated in the conspiratorial scheme").

(25.) See United States v. Jiminez, 224 F.3d 1243, 1249-50 (11th Cir. 2000) (explaining evidence of defendant's prior involvement with marijuana and firearms should be entered into evidence in a prosecution for offenses related to selling methamphetamine); United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998) (finding prior acts, capable of demonstrating knowledge, need not be similar to act charged as long as prior act "was one which would tend to make the existence of the defendant's knowledge more probable than it would be without the evidence" (quoting United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992))). See generally FED. R. EVID. 404(b) (permitting the government to introduce evidence of other crimes, wrongs, and acts to demonstrate, inter alia, intent and motive). Additionally, co-conspirators may enter into an agreement at any time during the course of the conspiracy to become a part of the scheme through continued individual participation in the larger conspiracy. See Blumenthal v. United States, 332 U.S. 539, 558-59 (1947) (stating each salesman aided in selling only his own share of whiskey, but because he knew that "lot to be sold was larger.., he was aiding in larger plan").

(26.) United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000) (noting agreement could be inferred from defendant's knowledge of and participation in crime).

An understanding between conspirators is sufficient to constitute an agreement. See United States v. Dien Duc Huynh, 246 F.3d 734, 745 (5th Cir. 2001) (determining the agreement need not be express or formal and that a tacit understanding is sufficient); United States v. Morillo, 158 F.3d 18, 23 (1st Cir. 1998) (same).

(27.) United States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001) (explaining a cab driver who took conspirators in a stolen credit card scheme to their requested destinations lacked the requisite knowledge and specific intent necessary to be considered a participant in the conspiracy).

(28.) 18 U.S.C. [section] 371 (2000).

(29.) See United States v. Reyes, 239 F.3d 722, 738 (5th Cir. 2001) ("[A] government agent cannot be a co-conspirator and ... there can be no conspiracy between one defendant and a government informer." (quoting United States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir. 1987))); United States v. Portela, 167 F.3d 687, 700 (1st Cir. 1999) ("It is axiomatic that a conspiracy cannot continue without at least two genuine parties to the agreement."); United States v. Rios, 171 F.3d 565, 566 (8th Cir. 1999) (finding a conspiracy cannot exist between just one defendant and government informers or agents).

(30.) See United States v. Bicaksiz, 194 F.3d 390, 399 (2d Cir. 1999) (stating parties can conspire through a non-conspiring intermediary, even if that intermediary is a government informant).

(31.) Wharton's Rule owes its name to Francis Wharton, whose treatise on criminal law recognized the doctrine and its essential rationale. F. WHARTON, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 110, 491 (1846). The current formulation of Wharton's concept is stated more directly in CHARLES E. TORCIA, WHARTON'S CRIMINAL LAW [section] 684 (3d ed. 1996):
 An agreement between two persons to commit an offense does not
 constitute conspiracy when the target offense is so defined that
 it can be committed only by the participation of two persons. Thus,
 there can be no conspiracy between the giver and receiver of a
 bribe; the giver and receiver of an illegal rebate; a prostitute
 and a pimp or panderer; the parties to adultery; or a fugitive from
 justice and the person concealing him.


(32.) Iannelli v. United States, 420 U.S. 770, 772-73, 774 n.5, 781-82 (1975) (setting out doctrine known as Wharton's Rule as "an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter"). Wharton's Rule was designed to eliminate the danger of defendants receiving dual punishment for the same crime. Id. at 786 n. 18.

See United States v. Brenson, 104 F.3d 1267, 1283 (11th Cir. 1997) (finding Wharton's Rule is not violated if either the substantive offense or the conspiracy charge requires proof of a fact that the other does not); United States v. Brown, 7 F.3d 1155, 1163 (5th Cir. 1993) (finding Wharton's Rule applicable when it is impossible under any circumstances to commit substantive offense without cooperative action).

(33.) Iannelli, 420 U.S. at 775 (explaining the argument that, by requiting "five or more persons" be involved to prove violation of Organized Crime Control Act 18 U.S.C. [section] 1955, Congress intended to merge conspiracy and substantive offense into one crime); United States v. Phillips, 959 F.2d 1187, 1190 (3d Cir. 1992) (holding Wharton's Rule does not apply where more people than necessary for substantive offense are involved in conspiracy).

(34.) See McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1038 (11th Cir. 2000) (recognizing an exception to applicability of intracorporate conspiracy doctrine and noting that said doctrine does not apply to alleged intracorporate criminal conspiracies); United States v. Hughes Aircraft, 20 F.3d 974, 979 (9th Cir. 1994) (declining to "extend the reach of intra-corporate conspiracy doctrine to criminal activity"); United States v. Ames Sintering Co., 927 F.2d 232, 236 (6th Cir. 1990) (same); United States v. Stevens, 909 F.2d 431,433 (11th Cir. 1990) (holding "the [corporate] fiction was never intended to prohibit the imposition of criminal liability by allowing a corporation or its agents to hide behind the identity of the other," but where sole stockholder completely controls corporation, stockholder cannot conspire with corporation).

(35.) See Hughes Aircraft Co., 20 F.3d at 979 ("[A] corporation may be liable under [section] 371 for conspiracies entered into by its agents and employees."); Alamo Fence Co. v. United States, 240 F.2d 179, 181 (5th Cir. 1957) ("[N]o contention ... can reasonably be made, that the federal [statute] involved [is] not directed against corporate misconduct."). In the antitrust context, however, the "intra-corporate conspiracy doctrine" expressly provides that a parent corporation and its wholly-owned subsidiary are not legally capable of conspiring with each other in violation of [section] 1 of the Sherman Act because there is a complete unity of interest between the two entities. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 777 (1984) (holding a corporation and its wholly-owned subsidiary are incapable of conspiring for purposes of the Sherman Act). For a discussion of the Copperweld rule in the antitrust context, see the ANTITRUST VIOLATIONS article in this issue. See generally JOSEPH McSORLEY, A PORTABLE GUIDE TO FEDERAL CONSPIRACY LAW--DEVELOPING STRATEGIES FOR CRIMINAL AND CIVIL CASES 14-15 (1st ed. 1996). For a discussion of corporate conspiracy see the CORPORATE CRIMINAL LIABILITY article in this issue.

(36.) 18 U.S.C. [section] 371 (2000).

(37.) "If two or more persons conspire ... to defraud the United States or any agency thereof." 18 U.S.C. [section] 371. Title 18 defines the term "agency" as any department, independent establishment, commission, administrative authority, or board or bureau of the U.S. or any corporation in which the U.S. has a proprietary interest. 18 U.S.C. [section] 6 (2000). Courts have given "agency" an expansive definition. See United States v. Dennis, 384 U.S. 855, 861-62 (1966) (including National Labor Relations Board as an agency); United States v. Browning, 723 F.2d 1544, 1549 (11th Cir. 1984) (including Internal Revenue Service as agency); United States v. Turkish, 623 F.2d 769, 771 (2d Cir. 1980) (including Department of Treasury as agency).

Virtually any method used to defraud the United States will suffice for the purposes of the statute. See United States v. Clark, 139 F.3d 485, 488-89 (5th Cir. 1998) (The defraud clause of [section] 371 reaches any conspiracy designed to impair, obstruct, or defeat the lawful function of any department of the government); United States v. Ballistrea, 101 F.3d 827, 830 (2d Cir. 1996) (holding introduction of unapproved medical devices and new drugs into interstate commerce was conspiracy to defraud FDA); Tramp v. United States, 978 F.2d 1055, 1055 (8th Cir. 1992) (holding mall and wire fraud against United States supported conspiracy conviction).

(38.) 18 U.S.C. [section] 371.

(39.) Dennis, 384 U.S. at 861 (discussing how the "defraud" clause of [section] 371 applies to the federal government).

(40.) See Hammerschmidt v. United States, 265 U.S. 182, 188 (1924) (holding it unnecessary to prove government was "subjected to property or pecuniary loss by the fraud"); Haas v. Henkel, 216 U.S. 462, 479 (1910) (finding it unnecessary to allege pecuniary loss in conspiracy to defeat or impair promulgation of crop information); Ballistrea, 101 F.3d at 831 (finding conspiracy to defraud under [section] 371

not only applies to depriving government of money or property, but is also designed to protect integrity of United States and its agencies); United States v. Caldwell, 989 F.2d 1056, 1058 (9th Cir. 1993) (holding conspiracy does not require goal of depriving government of property).

(41.) Tanner v. United States, 483 U.S. 107, 128 (1987) (quoting Dennis, 384 U.S. at 861); see Hammerschmidt, 265 U.S. at 188 (holding conspiracy under [section] 371 "means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest" and overturning conspiracy conviction because interference with government function did not involve deceit or trickery); see also United States v. Stavroulakis, 952 F.2d 686, 694 (2d Cir. 1992) (holding that bank fraud statute requires an attempt to deceive federally chartered or insured financial institution); United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989) (holding that [section] 371 "criminalizes any willful impairment of a legitimate function of government"); United States v. Hooks, 848 F.2d 785, 792 (7th Cir. 1988) (holding that tax fraud violates defraud clause); United States v. Klein, 247 F.2d 908, 916 (2d Cir. 1957) (finding a conspiracy to defraud United States by impeding and obstructing Treasury Department functions).

(42.) Hammerschmidt, 265 U.S. at 182 (explaining that interfering with official action by misrepresentation, overreaching or chicanery constitutes conspiracy).

(43.) Id. at 188 (stating fraud is something done by means of "deceit, craft or trickery, or at least by means that are dishonest").

(44.) Compare United States v. Dennis, 384 U.S. 855, 861 (1966) (stating submission of false affidavits to NLRB constitutes conspiracy to defraud the United States), with Haas v. Henkel, 216 U.S. 462, 480 (1910) (holding that bribery constitutes conspiracy).

(45.) The Third and Seventh Circuits do not require a showing of fraud or dishonesty. E.g., Hooks, 848 F.2d at 792 (finding that regardless of whether defendants knew of criminality of their actions, purpose of conspiracy was to impair, obstruct, or defeat "lawful function of any department of Government"); United States v. Shoup, 608 F.2d 950, 963-64 (3d Cir. 1979) (upholding the conviction for [section] 371 conspiracy without proof of dishonesty or trickery because those elements are no longer required in all circuits to establish conspiracy).

(46.) The Second, Eighth, and Ninth Circuits require the illegal goal to include an element of fraud or dishonesty. E.g., United States v. Licciardi, 30 F.3d 1127, 1131 (9th Cir. 1994) (holding conspiracy to defraud entails interference with government function by means of "deceit, craft or treachery or at least by means that are dishonest" (quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924))); United States v. Pintar, 630 E2d 1270, 1277-78 (8th Cir. 1980) (same); United States v. Peltz, 433 F.2d 48, 51-52 (2d Cir. 1970) (stating Hammerschmidt only narrowed the Haas requirement that there be demonstration of trickery and deceit).

(47.) See United States v. Brandon, 17 F.3d 409, 422 (1st Cir. 1994) (holding the offense clause applies generally to federal offenses and conspiracy need not be aimed at United States or its agents); United States v. Falcone, 960 F.2d 988, 990 (11th Cir. 1992) (en banc) (holding an offense against United States encompasses all offenses against laws of United States, not just offenses targeted at United States).

(48.) See United States v. Martin, 228 F.3d 1, 10 (1st Cir. 2000) (finding conspiracy to sell trade secrets in violation of 18 U.S.C. [section] 1832(a)(5) constitutes offense); United States v. Dallas, 229 F.3d 105, 106 (2d Cir. 2000) (finding conspiracy to distribute cocaine in violation of 18 U.S.C. [section] 846 violates the offense clause); United States v. Jolivet, 224 F.3d 902, 908-09 (8th Cir. 2000) (finding insurance mail fraud conspiracy in violation of 18 U.S.C. " 1341, 1343, and 1346 violates offense clause); United States v. Linville, 228 F.3d 1330, 1331 (11th Cir. 2000) (finding conspiracy to commit bank fraud in violation of 18 U.S.C. [section] 1344 violates offense clause); United States v. Arch Trading Co., 987 F.2d 1087, 1091 (4th Cir. 1993) (holding that "offense" for purposes of [section] 371 includes violations of executive orders where Congress has provided criminal sanctions for such violations).

(49.) See United States v. Virgen-Moreno 265 F.3d 276, 284 (5th Cir. 2001) (stating each element of conspiracy may be inferred from circumstantial evidence and that agreement may be inferred from concert of action); United States v. Williams, 264 F.3d 561,577 (5th Cir. 2001) ("Proof of a conspiracy may be established by circumstantial evidence and may be inferred from concert of action."); United States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998) (stating although there may be no direct evidence of agreement, jury may infer agreement constituting conspiracy "from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose" (quoting United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994))); United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997) ("[A] defendant's guilty knowledge and participation in the conspiracy all may be inferred from the 'development and collocation of circumstances' ... the jury may infer the existence of a conspiracy from the presence, association, and concerted action of the defendant with others.").

(50.) See United States v. Ervasti, 201 F.3d 1029, 1040 (8th Cir. 2000) (determining offense and defraud provisions of [section] 371 constitute two separate offenses for double jeopardy purposes and charged offense of mail fraud does not raise double jeopardy concerns because offense clause required proof of an element that defraud clause did not).

