What is Conspiracy in Federal Court?
What is conspiracy in federal court?
Many defendants charged with crimes in federal court also find themselves charged with conspiracy to commit federal crimes. For example:
- Conspiracy to commit drug trafficking;
- Conspiracy to commit tax fraud;
- Conspiracy to commit money laundering; or
- Conspiracy to harbor a fugitive.
That last one was the subject of a conviction that the Eleventh Circuit reversed in US v. Annamalai Annamalai (If that sounds familiar, it’s because we discussed the reversal of Annamalai’s bankruptcy fraud charges in a prior blog post).
What does conspiracy mean, exactly? What is conspiracy under federal law, and why did the Eleventh Circuit reverse Annamalai’s conviction for conspiracy to harbor a fugitive?
To understand whether a conspiracy charge is valid, we must also look at the underlying charge. If the “object of the conspiracy,” in this case harboring a fugitive under 18 USC Section 1071, is not properly alleged in the indictment or proven at trial, then the conspiracy charge is likewise invalid.
What is Conspiracy Under 18 USC Section 371?
The simplest definition of conspiracy in federal law is that it is when two or more people agree to commit a crime.
They don’t have to expressly agree – in most cases, the agreement is implied. For example, I can be convicted of conspiracy to distribute drugs if I sell drugs to someone. Although the buyer and I did not say, “will you agree to purchase drugs from me? Why yes, I do agree to that,” the agreement is implied from the fact that I offered them the drugs, they took the drugs, and I took their money…
The defendant or a coconspirator must also take some action “in furtherance of the conspiracy,” although the crime does not have to be completed for a conspiracy conviction.
18 USC Section 371 makes it a crime punishable by up to five years to conspire to commit an offense or a fraud against the United States:
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.
The elements that must be proven to get a conspiracy conviction are:
- The defendant agreed with one or more persons to commit a crime;
- The defendant knowingly and voluntarily participated in the agreement; and
- The defendant or another conspirator committed an overt act in furtherance of the agreement.
As the Annamalai Court noted:
To prove a conspiracy under § 371, the government must prove that there was an agreement “between two or more persons to commit a crime,” that the defendant “knowingly and voluntarily joined or participated in the unlawful agreement,” and that “a conspirator performed an overt act in furtherance of the unlawful agreement.” United States v. Duenas, 891 F.3d 1330, 1334 (11th Cir. 2018).
But a person cannot be convicted of conspiracy unless the “object of the conspiracy” would have been a federal crime if completed.
For example, as in Annamalai, a person cannot be convicted of “conspiracy to harbor a fugitive” if the person did not agree with one or more other people to “harbor a fugitive” as defined by federal law.
If the government cannot prove that the conspiracy contained the elements of harboring a fugitive, the defendant cannot be convicted of conspiracy to harbor a fugitive:
The “fundamental characteristic of a [§ 371] conspiracy is a joint commitment to an ‘endeavor which, if completed, would satisfy all of the elements of [the underlying substantive] criminal offense.’” Ocasio v. United States, 136 S. Ct. 1423, 1429 (2016) (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)). So, in order to determine whether the evidence was sufficient to convict Mr. Annamalai of violating § 371, we must first consider the elements of § 1071, the object of the charged conspiracy.
Annamalai’s conviction for conspiracy to harbor a fugitive was reversed on appeal because the government did not prove the elements of harboring a fugitive at trial…
What is Harboring a Fugitive Under 18 USC Section 1071?
18 USC Section 1071 makes it a crime punishable by up to five years to harbor a fugitive:
Whoever harbors or conceals any person for whose arrest a warrant or process has been issued under the provisions of any law of the United States, so as to prevent his discovery and arrest, after notice or knowledge of the fact that a warrant or process has been issued for the apprehension of such person, shall be fined under this title or imprisoned not more than one year, or both; except that if the warrant or process issued on a charge of felony, or after conviction of such person of any offense, the punishment shall be a fine under this title, or imprisonment for not more than five years, or both.
The Eleventh Circuit breaks down the elements of the crime of harboring a fugitive that must be proven by the government:
- a federal warrant was issued for a person’s arrest;
- the defendant knew about that warrant;
- the defendant harbored or concealed that person; and
- the defendant did so with the intent to prevent that person’s arrest or discovery.
Annamalai was charged with conspiring to harbor his business partner, Mr. Chinnathambi, for whom a warrant had been issued. At trial, the evidence showed that:
- Chinnathambi had purchased one-way tickets to Hong Kong;
- Annamalai told his wife to tell Chinnathambi to “use cash and not a debit card;” and
- Annamalai’s wife lied to investigators about her contacts with Chinnathambi and his whereabouts.
Although it is not necessary for the object of the conspiracy to be completed for a person to be convicted of conspiracy, it is necessary that 1) a conspirator commit an “affirmative physical act” to harbor or conceal a fugitive, and 2) there is an agreement that one or more coconspirators will commit an “affirmative physical act” to harbor or conceal the fugitive.
The Court held that there was no evidence presented at trial that would prove a conspiracy to harbor or conceal a fugitive.
Advice is not Harboring or Concealing
Giving advice to a fugitive without providing physical assistance to them is not harboring a fugitive under 18 USC Section 1071:
We can find no cases holding that the mere giving of advice to a fugitive, without providing some sort of material or physical assistance, constitutes harboring or concealing within the meaning of § 1071. An agreement to provide such advice therefore is not an agreement to violate § 1071.
Making False Statements to Federal Agents is not Harboring or Concealing
Although it may violate other federal statutes, lying to federal agents about the whereabouts of a fugitive is not harboring a fugitive under 18 USC Section 1071:
The decisions from our sister circuits, which we find persuasive, make that clear. See Stacey, 896 F.2d at 76–77 (“Failure to disclose a fugitive’s location and giving financial assistance do not constitute harboring[.]”); United States v. Magness, 456 F.2d 976, 978 (9th Cir. 1972) (“[A] false statement, standing alone, . . . could not constitute the active conduct of hiding or secreting contemplated by the statute.”);United States v. Foy, 416 F.2d 940, 941 (7th Cir. 1969) (“[W]e do not think that a failure to disclose the location of a fugitive is the type of assistance contemplated by ‘harbor and conceal’ as used in § 1071.”).
Chinnathambi’s Purchase of Airline Tickets Did Not Prove Harboring or Concealing by Annamalai
Although Chinnathambi purchased one-way airline tickets, possibly with the intent to flee the United States, the government did not prove this at trial.
More importantly, Annamalai and his wife did not buy the tickets for Chinnathambi. The wife’s advice to Chinnathambi to “use cash” was given after Chinnathambi purchased the tickets, and the government offered no proof that Annamalai or his wife paid for Chinnathambi’s tickets.
And even if we assume, contrary to cases like Shapiro, that providing money to a fugitive can sometimes be sufficient to convict under § 1071, there is no any evidence (direct or circumstantial) that Mr. Annamalai or his wife provided (or agreed to provide) the funds used by Mr. Chinnathambi to purchase the airline tickets.
Regardless of the underlying charge – it could be harboring a fugitive, or it could be bankruptcy fraud – the government must prove that the illegal agreement that forms the basis of the conspiracy is an agreement to commit a federal crime.
The facts of the conspiracy that are alleged (and proven at trial) must satisfy the elements of that federal crime, or there is no conspiracy under 18 USC Section 371.
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