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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. Insufficient Indictment
 E. Withdrawal
 F. 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, it is a crime to conspire to commit any offense against the United States or to defraud the United States. (1) A conspiracy offense sometimes poses a greater danger to society than a substantive offense committed by a single individual. Detailing the gravity of such danger, the Supreme Court wrote:
 [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. (2)

A conspiracy is distinct from the substantive crime contemplated by the conspiracy (3) and may be charged whether or not the underlying substantive offense occulted. (4) Acquittal on a conspiracy charge does not bar prosecution based on the substantive offense; (5) however, acquittal of the substantive offense may bar conviction on the conspiracy count. (6)

Section 371 applies generally to a conspiracy possessing the goal to "commit any offense against the United States, or to defraud the United States" (7) and criminalizes any agreement to violate a civil or criminal federal law. (8) Numerous federal statutes also proscribe specific conspiracy offenses. (9) A conspiracy to violate a civil law must inflict actual damage on the civil plaintiff. Though such a requirement does not exist for conspiracies to violate criminal laws. 10

Conspiracy is applied by prosecutors to a variety of situations, (11) making it one of the most commonly charged federal crimes. (12) Because it can be difficult to define the temporal scope of the conspiracy, (13) courts remain wary of conspiracy charges spanning time periods outside of the statute of limitations of the substantive offense. (14)

Courts also recognize, however, the essential features of a conspiracy--secrecy and concealment (15)--make it difficult to prosecute, especially if the conspiracy is successful. The government, therefore, may establish the "essential nature of the plan and [defendants'] connections with it" through circumstantial evidence and inferences to ensure that conspirators do not "go free by their very ingenuity." (16) When the government seeks to prove the elements of a conspiracy by inference, it must prove each element beyond a reasonable doubt. (17)

Section II of this article outlines the basic elements of a conspiracy offense under [section] 371. Section III sets forth defenses available to challenge charges brought under the statute. Section IV presents 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. (18) 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. (19)

A. Agreement

The first element and the "essence" of a conspiracy "is an agreement to commit an unlawful act." (20) The agreement must be between two or more people, including married spouses, (21) working together toward a common goal. (22) Due to the secretive nature of a conspiracy, the government need not prove a formal agreement (23) but can demonstrate its existence through circumstantial evidence (24) or by inference from defendants' actions. (25) Individual defendants may implicitly enter into an agreement to commit a larger conspiracy if they knew, or should have known, others were committing analogous actions. (26)

The bilateral conspiracy requirement of [section] 371 requires at least two actors. (27) A defendant, however, does not need to know the identity of other conspirators. (28) If there are only two actors, neither may be a government agent. (29) A government agent can serve as a link between a true conspirator and defendant if defendant knew, or should have known, the conspiracy involved conspirators beyond the government agent. (30) Corporations, their officers, agents, or employees are considered individual actors under [section] 371, (31) so the "intracorporate conspiracy doctrine" generally does not apply. (32)

Wharton's Rule (33) states, absent legislative intent to the contrary, an agreement by two people to commit a particular crime cannot be prosecuted as a conspiracy if the commission of the crime itself requires the participation of two people. (34) Wharton's Rule does not apply if the crime could have been committed by one person, (35) if the number of actual conspirators exceeds the number required to commit the substantive offense, (36) or if the consequences of the conspiracy rest on "society at large" rather than the parties themselves. (37)

B. Illegal Goal

The second element of a federal conspiracy is the presence of an illegal goal. (38) Specifically, the government must establish that the aim of the conspiracy was either to defraud or hinder a lawful federal government objective (the "defraud clause") (39) or to violate a federal law (the "offense clause"). (40) Evidence of prior or uncharged acts not connected to the conspiracy may be admitted if it creates a reasonable inference of knowledge of the substantive offense charged. (41)

The language of [section] 371's "defraud clause" is "not confined to fraud as that term has been defined in the common law." (42) Unlike common law, under [section] 371 the government need not suffer pecuniary loss to prove a conspiracy to defraud (43) because fraud reaches "any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any department of [the] government." (44)

The "offense clause" of [section] 371 is not limited to offenses committed against the United States or its agents; (45) it applies to any conspiracy that does or is intended to violate a specific federal statute. (46) It is not necessary that the conspirators knew that or intended for the conspiracy to violate federal law. (47) If a defendant indicted for violating a federal statute is also charged with conspiracy to defraud, the government need not prove the elements of the substantive offense to prove the conspiracy (48) as long as the indictment provides sufficient notice of the charges. (49)

C. Knowledge, Intent, and Participation

The third element of a conspiracy states that the defendant must have knowledge of the conspiratorial agreement and have voluntarily participated in it. (50) The defendant's conscious participation in the conspiracy may be inferred from circumstantial evidence. (51) The government need not prove the defendant knew all the details of, (52) objectives of, (53) or identity of all the other participants in the conspiracy. (54) Besides acts included in the underlying substantive offense, other acts committed by defendant in furtherance of the objectives of the conspiracy are often sufficient to demonstrate defendant was a knowing participant. (55) 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 had knowledge of the conspiracy. (56)

Most circuits hold that if the government proves beyond a reasonable doubt the conspiracy's existence, defendant's intent to further, and his knowledge of the conspiracy, it need only prove a "slight connection" between defendant and the conspiracy. (57) The Fifth (58) and Eleventh (59) Circuits are split as to application of the rule. 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 under [section] 371 is the performance of an overt act in furtherance of the conspiracy. (61) Not all federal conspiracy statutes require an overt act. (62) 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. (63) The overt act need not be unlawful, (64) nor need it be the substantive offense charged in the indictment. (65)

The Pinkerton (66) rule sets out a theory of vicarious liability whereby reasonably foreseeable overt acts of one co-conspirator committed in furtherance of the conspiracy are attributable to the other conspirators. (67) Defendant is liable for overt acts committed by his co-conspirators both prior to and during the defendant's participation. (68) However, this proposition only applies to acts related directly to the conspiracy. Defendant cannot be held criminally liable for substantive offenses committed by others involved in the conspiracy before defendant joined or after he withdrew. (69) The Pinkerton doctrine also does not apply to substantive offenses committed by co-conspirators in the course of the conspiracy when defendant is only slightly connected to the conspiracy. (70)


In addition to challenging the conspiracy charge because of failure to prove the specific elements of the offense, (71) defendants may also contest the charge based on: (i) the statute of limitations; (ii) variance; (iii) multiplicitous indictment; (iv) deficient indictment; (v) withdrawal; and (vi) various other defenses. Defendant is entitled to any present inconsistent defenses. (72) In this Section, A through E address the five enumerated defenses, and F discusses the strength of miscellaneous defenses.

A. Statute of Limitations

Because 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 or when all parties withdraw from the agreement. (75) Yet, if an agreement between conspirators still exists, a conspiracy does not automatically terminate because the government has intervened to frustrate the conspiracy's object. (76)

The statute of limitations runs from the date of the last overt act committed in furtherance of the conspiracy. (77) If the statute does not have an overt act requirement, the government must prove the conspiracy was still in existence in the five-year period. (78) Unlike acts intended to conceal a conspiracy, concealment of prior acts performed in the course of a conspiracy are not viewed as continuing the conspiracy's operation (79) and are not admissible as co-conspirator hearsay statements. (80)

B. Variance

Variance refers to a situation in which the conspiracy proved at trial is materially different from the conspiracy charged in the indictment. (81) Constructive amendment and variance are related but not identical defenses because constructive amendment is a per se violation of the Fifth Amendment while variance is not. (82) Fatal variance occurs when there is a violation of the Sixth Amendment requirement that a criminal defendant be given adequate notice of the charges against him. (83) However, this is a difficult argument on which to succeed. (84) If the variance is a matter of form, it need not be amended; if it is a matter of substance, the indictment may only be amended by resubmission to the grand jury. (85) A variance may also 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. (86) At trial, the jury determines whether there is a variance between the number of conspiracies charged in the indictment and the number proven. (87) On appeal courts will only reverse a conviction if the variance is substantially prejudicial (88) to defendant's substantial rights. (89) Defendant's substantial rights may be affected if: (i) defendant is not apprised of the charges he would have to defend against at trial; (90) (ii) evidence of conspiracy is introduced at trial when defendant was not a party to the conspiracy; (91) or (iii) defendant may be exposed to double jeopardy. (92)

C. Multiplicitous Indictment

A multiplicitous indictment arises when a single conspiracy is charged as more than one count. (93) Recognizing the dangers posed by multiplicitous indictments, a limiting instruction must be given to remedy any undue prejudice to the defendant. (94) Conviction and sentencing on more than one count alleged in the multiplicitous indictment violates the Double Jeopardy Clause of the Fifth Amendment. (95) However, under [section] 371, defendant may be charged with and convicted of both conspiracy and the underlying substantive offense without violating double jeopardy. (96)

D. Insufficient Indictment

A claim that an indictment is insufficient because it does not contain all elements of the offense charged may succeed. (97) The Fifth Amendment guarantees defendant will not be prosecuted based on indictment that is not specific enough to apprise him of the charges he must defend against at trial. (98) Even if an indictment contained a plain error, it must affect defendant's substantial rights to be overturned. (99)

E. Withdrawal

To effectively withdraw from a conspiracy, a conspirator must not only cease participation, but must also engage in "affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators" (100) Unless he unequivocally withdraws, a conspirator can still be held liable for co-conspirators' actions. (101) The statute of limitations begins to run from the time of the withdrawal. (102) Defendant bears the burden of proof to demonstrate actual withdrawal. (103)

F. Other Defenses

There are several other defenses to a charge of federal criminal conspiracy. Insanity (104) and coercion or duress (105) are potentially successful affirmative defenses, but require unique factual circumstances.

A defense of the conspiracy's failure to achieve its illegal goal generally fails. (106) Factual impossibility, (107) which is not a defense, is distinct from "hybrid" legal impossibility, (108) which is a defense in some circuits. (109) Many other circuits question, if not eschew, the "hybrid" legal impossibility defense. (110) Pure legal impossibility, however, is always a defense. (111) The entrapment (112) or entrapment by estoppel (113) defense is also only rarely successful.