(51.) See United States v. Collins, 78 F.3d 1021, 1037-38 (6th Cir. 1996) (allowing indictment under defraud clause where conduct violated internal revenue laws); United States v. Harmas, 974 F.2d 1262, 1266 (11th Cir. 1992) (stating it is "permissible to prosecute under either the defraud clause or the offense clause regardless of whether there was a specific statute describing the conduct alleged in the conspiracy and regardless of whether the object of the conspiracy was designated a misdemeanor"); United States v. Sturman, 951 F.2d 1466, 1473-74 (6th Cir. 1991) (holding where conduct violates more than one statute, broader "defraud" clause is appropriate); United States v. Mohney, 949 F.2d 899, 902 (6th Cir. 1991) ("[E]xistence of a specific statutory provision encompassing the charged conduct does not prevent prosecutors from bringing charges under the defraud clause."); United States v. Reynolds, 919 F.2d 435, 439 (7th Cir. 1990) (allowing prosecution under defraud clause where conduct violated specific statutes because an "alteration in the phraseology of the conspiracy charge [to charge conspiracy under offense clause] could not have assisted ... defense"); see also Arch Trading, 987 F.2d at 1092 ("[W]hen both prongs of [section] 371 apply.., the government enjoys considerable latitude in deciding how to proceed."). But see United States v. Minarik, 875 F.2d 1186, 1194-95 (6th Cir. 1989) (holding if illegal activity is specifically prohibited by statute, conspiracy must be prosecuted under "offense" clause rather than "defraud" clause in order to provide clear notice). However, the holding of Minarik was limited to its facts because the peculiar facts of the case involved a specific incident where prosecution under the defraud clause would have infringed on defendant's ability to prepare for trial due to the confusion created. See United States v. Khalife, 106 F.3d 1300, 1304 (6th Cir. 1997); Mohney, 949 F.2d at 902 (citing United States v. Bilzerian, 926 F.2d 1285, 1301 (2d Cir. 1991)).

(52.) See Falcone, 311 U.S. at 210-11 (holding in order to prove participation in conspiracy, government must prove defendant was aware his actions would further conspiracy); United States v. Ceballos, 340 F.3d 115, 123 (2d Cir. 2003) (stating that in order to convict a defendant of conspiracy the government must prove that defendant knew of and joined the conspiracy with the intent to commit the offenses that were its objectives); United States v. Oleson, 310 F.3d 1085, 1089 (8th Cir. 2002) (explaining that in order to convict on a conspiracy charge the government must show that the defendant knowingly joined the conspiracy); United States v. Albarran, 233 F.3d 972, 976 (7th Cir. 2000) (finding the government must establish that a conspiracy existed and that the defendant knowingly agreed to join it); United States v. Womack, 191 F.3d 879, 884 (8th Cir. 1999) (stating in order for a conspiracy to exist, it must be proven beyond a reasonable doubt that the defendant knew the main object of the conspiracy); United States v. Montgomery, 150 F.3d 983, 999 (9th Cir. 1998) (stating the objective standard of knowledge applies in context of jury's ability to connect defendant to conspiracy already proven to exist).

(53.) See United States v. Glasser, 315 U.S. 60, 80 (1942) (noting a conspiracy and defendant's participation in it "need not be proved by direct evidence"); United States v. Leonard, 61 F.3d 1181, 1187 (5th Cir. 1995) (holding defendant's knowing involvement in conspiracy can be established through circumstantial evidence); United States v. Brandon, 17 F.3d 409, 428 (1st Cir. 1994) (same); United States v. Carr, 25 F.3d 1194, 1201 (3d Cir. 1994) (same); United States v. Whittington, 26 F.3d 456, 465 (4th Cir. 1994) (holding proof of knowing participation in conspiracy can be shown by "circumstantial evidence, such as [defendant's] relationship with other members of the conspiracy, the length of this association, [defendant's] attitude, conduct and the nature of the conspiracy"); United States v. Mullins, 22 F.3d 1365, 1368 (6th Cir. 1994) (holding that defendant's participation in conspiracy can be reasonably inferred from circumstantial evidence); United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir. 1993) (holding close association with co-conspirator is "factor that can be considered as evidence of a defendant's participation in a conspiracy").

(54.) See Blumenthal v. United States, 332 U.S. 539, 557 (1947) (finding it is only necessary to show conspirators knew of conspiracy's general scope); United States v. Burns, 298 F.3d 523, 536 (6th Cir. 2002) (stating that the government need not demonstrate that every defendant had knowledge of every part of the conspiracy); United States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002) (stating that the government need not prove that each defendant had a complete knowledge of the conspiracy's goals and details); United States v. Sneed, 63 F.3d 381, 386 (5th Cir. 1995) (holding in a prosecution for conspiracy to commit mail fraud that "no element need be proved by direct evidence" (quoting United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988))); Brandon, 17 F.3d at 428 (holding government need only prove defendant had "knowledge of the basic agreement" of conspiracy to commit bank fraud); United States v. Rosa, 17 F.3d 1531, 1546 (2d Cir. 1994) (holding government need only prove defendant knew "general nature and extent" of conspiracy to receive stolen goods); United States v. Faulkner, 17 F.3d 745, 768 (5th Cir. 1994) (holding defendant need not be privy to all details of conspiracy involving fraudulent real estate loans); United States v. Milligan, 17 F.3d 177, 183 (6th Cir. 1994) (stating government need not prove defendant knew all details of conspiracy to commit marl fraud); United States v. Marshall, 985 F.2d 901, 905 (7th Cir. 1993) (finding that government need not prove defendant knew all details of money laundering and drug distribution conspiracy); United States v. Rea, 958 F.2d 1206, 1206 (2d Cir. 1991) ("Co-conspirators need not have agreed on the details of the conspiracy."); United States v. Horn, 946 F.2d 738, 740 (10th Cir. 1991) (holding general awareness is sufficient, and defendant need not know all details nor be personally acquainted with other co-conspirators).

(55.) Perez, 280 F.3d at 343 (stating that the defendant need not have complete knowledge of all the objectives of the conspiracy); United States v. Ferrarini, 219 F.3d 145, 155 (2d Cir. 2000) (stating defendant must have some knowledge of the unlawful aims and objectives of the scheme to constitute knowledge of the conspiracy); United States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998) (holding to be convicted of engaging in a criminal conspiracy, an individual need not know all the details of the conspiracy or the identity of all co-conspirators, so long as the individual knowingly participates in some fashion in the larger objectives of the conspiracy); United States v. Dimeck, 24 F.3d 1239, 1242 (10th Cir. 1994) (holding defendant need only know essential objectives to constitute knowledge of money laundering conspiracy); United States v. Cassiere, 4 F.3d 1006, 1015 (1st Cir. 1993) (holding defendant need not know all objectives of wire fraud conspiracy). But See Unite States v. Lennick, 18 F.3d 814, 818 (9th Cir. 1994) (holding that simple knowledge of a conspiracy is not enough to sustain conviction without the intent to participate in the illegal act).

(56.) Blumenthal, 332 U.S. at 557. The Supreme Court stated:
 [s]ecrecy and concealment are essential features of successful
 conspiracy. The more completely they are achieved, the more
 successful the crime. Hence the law rightly gives room for allowing
 the conviction of those discovered upon showing sufficiently the
 essential nature of the plan and their connections with it, without
 requiring evidence of knowledge of all its details or of the
 participation of others. Otherwise the difficulties, not only of
 discovery, but of certainty in proof and of correlating proof with
 pleading would become insuperable, and conspirators would go free
 by their very ingenuity.

Id.; see Brandon, 17 F.3d at 428 (holding defendant need not know identity of all members of conspiracy); Milligan, 17 F.3d at 183 (same); United States v. Agofsky, 20 F.3d 866, 870 (8th Cir. 1994) (holding the government can convict despite the "fact that the identity of some or all other members of the conspiracy remains unknown"); United States v. Hernandez, 986 F.2d 234, 236 (8th Cir. 1993) (holding knowledge of the identity of all participants not required); United States v. Reed, 980 F.2d 1568, 1582 (11th Cir. 1993) (same); United States v. Young, 954 F.2d 614, 619 (10th Cir. 1992) (same); United States v. Miranda-Ortiz, 926 F.2d 172, 175-76 (2d Cir. 1991) (same).

(57.) See United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997) (asserting the defendant's presence at crime scene in conjunction with physical evidence found at scene and testimony of officers at scene was sufficient to establish he was co-conspirator); Cassiere, 4 F.3d at 1015 (holding defendant's participation in conspiracy can be inferred from defendant's actions); United States v. Locascio, 6 F.3d 924, 944-45 (2d Cir. 1993) (holding defendant-underboss's presence in head of crime family's apartment during criminal activity planning meetings was functional part of conspiracy and was, therefore, sufficient circumstantial evidence of defendant's knowing participation); United States v. Inv. Enter., Inc., 10 F.3d 263, 267 (5th Cir. 1993) (holding the close relationship between defendant and co-conspirator was sufficient circumstantial evidence to prove defendant knew of conspiracy); United States v. Sykes, 977 F.2d 1242, 1247 (8th Cir. 1992) (holding the defendant's participation in conspiracy could be inferred from defendant's actions). But see United States v. Collins, 966 F.2d 1214, 1219-20 (7th Cir. 1992) ("A person who is indifferent to the goals of an ongoing conspiracy does not become a party to this conspiracy merely because that person knows that his or her actions might somehow be furthering that conspiracy."); United States v. Veksler, 862 F. Supp. 1337, 1339 (E.D. Pa. 1994), aff'd, 62 F.3d 544 (3d Cir. 1995) (holding evidence defendant knew or suspected that something illegal was occurring and was willing to participate in that activity was insufficient to support conspiracy conviction).

(58.) United States v. Leahy, 82 F.3d 624, 633 (5th Cir. 1996) (holding once the government proves existence of conspiracy and defendant's intent to further it, slight connection between defendant and conspiracy suffices to prove knowing participation); United States v. Brandon, 17 F.3d 409, 428 (1st Cir. 1994) (same); Whittington, 26 F.3d at 465 (same); Milligan, 17 F.3d at 183 (same); Agofsky, 20 F.3d at 870 (same); United States v. Pinkney, 15 F.3d 825, 827 (9th Cir. 1994) (same); United States v. Sturman, 951 F.2d 1466, 1474 (6th Cir. 1991) (same); United States v. Duncan, 919 F.2d 981, 991 (5th Cir. 1990) (holding only a slight connection is required to convict defendant); United States v. Muehlbauer, 892 F.2d 664, 667 (7th Cir. 1990) (same); cf. United States v. Villegas, 911 F.2d 623, 629 (11th Cir. 1990) (holding mere presence or association with conspirators is insufficient); United States v. Wexler, 838 F.2d 88, 91 (3d Cir. 1988) (holding inferences arising from "keeping bad company" are not enough for conspiracy conviction); United States v. Pupo, 841 F.2d 1235, 1238 (4th Cir. 1988) (holding mere knowledge, acquiescence, or approval of crime not enough to establish that individual is part of conspiracy, nor is mere presence at scene of drug distribution sufficient); United States v. Ascarrunz, 838 F.2d 759, 763 (5th Cir. 1988) (holding mere close association with co-conspirator not enough to support inference of participation in conspiracy, but that jury may rely on association along with other evidence to find conspiracy); United States v. Morris, 836 F.2d 1371, 1374 (D.C. Cir. 1988) (holding buyer-seller relationship does not make out conspiracy even if item sold is one to be used illegally).

(59.) The First, Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits have addressed such due process concerns. See United States v. Collazo-Aponte, 216 F.3d 163, 196-97 (1st Cir. 2000) (discussing the due process concerns involved when defendant is only slightly connected to conspiracy, but finding that the defendant in the case at bar was sufficiently connected as to abrogate such concerns); United States v. Comeaux, 955 F.2d 586, 591 (8th Cir. 1992) (holding because defendants were experienced drug dealers, they must have been aware of prevalent use of firearms in drug deals; therefore, they can be held liable for co-conspirator possessing firearm during drug deal in furtherance of conspiracy); United States v. Christian, 942 F.2d 363, 367 (6th Cir. 1991) (addressing the due process limitations noted by other circuits but finding strong enough nexus between drugs and firearms to uphold foreseeability of defendant's co-conspirator's firearms violation); United States v. Chorman, 910 F.2d 102, 112 (4th Cir. 1990) (noting due process concerns can constrain allowance of slight connection based on foreseeability of co-conspirator's actions, but that based on the amount of drugs and money involved in defendant's drug conspiracy the use of deadly force by co-conspirator was reasonably foreseeable); United States v. Alvarez, 755 F.2d 830, 850-51 (11th Cir. 1985) (noting the due process constraints but holding defendants were more than minor participants); United States v. Moreno, 588 F.2d 490, 493 (5th Cir. 1979) (affirming that vicarious guilt may present due process concerns but holding that there was no attenuation problem giving rise to such concerns in case at bar).

(60.) See United States v. Reyes, 302 F.3d 48, 54 (2d Cir. 2002) (stating that willfull blindess in a conspiracy case exists where the defendant almost knew of the conspiracy, defendant realized the probability of it, but avoided final confirmation); United States v. Gabrielle, 63 F.3d 61, 66 (1st Cir. 1995) (a jury may infer the defendant knew facts that would be obvious to a reasonable person); United States v. Richardson, 14 F.3d 666, 671-72 (1st Cir. 1994) (finding willful blindness instruction is appropriate when defendant intentionally avoids gaining knowledge of the obvious); United States v. Mancuso, 42 F.3d 836, 846 (4th Cir. 1994) (stating knowledge of a fact may be inferred from willful blindness to existence of that fact); United States v. Whittington, 26 F.3d 456, 463 (4th Cir. 1994) (holding willful blindness instruction is appropriate when defendants go to "great lengths to insulate [themselves] from the fraud perpetrated"); United States v. Faulkner, 17 F.3d 745, 767-68 (5th Cir. 1994) (holding that deliberate ignorance instruction is appropriate when defendant claims lack of guilty knowledge but evidence supports inference of deliberate indifference); United States v. Gonzalez, 933 F.2d 417, 433 (7th Cir. 1991) (same).

(61.) 18 U.S.C. [section] 371 (2000); see Blumenthal v. United States, 332 U.S. 539, 560 n.18 (1947) (holding "commission of an overt act" was required by predecessor to current [section] 371); United States v. Johnson, 297 F.3d 845, 868 (9th Cir. 2002) (stating that the commission of at least one overt act must be one of the elements of criminal conspiracy); United States v. Schwarz, 283 F.3d 76, 106 (2d Cir. 2002) (same); United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000) (same); United States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999) (same); United States v. McKinney, 954 F.2d 471, 475 (7th Cir. 1992) (asserting the defendant's conversation with the other person after murder could not be overt act in support of conspiracy conviction because the substantive offense had already occurred). Generally "[a]ny act performed in carrying out the agreement qualifies as an overt act, such as picking a lock, standing as a lookout or lying in wait, taking a trip, making a telephone call, or mailing a letter." TORCIA, supra note 31, at [section] 681.

