Adding to the concerns raised by the amorphous federal criminal conspiracy statute, the U.S. Supreme Court held in Pinkerton v. United States that a conspirator is criminally liable for the foreseeable substantive crimes of his co-conspirators in furtherance of the conspiracy, even if the conspirator himself played no part in the substantive offense and did not intend that it occur. This is the only case in the federal system that creates a common-law, judge-made theory of criminal liability. NACDL advocates that the basis for a criminal conviction should not be based on the sole decree of federal judges, but on careful legislative judgement. Read the full Pinkerton decision.
Federal Criminal Conspiracy Statute
§ 371. Conspiracy to commit offense or to defraud 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.
Webcast CLE - Criminal Conspiracy: Challenging the Prosecutor's Darling
This 90-minute program will introduce the major evidentiary, elemental, and constitutional challenges that criminal defense attorneys face when their clients are charged with conspiracy in a federal case. It will also provide you with arguments and sources you can use to address these difficult cases. To provide context, the program will also provide a short introduction to conspiracy law, a history of the law, and proposals for reform. Purchase the DVD today!
NACDL Amicus Briefs
Mehanna v. United States, 1st Circuit, No. 12-1461; decision below, Criminal Action No. 09-10017-GAO, 2011 WL 3652524 (D. Mass. Aug. 19, 2011), brief filed 12/26/12. Conspiracy—Material Support—First Amendment---Petrozziello---Dellosantos. Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Appellant Tarek Mehanna and reversal of his conviction. Argument: “The district court misapplied First Circuit and United States Supreme Court conspiracy law. Moreover, these errors go not only to the heart of the substantive criminal law, but also to the First Amendment’s protection. From the scope of the indictment, through the court’s evidentiary rulings [admission of inflammatory evidence], and finally, its instructions, the result was a prosecution that effectively criminalized unpopular thought and expression unmoored from criminal conduct.” Authors: Nancy Gertner, Professor of Law at Harvard Law School, Cambridge, MA; David M. Porter, Sacramento, CA.; Steven R. Morrison, Assistant Professor at University of North Dakota School of Law, Grand Forks, ND.
Smith v. United States, U.S. Sup. Ct., No. 11-8976, case below 651 F3d 30, brief filed 8/27/12. Conspiracy—Defenses—Burden of Proof—Mens Rea. Amicus curiae brief of the National Association of Criminal Defense Lawyers. Argument: A defendant’s withdrawal from a conspiracy during the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did withdraw, the burden of proof rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period. The requirement that the prosecution prove the defendant’s guilt beyond a reasonable doubt is a defendant’s foremost safeguard against a wrongful conviction. The defendant’s withdrawal defense negated the “participation” element of the conspiracy, and relieving prosecutors of their burden to prove a defendant’s mental state substantially undermines the fairness of the trial by diluting one of the most important protections against wrongful convictions. Authors: Timothy P. O’Toole and Jeffrey Hahn, Miller & Chevalier, Chartered, Washington, DC.
Letters & Testimony
Discussion of the federal conspiracy statute in the context of federal criminal code reform – February 28, 2014, Written Testimony of John D. Cline Before the Overcriminalization Task Force of the House Judiciary Committee
Discussion of changes to the federal conspiracy statute proposed by H.R. 1823, the Criminal Code Modernization and Simplification Act of 2011 – December 9, 2011, NACDL Letter on H.R. 1823, the "Criminal Code Modernization and Simplification Act of 2011"
Discussion of the relationship between mandatory minimums and conspiracy - May 27, 2010, Written Statement of NACDL President Cynthia Hujar Orr Before the United States Sentencing Commission on "Mandatory Minimum Sentencing Provisions Under Federal Law"
Other Resources on Conspiracy
NACDL Board Resolution Adopting a Conspiracy Law Policy, April 19, 2015
NACDL Subcommittee on Conspiracy Law Reform, Criminal Conspiracy: Position Paper and Proposals for Reform, April 19, 2015
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Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
NACDL 2024 Annual Pass - All CLE Institute Programs
NACDL's 2024 Annual Pass gives you full access to the recordings of every CLE Institue live training seminar held in 2024! That means every CLE speech, presentation and training - along with all accompanying written materials - is yours for over 50% off! With this exclusive pass, you gain unlimited access to a treasure-trove of recent NACDL Trial Skills training that will help you win more cases!