Conspiracy trials often include testimony by co-conspirators to assure a conviction because co-conspirators often are the best witnesses to the conspiracy. (114) For this reason, this section briefly discusses the co-conspirator exception to the hearsay rule. (115) 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." (116)

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. (117) 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." (118)

Before a court allows admission of a hearsay statement by a co-conspirator, the government must prove three elements by a preponderance (119) of the evidence: (i) the existence of a conspiracy; (120) (ii) the declarant's and defendant's participation in it; (121) and (iii) that the hearsay statement was made during the course of and in furtherance of the conspiracy. (122) Any statement by a co-conspirator that promotes the main objectives of the conspiracy is considered to be in furtherance of the conspiracy. (123) 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. (124) Similarly, records, notes, recordings, and other documents completed by a co-conspirator may be admitted against the defendant as statements in furtherance of the conspiracy even if the defendant had no knowledge of those items. (125)

The Supreme Court has not designated an order of proof for trial courts to follow in determining whether the hearsay standard has been met. (126) 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 to establish a conspiracy under Rule 801. (127) Indeed, these circuits have held that a separate heating 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. (128)

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. (129) 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. (130)

Statements made by co-conspirators prior to the time the defendant joined the conspiracy may be admissible against the defendant (131) because the defendant "[takes] the conspiracy as he [finds] it." (132) The statement of a co-conspirator made to an undercover agent before an arrest is also considered to be in furtherance of the conspiracy; (133) however, an admission, confession, or guilty plea made after an arrest is not admissible. (134) This rule is based upon an assumption that an arrest serves as a withdrawal from the conspiracy and ends the individual's participation in it. (135) Additionally, courts have held that casual comments, narratives, statements made for personal gain outside the objectives of the conspiracy, as well as other "idle chatter" are not in furtherance of the conspiracy and, therefore, not admissible. (136) Finally, statements regarding past conduct are not in furtherance of the conspiracy. (137)

B. Sixth Amendment Issues

The Confrontation Clause of the Sixth Amendment guarantees criminal defendants the fight to confront witnesses at trial. (138) In 2004, the Court overruled the application of the Ohio v. Roberts two-pronged test to determine the admissibility of hearsay testimony, finding the framework for the reliability test so unpredictable that it failed to provide any meaningful protection from core confrontation violations. (139) This does not affect the admissibility of co-conspirator hearsay statements, however, since the Supreme Court had previously abolished the 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 (140) nor any independent inquiry into the reliability of the proffered statement. (141)


Conspirators can be charged, convicted, and sentenced for both the substantive crime(s) and the conspiracy offense. (142) 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 (143) rule of vicarious liability, conspirators may be held liable for any foreseeable overt acts committed by a co-conspirator in furtherance of the conspiracy. (144) Some circuits have extended the rule of vicarious liability to corporations in criminal cases, creating an exception to the "intracorporate conspiracy doctrine." (145) At the same time, some courts have attempted to limit Pinkerton liability. (146) After establishing the existence of a conspiracy, most courts require only "slight evidence" (147) connecting the defendant to the conspiracy for a conviction; (148) however, the Seventh and Eleventh Circuits have required "substantial evidence" to connect the defendant to the on-going conspiracy, citing due process concerns, (149) and the Second and Tenth Circuits have established some what of a middle ground. (150)

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, (151) conspiracy charges usually provide a proper basis for joinder. (152) Severance will be granted only if a defendant can make "a strong showing of prejudice." (153)

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. (154) Today, this rule, which never required the acquittal of the last-tried defendant if the defendants were tried separately, (155) has been rejected by all (156) but the Seventh Circuit. (157) Nonetheless, 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. (158)


Consecutive sentences can be imposed for conspiracy and substantive offense convictions. (159) The Supreme Court has even held that "the conspiracy can be punished more harshly" (160) than the substantive offense.

Sentences for violations of federal criminal laws are determined with reference to the U.S. Sentencing Guidelines ("Guidelines"). (161) In 2005, the U.S. Supreme Court severed the provision that made the Guidelines mandatory, rendering them "effectively advisory." (162) The Guidelines are one among a number of factors--including the purposes of punishment, the nature and circumstances of the offense and the history and characteristics of the defendant--to be considered in imposing federal sentences. Accordingly, the Guidelines remain highly relevant despite their advisory nature.

The Guidelines provide rules governing the sentencing ranges for a conspiracy conviction and contain specific provisions applicable to particular conspiracies, (163) including a general catch-all provision which applies to all conspiracies not covered by a specific offense provision. (164) Under the Guidelines, the base offense level for a conspiracy count requires decreasing the base offense level of the underlying offense by three unless the defendant completed all acts necessary for the underlying offense. (165) 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. (166) This formulation is based on consideration of a variety of factors. (167)

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. (168) Adjustments from the specific offense guideline "for any intended offense conduct that can be established with reasonable certainty" are also considered. (169) Under the Guidelines, a downward adjustment is available if the defendant is a "minor" or "minimal" participant. (170) Conversely, if the defendant is a manager or supervisor, an upward adjustment is available. (171) The Guidelines respond to the concept of vicarious liability with the inclusion of the phrase "conduct for which the defendant is accountable." (172) 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. (173)

(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 misdemeanor.

Id.; see also H.R. REP. No. 80-304, at 28-29 (1947) (discussing origin of 18 U.S.C. [section] 371).

(2.) Pinkerton v. United States, 328 U.S. 640, 644 (1946) (quoting United States v. Rabinowich, 238 U.S. 78, 88 (1915)); see also United States v. Recio, 537 U.S. 270, 274 (2003) (stating "[t]he conspiracy poses a 'threat to the public' over and above the threat of the commission of the relevant substantive crime both because the 'combination in crime makes more likely the commission of [other] crimes' and because" conspirators are more likely to commit the act than those who act alone (quoting Callanan v. United States, 364 U.S. 587, 593-94 (1961)) (alterations in original)); Neal Kumar Katyal, Conspiracy Theory, 112 YALE L.J. 1307, 1315-24 (2003) (analyzing the effect of group mentality on the commission of crimes).

(3.) See United States v. Felix, 503 U.S. 378, 389 (1992) (explaining that conspiracy is a partnership in crime distinct from any substantive offense; United States v. Fornia-Castillo, 408 F.3d 52, 69 (1st Cir. 2005) (noting conspiracy and substantive offense are charged separately and distinct for double jeopardy purposes (citing United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998))).

(4.) See Salinas v. United States, 522 U.S. 52, 65 (1997) ("It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself." (citing Callanan v. United States, 364 U.S. 587, 593 (1961) (collecting cases))).

(5.) See, e.g., United States v. Ward, 486 F.3d 1212, 1223 (11th Cir. 2007) ("Conspiracy and mail fraud are not the same offense, and the fact that Funt was acquitted of conspiracy is not inconsistent with his being a member of a more limited mall fraud scheme." (quoting United States v. Funt, 896 F.2d 1288, 1294 n.4 (11th Cir. 1990))); United States v. Bearden, 265 F.3d 732, 736 (8th Cir. 2001) (holding acquittal on a conspiracy charge did not bar retrial on the underlying mail fraud offense).

(6.) Compare United States v. Chela, 378 F.3d 151, 164 (2d Cir. 2004) (noting that acquittal on a substantive charge does not require acquittal on conspiracy to commit that offense "unless the necessary proof.on the substantive charge is identical [to] that required to convict on the conspiracy count." (quoting United States v. Palmieri, 456 F.2d 9, 12 (2d Cir. 1972))), with United States v. Ohayon, 483 F.3d 1281, 1292-94 (llth Cir. 2007) (affirming that retrial of conspiracy charge was barred by collateral estoppel after acquittal on underlying offense).

(7.) 18 U.S.C. [section] 371 (2000).

(8.) See United States v. Weisner, 216 F.2d 739, 741-42 (2d Cir. 1954) (holding Congress did not intend [section] 371 to eliminate the non-criminal conspiracy offenses codified in the predecessor statute (citing United States v. Hutto, 256 U.S. 524, 528-29 (1921) (noting the predecessor statute to [section] 371 made it a 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).

(9.) 15 U.S.C. [section] 1 (2004) (conspiracy to restrain trade); 18 U.S.C. [section] 24 (2000) (conspiracy to violate a Federal health care offense); 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] 1962(d) (2000) (conspiracy to violate any provision of Racketeer Influenced and Corrupt Organization Act); 18 U.S.C. [section] 2384 (2000) (conspiracy to take harmful acts against the government).

(10.) See Beck v. Prupis, 529 U.S. 494, 501-02, 501 n.6 (2000) (collecting cases that establish the common law principle "that a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious" in contrast to a criminal conspiracy in which plaintiff need only allege a "mere violation" of a statute).

(11.) See United States v. Reynolds, 919 F.2d 435, 439 (7th Cir. 1990) (stating the addition of the conspiracy count was pointless, yet noting "rare is the case Omitting such a charge"); Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925) (referring to conspiracy as "that darling of the modern prosecutor's nursery").

(12.) In fiscal year, 2005, 5% of defendants charged with Title 18 offenses faced conspiracy charges under [section] 371, making it the fourth most charged offense, (click "Select" box, then select "Title 18," ensure "All sections" box is checked, select "Excel" as display option) (last visited Jan. 22, 2008). The Department of Justice has issued two caveats to this statistic: (i) it does not include the often prosecuted immigration defenses, 8 U.S.C., or drug offenses, 21 U.S.C., and (ii) it only accounts for primary, not secondary, charges. E-mail from Mark Motivans , Bureau of Justice Statistics, United States Department of Justice (Jan. 22, 2008, 10:17 EST) (on file in Journal Office).

(13.) See Krulewitch v. United States, 336 U.S. 440, 445-47 (1949) (Jackson, J., concurring) (describing conspiracy as an "elastic, sprawling and pervasive offense"); see also United States v. Mallah, 503 F.2d 971,987 (2d Cir. 1974) ("[T]he task of defining the scope of these conspiracies is somewhat akin to describing an elephant from touch.").

(14.) See Grunewald v. United States, 353 U.S. 391,404 (1957) ("[W]e will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions."); United States v. Stoner, 98 F.3d 527, 533 (10th Cir. 1996) ("[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." (quoting WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW [section] 6.4(b), at 526 (2d ed. 1986))); United States v. Licciardi, 30 F.3d I127, 1133 (9th Cir. 1994) ("[I]it is perhaps understandable but regrettable that prosecutors should recurrently push to expand the limits of the statute in order to have it encompass more and more activities.").

(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 also United States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (stating because of secrecy of conspiracy government may prove elements by inference); United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005) (noting that the secrecy and concealment, which are essential to conspiracy, often make direct evidence of a conspiracy hard to come by).

(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); see United States v. Whirlwind Soldier, 499 F.3d 862 (8th Cir. 2007) ("[A] conspiracy conviction may be based on indirect or circumstantial evidence, including solely testimony from co-conspirators."); United States v. Winkle, 477 F.3d 407,413 (6th Cir. 2007) (quoting United States v. Yoon, 128 F.3d 515,523-24 (7th Cir. 1997) ("Because direct evidence of a defendant's fraudulent intent is typically not available, specific intent to defraud may be established by circumstantial evidence.")); United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (holding that the government must prove the requisite elements even if only 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, such inference is only reasonable if it is probable that "the conclusion flows from proven facts" and is unreasonable where the jury engages in speculation and conjecture that renders its findings a mere guess or possibility).

(17.) See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (Under 15 U.S.C. [section] 1, conspiracy will not be inferred unless "conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy."); In re Winship, 397 U.S. 358, 364 (1970) (Due process demands "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [a defendant] is charged."); United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) ("[M]ere presence at the scene of a criminal act or association with conspirators does not constitute intentional participation in [a] conspiracy." (quoting United States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001))).

(18.) See, e.g., Richardson v. United States, 526 U.S. 813, 817 (1999) ("[A] jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element.").

(19.) 18 U.S.C. [section] 371 (2000).

(20.) United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (quoting Iannelli v. United States, 420 U.S. 770, 777 (1975)); see also United States v. Broce, 488 U.S. 563, 570 (1989) (holding the agreement "is all but synonymous with the conspiracy itself'); United States v. Avila, 465 F.3d 796, 798 (7th Cir. 2006) ("[T]o join a conspiracy.., is to join an agreement, rather than a group." (quoting United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991))).

(21.) 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).

(22.) See United States v. Capanelli, 479 F.3d 163, 166-67 (2d Cir. 2007) (holding conspirators need not have "congruent intentions" if they agree on the "essential nature" of the conspiracy); United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007) (holding that government must show conspirators shared a "unity of purpose" and the intent to achieve a common goal); United States v. Escobar-Figueroa, 454 F.3d 40, 48 (1st Cir. 2006) (holding a conspiracy exists if "all of the alleged co-conspirators directed their efforts towards the accomplishment of a common goal or overall plan"); United States v. Arbane, 446 F.3d, 1223, 1229 (11th Cir. 2006) (requiting the government prove there was a "meeting of the minds to achieve an unlawful result"); United States v. Therm-All, Inc., 373 F.3d 625,637 (5th Cir. 2004) (quoting 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)).

(23.) See City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 396 n.10 (1991) (Stevens, J., dissenting) (citing one obstacle to prosecuting conspiracies is "[o]ften, we can infer the agreement only from their behavior"); United States v. Gardiner, 463 F.3d 445, 457 (6th Cir. 2006) (stating that a formal agreement is not necessary because a "tacit or material understanding between the parties is sufficient"); United States v. Mickelson, 378 F.3d 810, 821 (8th Cir. 2004) (holding that, because the details of a conspiracy are often "shrouded in secrecy," the existence of a conspiracy may be proven by inference from the parties' actions).