(62.) Yates v. United States, 354 U.S. 298, 334 (1957) ("The function of the overt act in a conspiracy prosecution is ... to manifest 'that the conspiracy is at work.'" (quoting Carlson v. United States, 187 F.2d 366, 370 (10th Cir. 1951))), overruled on other grounds, Burks v. United States, 437 U.S. 1 (1978).

(63.) United States v. Hurley, 957 F.2d 1, 3 (1st Cir. 1992) (holding lawful activity may furnish basis for conspiracy conviction); United States v. Crabtree, 979 F.2d 1261, 1267 (7th Cir. 1992) ("It has long been the law of [the 7th C]ircuit that overt acts do not have to be substantive crimes themselves."); United States v. Montour, 944 F.2d 1019, 1026 (2d Cir. 1991) ("[A]n overt act need not be inherently criminal to support a conspiracy conviction."); United States v. Reifsteck, 841 F.2d 701, 704 (6th Cir. 1988) ("[E]ach overt act taken to effect the illegal purpose of the conspiracy need not be illegal in itself.").

(64.) See Yates, 354 U.S. at 334 (finding it is "not necessary that an overt act be the substantive crime charged in the indictment as the object of the conspiracy"); United States v. Brackett, 113 F.3d 1396, 1400 (5th Cir. 1997) (stating overt acts in furtherance of conspiracy need not be criminal in nature); United States v. Hickok, 77 F.3d 992, 1006 (7th Cir. 1996) ("An overt act need not be a completed offense or the ultimate goal of the conspiracy ... [It] need only be an action taken in furtherance of he conspiracy by one or more of the conspirators." (quoting United States v. Murzyn, 631 F.2d 525, 534 (7th Cir. 1980))).

(65.) See United States v. Solis, 299 F.3d 420, 446-47 (5th Cir. 2002) (explaining that a party to a conspiracy may be criminally liable for an act committed by a co-conspirator even if the party has no knowledge of the act and does not participate in it); United States v. Nelson, 66 F.3d 1036, 1044 (9th Cir. 1995) (holding the defendant himself need not perform an overt act, but rather can be convicted as long as co-conspirator performed one); United States v. Castro, 972 F.2d 1107, 1110 (9th Cir. 1992) (same); United States v. Gresser, 935 F.2d 96, 101 (6th Cir. 1991) (same); United States v. Bafia, 949 F.2d 1465, 1477 (7th Cir. 1991) (same); United States v. Sanchez, 917 F.2d 607, 612 (1st Cir. 1990) (same).

(66.) See United States v. Shabani, 513 U.S. 10, 11 (1994) (holding with regard to violations of drug conspiracy statutes, proof of overt act is not required); United States v. Hayter Oil Co., Inc., 51 F.3d 1265, 1270 (6th Cir. 1995) ("Proof of an overt act is not required to establish price-fixing conspiracy in violation of [section] 1 of the Sherman Act.").

(67.) Pinkerton v. United States, 328 U.S. 640, 646-47 (1946) (establishing vicarious liability in conspiracy cases).

(68.) Fiswick v. United States, 329 U.S. 211, 217 (1946) (holding while the "act of one partner in crime is admissible against another where act was done in furtherance of criminal undertaking," all responsibility for that conspiracy ends when conspiracy ends (citing Pinkerton, 328 U.S. at 646-47)); United States v. Newsome, 322 F.3d 328, 338 (4th Cir. 2003) (holding that under conspiracy law, a defendant is liable for all the acts of a co-conspirator that were in furtherance of the conspiracy and reasonably foreseeable); United States v. Wade 318 F.3d 698, 701 (6th Cir. 2003) (same); United States v. Richards, 204 F.3d 177, 210 (5th Cir. 2000) (finding the use of mail and wire facilities in investment scheme was reasonably foreseeable); United States v. Ciccono, 219 F.3d 1078, 1084-85 (9th Cir. 2000) (asserting fraudulent calls made to clients were reasonably foreseeable where defendant as company president provided his employees with lists of people who had fallen prey to other telemarketing schemes and wrote sales pitch used to deceive clients). But see supra note 59 and accompanying text (asserting the foreseeability of co-conspirator's actions may raise due process concerns if defendant is only slightly connected to conspiracy).

(69.) See United States v. O'Campo, 973 F.2d 1015, 1022-23 (1st Cir. 1992) (holding the defendant criminally liable for acts of co-conspirators prior to involvement in conspiracy but not for "prior substantive offenses committed in furtherance of the conspiracy"); United States v. Rea, 958 F.2d 1206, 1214 (2d Cir. 1991) ("A defendant need not have joined a conspiracy at its inception in order to incur liability for the unlawful acts of the conspiracy committed both before and after he or she became a member."); United States v. Barksdale-Contreras, 972 F.2d 111, 114 (5th Cir. 1992) (same); United States v. Adams, 882 F.2d 1218, 1230-31 (7th Cir. 1989) (holding a defendant who joins conspiracy takes "the conspiracy as he found it" and is responsible for overt acts committed before she joined (citing United States v. Coe, 718 F.2d 830, 839 (7th Cir. 1983))); United States v. Blackmon, 839 F.2d 900, 908 (2d Cir. 1988) ("[A conspiracy] defendant may be legally responsible for acts of co-conspirators prior to that defendant's entry into the conspiracy.").

(70.) See United States v. Goldberg, 105 F.3d 770, 775 (1st Cir. 1997) (finding a co-conspirator is liable only for foreseeable acts of others done in furtherance of conspiracy committed during defendant's period of membership); United States v. Leek, 78 F.3d 585 (table, text in WESTLAW), 1996 WL 99811, at **5 (6th Cir. March 5, 1996) (holding that in conspiracy for mail and wirefraud defendant was only liable for acts that were committed subsequent to the time of joining).

(71.) See United States v. Lothian, 976 F.2d 1257, 1262 (9th Cir. 1992) (holding no liability for substantive offenses after withdrawal); United States v. Richardson, 939 F.2d 135, 141 (4th Cir. 1991) (same); see also infra section III. D. of this article (discussing requirements for effective withdrawal from conspiracy and defendant's liability for acts of co-conspirators after defendant's withdrawal).

(72.) See supra section II of this article (discussing four elements of conspiracy charge).

(73.) 18 U.S.C. [section] 3282 (2000). Various courts apply the [section] 3282 statute of limitations in different ways. See United States v. Gornto, 792 F.2d 1028, 1033 (11th Cir. 1986) (citing [section] 3282 for basis that the statute of limitations for conspiracy is five years); overruled on other grounds, United States v. Shenberg, 89 F.3d 1461 (11th Cir. 1996); United States v. Evans & Associates Const. Co., Inc., 839 F.3d 656 (10th Cir. 1988) (holding that the statute of limitations in a prosecution for antitrust action does not begin to run until offending contractor accepted final payment); United States v. Davis, 533 F.2d 921, 926 (5th Cir. 1976) (asserting the government is barred from prosecuting under general conspiracy statute, 18 U.S.C. [section] 371, if it does not show existence of conspiracy within five years under [section] 3282); United States v. Lowder, 492 F.2d 953, 955-56 (4th Cir. 1974) (holding that since general conspiracy statute, 18 U.S.C. [section] 371, contains no statute of limitations, [section] 3282 will apply if no other statute is applicable).

(74.) See Bridges v. United States, 346 U.S. 209, 223 (1953) (holding a conspiracy to commit a substantive offense cannot have a longer statute of limitations than the statute of limitations of the substantive offense); see supra note 12 and accompanying text (discussing other federal statutes containing conspiracy provisions).

(75.) United States v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995) (stating that a conspiracy ends once its purpose is accomplished); United States v. Roshko, 969 F.2d 9, 11 (2d Cir. 1992) (holding a conspiracy to defraud government ended when INS approved defendant's application for green card, which was the object of the conspiracy); United States v. Payne, 978 F.2d 1177, 1179 (10th Cir. 1992) (finding a conspiracy is not complete until every element of the crime has occurred).

(76.) Fiswick v. United States, 329 U.S. 211, 216 (1946) ("The statute of limitations, unless suspended, runs from the last overt act during the existence of the conspiracy. The overt acts averred and proved may thus mark the duration, as well as the scope, of the conspiracy.") (citations omitted). Although the effects of the conspiracy may be continuous, the conspiracy itself is not considered ongoing unless the co-conspirators are cooperating to perpetuate it. See id. (stating "continuity of action to produce the unlawful result" is required); see also United States v. Colon-Munoz, 192 F.3d 210, 228 (1st Cir. 1999) ("Continuity of action to produce the unlawful result, or ... continuous cooperation of the co-conspirators to keep it up is necessary." (citing Fiswick, 329 U.S. at 216)); United States v. Dolan, 120 F.3d 856, 864-66 (8th Cir. 1997) (finding the last overt act was committed within five year statute of limitations, despite the fact that it was not committed by the defendant himself).

(77.) Grunewald v. United States, 353 U.S. 391,402 (1957) (stating concealment of conspiracy whose objective has been attained does not constitute separate conspiracy to conceal); Krulewitch v. United States, 336 U.S. 440, 443-44 (1943) (limiting the admissibility of hearsay statements from co-conspirators against other member to only those made in furtherance of conspiracy, and not to statements made to prevent punishment and detection); United States v. Rogers, 9 F.3d 1025, 1029-30 (2d Cir. 1993) (finding the defendants' actions to conceal conspiracy were not separate acts from conspiracy); United States v. Perez, 989 F.2d 1574, 1579 (10th Cir. 1993) (discussing Supreme Court's rationale in Krulewitch for excluding hearsay statements made after conspiracy terminates); United States v. Lash, 937 F.2d 1077, 1082-83 (6th Cir. 1991) (holding concealing a conspiracy does not extend its length for statute of limitations purposes).

However, if acts of concealment are carried out to further the purpose of the main conspiracy, the conspiracy can be viewed as a continuing operation. The Court in Grunewald asserted "a vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after the central objectives have been attained, for the purpose only of covering up after the crime." 353 U.S. at 405-06 (holding the defendant's acts of concealment did not further main objective of conspiracy but were only undertaken to avoid defendant getting caught; therefore, the statute of limitations did not continue to run); see also United States v. Rabinowitz, 56 F.3d 932, 934 (8th Cir. 1995) ("[A]cts of concealment further conspiracy when concealment is a central purpose of the conspiratorial agreement." (citing Grunewald, 353 U.S. at 405)).

Continued concealment of prior acts in furtherance of the conspiracy after the objective has been satisfied will also not satisfy the requirements of the co-conspirator hearsay exception under Rule 801. See Grunewald, 353 U.S. at 401-02 (holding co-conspirator's declarations made to foil detection were inadmissible under narrow co-conspirator exception to hearsay rule); United States v. Vowiell, 869 F.2d 1264, 1267 (9th Cir. 1989) (holding hearsay statements made four days after escape were inadmissible because objectives of conspiracy had been accomplished); see also infra section IV of this article (discussing co-conspirator exception to general bar against hearsay).

(78.) See Dunn v. United States, 442 U.S. 100, 105 (1979) (stating variance occurs when facts proven by evidence at trial differ from those alleged in indictment); Kotteakos v. United States, 328 U.S. 750, 766 (1946) (stating that when only one conspiracy is charged and more are proved, there is not necessarily a fatal variance); United States v. Carr, 5 F.3d 986, 990 (6th Cir. 1993) (same); United States v. Maldonado-Rivera, 922 F.2d 934, 960 (2d Cir. 1990) (stating in order to find defendant guilty, jury must find defendant was member of the conspiracy charged in indictment); cf. United States v. Santa-Manzano, 842 F.2d 1, 2 (1st Cir. 1988) (reading the Sixth Amendment as assurance that the government will prosecute defendant on charges voted on by grand jury, not on charges not included in indictment); United States v. Pinto, 838 F.2d 426, 433 (10th Cir. 1988) (finding fatal variance "occurs when the accused could not have anticipated from the indictment what evidence would be presented at trial").

The Sixth, Seventh, Eighth, Ninth and Tenth Circuits have held that variance may be cured by a jury instruction informing the jury that if it finds multiple conspiracies, evidence of one conspiracy cannot be used in considering another conspiracy. United States v. Wright, 932 F.2d 868, 874 (10th Cir. 1991) (finding jury instruction cured potential problems of variance); United States v. Mack, 837 F.2d 254, 258 (6th Cir. 1988) (concluding variance was cured by cautionary jury instruction); United States v. Townsley, 843 F.2d 1070, 1082 (8th Cir. 1988) (finding when indictment alleges single conspiracy but proof at trial reveals more, court should give multiple conspiracy instruction with cautionary instruction that evidence relating to other conspiracy may not be used against defendant); United States v. Lindsey, 602 F.2d 785, 788 (7th Cir. 1979) (holding court's failure to provide jury instruction regarding multiple conspiracies constituted plain error); United States v. Griffin, 464 F.2d 1352, 1357 (9th Cir. 1972) (finding jury instruction differentiating between conspiracies avoided potential problems resulting from variance).

"Constructive amendment" and "variance" are related defenses but are not necessarily identical in all jurisdictions. See United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998) ("[V]ariance crosses the constructive amendment line only when the variance creates 'a substantial likelihood' that a defendant may have been convicted of an offense other than that charged by the grand jury.") (citations omitted); United States v. Tandon, 111 F.3d 482, 487 (6th Cir. 1997) (finding evidence concerning improper deductions was neither constructive amendment nor variance since overstatement of deductions still related to the counts of the indictment regarding understatement of total income). A constructive amendment occurs when the evidence presented at trial and the court's instructions to the jury modify "essential elements of the charged offense" such that there is a substantial likelihood that the defendant may have been convicted of an offense different from the one charged in the indictment. Id. Variance may be found when the terms of the indictment are unchanged but there are facts proved at trial that are "materially different" from those in the indictment. It. Constructive amendment is a per se violation of the Fifth Amendment guarantee that a defendant only be tried for those offenses presented in an indictment and returned by the grand jury. See United States v. Zingaro, 858 F.2d 94, 98 (2d Cir. 1988) (stating constructive amendment is a per se violation of grand jury clause of Fifth amendment). See also United States v. Diaz, 190 F.3d 1247, 1251-52 (11th Cir. 1999) (explaining that clerical errors in the indictment will not rise to the level of a constructive amendment and may be corrected).