A Defender's Guide to Federal Evidence - 2nd Edition
This brand-new 2nd Edition 2024 Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The updated 2024 Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The 2nd Edition Guide contains multiple new and updated user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems.
Sexual Assault Trial Skills Training Collection - 40+ Hours of Content!
NACDL's "Sexual Assault Trial Skills Training Collection" is the definitive aggregation of our 4 highest-rated and most current Sex Cases CLE trainings (2019, 2021, 2022 & 2023 ed.) and contains our most comprehensive and up-to-date assembly of sex cases trainings that NACDL has ever put together! Containing 49 separate trial skills trainings, thousands of pages of written materials and over 40+ hours of practical and pragmatic content, this collection guides you through the most intimidating sexual assault criminal trial topics.
Josephine Sandler Nelson, The Intracorporate Conspiracy Trap, 36 Cardozo Law Review 969 (2015).
Emily Bolles & William Hornbeck, Federal Criminal Conspiracy, 51 Am. Crim. L. Rev. 1181 (Fall 2014) (providing a primer on the state of federal criminal conspiracy law). [Available on Westlaw]
Steven R. Morrison, Requiring Proof of Conspiratorial Dangerousness, 88 Tul. L. Rev. 483 (2014).
Steven R. Morrison, The System of Modern Criminal Conspiracy, 63 Cath. U. L. Rev. 371 (2014).
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Benjamin Levin, American Gangsters: RICO, Criminal Syndicates, and Conspiracy Law as Market Control, Harvard CR-CL, Vol. 48, No. 1, p. 105 (2013).
Steven R. Morrison, Conspiracy Law's Threat to Free Speech, 15 U. Pa. J. Const. L. 865 (2013).
Martin H. Redish & Michael J.T. Downey, Criminal Conspiracy As Free Expression, 76 Alb. L. Rev. 697 (2013) (discussing and proposing a solution to address the conflict between the punishment of criminal conspiracy and the protections of the First Amendment). [Available on Westlaw]
Alex Kreit, Vicarious Criminal Liability and the Constitutional Dimensions of Pinkerton, 57 Am. U. L. Rev. 585 (2008) (examination of the Pinkerton doctrine and its implications for other areas of criminal law).
Christopher B. Mueller, The Federal Coconspirator Exception: Action, Assertion, and Hearsay, 12 Hofstra L. Rev. 323 (1984) (outlining problems with and suggesting reforms to the coconspirator hearsay exception as currently applied).
Pinkerton v. United States, 328 U.S. 640 (1946) (holding that a conspirator may be held liable for criminal offenses committed by a co-conspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy). [PDF]
Amicus Briefs filed by NACDL
Articles from The Champion®
The DOJ’s Mixed Record on Cases Against Traders
DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.
- Shifting the ‘Burden of the Defense’ in White Collar Conspiracy Prosecutions
- Evolution of Criminal Conspiracy Law and ‘Flipping the Script’ in United States v. Elizabeth Holmes
Strictissimi Juris: The First Amendment’s Defense Against Conspiracy Charges
Most criminal defense attorneys and criminal law scholars have never heard of the strictissimi juris doctrine. Steven Morrison addresses that knowledge gap and offers instructions for defending clients who are engaged in First Amendment-protected conduct and are charged with conspiracy. He provides a brief history of strictissimi juris, presents concrete potential uses of the doctrine, and discusses the contents of the motion defense attorneys should file when arguing that the doctrine applies.