(24.) See, e.g. 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"); United States v. Winston, 456 F.3d 861,866 (8th Cir. 2006) ("[A] tacit understanding among co-conspirators may be, and often will be, inferred from circumstantial evidence."); United States v. Handlin, 366 F.3d 584, 589 (7th Cir. 2004) (noting circumstantial evidence of the agreement "may be aimed at showing that the co-conspirators embraced the criminal objective of the conspiracy" (citing United States v. Severson, 3 F.3d 1005, 1010 (7th Cir. 1993))).

(25.) See States v. Lopez-Medina, 461 F.3d 724, 750 (6th Cir. 2006) (stating that a plan may be inferred from defendant's conduct); United States v. Weidner, 437 F.3d 1023, 1033 (10th Cir. 2006) (holding a conspiracy can be inferred from defendants' conduct); United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004) (finding that an agreement constituting a conspiracy may be inferred from the acts of the parties and any other circumstantial evidence indicating concert of action for the accomplishment of a common purpose).

(26.) See Blumenthal v. United States, 332 U.S. 539, 558-59 (1947) (stating that although each salesman agreed to sell only his own share of whiskey, because each "knew or must have known" that the "lot to be sold was larger," he implicitly agreed to participate in the conspiracy); United States v. Bobb, 471 F.3d 491,495-96 (3d Cir. 2006) (holding because each individual knew the supply of cocaine was larger than the amount he was selling, they implicitly agreed to a single conspiracy); United States v. Caver, 470 F.3d 220, 234 n.6 (6th Cir. 2006) (A conspiracy exists if "each member of the conspiracy realized that he was participating in a joint venture, even if he did not know the identities of every other member, or was not involved in all the activities in furtherance of the conspiracy." (quoting United States v. Martinez, 430 F.3d 317,322-23 (6th Cir. 2005))).

(27.) 18 U.S.C. [section] 371 (2000).

(28.) See, e.g., United States v. Jones, 455 F.3d 134, 147 (3d Cir. 2006) (stating that even though an "'agreement is essential[,]" defendant need not know the identity of all the other conspirators); United States v. Cohen, 427 F.3d 164, 171 (2d Cir. 2005) ("[A]n individual need not know the identities of all coconspirators in order to be found guilty of being a member of the conspiracy." (quoting United States v. Hams 8 F.3d 943, 946 (2d Cir. 1993))); United States v. Martinez, 430 F.3d 317 (6th Cir. 2005) (stating defendant need not know the identities of all other conspirators).

(29.) See, e.g., United States v. Ching Tang Lo, 447 F.3d 1212, 1225 (9th Cir. 2006) (stating a conspiracy cannot be based on an agreement with a government informer); United States v. Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006) ("If there are only two members of a conspiracy, neither may be a government agent or informant who alms to frustrate the conspiracy."); United States v. Castellini, 392 F.3d 35, 52 n. 11 (1st Cir. 2004) ("In situations where the conspiracy involves only [one] defendant and a government [agent,] ... there can be no conspiracy because it takes two to conspire and the government [agent] is not a true conspirator." (quoting United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987))). If a conspirator becomes a government informer, he is no longer part of the conspiracy. See United States v. Mangual-Garcia, 505 F.3d 1, 7-8 (1st Cir. 2007) (finding tape recorded conversation between defendant and co-conspirator was admissible because he was not serving as a government informant at the time the conversation took place); United States v. Scofield, 433 F.3d 580, 585 (8th Cir. 2006) (holding although a conspiracy did not exist between defendant and government informant, the two did participate in a conspiracy before the latter became an informant).

(30.) See United States v. Ramirez, 350 F.3d 780, 785 (8th Cir. 2003) (holding court could consider defendant's statements made to a government agent because they revealed knowledge of a conspiracy beyond defendant and the agent); United States v. Bicaksiz, 194 F.3d 390, 399 (2d Cir. 1999) (stating parties can conspire through a non-conspiring intermediary, including a government informant, if they know other conspirators existed (citing United States v. Medina, 32 F.3d 40, 44-45 (2d Cir. 1994))); United States v. Rogers, 118 F.3d 466, 478 (6th Cir. 1997) (stating if defendant could have inferred that others must have been involved in conspiracy, he can be charged with conspiracy even if he only interacted with a government agent).

(31.) 18 U.S.C. [section] 371.

(32.) See Kirwin v. Price Commc'ns. Corp., 391 F.3d 1323, 1326-27 (11th Cir. 2004) (noting the intra-corporate conspiracy doctrine cannot shield conspirators from criminal or civil prosecution (citing McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1034 (11th Cir. 2000) (en banc))); United States v. Hughes Aircraft Co., 20 F.3d 974, 979 (9th Cir. 1994) ("[A] corporation may be liable under [section] 371 for conspiracies entered into by its agents and employees."). But see Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 166 (2001) (reaffirming Copperweld, infra); 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); Am. Chiropractic v. Trigon Healthcare, 367 F.3d 212, 223-24 (4th Cir. 2004) (detailing cases in which the court held Copperweld applied). For a discussion of corporate conspiracy see the CORPORATE CRIMINAL LIABILITY article in this issue. For a discussion of the Copperweld rule in the antitrust context, see the ANTITRUST VIOLATIONS article in this issue. For a discussion of the circuit split regarding the application of the intra-corporate conspiracy doctrine for RICO offenses, see the RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS article in this issue.

(33.) Wharton's Rule owes its name to Francis Wharton, whose treatise on criminal law recognized the doctrine and its essential rationale. FRANCIS 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.


(34.) Wharton's Rule was designed to eliminate the danger of defendants receiving dual punishment for the same crime. Iannelli v. United States, 420 U.S. 770, 772-73,774 n.5, 781-82, 786 n.18 (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").

(35.) See United States v. Brenson, 104 F.3d 1267, 1283 (11th Cir. 1997) (holding Wharton's Rule did not apply because substantive offense could have been committed by a person acting alone); United States v. Payan, 992 F.2d 1387, 1390, 1390 (5th Cir. 1993) ("Only when it is impossible under any circumstances to commit the substantive offense without cooperative action, does Wharton's Rule bar convictions for both the substantive offense and conspiracy to commit that same offense." (emphasis omitted) (citing Gebardi v. United States, 287 U.S. 112, 122 (1932))).

(36.) See United States v. Nascimento, 491 F.3d 25, 48-49 (1st Cir. 2007) (holding Wharton's Rule does not apply to a RICO violation and conspiracy because the agreement could be made up of different people than those who commit the substantive offense (citing United States v. Marino, 277 F.3d 11, 39 (1st Cir. 2002))); United States v. Rashwan, 328 F.3d 160. 164 (4th Cir. 2003) (noting that the "third party exception" to Wharton's Rule recognizes that the presence of a third party in a conspiracy enhances the dangers presented by the crime).

(37.) Iannelli, 420 U.S. at 785-86 (Wharton's rule only applies when "the immediate consequences of the crime rest on the parties themselves rather than on society at large."). Compare United States v. Ruhbayan, 406 F.3d 292, 300-01 (4th Cir. 2005) (noting Wharton's Rule is intended to include offenses that affect the defendants and not society, such as bigamy and adultery), with Nascimento, 491 F.3d at 48 (stating Wharton's rule does not apply to the RICO statute because the rule "operates at the statutory level"), and United States v. Anderson, 446 F.3d 870, 877 (8th Cir. 2006) (analyzing why Wharton's rule does not apply to both 18 U.S.C. [section] 1955 and a conspiracy charge).

(38.) 18 U.S.C. [section] 371 (2000).

(39.) "If two or more persons conspire ... to defraud the United States or any agency thereof." [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).

(40.) "If two or more persons conspire either to commit any offense against the United States ..." 18 U.S.C. [section] 371.

(41.) See United States v. Landrau-Lopez, 444 F.3d 19, 24 (1st Cir. 2006) ("The other bad act need not be identical to the crime charged so long as it is sufficiently similar to allow a juror to draw a reasonable inference probative of knowledge or intent."); United States v. Voegtlin, 437 F.3d 741, 745 (8th Cir. 2006) (stating defendant's prior involvement with chemicals to manufacture methamphetamine was admissible to prove knowledge). To determine whether the other criminal acts presented are "inextricably intertwined" to the conspiracy charged turns on:
 [W]hether the evidence is properly admitted to provide the jury
 with a 'complete story of the crime [on] trial,' whether its
 absence would create a 'chronological or conceptual void' in the
 story of the crime, or whether it is 'so blended or connected' that
 it incidentally involves, explains the circumstances surrounding,
 or tends to prove any element of, the charged crime.

United Sates v. Chavis, 429 F.3d 662, 670 (7th Cir. 2005) (quoting United States v. Ramirez, 45 F.3d 1096, 1102 (7th Cir. 1995)).

(42.) Tanner v. United States, 483 U.S. 107, 128 (1987) (The "defraud clause" applies to '"any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government."' (quoting Haas v. Henkel, 216 U.S. 462, 479 (1910))); United States v. Dennis, 384 U.S. 855, 861 (1966) (stating [section] 371 is not confined to the common law definition of fraud); see, e.g., United States v. Douglas, 398 F.3d 407, 416 (6th Cir. 2005) (citing Dudand v. United States, 161 U.S. 306, 313-14 (1896)) (describing problems with defining mail fraud after Supreme Court decided the definition of "defraud" was not confined by the common law definition).

(43.) To prove fraud under the predecessor statute to [section] 371:
 It is not necessary that the Government shall be subjected to
 property or pecuniary loss by the fraud, but only that its
 legitimate official action and purpose shall be defeated by
 misrepresentation, chicane or the overreaching of those charged
 with carrying out the governmental intention. It is true that the
 words 'to defraud' as used in some statutes have been given a wide
 meaning, wider than their ordinary scope.

Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); see also, Tanner, 483 U.S. at 128 (stating the above definition applies to [section] 371); Haas, 216 U.S. at 479 (finding it unnecessary to allege pecuniary loss in conspiracy to defeat or impair promulgation of crop information). For a definition of conspiracy to defraud under specific statutes, see the ANTITRUST VIOLATIONS, FINANCIAL INSTITUTIONS FRAUD, HEALTH CARE FRAUD, MAIL AND WINE FRAUD, RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS, AND SECURITIES FRAUD articles in this issue.

(44.) Tanner, 483 U.S. at 128 (1987) (stating if petitioners impaired the functioning of a government agency, they violated the "defraud clause" of [section] 371); see Hammerschmidt, 265 U.S. at 188 (stating 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"); United States v. Reich, 479 F.3d 179, 188 (2d Cir. 2007) (stating statutes enacted to protect the government should not be interpreted in the same terms as statutes protecting personal property but in terms of "protecting the integrity of the government"). Virtually any method used to defraud the United States will suffice for the purposes of the statute. See, e.g., United States v. Baucom, 486 F.3d 822 (4th Cir. 2007) (conspiracy to defraud the United States by failure to file tax returns); United States v. Hudson, 491 F.3d 590 (6th Cir. 2007) (conspiracy to defraud a school district).

(45.) See Iysheh v. Gonzalez, 437 F.3d 613, 614 (7th Cir. 2006) (stating the "offense clause" means any federal offense); United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006) (holding because the indictment charged a violation of a federal offense, it satisfied the "offense clause" of [section] 371); 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).