(79.) U.S. CONST. amend. VI. The Sixth Amendment states in relevant part that the accused shall "be informed of the nature and cause of the accusation." Id.

(80.) See United States v. Berger, 224 F.3d 107, 114 (2d Cir. 2000) (stating whether government's proof shows single conspiracy or multiple conspiracies is question of fact for jury); United States v. Pullman, 187 F.3d 816, 821 (8th Cir. 1999) (same); United States v. Romero, 150 F.3d 821,824-25 (8th Cir. 1998) (same); United States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993) (holding whether evidence proves existence of single conspiracy or multiple conspiracies is question of fact for jury).

A single conspiracy exists where there is one overall agreement to perform various functions to achieve the objectives of the conspiracy. A single conspiracy may involve sub-groups or sub-agreements as part of the overall conspiracy. See Adams, 1 F.3d at 1584 (stating inquiry into whether the jury may find that a single conspiracy exist includes "(1) whether a common goal existed, (2) the nature of the scheme underlying the crimes charged, and (3) the overlap of participants" (quoting United States v. Reed, 980 F.2d 1568, 1582 (11th Cir. 1993))); United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987) (stating that one conspiracy can include different subagreements).

If a single conspiracy is charged and multiple ones are proven, the defendant can be found guilty if there is evidence the defendant participated in the charged conspiracy. See United States v. Herrera, 289 F.3d 311, 319 (5th Cir. 2002) (holding that even if multiple conspiracies are proved at trial where the indictment was only a single count of conspiracy no variance warranting reversal is present as long as the government proves defendant's involvement in at least one conspiracy); United States v. Faulkner, 17 F.3d 745, 762 (5th Cir. 1994) (same); United States v. Durman, 30 F.3d 803, 809 (7th Cir. 1994) (holding variance is not fatal error if jury could have found defendant participated in a single, charged conspiracy); Adams, 1 F.3d at 1584 (finding no variance if jury could have found existence of a single conspiracy).

(81.) See United States v. Writers & Research, Inc., 113 F.3d 8, 12 (2d Cir. 1997) (holding the court will reverse conviction for variance only on showing of substantial prejudice to defendant); United States v. Bledsoe, 898 F.2d 430, 432 (4th Cir. 1990) (ruling the amendment deleting word "public" from indictment was not substantial enough to require resubmission to grand jury); cf. United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (stating constructive amendments of federal indictments are erroneous per se and must be corrected on appeal). Floresca limited the Bledsoe decision to its facts and overruled it to the extent necessary to reconcile it with Floresca's holding, Id.; see also United States v. Ramos-Oseguera, 120 F.3d 1028, 1035 (9th Cir. 1997) (stating variance as to starting date does not constitute reversible error unless time is a material element of charged offense); United States v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996) (finding the defendant cannot complain of improper constructive amendment if the indictment is actually amended by resubmission to grand jury); United States v. Jaynes, 75 F.3d 1493, 1506 (10th Cir. 1996) (concluding evidence sufficed to convict defendants on conspiracy charge even if dates of conspiracy were not precisely as alleged in indictment). But see United States v. Fletcher, 121 F.3d 187, 193 (5th Cir. 1997) (determining on appeal that constructive amendment did not impair "substantial rights" of appellants because it would not have affected outcome of trial and therefore does not require reversal per se).

(82.) A defendant's substantial fights are affected when the "defendant establishes prejudice in his ability to defend himself or to the overall fairness of the trial." United States v. Prince, 214 F.3d 740, 757 (6th Cir. 2000) (finding no violation of substantial fight). The substantial rights of the defendant can be violated in a number of ways:

First, if the defendant is not apprised of the charges he would have to defend against at trial, prejudice may occur. See Berger, 295 U.S. at 83-84 (finding substantial fights were not violated because variance was not prejudicial); see also United States v. Cluck, 143 F.3d 174, 178 (5th Cir. 1998) (holding the indictment is sufficient so long as essential elements of offense am charged so that defendant is able to prepare for trial and be informed of any possible subsequent double jeopardy violations); United States v. Santiago, 83 F.3d 20, 25 (1st Cir. 1996) (holding the defendant's stipulated misstatement was not variance affecting defendant's substantial fights because defendant was not misled or surprised by variance); United States v. Thomas, 12 F.3d 1350, 1358 (5th Cir. 1994) (finding no variance since defendant was adequately informed of charges and able to present defense).

Second, a defendant is prejudiced by the introduction of conspiracy evidence at trial if the defendant was not a party to the conspiracy. Kotteakos, 328 U.S. at 772-74 (holding the defendants' participation in series of small conspiracies does not mean they can be charged with participation in one large conspiracy of same general character). Compare United States v. Moran, 984 F.2d 1299, 1304 (1st Cir. 1993) (finding no prejudice when evidence incriminating to other defendants is distinct), with United States v. Harris, 8 F.3d 943,947 (2d Cir. 1993) (stating prejudice occurs if testimony of one conspirator prejudices jury against one who is not part of that conspiracy).

Third, if the defendant will be exposed to double jeopardy, substantial prejudice occurs. See Berger, 295 U.S. at (explaining when variance affects substantial fights of defendant); see also infra notes 84-86 and accompanying text (discussing the Fifth Amendment guarantee against double jeopardy).

(83.) See Kotteakos, 328 U.S. at 773-74 (holding substantial prejudice occurs when number of conspiracies and conspirators is so great that jury transfers guilt among them); Thomas, 12 F.3d at 1358 (stating that if all conspirators are not charged, no substantial prejudice occurs because defendant still knows what to defend against at trial); United States v. Guerra-Marez, 928 F.2d 665,672 (5th Cir. 1991) (deciding separate jury instructions and separate character of conspiracies suffice to prevent transference of guilt); United States v. Townsend, 924 F.2d 1385, 1411 (7th Cir. 1991) (finding no transference of guilt among large number of defendants when their voices are on tape); United States v. Caporale, 806 F.2d 1487, 1499-1501 (11th Cir. 1986) (concluding vague phrasing of indictment is not substantially prejudicial when defendant knows what to defend against).

(84.) United States v. Holmes, 44 F.3d 1150, 1153-54 (2d Cir. 1995) (stating an indictment is multiplicitous if same offense is charged in more than one count); United States v. Haddock, 956 F.2d 1534, 1546 (10th Cir. 1992) (same); United States v. Busacca, 936 F.2d 232, 239 (6th Cir. 1991) (same); United States v. Howard, 918 F.2d 1529, 1532 (11th Cir. 1990) (same). Accord MODEL PENAL Coon [section] 5.03(3) (Official Draft 1985) (stating an indictment alleging single agreement with multiple criminal objectives is multiplicitous if charging multiple conspiracies).

(85.) U.S. CONST. amend. V. The Fifth Amendment provides in relevant part that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Id.

(86.) See Rutledge v. United States, 517 U.S. 292, 297-300 (1996) (finding that the continuing criminal conspiracy statute, 21 U.S.C. [section] 848, includes the lesser offense of conspiracy to distribute controlled substance, 21 U.S.C. [section] 846, and both charges are multiplicitous and violative of Double Jeopardy Clause); United States v. Jenkins, 313 F.3d 549, 557-58 (10th Cir. 2002) (holding that charges for possession of a firearm during a drug trafficking crime and possession of a firearm in furtherance of a drug trafficking conspiracy were not multiplicitous indictments even though the underlying facts were the same);; see also United States v. Joyner, 201 F.3d 61, 70 (2d Cir. 2000) (applying Rutledge and finding criminal conspiracy statute cannot be charged along with conspiracy as 18 U.S.C [section] 371); United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999) (arguing the Double Jeopardy Clause would be violated if multiplicitous indictment would lead to multiple sentences for same conduct); United States v. Holmes, 44 F.3d 1150, 1153-54 (2d Cir. 1995) (defining multiplicitous indictment as one that charges two or more crimes where only one has been committed); William H. Theis, The Double Jeopardy Defense and Multiple Prosecutions for Conspiracy, 49 SMU L. REV. 269, 306 (1996) (arguing because conspiracy is a continuing offense, Double Jeopardy Clause should preclude defendant from being convicted under conspiracy every time he works with new accomplices). See generally William S. McAninch, Unfolding the Law of Double Jeopardy, 44 S.C.L. REV. 411,453-501 (1993) (explicating the relationship between the Double Jeopardy Clause and conspiracy).

(87.) United States v. United States Gypsum Co., 438 U.S. 422, 464 (1978); see Pinkerton v. United States, 328 U.S. 640, 646 (1946) (stating non-participation in substantive offense of conspiracy is not sufficient to disavow from conspiracy); United States v. Febus, 218 F.3d 784, 796 (7th Cir. 2000) (holding the defendant is still part of conspiracy despite decade-long absence from conspiracy because defendant did not affirmatively act to abandon conspiracy); United States v. Diaz, 176 F.3d 52, 98 (2d Cir. 1999) (explaining that in order to support withdrawal, defendant "would have to prove some act that affirmatively establishes that he disavowed his criminal association"); United States v. Mann, 161 F.3d 840, 859-60 (5th Cir. 1998) (explaining the defendant must show affirmative acts to make out defense of withdrawal); United States v. Dabbs, 134 F.3d 1071, 1083 (11th Cir. 1998) (requiring the defendant take affirmative steps to demonstrate complete repudiation of conspiracy to establish withdrawal); United States v. Rogers, 118 F.3d 466, 473-74 (6th Cir. 1997) (explaining the defendant must show affirmative acts to make out defense of abandonment of conspiracy); United States v. Willis, 102 F.3d 1078, 1083-84 (10th Cir. 1996) (holding because defendant failed to show affirmative act of withdrawal, them was no defense of abandonment of conspiracy). The participant does not need to notify every other co-conspirator to make the withdrawal valid. See United States Gypsum Co., 438 U.S. at 463-65 (stating it will often be impracticable to notify each other member in attempt to withdraw).

(88.) Febus, 218 F.3d at 796 (finding the defendant can be liable for all overt acts of conspiracy unless defendant affirmatively withdrawals); Diaz, 176 F.3d at 98 (stating unless defendant affirmatively withdraws, participation in conspiracy continues until last overt act); see Mann, 161 F.3d at 859-60 (holding that the defendant's liability extends until conspiracy's completion or actual withdrawal); Rogers, 118 F.3d at 473-74 (holding a conspiracy is presumed to be ongoing until the participants affirmatively withdraw or the conspiracy is completed); United States v. Bullis, 77 F.3d 1553, 1562 (7th Cir. 1996) (finding conduct by defendant after withdrawal is relevant to whether withdrawal is complete and in good faith).

(89.) United States v. Tocco, 200 F.3d 401,425 n.9 (6th Cir. 2000) (noting the statute of limitations tolls from either point of abandonment or point of completion); United States v. Sharpe, 193 F.3d 852, 867 (5th Cir. 1999) (same); United States v. Grimmett, 150 F.3d 958, 961 (8th Cir. 1998) (finding the statute of limitations begins to run as soon as individual has withdrawn from conspiracy); United States v. Clawson, 104 F.3d 250, 252 (9th Cir. 1996) (finding reinstatement of indictment was proper when withdrawal from conspiracy took place before statute of limitations ran); see also Ellen Jancko-Baken, When Will the Idling Statute of Limitations Start Running in RICO Conspiracy Cases?, 10 CARDOZO L. REV. 2167, 2189 (1989) (arguing the statute of limitations should begin running when defendant's agreement is terminated, not when objective of conspiracy is completed).

(90.) See Diaz, 176 F.3d at 98 (finding the defendant has burden of proving he has withdrawn from conspiracy); Mann, 161 F.3d at 859-60 (showing that the defendant must affirmatively prove he has withdrawn from conspiracy); Rogers, 118 F.3d at 473-74 (finding conspiracy is presumed to be ongoing unless the defendant can affirmatively prove he withdrew from conspiracy); United States v. Thomas, 114 F.3d 228, 268 (D.C. Cir. 1997) (same). There are two main difficulties with this burden allocation:

First, there is the constitutional objection that allocating the burden of proof to the defendant is tantamount to making the defendant disprove an element of the offense, specifically that there was an agreement. See Barton D. Day, Note, The Withdrawal Defense to Criminal Conspiracy: An Unconstitutional Allocation Of The Burden Of Proof, 51 GEO. WASH. L. REV. 420, 435-37 (1983) (seeing due process violation in prosecutor not being forced to prove every element of its case); Linda Cantoni, Note, Withdrawal from Conspiracy: A Constitutional Allocation of Evidentiary Burdens, 51 FORDHAM L. REV. 438, 458 (1982) (arguing defendant's chance of erroneous conviction increases when he or she is forced to disprove part of prosecution's case). The Seventh Circuit has addressed this constitutional problem by requiring that the government disprove withdrawal in order to satisfactorily prove all elements of the conspiracy. United States v. Read, 658 F.2d 1225, 1232-33, 1236 (7th Cir. 1981) (holding if defendant meets burden of production to show outline of withdrawal, prosecution must disprove withdrawal to satisfaction of jury); see also United States v. Rossy, 953 F.2d 321,325 (7th Cir. 1992) (following Read). However, other courts generally have held that the defendant must show a substantial amount of evidence in order to meet his burden of production. See United States v. Statues, 14 F.3d 1207, 1211 (7th Cir. 1994) (holding defendant must show affirmative act of withdrawal to satisfy burden of production); United States v. Nason, 9 F.3d 155, 161-62 (1st Cir. 1993) (holding that defendant must show more than mere cessation of activities in furtherance of conspiracy); see also United States v. Lash, 937 F.2d 1077, 1083 (6th Cir. 1991) (holding withdrawal is an affirmative defense which the defendant has the burden of proof to show).

