Federal Conspiracy Under 18 U.S.C. 371

What 18 U.S.C. 371 Covers

Section 371 of Title 18 of the United States Code is the federal government's general conspiracy statute. It criminalizes two categories of coordinated conduct: (1) conspiring to commit any offense against the United States, and (2) conspiring to defraud the United States or any agency thereof in any manner or for any purpose. The statute does not require that the underlying offense actually be completed. The agreement itself, coupled with at least one overt act in furtherance of that agreement, is sufficient to constitute the crime.

Because the statute reaches "any offense against the United States," it functions as a broad overlay. A conspiracy to commit wire fraud under 18 U.S.C. 1343, a conspiracy to commit tax evasion under 26 U.S.C. 7201, or a conspiracy to defraud a federal agency in procurement all fall within the text of section 371. The federal charge of conspiracy under 371 is therefore distinct from, and can coexist with, the substantive offense it targets.

What the Government Must Prove

To secure a conviction under 18 U.S.C. 371, the government must prove the following elements beyond a reasonable doubt:

  • Two or more persons formed an agreement to commit an offense against the United States or to defraud the United States or any agency thereof.
  • At least one of the conspirators performed an act to effect the object of the conspiracy (the "overt act").
  • The defendant knowingly and voluntarily joined the agreement.

The statute's text makes clear that the agreement is the core of the offense. The overt-act requirement is separate: it is not the agreement alone that completes the crime, but the agreement plus at least one act taken to advance it. The act need not be the substantive offense itself. A phone call, a meeting, a transfer of documents, or a written communication can satisfy the overt-act element if it is done to further the conspiratorial purpose.

The Two Categories of Conspiracy

Section 371 creates two distinct categories of liability, and the distinction matters for how the government frames its case.

Conspiracy to Commit an Offense

The first category targets agreements to commit a specific federal offense. The statute's language—"to commit any offense against the United States"—is intentionally open-ended. Whatever the underlying felony or misdemeanor, if two or more persons agree to carry it out and one of them takes an overt step, the conspiracy charge attaches. The penalty for this category is a fine under Title 18 and/or imprisonment of not more than five years, unless the underlying offense is a misdemeanor, in which case the conspiracy penalty cannot exceed the maximum punishment for that misdemeanor.

Conspiracy to Defraud the United States

The second category does not require a separate substantive offense. It reaches agreements whose object is to impair, obstruct, or defeat the lawful functions of the federal government or any of its agencies. The legislative notes to section 371 explain that the phrase "or any agency thereof" was inserted to reflect the construction courts had placed on the earlier version of the statute. A conspiracy to defraud can therefore target a government function—such as the integrity of a federal contracting process—without the government needing to identify a specific fraud statute as the object.

Liability for the Acts of Co-Conspirators

A critical feature of federal conspiracy law is the doctrine of co-conspirator liability. In Pinkerton v. United States, the Supreme Court held that a conspirator is vicariously liable for the substantive criminal acts of co-conspirators, provided those acts were committed in furtherance of the conspiracy and were within the scope of the agreed-upon plan. This means that a defendant can be convicted of the underlying offense—such as wire fraud—even if the defendant did not personally execute the fraudulent transaction, so long as the act was a foreseeable step in carrying out the shared agreement.

This principle is what makes a conspiracy charge powerful in federal prosecutions: the government does not need to prove that each defendant personally committed every element of the substantive crime. It must prove the agreement, the overt act, and that the co-conspirator's act fell within the conspiracy's scope.

Penalties and the Misdemeanor Cap

The default penalty under section 371 is a fine under Title 18 and/or imprisonment of not more than five years, or both. The 1994 amendment (Pub. L. 103-322) replaced the earlier fixed cap of $10,000 with the broader "fined under this title" language, aligning the fine with the general federal sentencing scheme.

However, the statute contains an explicit limitation: if the offense that is the object of the conspiracy is a misdemeanor only, the punishment for the conspiracy shall not exceed the maximum punishment provided for that misdemeanor. The legislative notes describe this cap as a correction of what was previously an "injustice"—permitting a felony-level punishment for conspiring to commit a misdemeanor. In practical terms, this creates two tiers of penalty: the five-year maximum for conspiracies aimed at felonies, and a misdemeanor-level cap for conspiracies aimed at misdemeanors.

Conspiracy to Commit Wire Fraud: A Common Federal Charge

One of the most frequently prosecuted applications of section 371 is conspiracy to commit wire fraud under 18 U.S.C. 1343. Because section 371 reaches "any offense against the United States," a scheme to defraud a victim using electronic communications can be charged both as substantive wire fraud and as a conspiracy to commit wire fraud. The conspiracy charge adds the requirement of an agreement and an overt act, but it also brings the Pinkerton co-conspirator liability doctrine into play, potentially exposing each participant to the full range of acts taken by the group.

For a defendant facing a conspiracy charge example in a wire-fraud context, the practical question is whether the government can show (1) a meeting of the minds on the fraudulent scheme, (2) at least one overt act in furtherance, and (3) that the defendant's participation was knowing and voluntary.

Timing and the Absence of a Filing Deadline

The statute sets a maximum term of imprisonment—five years for felony-object conspiracies—but it does not impose a deadline for when the government must file charges. No fixed deadline exists in section 371 before an indictment or information may be returned. The government may bring a conspiracy prosecution at any time after the overt act occurs, subject to any applicable general statute of limitations for the underlying offense. The absence of a built-in filing deadline means that the window for a federal conspiracy charge remains open until a court enters a judgment or the applicable limitations period for the substantive offense expires.

If You Are Facing a Federal Conspiracy Investigation

If you are the subject of a federal conspiracy investigation, the stage of the proceeding determines what happens next. At the grand-jury stage, the government presents evidence to a federal grand jury, and the defendant's role is limited. Once an indictment is returned, the case moves to the district court, and the defendant's constitutional rights to counsel, to remain silent, and to confront witnesses become operative. Understanding which elements the government must prove—and which co-conspirator acts it will attribute to you under the Pinkerton doctrine—is the foundation of any defense strategy. The two categories of conspiracy (offense-based versus defraud-based) also shape the government's burden: in a defraud case, the government must show the agreement targeted a government function, not merely a private victim.

Because section 371 is a general statute that overlays nearly every federal offense, the specific underlying crime will determine the substantive elements the government must also establish. The conspiracy charge does not replace those elements; it adds the agreement and overt-act requirements on top of them.

Primary sources

This page is grounded in the following primary sources (links open the official text). See all explained statutes in the statutes quick reference.

Adjacent provisions this page touches (official text):

Cases that shaped this area

Decisions referenced on this page (public law):

  • Pinkerton v. United States