(46.) See, e.g., United States v. Munoz-Franco, 487 F.3d 25 (1st Cir. 2007) (conspiracy to commit bank fraud); United States v. Milstein, 481 F.3d 132 (2d Cir. 2007) (conspiracy to distribute misbranded and prescription drugs in violation of various statutes); United States v. Budd, 496 F.3d 517 (6th Cir. 2007) (conspiracy to deprive another of constitutional rights and witness tampering); United States v. Falcon, 477 F.3d 573 (8th Cir. 2007) (conspiracy to embezzle and misappropriate of funds); United States v. Tatoyan, 474 F.3d 1174 (9th Cir. 2007) (conspiracy to smuggle bulk cash); United States v. Wilfong, 475 F.3d 1214 (10th Cir. 2007) (conspiracy to traffic in and use unauthorized access devices); United States v. Arch Trading Co., 987 F.2d 1087, 1091 (4th Cir. 1993) (conspiracy against executive orders where Congress has provided criminal sanctions for such violations).

(47.) United States v. Feola, 420 U.S. 671, 688 (1975) (holding defendants could be found guilty of conspiracy if they committed the substantive offense even if they did not intend to violate federal law); United States v. Harris, 498 F.3d 278, 287-88 (4th Cir. 2007) (holding it was not necessary for the government to prove defendant intended to interfere with communications to federal officers to convict defendants of conspiracy to tamper with a witness); United States v. Baker, 63 F.3d 1478, 1491 n.16 (9th Cir. 1995) ("Knowledge of the federal nature of an offense is not an essential element of the crime of conspiracy to commit that offense.").

(48.) See Dennis v. United States, 384 U.S. 855, 862-64 (1966) (the fact that the underlying substantive crime violated a federal statute "does not, in and of itself, make the conspiracy-to-defrand clause of [section] 371 unavailable to the prosecution"); United States v. Gosselin World Wide Moving, N.V., 411 F.3d 502, 515 (4th Cir. 2005) (stating defendant could be charged on an anti-trust violation and conspiracy to defraud under [section] 371); United States v. Douglas, 398 F.3d 407, 412 (6th Cir. 2005) ("[A] conviction under section 371 does not require the government to prove a violation of a separate substantive statute." (citing United States v. Khalife, 106 F.3d 1300, 1303 (6th Cir. 1997) ("It is unnecessary to refer to any substantive offense when charging a section 371 conspiracy to defraud, and it is also unnecessary to prove the elements of a related substantive offense."))); United States v. Smith, 354 F.3d 390, 399 (5th Cir. 2003) (holding defendant could be convicted of the underlying substantive offense and conspiracy to defraud under [section] 371).

(49.) See Khalife, 106 F.3d at 1305 (allowing prosecution under the defraud clause rather than the offense clause because he had sufficient notice of the government's intent to do so); United States v. Reynolds, 919 F.2d 435, 439 (7th Cir. 1990) (allowing prosecution under defraud clause where conduct violated specific statutes because defendant had sufficient notice that the government was going to prosecute under the defraud rather than the offense clause)).

(50.) 18 U.S.C. [section] 371 (2000); see, e.g., United States v. Falcone, 311 U.S. 205,210-11 (1940) ("Those having no knowledge of the conspiracy are not conspirators."); United States v. Nguyen, 493 F.3d 613, 618 (5th Cir. 2007) ("[T]he Government must prove the defendants knew of the conspiracy's unlawful objective."); United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006) ("The knowledge requirement is satisfied when the Government shows a defendant's awareness of the essential nature of the conspiracy."); United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004) (holding that for defendant to be guilty of conspiracy, there must be some evidence that she knew of the existence of the scheme and knowingly joined and participated in it, but proof only that she knew some crime would be committed is not enough).

(51.) Glasser v. United States, 315 U.S. 60, 80 (1942) (noting direct evidence is not necessary to prove either a conspiracy or defendant's participation in it, which may be inferred by "development and a collocation of circumstances."); see also United States v. Gardner, 488 F.3d 700, 711 (6th Cir. 2007) (knowledge and participation "may be inferred from the defendant's actions and reactions to the circumstances"); United States v. Fuchs, 467 F.3d 889, 908 (5th Cir. 2006) (knowledge and participation may be inferred from a "collection of circumstances") (internal citations and quotations omitted).

(52.) Blumenthal v. United States, 332 U.S. 539, 557 (1947) (finding it is only necessary to show conspirators knew "the essential nature of the plan" and their connection to it); see United States v. Lizardo, 445 F.3d 73, 82 (1st Cir. 2006) (holding defendant had sufficient knowledge of conspiracy although he did not know all the details); United States v. Ndiaye, 434 F.3d 1270, 1294-96 (11th Cir. 2006) (stating that although evidence was not "overwhelming," it was sufficient for jury to infer defendant had knowledge of the conspiracy); United States v. Brodie, 403 F.3d 123, 158-59 (3d Cir. 2005) (holding the inferences when viewed against the evidence as a whole supported the inference of knowledge of the conspiracy).

(53.) See United States v. Cartwright, 359 F.3d 281,286 (3d Cir. 2004) (holding knowledge of conspiracy's objective can be proven by inference as long as there is a logical connection between the facts present and the conspiracy's goal); United States v. Pulido-Jacobo, 377 F.3d 1124, 1130 (10th Cir. 2004) (holding government must prove defendant had "a general awareness" of both the scope and objective of the enterprise); 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).

(54.) Rogers v. United States, 340 U.S. 367, 375 (1951) ("[T]he identity of the other members of the conspiracy is not needed, inasmuch as one person can be convicted of conspiring with persons whose names are unknown."); Blumenthal, 332 U.S. at 557 ("[T]he law rightly gives room for allowing conviction...without requiring evidence of ... the participation of others."); see also United States v. May, 476 F.3d 638, 641 (8th Cir. 2007) (quoting United States v. Agofsky, 20 F.3d 866, 870 (8th Cir. 1994) ("The fact that the identity of some or all other members of the conspiracy remains unknown will not preclude a conspiracy conviction.")).

(55.) See United States v. Parra, 402 F.3d 752, 761 (7th Cir. 2005) (stating defendant's presence during conspiracy and evidence of other acts in furtherance of the conspiracy's objective are sufficient to prove knowledge); United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003) (stating knowledge can be inferred when defendant acts in furtherance of the conspiracy's objective). But see United States v. Garcia-Torres, 280 F.3d 1, 4 (1st Cir. 2002) (stating by performing peripheral acts that furthered the conspiracy, defendant did not become a co-conspirator because he neither knew the conspiracy existed nor agreed to join); United States v. Benevides, 985 F.2d 629, 634 (1st Cir. 1993) ("A conspiracy conviction will not be sustained if the government's evidence shows that a defendant 'was indifferent to the [conspiracy's] outcome altogether.'")).

(56.) United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) (quoting United States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001)); 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))).

(57.) See United States v. Wilson, 484 F.3d 267, 283 (4th Cir. 2007) ("[U]pon establishing the conspiracy, only a slight connection need be made linking a defendant to the conspiracy to support a conspiracy conviction, although this connection also must be proved beyond a reasonable doubt." (quoting United States v. Burgos, 94 F.3d 849, 862 (1996))); United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006) (stating once conspiracy has been shown to exist, evidence linking defendant and conspiracy need only be slight); United States v. Lopez, 443 F.3d 1026, 1029-30 (8th Cir. 2006) (en banc) (rejecting the slight-evidence rule but holding "a defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he or she was a member of the conspiracy"); United States v. Daychild, 357 F.3d 1082, 1096 n.23 (9th Cir. 2004) (stating government must only prove a "slight connection" if conspiracy has already been established); United States v. Guerra-Garcia, 336 F.3d 19, 24 (1st Cir. 2003) ("[O]nce conspiracy and defendant's intent to further it is established, 'any connection between the defendant and the conspiracy, even a slight one, will be sufficient to establish knowing participation.'" (quoting United States v. Brandon, 17 F.3d 409, 428 (1st Cir. 1994))).

The Seventh Circuit has rejected both the "slight evidence" and "slight connection" standards in favor of a "participatory link" proven by substantial evidence. See United States v. Sasson, 62 F.3d 874, 886 (7th Cir. 1995); see also United States v. Campbell, 985 F.2d 341,344-45 (7th Cir. 2003) ("To prove that a defendant was a member of the conspiracy, the Government must demonstrate a participatory link between the conspiracy and the defendant." (quoting United States v. Navarez, 954 F.2d 1375, 1380-81 (7th Cir. 1992))); United States v. Durrive, 902 F.2d 1221, 1228 (7th Cir. 1990) ("[W]hen the sufficiency of the evidence to connect a particular defendant to a conspiracy is challenged on appeal, substantial evidence should be the test rather than slight evidence or slight connection.") (internal quotations omitted).

(58.) Compare United States v. Turner, 319 F.3d 716, 723 n.8 (5th Cir. 2003) (quoting United States v. Malatesta, 590 F.2d 1379, 1382 (5th Cir. 1979) ("The 'slight evidence' rule ... should not have been allowed to worm its way into the jurisprudence of the Fifth Circuit. It is accordingly Banished as to all appeals hereafter to be decided by this Court.")) (rejecting government's attempt to rely on the slight evidence rule), with United States v. Virgen-Moreno, 265 F.3d 276, 284-85 (5th Cir. 2001) (citing United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994)) (stating once a conspiracy has been established, defendant's connection need only be slight)).

(59.) Compare United States v. Baker, 432 F.3d 1189, 1232 n.49 (11th Cir. 2005) ("This Circuit has at times applied a more lenient 'slight evidence' standard of review for sufficiency of the evidence challenges.... Such a standard is inconsistent with ... [the] requirement that the government provide 'substantial evidence' of a defendant's guilt at trial." (quoting Malatesta, 590 F.2d at 1382)), with United States v. Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005) ("Once the existence of a conspiracy is established, only slight evidence is necessary to connect a particular defendant to the conspiracy." (quoting United States v. Clavis, 956 F.2d 1079, 1085 (11th Cir. 1992))).

(60.) See United States v. Nektalov, 461 F.3d 309, 314 (2d Cir. 2006) ("[W]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." (quoting Leafy v. United States, 395 U.S. 6, 46 n.3 (1969))); see a/so United States v. Flores, 454 F.3d 149, 155 (3d Cir. 2006) (holding "willful blindness" applies when defendant knows the "high probability of the fact" and purposefully avoided recognizing "the likelihood of the illicit act") (internal citations and quotations omitted); United States v. Florez, 368 F.3d 1042, 1044 (8th Cir. 2004) CA willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge, but the evidence supports an inference of deliberate ignorance."); United States v. Mellen, 393 F.3d 175, 184 (D.C. Cir. 2004) (holding that conscious avoidance may be invoked to show that the defendant was aware of the conspiracy but not that he participated in it (citing United States v. Reyes, 302 F.3d 48, 54-55 (2d Cir. 2002))).

(61.) 18 U.S.C. [section] 371 (2000). 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 33, at [section] 681.

(62.) See Whitfield v. United States, 543 U.S. 209, 214 (2005) (declining to read an overt act requirement into the money laundering statute, 18 U.S.C. [section] 1965(h), because the need for one is not expressly stated); Salinas v. United States, 522 U.S. 52, 63 (1997) (recognizing lack of an overt act requirement in the RICO statute, 18 U.S.C. [section] 1962(d)); United States v. Shabani, 513 U.S. 10, 13 (1994) (declining to read an overt act requirement into the drug conspiracy statute, 21 U.S.C. [section] 846); Summit Health v. Pinhas, 500 U.S. 322, 330 (1991) (asserting an illegal agreement, not the overt acts in furtherance thereof, is the requisite proof for violation of [section] 1 of the Sherman Antitrust Act, 15 U.S.C. [section] 1).

(63.) 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 by Burks v. United States, 437 U.S. 1 (1978); see United States v. Salmonese, 352 F.3d 608, 619 (2d Cir. 2003) (holding "conspiracy at work" concept can be applied to overt acts not alleged in the indictment as long as there is not unfair prejudice).

(64.) See Iannelli v. United States, 420 U.S. 770, 786 n.17 (1975) (The overt act "can be innocent in nature, provided it furthers the purpose of the conspiracy." (citing Yates, 354 U.$. at 334)); United States v. May, 359 F.3d 683, 694 n. 18 (4th Cir. 2004) ("As a general proposition, overt acts in furtherance of a conspiracy need not, in and of themselves, constitute criminal behavior.").