Second, placement of the burden on the defendant will often compel the defendant either to take the witness stand, presumably in violation of the Fifth Amendment, or forego the defense of withdrawal altogether. See Day supra, at 438-39 (arguing that giving the defendant the burden of proof forces the defendant to chose between his Fifth Amendment right to remain silent and his due process right); Cantoni supra, at 464-67 (arguing because evidence of withdrawal is often circumstantial, proof of withdrawal will normally require defendant testimony).

(91.) To prove incompetence because of insanity, defendant has the burden of establishing by clear and convincing evidence that he was insane. See 18 U.S.C. [section] 17 (2000) (setting out burden of proof for insanity defense under any federal statute). A defendant must meet the statute's two-prong test: (i) that he suffered from severe mental disease or defect at time of the crime; and (ii) that such defect prevented him from appreciating the nature and quality of his acts. United States v. Knott, 894 F.2d 1119, 1121 (9th Cir. 1990) (applying two-prong test for insanity defense); see United States v. Childress, 58 F.3d 693, 728-29 (D.C. Cir. 1995) (remanding to trial court to decide if defendant was mentally retarded, because such finding might preclude requisite specific intent to enter agreement); United States v. Phillips, 630 F.2d 1138, 1146-47 (6th Cir. 1980) (finding when only other alleged conspirator was insane, defendant could not be convicted because insane person lacked capacity to enter into agreement).

(92.) See United States v. Caban, 173 F.3d 89, 94 (2d Cir. 1999) (holding defendant failed to prove duress by falling to show lack of reasonable opportunity to escape); United States v. Logan, 49 F.3d 352, 359 (8th Cir. 1995) (concluding defendant failed to prove coercion defense because he did not establish he had well grounded apprehension of death or serious bodily injury if he did not continue to participate in conspiracy); United States v. Podlog, 35 F.3d 699, 704 (2d Cir. 1994) (stating in order to establish coercion defense, the defendant must show necessary threatened force was present at time of his agreement to participate in conspiracy); United States v. Becerra, 992 F.2d 960, 964 (9th Cir. 1993) (determining coercion occurs when there is imminent threat, fear that threat will be carded out, and no opportunity to escape); United States v. Tanner, 941 F.2d 574, 588 (7th Cir. 1991) (declaring defendant failed to offer evidence he had no reasonable way of escaping immediate death or severe bodily harm). The dements of duress as an affirmative defense are: (i) immediate threat of serious bodily injury; (ii) well grounded fear that the defendant will be harmed; and (iii) no reasonable opportunity to escape. See United States v. Otis, 127 F.3d 829, 835 (9th Cir. 1997) (stating the elements and finding duress when drug cartel had kidnapped father of defendant and held him hostage).

(93.) See Hamling v. United States, 418 U.S. 87, 117 (1974) (stating indictment is sufficient if it (i) ensures defendant has sufficient notice of charge against which he must defend; and (ii) protects him from double jeopardy); United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001) (holding that indictment sufficiently alleged a conspiracy despite the fact that the government could not allege specific dates for the conspiracy, only a seventh month period); United States v. Richards, 204 F.3d 177, 193 (5th Cir. 2000) (holding the indictment for conspiracy charged the necessary specific facts that could allow a jury to conclude that defendants made material misrepresentations and false promises); United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992) (finding the indictment contained elements of defense and met requirement to fairly inform defendant of charges against him). An indictment that utilizes the language of the statute itself will be deemed sufficient, if the statute entails all the elements of the offense. See United States v. Darby, 37 F.3d 1059, 1063 (4th Cir. 1994) (stating the indictment must contain every element of offense and "mere reference to the applicable statute does not cure the defect"); United States v. Yefsky, 994 F.2d 885, 893 (lst Cir. 1993) (stating that the indictment is "sufficient if it contains elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him to enter a plea without fear of double jeopardy").

If the indictment is not specific enough to apprise the defendant of the charges he must defend against at trial, the Fifth Amendment guarantee against prosecution without presentment to or indictment by a grand jury may be violated "because the defendant cannot be assured that he is being tried on the evidence presented to the grand jury." United States v. Pirro, 212 F.3d 86, 92 (2d Cir. 2000) (holding the indictment failed to sufficiently allege element of crime for which defendant was charged, in violation of his Fifth Amendment rights); see also Russell v. United States, 369 U.S. 749, 770 (1962) ("To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure."). However, if a defendant's objection to an indictment is untimely, courts treat the indictment as valid. See FED. R. CRIM. P. 12(b)(2); see also United States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) ("An indictment that is challenged after jeopardy has attached is liberally construed in favor of sufficiency."); United States v. Ruelas, 106 F.3d 1416, 1419 (9th Cir. 1996) (utilizing de novo standard of review for sufficiency of indictment since defendant did not object before he pied guilty).

Objections regarding the sufficiency of the indictment must be raised prior to trial, unless the objection is that the court does not have jurisdiction or that there is no offense charged, in which case they must be raised prior to verdict. FED. R. CRIM. P. 12(b)(2). For more discussion of Rule 12(b)(2), see generally the PROCEDURAL ISSUES article in this issue.

(94.) See United States v. Feola, 420 U.S. 671,694 (1975) (concluding that law of conspiracy permits imposition of criminal sanction for agreement plus overt act, whether or not crime agreed upon is actually committed), superseded by statute as recognized in United States v. Sapp, 272 F. Supp. 2d 897 (N.D. Cal 2003); United States v. Torres, 114 F.3d 520, 527 (5th Cir. 1997) (holding that although no marijuana was delivered, evidence supported finding of conspiracy to transport drugs); United States v. Conley, 92 F.3d 157, 169 (3d Cir. 1996) (noting "the illegal object of the conspiracy is an essential element of the offense and must be included in the indictment").

(95.) See United States v. Rodriguez, 215 F.3d 110, 116 (1st Cir. 2000) (stating rule that factual impossibility is no defense); United States v. Belardo-Quinones, 71 F.3d 941,944 (1st Cir. 1995) (finding conspiracy may exist even if object of conspiracy is impossible); United States v. Clemente, 22 F.3d 477, 480-81 (2d Cir. 1994) (determining that factual impossibility is no defense to conspiracy charge); United States v. Contreras, 950 F.2d 232, 237 (5th Cir. 1991) (holding factual impossibility is no defense to attempted murder of witness in prosecution for conspiracy to tamper with witness).

Courts have made the distinction between factual and legal impossibility. Factual impossibility is "[i]mpossibility due to the fact that an illegal act cannot physically be accomplished," BLACK'S LAW DICTIONARY 759 (7th ed. 1999), and is generally not a defense; the court will simply ask if a crime would be possible if the attendant facts were as the defendant erroneously believed. E.g., United States v. Davis, 960 F.2d 820, 828 (9th Cir. 1992) (asking whether attendant facts were as if defendant assumed, would act be illegal). Legal impossibility is "[i]mpossibility due to the fact that what the defendant intended to do is not illegal." BLACK'S LAW DICTIONARY 759 (7th ed. 1999). See generally United States v. Hsu, 155 F.3d 189, 199-204 (3d Cir. 1998) (discussing the defense of legal impossibility).

Legal impossibility is a defense that is built into 18 U.S.C. [section] 371, since [section] 371 requires the government to show that the defendant intended "to commit any offense against the United States." 18 U.S.C. [section] 371 (2000). If the defendant conspired to commit a bad act, but one which is not an "offense against the United States," the defendant did not violate [section] 371. See United States v. Rosario-Diaz, 202 F.3d 54, 64 (lst Cir. 2000) (holding no reasonable jury could find defendants guilty of conspiracy to commit a crime for which they were not charged and which does not exist at federal level).

For a detailed argument explaining why "legal" impossibility should not be a defense to conspiracy, see Hsu, 155 F.3d at 203-04. However, the Hsu court appears to confuse "legal impossibility" with "factual impossibility," even in the process of explicating the difference. Compare Hsu, 155 F.3d at 203 ("[W]e conclude that legal impossibility is not a defense to conspiracy."), with id. ("[T]he impossibility of achieving the goal of a conspiracy is irrelevant to the crime itself."). As stated above, the impossibility of achieving the goal of the conspiracy is usually related to "factual impossibility." However, legal impossibility is always a defense to [section] 371. E.g., In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) (stating pure legal impossibility is always defense to conspiracy). It is possible to commit a legally impossible conspiracy in the sense that the defendant may actually conspire to commit an act (and even complete the act) which he erroneously thinks is illegal. See Rosario-Diaz, 202 F.3d at 64 (stating defendant conspired to and committed act which was impossible to illegally conspire to do under [section] 371).

It may be that any legal system must contain an impossibility defense of some sort, especially to inchoate crimes. See LEO KATZ, BAD ACTS AND GUILTY MINDS 293-96 (1987) (arguing necessity of impossibility defense for criminal attempts). Further, the semantic distinction between factual and legal impossibility may be a post-hoc determination. See Hsu, 155 F.3d at 199 (decrying distinction as mere post-hoc determination); ALAN DERSHOWITZ, THE BEST DEFENSE 104 (1982) (stating distinction is merely post-hoc determination).

(96.) See United States v. Ogle, 328 F.3d 182, 187 (5th Cir. 2003) (holding that defendant was not entitled to present entrapment defense when defendant had entered conspiracy at the urging of someone in addition to a government agent); United States v. Anderson, 76 F.3d 685, 690 (6th Cir. 1996) (finding defendant charged with conspiracy to possess and distribute cocaine was predisposed to commit charged crime and thus not entitled to entrapment defense); United States v. Scott, 26 F.3d 1458, 1468 (8th Cir. 1994) (determining no entrapment existed where defendant originated idea and no inducements were offered by government); United States v. Toro, 840 F.2d 1221, 1231-32 (5th Cir. 1988) (concluding jury may find defendant was predisposed to commit charged crime and was thus not entitled to entrapment defense).

A valid entrapment defense must contain two elements: (i) a lack of predisposition to commit the charged offense; and (ii) government inducement. See Mathews v. United States, 485 U.S. 58, 62-63 (1998) (discussing elements); United States v. Squillacote, 221 F.3d 542, 564 (4th Cir. 2000) (stating two elements of affirmative defense of entrapment include "government inducement and the defendant's lack of predisposition to commit the crime"); United States v. Glover, 153 F.3d 749, 754 (D.C. Cir. 1998) (same); United States v. Phan, 121 F.3d 149, 153-154 (4th Cir. 1997) (stating valid entrapment defense must contain "1) government inducement and 2) a lack of predisposition to commit the crime on the defendant's part."); United States v. Lampley, 127 F.3d 1231, 1242 (10th Cir. 1997) ("[T]he inquiry in an entrapment defense has two parts: (1) the lawfulness of the government's conduct, and (2) the defendant's predisposition to engage in the criminal activity.").

Because inconsistent defenses are allowed when the proof of one does not necessarily disprove the other, a defendant may raise the entrapment defense and, at the same time, argue that there was no conspiracy at all. See United States v. Rogers, 121 F.3d 12, 16 (lst Cir. 1997) (determining co-conspirators' defenses were not antagonistic, "merely different," and therefore "not necessarily inconsistent"); United States v. Cruz, 127 F.3d 791,799 (9th Cir. 1997) (holding antagonistic defenses are allowed unless "the core of the codefendant's defense is so irreconcilable with the core of his own defense that the acceptance of the codefendant's theory by the jury precludes acquittal of the defendant"); overruled on other grounds United States v. Jiminez Reeio 537 U.S. 270 (2003); United States v. Washington, 106 F.3d 983, 998 (D.C. Cir. 1997) (finding instruction telling jury "if you find that a defendant was entrapped as to one offense, you may but are not required to find the defendant was also entrapped as to the other offenses" to be permissible); see also United States v. Voigt, 89 F.3d 1050, 1094-95 (3d Cir. 1996) (discussing how courts recognize mutually antagonistic defense on a philosophical level, but rarely find them to actually exist). See generally Karis A. Hastings, Note, Entrapment and Denial of the Crime: A Defense of the Inconsistency Rule, 1986 DUKE L.J. 866 (1986); John David Keenan, Comment, Criminal Law--First Circuit Abandons Rule of Consistency in Conspiracy: Appearance of Justice not Satisfied--United States v. Bucuvalas, 25 SUFFOLK U.L. REV. 316, 324 (1991) (discussing consistency as an essential element to conspiracy).

(97.) See United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000) (finding evidence was sufficient for conviction when jury relied on co-conspirator's testimony and dismissed defendant's testimony); United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (relying on co-conspirator testimony to make quantity calculations contained in pre-sentence reports in order to convict defendant); United States v. Powers, 75 F.3d 335,339-40 (7th Cir. 1996) (allowing government to present testimony from several co-conspirators concerning defendant's involvement and participation in conspiracy); United States v. McCarthy, 97 F.3d 1562, 1570-71 (8th Cir. 1996) (permitting co-conspirator to testify that he personally delivered marijuana shipment to defendant); United States v. Owens, 70 F.3d 1118, 1125 (10th Cir. 1995) (holding independent evidence linking defendant to conspiracy can be in the form of co-conspirator's testimony).

(98.) The Supreme Court, in Bourjaily v. United States, 483 U.S. 171, 179-80 (1987), ruled that the two traditional requirements to the admission of hearsay evidence, unavailability and independent indicia of reliability, are no longer necessary. Chief Justice Rehnquist, writing for the majority, stated:

"co-conspirators statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801 (d)(2)(E)."

Id. at 183-84. See generally Christopher B. Mueller, The Federal Coconspirator Exception: Action, Assertion, and Hearsay, 12 HOFSTRA L. REV. 323 (1984) (discussing history of co-conspirator hearsay exception).

(99.) FED. R. EVID. 801(d)(2)(E); see also Bourjaily, 483 U.S. at 183 (stating co-conspirator exception to hearsay rule is firmly "rooted in our jurisprudence").

