Taylor Monfort

There are numerous species of conspiracy. Broadly speaking, conspiracy is an agreement between two or more people to commit an offense. There is a general federal conspiracy statute, 18 U.S.C.S. § 1349. In some cases, other specific federal statutes cover specific types of conspiracy. There are at least 22 such statutes. The general statute does not require an overt act by a conspirator to make that conspirator liable for the crime. Some specific statutes, such as conspiracy to commit mail fraud, do require an overt act for the statute to apply.

A conspiracy charge itself generally carries no specific criminal penalty. The law is used by law enforcement and prosecutors to apply the specific crime, such as drug distribution or bank fraud, to the co-conspirator. It is not necessary to prove a formal agreement to establish a conspiracy in violation of federal law; a tacit or mutual understanding among or between the parties will suffice. In addition, the government is not required to prove that a defendant knew all his co-conspirators or all of the details of the conspiracy. Although a knowing and voluntary agreement is an element of the crime, conspirators need not know all of the details of the conspiracy as long as they know the conspiracy’s essential object.

As an example, the drug conspiracy statute, 21 U.S.C. § 846 provides that any person who attempts or conspires to commit any offense defined in the subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. To convict a defendant under this statute, the government must establish three essential elements: (1) an agreement to unlawfully distribute controlled substances existed between two or more persons; (2) defendants knew of the conspiracy; and (3) defendants knowingly and voluntarily became a part of this conspiracy. A drug conspiracy conviction requires only “a slight connection between a defendant and the conspiracy. A defendant may be convicted of conspiracy without knowing all of its details and even if he plays only a minor role.

Conspiracy in the Commonwealth of Virginia

In Virginia, conspiracy is defined as an agreement between two or more persons by some concerted action to commit an offense. Without the essential element of an agreement, a defendant may wittingly aid a criminal act and be liable as an aider and abettor, but not be liable for conspiracy. In order to establish the existence of a conspiracy, as opposed to mere aiding and abetting, the Commonwealth must prove the additional element of preconcert and connivance not necessarily inherent in the mere joint activity common to aiding and abetting.

Further, in Virginia a conspiracy may be proved by circumstantial evidence. By the very nature of the offense, it often may be established only by indirect and circumstantial evidence. However, when the Commonwealth relies upon circumstantial evidence, the circumstances proved must be consistent with guilt and inconsistent with innocence. Circumstantial evidence is not viewed in isolation. While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind to a conclusion that a conspiracy exists, based on the “totality of the evidence”.


To navigate the varied common law and statutes regarding a charge of conspiracy, consult a competent criminal defense attorney with experience in both federal and state law.