(65.) 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. Soy, 454 F.3d 766, 768 (7th Cir. 2006) ("[O]vert acts necessary for the conspiracy conviction need not be the underlying substantive crime or an element of that crime").

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

(67.) See, e.g., Salinas v. United States, 522 U.S. 52, 64 (1997) (stating those who provide support to co-conspirators are liable for crimes committed by co-conspirators); United States v. Parkes, 497 F.3d 220, 232 (2d Cir. 2007) (stating that under Pinkerton defendant had "heavy burden" to prove he was not liable for co-conspirator's actions); United States v. Geibel, 639 F.3d 682, 695 (2d Cir. 2004) ("It is axiomatic that all acts and statements committed by one co-conspirator in furtherance of the conspiracy are admissible against all members of the conspiracy.").

(68.) See United States v. Pierce, 479 F.3d 546, 555 n.8 (8th Cir. 2007) ("[A] person who knowingly, voluntarily and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy." (quoting United States v. Hayes, 391 F.3d 958, 963 (8th Cir. 2004))); United States v. Duran, 407 F.3d 828, 835-36 (7th Cir. 2005) (holding defendant can be liable for foreseeable acts performed any co-conspirator, known or unknown, committed prior to or during defendant's participation in the conspiracy); United States v. Blackthorne, 378 F.3d 449, 454 (5th Cir. 2004) ("[O]ne who joins an ongoing conspiracy is deemed to have adopted the prior acts and declarations of conspirators, made after the formation and in furtherance of the conspiracy." (quoting United States v. Barksdale-Contreras, 972 F.2d 111, 114 (5th Cir. 1992))).

(69.) See Levine v. United States, 383 U.S. 265, 266 (1966) (per curiam) ("[A]n individual cannot be held criminally liable for substantive offenses committed by members of the conspiracy before that individual had joined or after he had withdrawn from the conspiracy."), vacated on other grounds by Roberts v. United States, 389 U.S. 18 (1967); United States v. Garcia, 497 F.3d 964, 967 n.1 (9th Cir. 2007) (holding defendant was not liable for substantive acts committed before he joined the conspiracy).

(70.) See United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005) (citing United States v. Castaneda, 9 F.3d 761 (9th Cir. 1993)) (stating due process concerns "sometimes" limit Pinterton liability but applying it on facts presented because defendant's connection was more than slight); United States v. Wade, 318 F.3d 698, 701-04 (6th Cir. 2003) (holding defendant was not liable for co-conspirator's drug possession because defendant was not highly involved in the overall conspiracy); United States v. Cherry, 217 F.3d 811, 818 (10th Cir. 2000) (quoting United States v. Mothersill, 87 F.3d 1214, 1218-19 (11th Cir. 1996)) (refusing to extend Pinkerton to substantive offenses committed by co-conspirators when defendant was only a minimal participant in the conspiracy).

(71.) See supra Section II of this Article discussing four elements of conspiracy charge.

(72.) "[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63-65 (1988) (stating jury should have been instructed on both defendant's lack of intent to commit the crime and entrapment); United States v. Trujillo, 390 F.3d 1267, 1274 (10th Cir. 2004) (stating the Mathews holding is not limited to cases involving entrapment).

(73.) 18 U.S.C. [section] 3282 (2003); see also Bridges v. United States, 346 U.S. 209, 223 (1953) ("A charge of conspiracy to commit a certain substantive offense is not entitled to a longer statute of limitations than the charge of committing the offense itself."); United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir. 2006) (stating [section] 3282 applies to [section] 371).

(74.) See Bridges, 346 U.S. at 223 (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, e.g. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 156 (1987) (holding [section] 3282 applies to RICO statute); see also supra note 9 and accompanying text (listing other federal statutes containing conspiracy provisions).

(75.) See Krulewitch v. United States, 336 U.S. 440, 442 (1949) (stating a conspiracy ends when its objective had "either failed or been achieved"); United States v. Gardiner, 463 F.3d 445, 464 (6th Cir. 2006) (holding to prove he was no longer a conspirator, defendant must prove either he withdrew from the conspiracy or the criminal objective of the conspiracy had been achieved); United States v. Magleby, 420 F.3d 1136, 1145 (10th Cir. 2005) (suggesting a non-overt act conspiracy continues until its purpose is accomplished or the agreement is terminated).

(76.) See United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (holding that because the agreement still exists, a "conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has 'defeated' the conspiracy's 'object.'"); United States v. Koonin, 361 F.3d 1250, 1253 (9th Cir. 2004) (holding because defendant did not know that co-conspirator had been arrested, he could not have withdrawn from conspiracy).

(77.) See Grunewald v. United States, 353 U.S. 391, 396-97 (1957) (holding government must prove conspiracy still existed and at least one overt act was committed within the statute of limitations); 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."); Qayyum, 451 F.3d at 1218 ("The fact that the conspiracy began outside the limitations period will not prevent prosecution as long as at least one overt act in furtherance of the conspiracy occurred within five years of the indictment." (quoting United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993))). 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. Fiswick, 329 U.S. at 216 ("Continuity of action to produce the unlawful result, or ... continuous cooperation of the co-conspirators to keep it up is necessary."); Varner v. Peterson Farms, 371 F.3d 1011, 1019 (8th Cir. 2004) ("For statute of limitations purposes.... the focus is on the timing of the causes of injury, i.e., the defendant's overt acts, as opposed to the effects of the overt acts." (quoting DXS, Inc. v. Siemens Medical Systems, Inc., 100 F.3d 462, 467 (6th Cir. 1996))).

(78.) See United States v. Angle, 230 F.3d 113, 119 (4th Cir. 2000) ("The government satisfies the requirements of the statute of limitations for a non-overt act conspiracy if it alleges and proves that the conspiracy continued into the limitations period." (quoting United States v. Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997))). For a discussion of the application of statutes of limitations to specific statutes, see the ANTITRUST VIOLATIONS, FINANCIAL INSTITUTIONS FRAUD, HEALTH CARE FRAUD, MAIL AND WIRE FRAUD, RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS, AND SECURITIES FRAUD articles in this issue.

(79.) See Grunewald, 353 U.S. at 405 ("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."). Compare Qayyum, 451 F.3d at l219-20 (holding statute of limitations continued to run when defendants were fraudulently keeping an alien in the United States because purpose of conspiracy was to bring and keep alien into the country), and United States v. Milstein, 401 F.3d 53, 72 (2d Cir. 2005) (holding acts to safeguard money gained through a conspiracy are concealment acts in furtherance of the purpose of the conspiracy), with Grunewald, 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), and United States v. Grenoble, 413 F.3d 569, 577 (6th Cir. 2005) ("Since every conspiracy 'will inevitably be followed by actions taken to conceal the conspirators' traces,' [computing concealment actions in] limitations periods would 'extend the life of a conspiracy indefinitely,' making statutes of limitations meaningless in conspiracy prosecutions.")

(80.) See infra Section IV (discussing co-conspirator exception to general bar against hearsay).

(81.) 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); United States v. Trainor, 477 F.3d 24, 31 (1st Cir. 2007) (stating the doctrine of variance is "the presentation at trial of evidence that varies materially from the crime charged in the indictment"); United States v. Delgado, 401 F.3d 290, 295 (5th Cir. 2005) (stating a variance occurs when the essential elements of the offense remain the same but evidence at trial depicts a different scenario than the one charged).

A single conspiracy exists where there is one overall agreement to perform various functions to achieve the objectives of the conspiracy, but if there are several agreements to commit different crimes, multiple conspiracies exist. See United States v. Broce, 488 U.S. 563, 570-71 (1989); see also United States v. Greenidge, 495 F.3d 85, (3d Cir. 2007) (The test to distinguish between single and multiple conspiracies is: (i) whether there was a common goal; (ii) whether there was a continuous agreement for a continuous result; and (iii) to what extent the participants overlap); United States v. Cain, 487 F.3d 1108, 1113 (8th Cir. 2007) (To determine whether a multiple conspiracy exists when a single conspiracy is charged, "we consider the totality of the circumstances, including the nature of the activities, the location and time frame in which the activities were performed, and the participants involved." (quoting United States v. Morales, 113 F.3d 116, 119 (8th Cir. 1997))). Compare United States v. Macchia, 35 F.3d 662, 668 (2d Cir. 1994) ("[O]verlap with respect to a number of characteristics, including time frame, geographic locale, participants, and criminal objective" does not definitely prove a single conspiracy.), with Trainor, 477 F.3d at 33-35 (upholding conviction because although co-conspirators may not have originally agreed on the "long-term vision" of the conspiracy, the jury could have inferred they eventually both agreed to continue it), and United States v. Radtke, 415 F.3d 826, 838-39 (8th Cir. 2005) (holding a conspiracy with multiple goals but a single overarching agreement was a single conspiracy).

(82.) One court has described:
 The line distinguishing variances from constructive amendments
 "essentially is between the situation in which different evidence
 supports the charged crime [as with a variance] and that in which
 the evidence supports a crime other than that charged [as with an
 amendment]." ... "Although ... an amendment[ ] requires
 reversal.... a variance[ ] does not warrant reversal unless it
 affects the substantial rights of the defendant."

United States v. Ratliff-White, 493 F.3d 812, 820 (7th Cir. 2007) (quoting United States v. Pisello, 877 F.2d 762, 765 (9th Cir. 1989)); see also United States v. Budd, 496 F.3d 517, 521-22 (6th Cir. 2007) (stating a constructive amendment is per se prejudicial and reversible error because the terms of the indictment are effectively altered, a variance is not per se prejudicial because the terms of the indictment itself remain unchanged, and a variance may become a constructive amendment if "serious enough"); United States v. Ward, 486 F.3d 1212, 1226-27 (11th Cir. 2007) (stating a constructive amendment is "fundamentally unfair" because defendant lacked notice, but a variance will only be reversed if defendant proves his rights were "substantially prejudiced." (citing United States v. Keller, 916 F.2d 628, 632-633 (11th Cir. 1990))). U.S. CONST. amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.").

(83.) The accused shall "be informed of the nature and cause of the accusation." U.S. CONST. amend. VI.

(84.) See United States v. Miller, 471 U.S. 130, 136 (1985) (refusing to overturn defendants' conspiracy conviction because in a review of prior cases "[c]onvictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment"); Wong Tai v. United States, 273 U.S. 77, 81 (1927) ("[I]n an indictment for conspiring to commit an offense ... it is not necessary to allege with technical precision all the elements essential to the Commission of the offense which is the object of the conspiracy."); United States v. Suarez, 313 F.3d 1287, 1289-90 (11th Cir. 2002) (holding a fatal variance did not occur because although multiple conspiracies could have been found, when the evidence is viewed "in the light most favorable to the government, a rational trier of fact could have found that a single conspiracy existed beyond a reasonable doubt" (citing United States v. Aired, 144 F.3d 1405, 1414 (11th Cir. 1998))).

(85.) See United States v. Cotton, 535 U.S. 625, 631 (2002) ("[A]n indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form." (quoting Russell v. United States, 369 U.S. 749, 770 (1962))). Compare United States v. Mitov, 460 F.3d 901, 906-07 (7th Cir. 2006) (finding an error in date was not a constructive amendment because it did not affect any element of the charge) and United States v. Gonzales, 436 F.3d 560, 577 (5th Cir. 2006) (holding that because the elements for a deliberate indifference conviction under both "denying" and "delaying" medical treatment were the same, the indictment was not constructively amended) and United States v. Landers, 417 F.3d 958, 964 (8th Cir. 2005) (citing United States v. Powers, 572 F.2d 146, 152 (8th Cir. 1978)) (holding incorrect name of school in indictment was a harmless error because it was not necessary to any elements of the charge), with United States v. Malpica-Garcia, 489 F.3d 393, 3998 (1st Cir. 2007) (finding the defendant cannot complain of improper constructive amendment if the indictment is actually amended by resubmission to grand jury (quoting United States v. Calderon, 77 F.3d 6, 10 (1st Cir. 1996) (emphasis deleted))). One may waive his right to have the indictment resubmitted to the grand jury. See Short v. United States, 471 F.3d 686, 695 (6th Cir. 2006) (holding that by allowing amendment to indictment, defendant waived his right to have the indictment resubmitted to the grand jury); United States v. Hugs, 384 F.3d 762, 766-67 (9th Cir. 2004) (holding government failed to prove defendant realized a proposed jury instruction contained a constructive amendment so his right to object was not waived).