(100.) Rule 801(d)(2) reads: "[t]he contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered." FED. R. EVID. 801(d)(2) (addressing the question left open by Bourjaily as to whether using co-conspirator statements alone would be enough to establish admissibility).

Nine circuits have held that some evidence in addition to the hearsay statements is required. United States v. Burgos, 239 F.3d 72, 76 (1st Cir. 2001) (finding more than sufficient independent non-hearsay evidence); United States v. Salgado, 250 F.3d 438, 449 (6th Cir. 2001) (finding sufficient evidence was presented to establish conspiracy); United States v. Padilla, 203 F.3d 156, 161 (2d Cir. 2000) (finding hearsay statement inadmissible without independent corroborative evidence of defendant's participation in conspiracy); United States v. Richards, 204 F.3d 177, 202 (5th Cir. 2000) (stating that while statements can be considered, standing alone they are not sufficient to show conspiracy); United States v. Womack, 191 F.3d 879, 884 (8th Cir. 1999) (stating procedure for admissibility of co-conspirator's statements on the condition of independent evidence); United States v. Lindemann, 85 F.3d 1232, 1238-39 (7th Cir. 1996) (requiring "some evidence, independent of statements, exist to corroborate the conspiracy's existence"); United States v. Lopez-Guitierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) (finding independent evidence is required, but it need not be substantial); United States v. Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996) (holding there must be independent evidence of conspiracy apart from co-conspirator's statement); United States v. Peralta, 941 F.2d 1003, 1007 (9th Cir. 1991) (establishing foundation for admission of hearsay must be supported by independent proof). Two Circuits have left the issue an open question. United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996) (stating circumstances under which independent evidence of conspiracy is required is still unsettled question) cert denied, 519 U.S. 885 (1996); United States v. Gambino, 926 F.2d 1355, 1361 n.5 (3d Cir. 1991) (declining to address the question, but noting without voicing disapproval that all courts have agreed that independent evidence is needed).

(101.) FED. R. Evto. 801(d)(1)(c) advisory committee's note (discussing the 1997 amendment to 810(d)(1)(c), in response "to the three issues raised by" Bourjaily).

(102.) Bourjaily, 483 U.S. at 175 ("The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration."). The Circuits are in unanimous agreement. United States v. Collazo-Aponte, 216 F.3d 163, 183 (lst Cir. 2000) (stating necessity of showing by preponderance of evidence); Padilla, 203 F.3d at 161 (allowing an exception to hearsay rule after a finding by a preponderance of the evidence); United States v. Squillacote, 221 F.3d 542, 563 (4th Cir. 2000) (stating necessity of proof by preponderance of evidence); United States v. Ladd, 218 F.3d 701,700 (7th Cir. 2000) (noting requirement of preponderance standard); United States v. Beckman, 222 F.3d 512, 522 (8th Cir. 2000) (applying preponderance standard); United States v. Bowman, 215 F.3d 951,960-61 (9th Cir. 2000) (same); United States v. Wilson, 168 F.3d 916, 921 (6th Cir. 1999) (stating party offering statements as evidence must show factors stated under Bourjaily by preponderance of evidence); United States v. Ellis, 156 F.3d 493, 496 (3d Cir. 1998) (stating preponderance standard); United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998) (holding co-conspirator's statements are admissible where conspiracy has been established by preponderance of evidence); United States v. Schlei, 122 F.3d 944, 980 (11th Cir. 1997) (noting necessity of preponderance standard to lay foundation for admission of co-conspirator's statement); Gatling, 96 F.3d at 1520 (applying preponderance standard).

(103.) See supra section II.A. of this article (discussing proving an agreement).

(104.) See United States v. Geronimo, 330 F.3d 67, 75 (lst Cir. 2003) (holding that both the declarant and the defendant must be members of the conspiracy when the statement was made to admit the statement into evidence under this exception); United States v. Ladd, 218 F.3d 701,704-05 (7th Cir. 2000) (same).

(105.) Bourjaily v. United States, 483 U.S. 171, 175 (1987) (stating requirements for admitting co-conspirator's statements into evidence); Collazo-Aponte, 216 F.3d at 183 (explaining how to "invoke this evidentiary exception" using the Bourjaily requirements); Padilla, 203 F.3d at 161 (discussing requirements for exception to hearsay rule); United States v. Phillips, 219 F.3d 404, 418 n.21 (5th Cir. 2000) (restating requirements for admission of co-conspirator's statements under Federal Rules of Evidence); United States v. Tocco, 200 F.3d 401, 419-20 (6th Cir. 2000) (stating exception to hearsay rule will apply when "a court is satisfied that the statement actually falls within the definition of the rule" (quoting Bourjaily, 483 U.S. 171 (1987))); Beckman, 222 F.3d at 522-23 (stating the requirement to admit co-conspirator's statements is a "well-established standard"); Bowman, 215 F.3d at 960-61 (applying Bourjaily requirements to review decision in lower court to admit evidence against Bowman); United States v. Haynie, 179 F.3d 1048, 1050-51 (7th Cir. 1999) (stating the requirements and defendant's options should prosecutor fail to show requirements for admission of co-conspirator's statements have been met).

As with other questions of admissibility, Rule 104 requires a threshold determination of admissibility before applying Rule 801. FED. R. EVID. 801(a). Such determinations are left to the discretion of the trial judge. FED. R. EVID. 104(a) states: "Preliminary questions concerning ... the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). in making its determination it is not bound by the rules of evidence except those with respect to privileges." FED. R. EVID. 104(a).

(106.) United States v. Gajo, 290 F.3d 922, 929 (7th Cir. 2002) (stating that statements that are part of the flow of information between conspirators are in furtherance of the conspiracy); United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999) (holding a statement is in furtherance of the conspiracy if it advances the ultimate objectives of the conspiracy); United States v. Diaz, 176 F.3d 52, 85 (2d Cir. 1999) (finding statements "in furtherance" of a conspiracy must advance the conspiracy's objectives); United States v. Maliszewski, 161 F.3d 992, 1008 (6th Cir. 1998) (stating a statement is made in furtherance of a conspiracy if it was "intended to promote conspiratorial objectives" and further stating that it may need not actually further the conspiracy); United States v. Guerra, 113 F.3d 809, 814 (8th Cir. 1997) (holding the government must show that the statements sought to be admitted must be more than informative and made to advance the objectives of a conspiracy). The exception does not extend to unindicted co-conspirators' statements made after the alleged conspiracy ended. Krulewitch v. United States, 336 U.S. 440, 443-44 (1949) (holding exception does not extend to uncharged defendant's statements made after alleged conspiracy ended).

(107.) United States v. Richards, 204 F.3d 177, 202-03 (5th Cir. 2000) (admitting declaration by co-conspirator to victim of conspiracy); United States v. Ellis, 156 F.3d 493, 496-97 (3d Cir. 1998) (admitting recorded statements made to an undercover agent); United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir. 1996) (admitting statements made to undercover officer).

(108.) Bourjaily, 483 U.S. at 176 n.1.

(109.) United States v. Emuegbunam, 268 F.3d 377, 395 (6th Cir. 2001) (allowing conditional admission of co-conspirator's statement); United States v. Anderson, 243 F.3d 478, 483 (8th Cir. 2001) (stating court may allow co-conspirator's statement to be admitted conditionally prior to finding that conspiracy existed); United States v. Murphy, 193 F.3d 1, 7 (lst Cir. 1999) (noting court anticipates finding will be made before case goes to jury); United States v. McClellan, 165 F.3d 535, 553 (7th Cir. 1999) (admitting a co-conspirator's statement conditionally subject to determination of proof by preponderance that statement was made in furtherance of conspiracy); United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998) (noting court may choose between pretrial hearing or provisional admission until conspiracy is proven); United States v. Salvatore, 110 F.3d 1131, 1146 (5th Cir. 1997) (stating when it is "reasonably practicable," pretrial hearing should occur, but issue of admission of co-conspirator's statement can be held open while all evidence is presented); abrogated on other grounds Cleveland v. United States, 531 U.S. (2000); United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993) (holding co-conspirator's statements may be conditionally admitted subject to later submission of necessary evidence of prerequisites).

(110.) See, e.g., Murphy, 193 F.3d at 7 (stating co-conspirator statements must have been admissible because no instruction to disregard was given to jury); United States v. Ruiz, 987 F.2d 243, 246 (5th Cir. 1993) (finding district court not required to conduct pretrial hearing to determine admissibility of co-conspirator statements); United States v. Pedigo, 12 F.3d 618, 628 (7th Cir. 1993) (holding pretrial hearing unnecessary for submission subject to eventual acceptable proof, and explaining court may declare mistrial or issue limiting instruction to jury if government fails to link-up evidence); United States v. Blevins, 960 F.2d 1252, 1256 (4th Cir. 1992) (same); United States v. Doerr, 886 F.2d 944, 967 (7th Cir. 1989) (stating pretrial hearing for decision which is not final is inefficient means of resolving factual issues arising under co-conspirator exception); United States v. Medina, 761 F.2d 12, 17 (lst Cir. 1985) (stating pretrial hearing to determine whether co-conspirator statement is hearsay or admissible evidence is not mandated, but would only "unnecessarily lengthen the proceedings"). But cf. Gonzales-Montoya, 161 F.3d at 649 (underscoring preference for pretrial hearing).

(111.) See United States v. Skidmore, 254 F.3d 635, 638 (7th Cir. 2001); United States v. Lara, 181 F.3d 183, 196 (lst Cir. 1999) (stating government need not charge conspiracy in order for co-conspirator statement to be admitted); United States v. Ellis, 156 F.3d 493, 497 (3d Cir. 1998) (stating out-of-court statements may be admissible even if defendant is not formally charged with conspiracy); United States v. Gedinez, 110 F.3d 448, 454 (7th Cir. 1997) (noting government does not have to charge conspiracy in order for co-conspirator statement to be admitted); United States v. Asibor, 109 F.3d 1023, 1034 (5th Cir. 1997) (allowing evidence of uncharged offenses because they arise out of the same transactions as the offenses charged). See generally Edward J. Imwinkelried, Prejudice to the Nth Degree: The Introduction of Uncharged Misconduct Admissible Only Against a Co-Defendant at a Megatrial, 53 OKLA. L. REV. 35 (2000) (arguing uncharged conspiracies should not be admitted as evidence on fairness grounds).

(112.) E.g., Ellis, 156 F.3d at 498 (applying "factually intertwined" test to determine relevance of 801(d)(2)(E) evidence); United States v. Grossman, 843 F.2d 78, 83 (2d Cir. 1988) (stating conspiracy must be "factually intertwined" with offense charged); United States v. Stratton, 779 F.2d 820, 829 (2d Cir. 1985) (same); United States v. Kendall, 665 F.2d 126, 132 (7th Cir. 1981) (same).

(113.) United States v. Portela, 167 F.3d 687, 703, 703 n.13 (lst Cir. 1999) (noting statements made prior to defendant's joining conspiracy are admissible); United States v. Diaz, 176 F.3d 52, 103 (2d Cir. 1999) (finding co-conspirators' statements made prior to defendant's joining of a gang were admissible against him).

(114.) United States v. Adamo, 882 F.2d 1218, 1230 (7th Cir. 1989) (citations omitted); see also United States v. Goldberg, 105 F.3d 770, 775-76 (lst Cir. 1997) (questioning but following the traditional "take it as he finds it" approach).

(115.) United States v. Brooks, 82 F.3d 50, 53-54 (2d Cir. 1996) (admitting statements made to undercover officer prior to arrest); United States v. Segura-Gallagos, 41 F.3d 1266, 1272 (9th Cir. 1994) (holding statements made to undercover police officer not hearsay because statements were "in furtherance" of conspiracy).

(116.) Fiswick v. United States, 329 U.S. 211,217 (1946) (finding post-arrest admission or confession is not in furtherance of conspiracy); United States v. Lombard, 72 F.3d 170, 189 (1st Cir. 1995) (holding arrest terminates conspiracy, but allowing declaration based on other grounds); United States v. Alonzo, 991 F.2d 1422, 1425 (8th Cir. 1993) (stating confessions are not in furtherance of conspiracy); see also United States v. Collazo-Aponte, 216 F.3d 163, 187 (lst Cir. 2000) (stating arrest doesn't necessarily terminate conspiracy since it may be ongoing); United States v. Edmond, 52 F.3d 1080, 1112 (D.C. Cir. 1995) (holding that even though defendant's participation in conspiracy ended at arrest, subsequent declarations to non-conspirator are allowable because they were made to further ongoing conspiracy); United States v. Jones, 913 F.2d 1552, 1563 (llth Cir. 1990) (finding tape-recorded conversation between two co-conspirators after one had been arrested admissible because there was sufficient evidence to show conspiracy was continuing); United States v. Urrego-Linares, 879 F.2d 1234, 1240 (4th Cir. 1989) (determining telephone call between two arrested co-conspirators properly admitted because evidence showed conspiracy continued); United States v. Ascarrunz, 838 F.2d 759, 762 (5th Cir. 1988) (declaring although arrest operates as withdrawal and statements of arrested co-conspirator cannot be used against other co-conspirators, statements of unattested co-conspirator can be introduced against arrested conspirator). This rule assumes that an arrest serves as a withdrawal from the conspiracy and ends the individual's participation in it. As the Supreme Court explained:
 [The] confession or admission by one coconspirator after he has
 been apprehended is not in any sense a furtherance of the criminal
 enterprise. It is rather a frustration of it. If ... the maintenance
 of the plot to deceive the government was the objective of this
 conspiracy, the admissions made to the officers ended it. So far as
 each conspirator who confessed was concerned, the plot was then
 terminated. He thereupon ceased to act in the role of a conspirator.
 His admissions were therefore not admissible against his erstwhile

Fiswick, 329 U.S. at 217; see also Ascarrunz, 838 F.2d at 762 (explaining when "an arrest has ended a defendant's membership in the conspiracy it is difficult to see how his statements thereafter could be in furtherance of the conspiracy").

