Conspiracy, Pinkerton liability, accessories, and mistake of law

Black-letter propositions

1. 01

   Under the federal conspiracy statute, if two or more persons conspire to commit an offense against the United States, or to defraud the United States, and one or more of them does any act to effect the object of the conspiracy, each is subject to punishment.

2. 02

   Where an indictment charges both a conspiracy to engage in a course of criminal conduct and substantive offenses committed pursuant to it, the substantive offenses do not merge into the conspiracy, and the accused may be punished for both without a double jeopardy bar (Pinkerton v. United States).

3. 03

   It is not material that the overt acts charged in the conspiracy count are also charged and proved as substantive offenses.

4. 04

   A party to a continuing conspiracy may be responsible for substantive offenses committed by a coconspirator in furtherance of the conspiracy, even though he did not participate in the substantive offenses or know of them (Pinkerton).

5. 05

   Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

6. 06

   Whoever willfully causes an act to be done that would be an offense if directly performed by him or another is punishable as a principal.

7. 07

   An accessory after the fact is a person who, knowing an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent the offender's apprehension, trial or punishment.

8. 08

   An accessory after the fact is generally punished by imprisonment of not more than one-half the maximum term prescribed for the principal, or not more than 15 years if the principal is punishable by life imprisonment or death.

9. 09

   Where a statute requires willfulness, meaning the voluntary, intentional violation of a known legal duty, a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the belief is objectively reasonable (Cheek v. United States).

10. 10

    A defendant's belief that the law is unconstitutional is not a mistake about a legal duty that negates willfulness, and the jury should not consider it, because it reflects full knowledge of the provision and a disagreement with its validity.

11. 11

    In deciding whether to credit a claimed good-faith belief, the jury is free to consider any admissible evidence showing that the defendant knew his legal duties.

12. 12

    A mistake of law is not generally a defense, and the Cheek rule rests on the statute's requirement of willfulness for complex tax offenses.

Use this attack sequence under time

Common wrong turns

• A conspirator can be convicted of the conspiracy and the substantive offense, and double jeopardy does not bar both.
• Pinkerton liability reaches crimes done in furtherance of the conspiracy even when the defendant did not know of them.
• An honest but unreasonable belief can negate willfulness under Cheek, but a belief that the law is unconstitutional does not.

Worked example

Two friends agree to sell stolen goods across state lines, and one of them, without telling the other, commits an additional fraud to get supplies for the scheme.

Practice this topic

Conspiracy and Pinkerton liability

Title 18 U.S.C. section 371 provides that if two or more persons conspire to commit an offense against the United States or to defraud the United States, and one or more of them does any act to effect the object of the conspiracy, each shall be fined or imprisoned for not more than five years, or both, except that when the object offense is only a misdemeanor the punishment may not exceed the maximum for that misdemeanor.

In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme Court held that when an indictment charges both a conspiracy and substantive offenses committed pursuant to it, the substantive offenses are not merged into the conspiracy and the accused may be punished for both, and that double jeopardy is no defense. It also held that a party to a continuing conspiracy may be responsible for substantive offenses committed by a coconspirator in furtherance of the conspiracy, even though he does not participate in them or know of them.

Principals and accessories

Title 18 U.S.C. section 2(a) provides that whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal, and section 2(b) provides that whoever willfully causes an act to be done that would be an offense if directly performed by him or another is punishable as a principal.

Section 3 defines an accessory after the fact as one who, knowing an offense has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent the offender's apprehension, trial or punishment, and punishes the accessory by imprisonment of not more than one-half the maximum term prescribed for the principal, or not more than 15 years if the principal is punishable by life imprisonment or death.

Mistake of law and willfulness

In Cheek v. United States, 498 U.S. 192 (1991), the Supreme Court held that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness in a federal tax prosecution, whether or not the claimed belief is objectively reasonable, because statutory willfulness is the voluntary, intentional violation of a known legal duty. If the jury credited the defendant's assertion that he truly believed the tax code did not treat wages as income, the government would not have carried its burden to prove willfulness, however unreasonable the belief.

The Court also held that the trial court properly told the jury not to consider the defendant's claim that the tax laws are unconstitutional, because a defendant's views about the validity of the statutes are irrelevant to willfulness, and that in deciding whether to credit a claimed belief the jury may consider any admissible evidence showing the defendant knew his legal duties.

Frequently asked questions