(86.) See United States v. Mitchell, 484 F.3d 762, 770-71 (5th Cir. 2007) (citing United States v. Morrow, 177 F.3d 272, 291 (5th Cir. 1999)) (finding any possible prejudice if evidence proved multiple conspiracies when the indictment only alleged one was mitigated by the jury instruction); United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 2006) ("Typically, the danger of guilt transference 'can be cured with a cautionary instruction to the jury that if it finds multiple conspiracies, evidence relating to one conspiracy cannot be considered in examining another conspiracy.'" (quoting United States v. Mack, 837 F.2d 254, 258 (6th Cir. 1988))).

(87.) See United States v. Womack, 496 F.3d 791, 794 (7th Cir. 2007) (stating whether evidence proves existence of single conspiracy or multiple conspiracies is question of fact for jury (citing United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991))); United States v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007) ("Thus, the jury makes the initial determination of whether the evidence supports a single conspiracy and their determination will not be disturbed if supported by substantial evidence." (quoting United States v. Calderon, 127 F.3d 1314, 1317 (11th Cir. 1997))); United States v. Sdoulam, 398 F.3d 981, 991 (8th Cir. 2005) ("The issue of whether a single conspiracy or multiple conspiracies existed is a question for the jury." (quoting United States v. Adipietro, 983 F.2d 1468, 1475 (8th Cir. 1993))).

(88.) See United States v. Greenidge, 495 F.3d 85, 95 (3d Cir. 2007) (citing United States v. Barr, 963 F.2d 641, 650 (3d Cir. 1992) (holding appellants' failed to prove a fatal variance based on the principle that "[t]he convictions cannot be vacated unless appellants show 'both the likelihood of multiple conspiracies having existed, and substantial prejudice resulting from the failure to give the requested charge.'"); United States v. Edouard, 485 F.3d 1324, 1347-48 (11th Cir. 2007) (citing Calderon, 127 F.3d at 1327) (holding that even if a variance had existed, appellant did not prove he was substantially prejudiced by the evidence introduced at trial); United States v. Windrix, 405 F.3d 1146, 1153-54 (10th Cir. 2005) (explaining that first the court must determine if there is a material variance and second whether that variance substantially prejudiced appellant).

(89.) 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); Berger v. United States, 295 U.S. 78, 82 (1935) ("The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused."); Windrix, 405 F.3d at 1153 ("A variance is reversible error only if it affects the substantial rights of the accused." (quoting United States v. Ailsworth, 138 F.3d 843, 848 (10th Cir. 1998))).

(90.) Berger, 295 U.S. at 83-84 (finding substantial rights were not violated because variance was not prejudicial); see also United States v. Mitchell, 484 F.3d 762, 770 (5th Cir. 2007) ("[T]he variance does not affect the defendant's substantial rights as long as the government establishes the defendant's involvement in at least one of the proved conspiracies."); United States v. Ramsey, 406 F.3d 426, 429-30 (7th Cir. 2005) (holding the indictment is sufficient so long as essential elements of offense are charged so that defendant is able to prepare for trial and be informed of any possible subsequent double jeopardy violations).

(91.) In Kotteakos, the Court found 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. Explaining the danger of finding otherwise, it stated:
 Guilt with us remains individual and personal, even as respects
 conspiracies. It is not a matter of mass application. There are
 times when of necessity, because of the nature and scope of the
 particular federation, large numbers of persons taking part must be
 tried together or perhaps not at all, at any rate as respects some.
 When many conspire, they invite mass trial by their conduct. Even
 so, the proceedings are exceptional to our tradition and call for
 use of every safeguard to individualize each defendant in his
 relation to the mass....

 [O]ur Government ... has a stake, with every citizen, in his being
 afforded our historic individual protections, including those
 surrounding criminal trials. About them we dare not become careless
 or complacent when that fashion has become rampant over the

 The dangers of transference of guilt from one to another across the
 line separating conspiracies, subconsciously or otherwise, are so
 great that no one really can say prejudice to substantial right has
 not taken place.

Koneakos, 328 U.S. at 772-74 (1946); see United States v. Trainor, 477 F.3d 24, 26 n.21 (1st Cir. 2007) (stating although it did not apply in this case, "the spillover concern is addressed to whether incriminating evidence against co-defendants who were involved in separate conspiracies affected the jury's consideration of the evidence against the defendant."); United States v. Barth, 424 F.3d 752, 759-60 (8th Cir. 2005) (stating a variance may occur if the defendant was prejudiced by a "spillover" of evidence from one conspiracy to another but holding defendant was not prejudiced by spillover evidence because he was involved in all aspects of the conspiracy).

(92.) See Berger, 295 U.S. at 82 ("The general rule that allegations and proof must correspond is based upon the obvious requirement[] ... that [defendant] may be protected against another prosecution for the same offense.").

(93.) United States v. Stewart, 420 F.3d 1007, 1012 (9th Cir. 2005) ("An indictment is multiplicitous when it charges multiple counts for a single offense."); accord MODEL PENAL CODE [section] 5.03(3) (Official Draft 1985) (stating an indictment alleging single agreement with multiple criminal objectives is multiplicitous if charging multiple conspiracies).

(94.) See United States v. Reedy, 304 F.3d 358, 363-64 (5th Cir. 2002) ('The chief danger raised by a multiplicitous indictment is the possibility that the defendant will receive more than one sentence for a single offense." (quoting United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir. 1985) (holding although there was a multiplicitous indictment and conviction, the convictions will stand but are remanded for resentencing))); United States v. Buchmeier, 255 F.3d 415,425 (7th Cir. 2001) (quoting United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997) ("The risk inherent in a duplicitous count ... may be cured by a limiting instruction requiring the jury to unanimously find the defendant guilty of at least one distinct act.")) (affirming conviction because a proper limiting instruction was granted); United States v. Smith, 231 F.3d 800, 815 (11th Cir. 2000) ("[A] multiplicitous indictment may improperly prejudice a jury by suggesting that a defendant has committed several crimes--not one.").

(95.) In Ball v. United States, the Court held defendant could be indicted under two separate statutes for the same offense arising from the same facts, but he could only be convicted and punished for one. 470 U.S. 856, 860-61, 860 n.8 (1985) ("'[T]here can be no impropriety ... for a prosecutor to file an information containing counts charging violations of' several different provisions of [a] ... statute where there is evidence to support the charges, even though the defendant could not in the end stand convicted of both offenses." (quoting United States v. Gaddis, 424 U.S. 544, 550 (1976))); see United States v. Josephberg, 459 F.3d 350, 354-56 (2d Cir. 2006) (holding defendant could be indicted for conspiracy under 26 U.S.C. [section] 7201 and obstruction, which had the same underlying facts as the conspiracy and other counts, but could not be convicted of both if they were, in fact, multiplicitous); United States v. Roy, 408 F.3d 484, 491-92 (8th Cir. 2005) (holding a multiplicitous indictment can be "saved" with a jury instruction that defendant may only be convicted on one count (citing United States v. Sue, 586 F.2d 70, 71 (8th Cir. 1978))); see also U.S. CONST. amend. V ("No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb.").

(96.) See United States v. Felix, 503 U.S. 378, 389-90 (1992) ("[A] substantive crime and a conspiracy to commit that crime are not the 'same offence' for double jeopardy purposes."); Garrett v. United States, 471 U.S. 773, 793 (1985) ("It does not violate the Double Jeopardy Clause ... to prosecute [a continuing criminal enterprise] offense after a prior conviction for one of the predicate offenses."); United States v. Bayer, 331 U.S. 532, 542 (1947) ("[T]he same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself."); United States v. Arlt, 252 F.3d 1032, 1033 (9th Cir. 2001) (holding the underlying drug charge, 21 U.S.C. [section] 846, was not an element to prove violation of [section] 371 and so defendant could be convicted of both); William H. Theis, The Double Jeopardy Defense and Multiple Prosecutions for Conspiracy, 49 SMU L. REV. 269, 306 (1996).

(97.) An 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. Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007) (holding indictment sufficiently alleged materiality and intent to defraud when read as a whole). An indictment that utilizes the language of the statute itself will be deemed sufficient, if the words of the statute "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished" and "must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence." Hamling, 418 U.S. at 117-18; see also United States v. Sutcliffe, 505 F.3d 944, 961 (9th Cir. 2007) (quoting United States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003) (Indictments are "legally sufficient if, as a whole, they adequately apprised the defendant of the charges against him.")) (holding indictment sufficiently alleged the facts and fulfilled statutory proscriptions); United States v. Ramsey, 406 F.3d 426, 430 (7th Cir. 2005) (finding that while indictment did not lay out all elements, it was still sufficient as the absent elements could be deduced from the language that was included); United States v. Vinyard, 266 F.3d 320, 326 (4th Cir. 2001) ("A mere statutory citation in the indictment is insufficient precisely because it does not demonstrate whether that Fifth Amendment mandate has been followed." (citing United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir. 1988))).

(98.) 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."); United States v. Griffin, 324 F.3d 330, 355 (5th Cir. 2005) ("There is no doubt that the Fifth Amendment guarantees a criminal defendant that he will only be tried on the charges that have been alleged in an indictment handed down by a grand jury." (quoting United States v. Arlen, 947 F.2d 139 (5th Cir. 2001))).

(99.) United States v. Cotton, 535 U.S. 625, 631 (2002) (holding a court retains jurisdiction even if indictment is proven defective); United States v. Sinks, 473 F.3d 1315, 1317 (10th Cir. 2007) (holding defendants did not waive fight to challenge indictment by failing to raise the objection before trial, but they are only entitled to review for plain error when the issue is raised for the first time on appeal).

(100.) United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65 (1978); see United States v. Freeman, 434 F.3d 369, 383 (5th Cir. 2005) (asserting the same).

(101.) See United States v. Diaz, 176 F.3d 52, 98 (2d Cir. 1999) (stating unless defendant affirmatively withdraws, participation in the conspiracy continues until the last overt act); cf. supra notes 66-70 (discussing Pinkerton liability whereby a defendant may be held liable for a co-conspirator's foreseeable overt acts committed furtherance of the conspiracy).

(102.) See U.S. Gypsum Co., 438 U.S. at 46 n.38 (stating the issue of defendants' withdrawal from conspiracy affected the determination for the date the statute of limitations began to run); United States v. Gonzalez, 495 F.3d 577, 581 n.3 (8th Cir. 2007) (citing United States v. Grimmett, 236 F.3d 452, 453 (8th Cir. 2001)) (stating the conspiracy ends and the statute of limitations is triggered when defendant withdraws); United States v. Arias, 431 F.3d 1327, 1340 (11th Cir. 2005) (citing United States v. Reed, 980 F.2d 1568, 1583-84 (11th Cir. 1993)) (stating the statute of limitations begins to run either at the time of withdrawal or the final act of the conspiracy is committed); see also United States v. Munoz-Franco, 487 F.3d 25, 54 (1st Cir. 2007) (stating a statute of limitations claim is an affirmative defense (citing United States v. Spero, 331 F.3d 57, 60 n.2 (2d Cir. 2003))).