(117.) United States v. Salgado, 250 F.3d 72, 75 (6th Cir. 2001) (defining "idle chatter" as conversations which further speaker's own individual objectives rather than objectives of conspiracy); United States v. Tocco, 200 F.3d 401,419 (6th Cir. 2000) (noting statements which are "idle chatter" are inadmissible); United States v. LiCausi, 167 F.3d 36, 50 (lst Cir. 1999) (finding defendant's statements were instances of "blowing off steam" and "venting anxiety" and therefore, not in furtherance of conspiracy); Diaz, 176 F.3d at 86 (finding statements were not idle chatter, but were "in furtherance" of the conspiracy); United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999) (noting prejudicial statements not made in fimherance are inadmissible); United States v. Curry, 187 F.3d 762, 766 (7th Cir. 1999) (finding "recruiting statements" are not "idle chatter"). Even if the statements are held to be mere "idle chatter," they may be admissible under an alternative theory. United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999) (explaining while "idle chatter" is not admissible, some "statements are admissible as declarations against penal interest or under the state of mind hearsay exception"). Further, if mere "idle chatter" is wrongly admitted under Rule 801 (d)(2)(E), the standard of review is plain error review. See United States v. Powers, 75 F.3d 335,339 (7th Cir. 1996) (finding even if the statements entered in the district court were "idle chatter," the mistake did not effect the substantive fights of the defendants enough for plain error to have been committed); United States v. Schmit, 881 F.2d 608, 612 (9th Cir. 1989) (holding portions of statement were "idle chatter" or casual admissions of culpability did not make denial of motion to suppress reversible error).

(118.) United States v. Jordan, 260 F.3d 930, 933 (8th Cir. 2001) (restating statement that "simply informs" of past criminal activities is not admissible); Cornett, 195 F.3d 776 at 783 (noting narratives of past conduct are not in furtherance because there was no intent to further conspiracy).

(119.) U.S. CONST. amend. VI. The Sixth Amendment provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the fight . . . to be confronted with the witnesses against him." Id.

(120.) See Ohio v. Roberts, 448 U.S. 56, 65-66 (1980) (allowing introduction into evidence of preliminary hearing testimony of witness who did not appear at trial because the purpose of the confrontation clause--to augment accuracy--was satisfied by questioning at the preliminary hearing that was equivalent to crossexamination); see also Lilly v. Virginia, 527 U.S. 116, 136 (1999) (Stevens, J., plurality opinion) ("When a court can be confident ... that a declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, the Sixth Amendment's residual trustworthiness test allows the admission of the declarant's statements.") (internal quotation marks and citations omitted).

(121.) See United States v. Inadi, 475 U.S. 387, 394-95 (1986) (allowing admission of out-of-court statement of non-testifying co-conspirator absent showing of unavailability). In Inadi, the Court explained that, unlike other exceptions, co-conspirator hearsay testimony has evidentiary significance of its own. Conspirators are likely to speak to each other differently when furthering their illegal goals than when on the witness stand. Thus, the former testimony is more than a mere substitute for five testimony. Id. at 394-95.

(122.) See Bourjaily v. United States, 483 U.S. 171, 182-83 (1987) (holding Confrontation Clause does not require inquiry into independent indicia of reliability of statement). The Court reiterated its Roberts holding that an independent inquiry into reliability is unnecessary when the evidence "falls within a firmly rooted hearsay exception," and acknowledged that the co-conspirator hearsay rule is such an exception, and thus, no independent inquiry into reliability is needed. Id. at 183. The Court has recently adopted the test that "a hearsay exception [is] firmly rooted if, in light of longstanding judicial and legislative experience, it rests on such a solid foundation that admission of virtually any evidence within it comports with the substance of the constitutional protection." Lilly, 527 U.S. at 126 (Stevens, J., plurality opinion) (citations and internal quotation marks omitted). But see S. Douglas Borisky, Note, Reconciling the Conflict Between the Coconspirator Exemption From the Hearsay Rule and the Confrontation Clause of the Sixth Amendment, 85 COLUM. L. REV. 1294, 1307-09 (1985) (arguing because other "firmly established" exceptions to hearsay rule developed with reference to their innate reliability while co-conspirator exception did not, Federal Rule of Evidence 801(d)(2)(E) erodes the requirements of the Sixth Amendment).

(123.) See Iannelli v. United States, 420 U.S. 770, 777-78 (1975) (determining conspiracy and substantive offenses are separate crimes); United States v. Brown, 200 F.3d 700, 706 (10th Cir. 2000) (recognizing conspiracy as a separate offense from the underlying substantive offense); United States v. Pinckney, 85 F.3d 4, 8 (2d Cir. 1996) (reiterating conspiracy is separate and distinct crime from substantive offense); United States v. Ambers, 85 F.3d 173, 178 (4th Cir. 1996) (finding conspiracy is distinct crime from overt acts that supports it); United States v. McCullah, 76 F.3d 1087, 1104 (10th Cir. 1996) (stating conspiracy charge and substantive charge are separate offenses and one offense is not lesser included offense of other); United States v. Mothersill, 87 F.3d 1214, 1218 (11 th Cir. 1996) (stating basic criminal law principles hold commission of substantive offenses and conspiracy to commit the offenses are separate and distinct); cf. supra notes 94-95 and accompanying text (explaining conspiracy does not need to succeed for defendants to be prosecuted for conspiracy); United States v. Cherry, 217 F.3d 811,817 (10th Cir. 2000) (declining to extend the llth circuit's reasoning in Mothersill and holding that defendants are only liable for crimes committed which were reasonably foreseeable in furtherance of the object of the conspiracy).

(124.) Pinkerton v. United States, 328 U.S. 640, 646-47 (1946) (establishing vicarious liability in conspiracy cases).

(125.) See supra notes 67-71 and accompanying text (explaining Pinkerton rule).

(126.) See McAndrew v. Lockheed Martin Corporation, 206 F.3d 1031, 1041 (llth Cir. 2000) (applying criminal conspiracy exception to the intracorporate conspiracy doctrine); United States v. Hughes Aircraft Co., 20 F.3d 974, 978-79 (9th Cir. 1994) (holding corporation may be liable for criminal conspiracies entered into by its members). But see Denney v. City of Albany, 247 F.3d 1172, 1190-91 (11th Cir. 2001) (holding that because two city employees acted on behalf of city and matter at issue was not criminal, application of intracorporate conspiracy doctrine barred suit). See generally, Shaun P. Martin, Intracorporate Conspiracies, 50 STAN. L. REV. 399 (1998) (discussing rationale behind corporate criminal liability and arguing there is no real justification for imposing vicarious corporate criminal liability for wholly internal agreements within a corporation); Kathleen F. Brickey, Conspiracy, Group Danger and the Corporate Defendant, 52 U. CIN. L. REV. 431 (1983) (examining intra-corporate liability using traditional conspiracy theories); Sarah N. Welling, Intracorporate Plurality in Criminal Conspiracy Law, 33 HASTINGS L.J. 1155 (1982) (examining law on plurality required for conspiracy under the criminal law, and how that applies to intra-corporate criminal conspiracy).

(127.) See United States v. Walls, 225 F.3d 858, 866 (7th Cir. 2000) (refusing to extend Pinkerton liability to "felon-in-possession" statute); Cherry, 217 F.3d at 816-18 (limiting Pinkerton liability to subsequent coconspirator crimes with the same, or overlapping, intent); United States v. Gallo, 195 F.3d 1278, 1282 (llth Cir 1999) (limiting Pinkerton to application only where acts are "reasonably foreseeable" in light of conspiracy); United States v. Castaneda, 9 F.3d 761,766-68 (9th Cir. 1993) (collecting cases from four Circuits recognizing due process limitations and stating that Pinkerton liability does not extend to situations where it was not "reasonably foreseeable to the defendant" that the conspiracy would result in the predicate offense) (overruled on other grounds); see also United States v. Alvarez, 755 F.2d 830, 851 n.27 (11th Cir. 1985) (proposing limitation on vicarious liability by holding liable only those conspirators with actual knowledge of circumstances of conspiracy or who played more than minor part in conspiracy).

(128.) See United States v. Tocco, 200 F.3d 401,424 (6th Cir. 2000) (stating only slight evidence is needed to implicate defendant as participant in conspiracy); United States v. Jolivet, 224 F.3d 902, 908-09 (8th Cir. 2000) (noting slight evidence of connection to conspiracy is sufficient); United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (noting circumstantial evidence and inferences drawn from that evidence can sustain conspiracy conviction); United States v. Rhynes, 206 F.3d 349, 366 (4th Cir. 1999) (condoning use of circumstantial evidence to establish existence of conspiracy). But see infra note 130 (noting minority view which requires "substantial evidence" to connect defendant).

(129.) Evidence may be direct or circumstantial. See United States v. Hansen, 262 F.3d 1217, 1246-47 (11th Cir. 2001) (explaining that circumstantial evidence can be used to prove a defendant's liability in connection with the requirements of Pinkerton); United States v. Burton, 126 F.3d 666, 670 (5th Cir. 1997) (holding standard of review for sufficiency of the evidence is same whether evidence is direct or circumstantial).

(130.) The trend toward requiring "substantial evidence" began with United States v. Durrive, 902 F.2d 1221, 1228-29 (7th Cir. 1990), which held that the correct standard of review is substantial evidence, not slight evidence or slight connection, and affirmed a conviction based on this standard. Since Durrive, a recognizable split has developed in the circuits; the Seventh and Eleventh Circuits hold that "substantial evidence" is the standard in light of due process considerations. See United States v. Toler, 144 F.3d 1423, 1427-28 (11th Cir. 1998) (adopting "substantial" evidence standard and citing cases in support thereof); Durrive, 902 F.2d at 1228-29 (adopting "substantial evidence" standard); see also Kevin J. Heller, Whatever Happened to Proof Beyond a Reasonable Doubt? Of Drug Conspiracies, Overt Acts, and United States v. Shabani, 49 STAN. L. REV. 111, 120 (1996) (arguing because slight evidence is often needed to establish sufficiency of evidence, the sufficiency of evidence standard is inconsistent with serious enforcement of reasonable doubt standard). In contrast, several other Circuits have ruled that slight evidence is all that is needed. See supra note 128. The Second Circuit has adopted a middle ground. See United States v. Diaz, 176 F.3d 52, 97 (2d Cir. 1999) (stating evidence linking defendant to

conspiracy must be sufficient, but it need not be overwhelming). The standard applicable in the Tenth Circuit is unclear, although more than "casual transactions" are required. See United States v. Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996) (holding government must demonstrate greater than "casual transactions" between defendant and conspirators). Moreover, the government must prove defendant's knowledge of the purpose of the criminal conspiracy by "clear, unequivocal, evidence." United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000). However that evidence may be slight so long as it "establish[es] that connection beyond a reasonable doubt." United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000) (quoting United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990)).

(131.) See Kotteakos v. United States, 328 U.S. 750, 774 (1946) (explaining danger of transference of guilt is "so great that no one really can say prejudice to substantial right has not taken place"); see also United States v. Sarkisian, 197 F.3d 966, 977 (9th Cir. 1999) (recognizing that in a joint trial, codefendants may run a high risk of guilt by association); United States v. McVeigh, 169 F.R.D. 362, 370-71 (D. Colo. 1996) (recognizing joint trial of defendants presented unacceptable risk of prejudice to both and granting defendants' motions for severance).

(132.) See United States v. Collazo-Aponte, 216 F.3d 163, 180 (lst Cir. 2000) (stating preference for single trial even where there are eight defendants); Burton v. United States, 237 F.3d 490, 495 (5th Cir. 2000) (stating that limiting instructions will generally suffice to cure any prejudice caused by a joint trial). Joinder is intended to: (i) create efficiency in judicial economy; (ii) limit the use of witnesses' time; and (iii) reduce the chance that defendants will fraudulently blame the absent co-conspirators. United States v. Magana, 118 F.3d 1173, 1186 (7th Cir. 1997). But see United States v. Glinton 154 F.3d 1245, 1251 (llth Cir. 1998) (stating that while joinder is appropriate in many cases it is often inappropriate and each case must stand on its own facts).

Joinder is proper under FED. R. CRIM. P. 8(b) if the defendants allegedly participated in the same series of acts or transactions constituting an offense or offenses. There is no requirement under the Rule 8(b) that the government provide, at the pleading stage, sufficient evidence to support joinder. See United States v. Striekland, 245 F.3d 368, 384-86 (4th Cir. 2001) (holding joinder of ten defendants was not prejudicial because there was no evidence that jury had difficulty distinguishing between them and they were all participants in the same venture).

(133.) United States v. Wiseman, 172 F.3d 1196, 1211 (10th Cir. 1999) (holding district court did not abuse its discretion in denying defendant's motion to sever counts). The decision to grant a severance is within the discretion of the trial judge. See FED. R. CRIM. P. 14 (requiring showing of prejudice on motion to sever defendants). To make a showing of prejudice on appeal, appellant must show "more than the mere fact that he would have had a better chance for acquittal had he been tried separately ... The appellant must demonstrate that the jury was unable to compartmentalize the evidence as it related to the separate defendants." United States v. Adkins, 842 F.2d 210, 212 (8th Cir. 1988); see also Zafiro v. United States, 506 U.S. 534, 538 (1993) (finding antagonistic defenses are not per se prejudicial, thus severance is not required); Murr v. United States, 200 F.3d 895, 904 (6th Cir. 2000) (stating severance is required where there is strong showing of possibility of jury confusion); United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998) (stating severance would only be required where defendant has shown substantial prejudice will occur that is so great as to deny him fair trial).

(134.) See United States v. Velasquez, 885 F.2d 1076, 1090-91 (3d Cir. 1989) (holding when evidence was insufficient to convict co-conspirator of conspiracy, the evidence was also insufficient evidence to convict defendant); United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986) (describing traditional rule as "rule of consistency"). See generally Hastings, supra note 96 (arguing allowing inconsistent verdicts in conspiracy trials results in fair verdicts); Keenan, supra note 96 (arguing allowing inconsistent verdicts in conspiracy trials leads to unjust results); Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 HARV. L. REV. 771,781-82 (1998) (describing traditional rule).

