The federal conspiracy statute is Title 18, United States Code, Section 371. Conspiracy is the agreement to commit a criminal offense. A conspiracy charge has penalties in addition to those for the offense that was agreed upon.
The federal statute establishes two types of conspiracies:
Conspiracies based on an agreement to commit a federal offense; and
Conspiracies to defraud the United States.
See 18 USC 371.
In either situation, there is an agreement to engage in criminal activity. However, the difference between the two is that the first type of conspiracy case can involve any federal offense (eg, drug trafficking), but the second only involves a scheme to defraud the US government or its agencies.
For a charge of conspiracy to defraud the US government under 18 USC 371, the prosecution has to establish the following elements beyond a reasonable doubt:
An agreement.
To defraud the US government or its agencies.
Some action taken to further the conspiracy.
See US v. Root, 585 F. 3d 145,157 (3d Cir. 2009).
The penalty for conspiracy to defraud the US can be a prison sentence of 5 years.
In addition to 18 USC 371, federal prosecutors can charge a person with conspiracy under 18 USC 286. This statute prohibits defrauding the US government by making false claims.
To prove a charge of conspiracy to defraud the US under 18 USC 286, the US Attorney has to establish:
An agreement.
To obtain payment or make a claim against the US government, or one of its departments or agencies.
Knowing the claim is false, fictitious, or fraudulent.
Or deliberately ignoring the fact that the claim was false, fictitious, or fraudulent.
The defendant knew of the conspiracy and intended to join.
The defendant voluntarily participated in the conspiracy.
See US v. Dedman, 527 F. 3d 577,593-94 (6th Cir. 2008).
The penalty for violating 18 USC 286 can be imprisonment for 10 years.
In comparison to a prosecution for 18 USC 371, conspiracy to defraud the US through a false claim does not require proof that the defendant took action to further the conspiracy or enable it to meet its objective (eg, an overt act in furtherance of the conspiracy). See id. Conspiring with another to submit a false, fictitious, or fraudulent claim is enough.
In prosecutions for conspiracy to defraud the US under 18 USC 371 as well as 18 USC 286, the defrauding element is critical.
Generally, any conduct that would obstruct a lawful function of the government by deceitful or dishonest means would constitute defrauding the US. See United States v. Stewart, 590 F. 3d 93,109 (2d Cir. 2009).
It is not necessary for the US government to suffer any loss of money or property in order for the defendant to be convicted. The appellate court in US v. Ballistrea commented on 18 USC 371:
This provision not only reaches schemes which deprive the government of money or property, but also is designed to protect the integrity of the United States and its agencies.
See Ballistrea, 101 F. 3d 827,832 (2d Cir. 1996).
Examples of conspiracies to defraud the US include the following conduct:
Over-billing a governmental agency (eg, using inflated prices for supplies or services).
Charging the government for work that was never performed.
Submitting false claims for reimbursement.
Bribery of public officials.
Receiving kickbacks in exchange for public contracts.
Extortion.
Diverting public funds.
Embezzlement.
Falsifying official records.
Submitting false documents.
Donating money to political campaigns so as to avoid Federal Election Commission (FEC) reporting.
Fraudulently billing Medicare.
Making cash deposits so as to avoid Currency Transaction Reports (eg, for cash deposits of $10,000 or more).
Tax evasion (eg, not reporting income, or misrepresenting income or property).
Conspiracy to defraud the US is a charge that is likely to accompany tax evasion charges under 26 USC 7201.in these instances, the defendant would be accused of defrauding the Internal Revenue Service (IRS).
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