(103.) United States v. Tykarsky, 446 F.3d 458, 481 (3d Cir. 2006) (stating defendant bears the burden to prove he withdrew from the conspiracy (citing United States v. Julian, 427 F.3d 471, 482 (7th Cir. 2005))).

(104.) A 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). "[T]he admissibility of mental condition evidence survives the enactment of the Insanity Defense Reform Act of 1984 where ... the evidence is admitted not as an affirmative defense to excuse the defendant from responsibility for his acts, but to negate specific intent when that is an element of the charged act itself." United States v. Childress, 58 F.3d 693, 728-29 (D.C. Cir. 1995) (citing United States v. Cameron, 907 F.2d 1051, 1060 (11th Cir. 1990)) (remanding to trial court to decide if defendant was mentally retarded, because such finding might preclude requisite specific intent to enter agreement); see also; United States v. Brown, 326 F.3d 1143, 1146-47 (10th Cir. 2003) (citing United States v. Worrell, 313 F.3d 867, 872 (4th Cir. 2002)) (holding because conspiracy requires a specific intent, psychiatric evidence may be admitted to negate that intent).

(105.) In Dixon v. United States, the Court wrote:
 [T]he defense of duress does not negate a defendant's criminal
 state of mind when the applicable offense requires a defendant to
 have acted knowingly or willfully; instead, it allows the defendant
 to 'avoid liability ... because coercive conditions or necessity
 negates a conclusion of guilt even though the necessary mens rea
 was present.'

126 S. Ct. 2437, 2442 (2006) (quoting United States v. Bailey, 444 U.S. 394, 402 (1980)) (holding defendant bears the burden of proof to establish an affirmative defense of duress). There is no federal statute that defines coercion and duress. Id. at 2440 n.2. Typically, defendants must prove: "(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity." United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) ("(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity.").

(106.) See Salinas v. United States, 522 U.S. 52, 65 (1997) ("It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public, and so punishable in itself."); United States v. Saadey, 393 F.3d 669, 676 (6th Cir. 2005) (holding government need only prove defendant entered into an act, which if completed, would satisfy the elements of the underlying substantive offense).

(107.) United States v. Jimenez Recio, 537 U.S. 270, 275-76 (2002) (holding conspiracy exists even if the ultimate goal either becomes impossible during the course of the conspiracy or was impossible in the beginning).

(108.) Kenneth W. Simons, Criminal Law: Mistake and Impossibility, Law and Fact, and Culpability: A Speculative Essay, 81 J. CRIM. L. & CRIMINOLOGY 447, 472, 472 n.82 (1990) (detailing the distinctions among impossibilities) (defining "hybrid" versus "pure" legal impossibility).

(109.) See United States v. Dixon, 449 F.3d 194, 202 (1st Cir. 2006) ("[F]actual impossibility is not a defense to either liability or sentencing enhancements for inchoate offenses such as conspiracy or attempt."); United States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001) ("[F]actual impossibility is not a defense to the crime if the defendant could have committed the crime had the attendant circumstances been as the actor believed them to be, while legal impossibility is where the defendant's actions, even if carded out, do not constitute a crime."); United States v. Yang, 281 F.3d 534, 542-43 (6th Cir. 2002) (holding because the crime of conspiracy is the agreement to commit an illegal act and not actual carrying out of the act, legal impossibility is not a defense (citing United States v. Hsu, 155 F.3d 189, 199 (3d Cir. 1998) (stating the distinction is "murky" but explaining factual impossibility, which is not a defense, "is said to occur when extraneous circumstances unknown to the actor or beyond his control prevent consummation of the intended crime," but legal impossibility, which is a defense, "is said to occur where the intended acts, even if completed, would not amount to a crime.")))

To defend against a federal conspiracy, one may claim that he could not legally violate federal law because he did not know he was interfering with a federal officer. Courts, however, have rejected this argument. See United States v. Feola, 420 U.S. 671, 688 (1975) (holding defendants could be found guilty of conspiracy if they committed the substantive offense even if they did not intend to violate federal law); United States v. Harris, 498 F.3d 278, 287-88 (4th Cir. 2007) (holding it was not necessary for the government to prove defendant intended to interfere with communications to federal officers to convict defendants of conspiracy to tamper with a witness).

(110.) See United States v. Aguilar, 515 U.S. 593, 605 (1995) (questioning whether the '"continuing validity the doctrine of "impossibility," with all its subtleties," may continue to exist in the law of criminal attempt, quoting Osborn v. United States, 385 U.S. 323, 434-35 (1966))); United States v. Tykarsky, 446 F.3d 458, 465-66 (3d Cir. 2006) ("The distinction between factual and legal impossibility is elusive at best. Most federal courts have repudiated the distinction or have at least openly questioned its usefulness." quoting United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001))); Audrey Rogers, New Technology, Old Defenses: Internet Sting Operations and Attempt Liability, 38 U. RICH. L. REV. 477, 493-501 (2004) (stating most circuits no longer recognize an impossibility defense).

(111.) Pure legal impossibility only occurs when the crime charged is not proscribed in the statute under which defendant was charged and is a defense in all jurisdictions. See In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. (2000)) ("Pure legal impossibility is always a defense.") Rogers, supra note 110, at 494-98 (defining "true legal impossibility" as being charged with a crime that does not exist, "hybrid legal impossibility" as a defendant intending to commit an illegal act but in fact committing a legal one, and "factual impossibility" as an act that cannot be performed); see generally Simons, supra note 108.

(112.) To establish entrapment, defendant must prove: (i) improper government inducement and (ii) lack of a predisposition to commit the defense. Mathews v. United States, 485 U.S. 58, 62-63 (1988). See United States v. Luisi, 482 F.3d 43, 51-58 (1st Cir. 2007) (detailing the background to and rationale of the entrapment defense); United States v. Hsu, 364 F.3d 192, 198 (4th Cir. 2004) (defining inducement as "excessively sufficient" to put idea of illegal activity in mind of an otherwise innocent party and "predisposition" as one's own preference whether or not he contemplated to specific conspiracy before contact with the government agent (citing United States v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991))); 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). The government may use decoys and informants to catch those already engaged in illegal activities. See Lewis v. United States, 385 U.S. 206, 208-209 (1966) (holding the government may conceal agents' identity and use decoys to catch a criminal (citing Sorrells v. United States, 287 U.S. 435, 441 (1932) ("It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises."))); Ogle, 328 F.3d at 185-86 (holding entrapment does not apply because defendant failed to prove lack of predisposition and any more than the government providing an occasion for him to commit money laundering (citing Jacobson v. United States, 503 U.S. 540, 547 (1992))).

(113.) Entrapment by estoppel occurs when defendant reasonably believes he was acting with the permission of a government official but is later charged with an offense based on the action. See Cox v. Louisiana, 379 U.S. 559, 573 (1965) (holding because defendant acted with permission of the Sheriff, he could not be convicted of the crime); United States v. Jumah, 493 F.3d 868, 874 n.4 (9th Cir. 2007) (stating the difference between entrapment and entrapment by estoppel is that in the latter defendant believes his action is legal based on assurances from a government actor); United States v. Triana, 468 F.3d 308, 316 (6th Cir. 2006) (asserting that to prove entrapment by estoppel, defendant must prove "(1) a government agent announced that the charged conduct was legal; (2) the defendant relied on the agent's announcement; (3) the defendant's reliance was reasonable; and (4) given the defendant's reliance, prosecution would be unfair").

(114.) See United States v. Osuna-Zepeda, 416 F.3d 838, 842 (8th Cir. 2005) (noting that co-conspirator's testimony corroborated by surveillance cameras was sufficient for jury to conclude defendant was involved in conspiracy); 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. 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).

(115.) 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).

(116.) See Bourjaily, 483 U.S. at 183 (stating co-conspirator exception to hearsay rule is firmly "rooted in our jurisprudence").

(117.) 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). Nine circuits have held that some evidence in addition to the hearsay statements is required to establish the existence of a conspiracy and thus admit the statement. See United States v. Zackery, 494 F.3d 644, 648 (8th Cir. 2007) (requiring some independent evidence of concert of action to admit co-conspirator statements); United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (finding co-conspirator statements admissible with further proof of the conspiracy "through trial testimony or other evidence"); 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. 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. 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 an unsettled question); 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).

(118.) FED. R. EVID. 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).

(119.) 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. See United States v. Jennings 487 F.3d 564, 583 (8th Cir. 2007) (applying the preponderance standard); United States v. Hall 500 F.3d 439, 443 (5th Cir. 2007) (requiring government to prove conspiracy by preponderance of the evidence); United States v. Kemp 500 F.3d 257, 298 (3d Cir. 2007) (finding statements admissible by a preponderance of the evidence); United States v. Collazo-Aponte, 216 F.3d 163, 183 (1st Cir. 2000) (stating necessity of showing by preponderance of evidence), vacated on other grounds, 502 U.S. 1036 (2001); 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. 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. 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).

(120.) See supra Section II.A. (discussing proving an agreement).

(121.) See United States v. Flemmi, 402 F.3d 79, 94 (1st Cir. 2005) (holding that if the government seeks to apply the exception, it bears the burden of proving "that a conspiracy embracing both the declarant and the defendant existed" (quoting United States v. Bradshaw, 281 F.3d 278, 283 (1st Cir. 2002))); United States v. Magluta, 418 F.3d 1166, 1177-78 (11th Cir. 2005) (same).

(122.) See Bourjaily, 483 U.S. at 175 (stating requirements for admitting co-conspirator's statements into evidence); Jennings, 487 F.3d at 583 (describing requirements to find co-conspirator statement admissible as evidence); Collazo-Aponte, 216 F.3d at 183 (explaining how to "invoke this evidentiary exception" using the Bourjaily requirements); Flemmi, 402 F.3d at 94 (discussing requirements for exception to hearsay rule); 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))); 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 1008, 1050-51 (7th Cir. 1999) (stating the requirements and defendant's options should prosecutor fail to show requirements for admission of coconspirator's statements have been met).

As with other questions of admissibility, Rule 100 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).

(123.) See Flemmi, 402 F.3d at 94 C[A] coconspirator's statement is considered to be in furtherance of the conspiracy as long as it tends to promote one or more of the objects of the conspiracy." (quoting United States v. Piper, 298 F.3d 47, 54 (1st Cir. 2002))); United States v. Gajo, 290 F.3d 922, 929 (7th Cir. 2002) (stating that statements that are part of the flow of information between co-conspirators are in furtherance of the conspiracy); 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). The exception does not extend to unindicted co-conspirators' statements made after the alleged conspiracy ended. See 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).

(124.) See 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).

(125.) See United States v. Daane, 221 Fed. Appx. 508, 511 (9th Cir. 2007) (finding that spreadsheets completed by co-conspirator were admissible against defendant even without evidence that defendant had knowledge of those documents); United States v. Schmit, 881 F.2d 608, 612-14 (9th Cir. 1989) ("ledgers, books of record, and notes containing information relevant to the conspiracy may be admissible ... as statements in furtherance of the conspiracy without evidence they were in fact consulted or otherwise communicated.") (citations omitted).

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

(127.) See United States v. Robinson, 390 F.3d 853, 867 (6th Cir. 2004) (stating that the trial court has the "prerogative to conditionally admit co-conspirator statements 'subject to later demonstration of their admissibility by a preponderance of the evidence.'" (quoting United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979))); United States v. Emuegbunam, 268 F.3d 377, 395 (6th Cir. 2001) (allowing conditional admission of coconspirator'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 (1st 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. 12 (2000).

(128.) 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 heating 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 (citing United States v. Doerr 886 F.2d 944, 967 (7th Cir. 1989))); United States v. Blevins, 960 F.2d 1252, 1256 (4th Cir. 1992) (same).