(135.) See United States v. Loe, 248 F.3d 449, 459 (5th Cir. 2001) (stating acquittal of all other members of conspiracy does not bar conspiracy conviction for defendant); Murr v. United States, 200 F.3d 895,904 (6th Cir. 2000) (noting acquittal of co-defendant does not mean defendant is not guilty); United States v. Riebold, 135 F.3d 1226, 1231 (8th Cir. 1998) (holding fact that jury deadlocked on co-defendant's involvement did not preclude the jury from finding defendant guilty); United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998) (stating acquittal of co-conspirators had no effect on defendant's conviction); United States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997) (holding acquittal of one co-conspirator did not establish evidence was insufficient to support defendant's conspiracy conviction); United States v. Martinez, 96 F.3d 473, 477 (11th Cir. 1996) (declaring conspiracy conviction can stand even if other alleged co-conspirators are unidentified); United States v. Acosta, 17 F.3d 538, 544-45 (2d Cir. 1994) (finding acquittal of other co-conspirators not grounds for reversal); United States v. Thomas, 900 F.2d 37, 40 (4th Cir. 1990) (requiring no acquittal where other defendant acquitted, regardless of inconsistency of verdict); United States v. Dakins, 872 F.2d 1061, 1065 (D.C. Cir. 1989) (declining to adopt the "rule of consistency").

Furthermore, if conspirators are tried separately, the acquittal of all co-conspirators does not require the acquittal of the last-tried defendant. See Corfis v. Kenney, 995 F.2d 838, 840-41 (8th Cir. 1993) (declaring separate trials exception to rule of consistency applies in trials with and without jury); United States v. Senibaldi, 959 F.2d 1131, 1135 (1st Cir. 1992) (stating "rule of consistency" does not apply in separate trials); Sachs, 801 F.2d at 845 (allowing inconsistent verdicts because different juries may hear different evidence in separate trials). But see Muller, supra note 134 (arguing inconsistent verdicts pose a greater risk to criminals than courts believe and courts should adopt more intermediate remedies than letting all inconsistencies stand).

(136.) See United States v. Abbott Washroom Sys., 49 F.3d 619, 623 (10th Cir. 1995) (declining to decide whether limited rule of consistency remains valid); United States v. Mancari, 875 F.2d 103, 104 (7th Cir. 1989) (failing to apply the rule of consistency); see also Muller, supra note 134, at 787-88 (documenting the declining application of the rule of consistency).

(137.) See United States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992) (stating if existence of unindicted co-conspirators is proved, then defendants may be convicted); United States v. Tarpley, 945 F.2d 806, 810 (5th Cir. 1991) (holding conviction of defendant can stand even when other named co-conspirators are acquitted if unnamed co-conspirators are proved to exist and are referred to in the indictment); cf. Sachs, 801 F.2d at 845 (declaring conviction of defendant may stand if charges are never brought against other alleged co-conspirator, or if alleged co-conspirator has not yet been tried).

(138.) See Iannelli v. United States, 420 U.S. 770, 777-78 (1975) (stating it is well settled that law of conspiracy serves ends different from those served by criminal prohibitions of substantive offense and that consecutive sentences may be imposed); United States v. Marino 277 F.3d 11, 39 (1st Cir. 2002) (holding that in most cases sentences for conspiracy and the underlying substantive offense can be handed out without violating double jeopardy); Murr v. United States, 200 F.3d 895, 902 (6th Cir. 2000) (stating that substantive crime and conspiracy to commit that crime are not the same for purposes of double jeopardy); United States v. Bicaksiz, 194 F.3d 390, 396 (2d Cir. 1999) (holding separate cumulative sentences for conspiracy and substantive offense are authorized by statute).

(139.) Iannelli, 420 U.S. at 778. But cf. Pinkerton v. United States, 328 U.S. 640, 643 (1946) ("[A] single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed.").

(140.) See U.S. SENTENCING GUIDELINES MANUAL app. A (2003) [hereinafter U.S.S.G. MANUAL] (indexing guidelines applicable to each statutory violation), U.S.S.G. MANUAL [section] 2X1.1 (2003) (covering attempt, solicitation or conspiracy).

(141.) U.S.S.G. MANUAL [section] 2X5.1 (2003) (listing other offenses not covered by [section] 2X1.1).

(142.) U.S.S.G. MANUAL [section] 2X1.1(b)(2) (2003); see also United States v. Martinez-Martinez, 156 F.3d 936, 939 (9th Cir. 1998) (defining "about to complete" as the point where remaining steps to be taken are "so insubstantial that the commission of the substantive offense is inevitable"); United States v. Medina, 74 F.3d 413, 417 (2d Cir. 1996) (explaining in determining intended offense, focus is on defendant's conduct, not on probability that conspiracy would have achieved success).

(143.) U.S.S.G. MANUAL [section] 2X1.1(b)(2) (2003). If multiple counts of conspiracy that are not closely related are involved, then the inquiry of which standard to employ must be determined separately for each count. U.S.S.G. MANUAL [section] 2X1.1(b)(2) cmt. 4 (2003). In such a case, the offense level of the conspiracy charge is the greater of the offense level of the substantive charge minus three under U.S.S.G. MANUAL [section] 2X1.1(b)(2), or the offense level of the offense for which the necessary acts were completed or nearly completed. Id; United States v. Conley, 92 F.3d 157, 167 (3d Cir. 1996) (indicating Guidelines allowed sentencing court to take into consideration conduct that neither was formally charged nor was element of offense of which defendant was convicted).

Factors that courts will evaluate in a claim for a reduction from the base offense level include: (i) the defendant's conduct in relation to the sentencing offense; (ii) if a defendant has substantially completed the underlying offense; (iii) if the defendant has completed the qualitatively greater, not necessarily quantitatively greater, aspects of the underlying offense; (iv) the amount of time needed for the defendant to complete the offense; and, (v) the defendant's preparedness to complete the remaining acts necessarily for the substantive offense. United States v. Waskom, 179 F.3d 303, 308-09 (5th Cir. 1999).

(144.) U.S.S.G. MANUAL [section] 1B1.2(d) (2003). For example, if the defendant conspired to commit three robberies, there would be three separate counts of conspiracy for sentencing purposes (even if there was only one actual conspiracy conviction involved). U.S.S.G. MANUAL [section] 1B1.2 cmt. 3 (2003). However, if the object offenses specified in the single conspiracy count can be grouped under [section] 3D1.2(d) (for example, a conspiracy to steal three government checks), then it is not necessary to count each of these as a separate conspiracy charge when sentencing. U.S.S.G. MANUAL [section] 1B1.2 cmt. 4 (2003); see United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999) (allowing grouping for fraud and laundering); United States v. Griffith, 85 F.3d 284, 288-89 (7th Cir. 1996) (finding offense counts to be appropriately grouped where offenses involved same harm).

(145.) U.S.S.G. MANUAL [section] 2X1.1(a) (2003). The only specific offense characteristics "that apply are those that are determined to have been specifically intended or actually occurred;" speculative specific offense characteristics are not applicable. U.S.S.G. MANUAL [section] 2X1.1 cmt. 2 (2003).

(146.) U.S.S.G. MANUAL [section] 3B1.2 (2003). A minor participant is one who is less culpable than most other participants, but whose role could not be described as minimal. U.S.S.G. MANUAL [section] 3B1.2 cmt. 5 (2003). A minimal participant is one who is plainly among the least culpable of those involved in the conduct of the group. U.S.S.G. MANUAL [section] 3B1.2 cmt. 4 (2003). The defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of his role as a minimal participant. Id.; see also Rosier v. United States Parole Comm'n, 109 F.3d 212, 214 (5th Cir. 1997) (determining defendant did not amount to "minimal" participant because of his role in transporting drugs); United States v. Ruelas, 106 F.3d 1416, 1419 (9th Cir. 1997) (concluding touchstone of determining whether defendant is entitled to downward adjustment as minimal or minor participant is relative culpability); United States v. Brazel, 102 F.3d 1120, 1162 (11th Cir. 1997) (holding drug dealer's girlfriend was not entitled to minimal participant adjustment given her role as co-conspirator); United States v. Royal, 100 F.3d 1019, 1030 (1st Cir. 1996) (stating defendants are not automatically entitled to downward adjustment in offense level for minor or minimal participation in offense); United States v. McGrady, 97 F.3d 1042, 1043 (8th Cir. 1996) (concluding because defendant was essential to commission of crimes, he did not qualify as minor or minimal participant); United States v. Spriggs, 102 F.3d 1245, 1264 (D.C. Cir. 1996) (affirming trial court's ruling that defendant qualified as minor not minimal participant because he participated in drug-related transactions).

(147.) U.S.S.G. MANUAL [section] 3B1.1(b) (2003); United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997) (holding defendant's offense level was properly increased for aggravated role as manager of drug conspiracy); United States v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997) (holding that district court properly found that defendant had an aggravated role in the offense and therefore the increase in sentence was warranted); United States v. Gavina, 116 F.3d 1498, 1528 (D.C. Cir. 1997) (stating defendant's role in linking together cocaine supplier and his confederates in drug supply network warranted addition of two points to his offense level).

(148.) 530 U.S. 466 (2000).

(149.) Id. at 490 (holding facts other than prior convictions which increase the penalty for crime beyond prescribed statutory maximum must be proved beyond reasonable doubt and submitted to jury). In Apprendi, the defendant was convicted, after pleading guilty, of unlawfully possessing a firearm and an "antipersonnel bomb," after he fired a gun into the home of an African-American family. Id. at 470. The New Jersey trial court "enhanced" the defendant's sentence after finding, by a preponderance of the evidence, that he had committed the crimes for a biased purpose. Id. This finding increased the maximum possible sentence from twenty years to thirty years. Id. The Court held that sentencing the defendant for a "crime" under the hate crime enhancement without the benefit of a jury or the beyond a reasonable doubt standard infringed the defendant's due process rights. Id.

(150.) See United States v. Gomez, 255 F.3d 31, 40 (1st Cir. 2001) (finding no Apprendi error where sentence imposed was within statutory limits); United States v. Gareia, 242 F.3d 593, 599 (5th Cir. 2001) (affirming decision of lower court where sentence fell within range of statutory limits); United States v. Richardson, 233 F.3d 223, 232 (4th Cir. 2000) (holding Apprendi did not apply where sentence was within statutory limits).

(151.) Since Apprendi, federal courts have been besieged by what have become known as "Apprendi challenges." See Daniel C. Vock, Lawyers Take Stock on Enhanced Sentencing in Illinois, CHICAGO DAILY LAW BULLETIN, Oct. 11, 2000, at 1 (describing Apprendi challenges in Illinois courts); Illinois Office of the State Public Defender, Pending Apprendi Challenges, at http:/ (last visited Apr. 1, 2004) (listing over 100 Illinois state Apprendi challenges). What is not clear is whether courts will interpret U.S.S.G. MANUAL [section] 2X1.1(h)(2) to mean that the statutory maximum is the "underlying substantive offense" or three levels below the substantive offense. Compare U.S.S.G. MANUAL [section] 2X1.1(a) (2003) (stating base level sentence is the same as underlying substantive offense), with U.S.S.G. MANUAL [section] 2X1.1(b)(2) (2003) (applying presumption that conspiracy sentences are set at three levels below substantive offense with upward adjustment for substantial completion of underlying offense).

Similar questions in other conspiracy areas have arisen. One district court found that for conspiracy to violate 18 U.S.C. [section] 659, interstate theft, the maximum sentence is ten years. See United States v. Galvez, 108 F. Supp. 2d 1369, 1372 (S.D. Fla. 2000); 18 U.S.C. [section] 659 (2000) (criminalizing theft through the use of interstate or foreign shipment). The court did not mention that the penalty for interstate theft of less than $1,000 is up to one year. 18 U.S.C. [section] 659. Thus, the court found that anything up to ten years was within the court's discretion. See Galvez, 108 F. Supp. 2d at 1372.

The majority rule appears to be that, for drug conspiracies, the largest penalty allowed when a jury has not found a specific amount is the lowest statutory sentence. See United States v. Henry, 282 F.3d 242, 253 (3d Cir. 2002) (remanding lower court case where the court and not the jury determined the amount of drugs involved in the conspiracy and imposed a sentence based on that amount); United States v. Ramirez, 242 F.3d 348, 351-52 (6th Cir. 2001) (holding that a absent a jury determination of amount of drugs, the court must use the lowest statutory maximum sentence); United States v. Doggett, 230 F.3d 160, 164-65 (5th Cir. 2000) (holding violations of 21 U.S.C. [section] 846, conspiracy to distribute controlled substances, require jury determination of amount of substance for upward adjustment from lowest statutory penalty); United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998) (holding that the defendant's sentence must be tied to the base amount of drugs the defendant reasonably foresaw as being involved in the conspiracy). But see Doe v. United States, 112 F. Supp. 2d 398, 403 (D.N.J. 2000) (finding violation of 21 U.S.C. [section] 846, conspiracy to distribute Schedule I substance, does not require jury finding as to amount for sentencing purposes).

The Seventh Circuit has held that because the kidnapping and conspiracy to kidnap statute, 18 U.S.C. [sub section] 1201(a), (c), both allow for "any terms of years or life," adjustments based on use of a deadly weapon and demands for ransom did not violate Apprendi despite the Guidelines' authorized punishment of far less than life. See Hernandez v. United States, 226 F.3d 839, 841-42 (7th Cir. 2000) (holding facts which supported upward adjustments were sentencing factors, not elements of offense).

(152.) U.S.S.G. MANUAL [section] 1B1.3(a)(1) & cmt. 2 (2003); see United States v. Childress, 58 F.3d 693, 723 (D.C. Cir. 1995) (concluding liability under Guidelines follows from well settled principles of conspiracy law).

(153.) See Childress, 58 F.3d at 723 (finding holding conspirators responsible for reasonably foreseeable conduct in furtherance of joint undertaking is acceptable under Guidelines and common law conspiracy principles).
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Title Annotation:Survey of White Collar Crime
Author:Winograd, Jesse
Publication:American Criminal Law Review
Date:Mar 22, 2004
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