(129.) See United States v. Mahasin, 362 F.3d 1071, 1084 (8th Cir. 2004) (stating that it is "not necessary for the declarant to have been formally charged as a coconspirator or even be identified, so long as the statement in question was itself sufficiently reliable in demonstrating the applicability of Rule 801(d)(2)(E)."); United States v. Skidmore, 254 F.3d 635, 638 (7th Cir. 2001) (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. 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). But see 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).

(130.) 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).

(131.) See United States v. Portela, 167 F.3d 687, 703 n.13 (1st 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).

(132.) 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 (1st Cir. 1997) (questioning but following the traditional "take it as he finds it" approach).

(133.) 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-Gallegos, 41 F.3d 1266, 1272 (9th Cir. 1994) (holding statements made to undercover police officer not hearsay because statements were "in furtherance" of conspiracy).

(134.) See 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. Radomski, 473 F.3d 728, 730-31 (7th Cir. 2007) (refusing to admit the guilty plea of a co-conspirator for fear that the jury would view the trial of the non-confessing co-conspirator as a mere "formality"); 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).

(135.) The Supreme Court has 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 fellow-conspirators.

Fiswick, 329 U.S. at 217; see also United States v. Ascarrunz, 838 F.2d 759, 762 (5th Cir. 1988) (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"). But see United States v. Collazo-Aponte, 216 F.3d 163, 187 (1st Cir. 2000) (stating arrest does not necessarily terminate conspiracy since it may be ongoing), vacated on other grounds, 502 U.S. 1036 (2001); 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).

(136.) United States v. Moran 493 F.3d 1002, 1010 (9th Cir. 2007) (finding that "[s]tatements made for personal objectives outside the conspiracy or as part of idle conversation are not admissible" under the co-conspirator hearsay exception); United States v. Salgado, 250 F.3d 438, 449 (6th Cir. 2001) (defining "idle chatter" as conversations which further speaker's own individual objectives rather than objectives of conspiracy); United States v. LiCausi, 167 F.3d 36, 50 (1st 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 furtherance are inadmissible).

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 affect 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).

(137.) See United States v. Manfre, 368 F.3d 832, 838 (8th Cir. 2004) (holding that a statement which "simply informs" of past criminal activities is not admissible); Cornett, 195 F.3d at 783 (noting narratives of past conduct are not in furtherance because there was no intent to further conspiracy).

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

(139.) See Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that where testimonial evidence is at issue, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination); see also Ohio v. Roberts, 448 U.S. 56, 65-66 (1980) (allowing introduction into evidence of preliminary heating 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 cross-examination), overruled by Crawford, 541 U.S. 36; 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).

(140.) 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. Id. Conspirators are likely to speak to each other differently when furthering their illegal goals than when on the witness stand. Id. Thus, the former testimony is more than a mere substitute for live testimony. Id.

(141.) 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 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 COLOM. 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).

(142.) See supra notes 3-6 and accompanying text for discussion of the principle that the conspiracy and substantive offense are separate and distinct offenses.

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

(144.) See supra notes 66-70 and accompanying text (explaining Pinkerton rule).

(145.) See supra notes 31-32 and accompanying text for discussion of the intracorporate doctrine. 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).

(146.) See United States v. Walls, 225 F.3d 858, 866 (7th Cir. 2000) (refusing to extend Pinkerton liability to "felon-in-possession" statute); United States v. Cherry, 217 F.3d 811, 816-18 (10th Cir. 2000) (limiting Pinkerton liability to subsequent co-conspirator crimes with the same, or overlapping, intent); United States v. Gallo, 195 F.3d 1278, 1282 (11th Cir. 1999) (limiting Pinkerton to apply 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 is not "reasonably foreseeable to the defendant" that the conspiracy would result in the predicate offense), overruled on other grounds, United States v. Nordby, 223 F.3d 1053 (9th Cir. 2000); 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).

(147.) See United States v. Valdez-Reyes, 165 Fed. Appx. 387, 394 (6th Cir. 2006) ("Once the existence of a criminal conspiracy is proven, evidence connecting defendant to the conspiracy need only be slight." (citations and internal quotation marks omitted)); United States v. Osuna-Zepeda, 416 F.3d 838, 842 (8th Cir. 2005) (holding that where the government has established the existence of a conspiracy, only slight evidence is needed to link the defendant to it); 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).

(148.) Evidence may be direct or circumstantial. See supra note 51 and accompanying text for discussion of proving defendant's participation by circumstantial evidence.

(149.) See United States v. Durrive, 902 F.2d 1221, 1228-29 (7th Cir. 1990) (holding that the correct standard of review is substantial evidence, not slight evidence or slight connection, and affirmed a conviction based on this standard); United States v. Baker, 432 F.3d 1189, 1231-32 (11th Cir. 2005) (applying a "substantial" evidence standard and citing cases detailing the history of the Eleventh Circuit's position), cert. denied, Pless v. United States, 126 S. Ct. 1809 (2006); 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).

(150.) See United States v. Diaz, 176 F.3d 52, 97 (2d Cir. 1999) (staling 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)).

(151.) 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).

(152.) See United States v. Wilson, 481 F.3d 475, 482 (7th Cir. 2007) (finding a "preference that co-conspirators be jointly tried, particularly when they were indicted together" (citing United States v. Souffront, 338 F.3d 809, 828 (7th Cir. 2003))); United States v. Collazo-Aponte, 216 F.3d 163, 180 (1st Cir. 2000) (stating preference for single trial even where there are eight defendants), vacated on other grounds, 502 U.S. 1036 (2001); 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 (11th 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 Rule 8(b) that the government provide, at the pleading stage, sufficient evidence to support joinder. See United States v. Strickland, 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).

(153.) 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); cf. United States v. Trainor 477 F.3d 24, 36 (1st Cir. 2007) (stating that a claim of prejudice will not succeed unless "prejudice [is] so pervasive that miscarriage of justice looms (quoting United States v. Levy-Cordero, 67 F.3d 1002, 1008 (1st Cir. 1995))); Zafiro v. United States, 506 U.S. 534, 538 (1993) (finding antagonistic defenses are not per se prejudicial, thus severance is not required); United States v. Tarrango, 396 F.3d 666, 672-73 (5th Cir. 2005) (finding severance to be required "only 'if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.'" (quoting Zafiro, 506 U.S. at 539)); 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).

(154.) See United States v. Crayton, 357 F.3d 560, 564 (6th Cir. 2004) (describing traditional rule as "rule of consistency"), cert. denied, 124 S. Ct. 2857 (2004); United States v. Velasquez, 885 F.3d 1076, 1090-91 (3d Cir. 1989) (holding when evidence was insufficient to convict co-conspirator of conspiracy, the evidence was also insufficient to convict defendant). See generally 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).

(155.) See United States v. Newton, 389 F.3d 631, 636 (6th Cir. 2004) (noting that while "rule of consistency" is no longer valid, regardless, it was not applied when defendants were tried separately), vacated on other grounds, 126 S.Ct. 280 (2005); Cortis v. Kenney, 995 F.3d 838, 840-41 (8th Cir. 1993) (declaring separate trials exception to rule of consistency applies in trials with and without jury). But see Muller, supra note 154, at 821 (arguing inconsistent verdicts pose a greater risk to criminals than courts believe and courts should adopt more intermediate remedies than letting all inconsistencies stand).

(156.) See United States v. Nichols, 374 F.3d 959, 971 n.9 (10th Cir. 2004) (recognizing for the first time that the rule of consistency, as applied to co-conspirators, is no longer good law), vacated on other grounds, 543 U.S. 1113 (2005); Crayton, 357 F.3d at 564-65 (noting that the "rule of consistency" is no longer considered good law); 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); 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) (requiting no acquittal where other defendant acquitted, regardless of inconsistency of verdict); United States v. Dakins, 872 F.3d 1061, 1065 (D.C. Cir. 1989) (declining to adopt the "rule of consistency").

(157.) See United States v. Mancari, 875 F.3d 103, 104 (7th Cir. 1989) (failing to apply the rule of consistency); see also Muller, supra note 154, at 787-88 (documenting the declining application of the rule of consistency).

(158.) See United States v. Byerley, 999 F.3d 231, 234 (7th Cir. 1993) (citing Mancari for the proposition that a codefendant's acquittal will not require a reversal of defendant's conviction when "evidence adequately supports a finding that [the defendant] conspired with 'others known or unknown to the grand jury' as charged in the indictment"); United States v. Howard, 966 F.3d 1362, 1364 (10th Cir. 1992) (stating if existence of unindicted co-conspirators is proven, 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 proven to exist and are referred to in the indictment); cf. United States v. Sachs, 801 F.3d 839, 845 (6th Cir. 1986) (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).

(159.) 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. Hassoun, 476 F.3d 1181, 1187-88 (11th Cir 2007) (finding that charging a defendant for both conspiracy to commit a crime and the substance of the crime does not violate the double jeopardy clause); United States v. Fornia-Castillo, 408 F.3d 52, 69 (1st Cir. 2005) (stating that "it has long been established that 'conspiracy to commit a crime is not the same offense as the substantive crime for double jeopardy purposes.'" (quoting United States v. Lanoue, 137 F.3d 656, 662 (1st Cir. 1996))); 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).

(160.) 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.").

(161.) See 18 U.S.C. [section] 3553(a) (2003); United States v. Booker, 543 U.S. 220 (2005).

(162.) See Booker, 543 U.S. at 245; see also Kimbrough v. United States, 2007 WL 4292040, at * 10, (U.S. Dec. 10, 2007) ("[W]hile [the federal sentencing statute] still requires a court to give respectful consideration to the Guidelines, see Gall v. United States, 2007 WL 4292116 (U.S. Dec. 10, 2007), Booker 'permits the court to tailor the sentence in light of other statutory concerns as well.' Booker, 543 U.S. at 245-46.").

(163.) See U.S. SENTENCING GUIDELINES MANUAL app. A (2007) [hereinafter U.S.S.G. MANUAL] (indexing guidelines applicable to each statutory violation); U.S.S.G. MANUAL [section] 2X1.1 (covering attempt, solicitation or conspiracy).

(164.) Id. [section] 2X5.1 (listing other offenses not covered by [section] 2X1.1).

(165.) Id. [section] 2X1.1(b)(2); 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).

(166.) Id. [section] 2X1.1(b)(2). 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. Id. [section] 2X1.1(b)(2) cmt. 4. 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.; see 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).

(167.) 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).

(168.) U.S.S.G. MANUAL [section] 1B1.2(d) (2007). 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. 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; see United States v. Bell, 477 F.3d 607, 614 (8th Cir. 2007) (finding charges to be appropriately grouped where offenses involved "substantially the same harm"); United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999) (allowing grouping for fraud and laundering).

(169.) U.S.S.G. MANUAL [section] 2X1.1(a). 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. Id. [section] 2X1.1 cmt. 2.

(170.) Id. [section] 3B1.2. A minor participant is one who is less culpable than most other participants, but whose role could not be described as minimal. Id. [section] 3B 1.2 cmt. 5. A minimal participant is one who is plainly among the least culpable of those involved in the conduct of the group. Id. [section] 3B 1.2 cmt. 4. 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 United States v. Hagan, 412 F.3d 887, 893 (8th Cir. 2005) (determining defendant was not just a "minor" participant based upon his role in a methamphetamine conspiracy and after considering Guidelines as required by Booker, no downward adjustment was appropriate); 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. 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).

(171.) U.S.S.G. MANUAL [section] 3Bl.l(b); see United States v. Parra, 402 F.3d 752, 767 (7th Cir. 2005) (holding defendant's offense level was properly increased by two levels for her 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).

(172.) U.S.S.G. MANUAL [section] 1B1.3(a)(1) & cmt. 2; 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).

(173.) See Childress, 58 F.3d at 723 (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:Twenty-Third Annual Survey of White Collar Crime
Author:Langer, Anne; Parnes, Jonathan
Publication:American Criminal Law Review
Date:Mar 22, 2008
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