23.00 CONSPIRACY TO COMMIT OFFENSE OR TO DEFRAUD THE UNITED STATES

Updated June 2001

23.01 STATUTORY LANGUAGE: 18 U.S.C. § 371

23.02 GENERALLY

23.03 ELEMENTS

23.04  AGREEMENT

23.04[1] Proof of Agreement

23.04[2] Two or More Persons

23.04[2][a] Limitation on Naming Unindicted Coconspirators

23.04[2][b] Conspiring With Government Agents

23.04[2][c] Corporations as Conspirators

23.04[3] Scope of the Agreement -- Single or Multiple Objects

23.05  MEMBERSHIP

23.05[1] Intent Requirement

23.05[2] Proof of Membership

23.05[3] Pinkerton Liability

23.06 OVERT ACT

23.06[1] Definition

23.06[2] Acts of Concealment

23.07 CONSPIRACY TO DEFRAUD THE UNITED STATES

23.07[1] Generally

23.07[1][a] Sec. 371: Two Forms of Conspiracy

23.07[1][b] Scope of Defraud Clause

23.07[1][c] Pleading Requirements

23.07[2] Klein Conspiracy

23.07[2][a] Generally

23.07[2][b] Examples: Klein fact patterns

23.07[2][c] The Ninth Circuit's 

Caldwell

 Decision

23.07[3] Overlapping Conspiracies

23.07[4] Scope of Intent

23.07[4][a] Generally

23.07[4][b] Klein Conspiracy Coupled With a Narcotics or Money Laundering Prosecution

23.08 STATUTE OF LIMITATIONS

23.08[1] Generally

23.08[2] Beginning of Limitations Period

23.08[3] Withdrawal Defense

23.09 VENUE

---

            23.01  STATUTORY LANGUAGE: 18 U.S.C. § 371

      §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*

      not more than $10,000 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.

            * As to offenses committed after December 31, 1984, the Criminal

      Fine Enforcement Act of 1984 (P.L. 98-596) enacted 18 U.S.C. § 3623,

      which increased the maximum permissible fines for misdemeanors and

      felonies.  Where 18 U.S.C. § 3623 [FN1] is applicable, the maximum

      fine under section 371 for felony offenses  committed after December 31,

      1984, would be at least $250,000 for individuals and $500,000 for

      corporations.  Alternatively, if any person derives pecuniary gain from

      the offense, or if the offense results in a pecuniary loss to a person

      other than the defendant, the defendant may be fined not more than the

      greater of twice the gross gain or twice the gross loss.

---

                            23.02  GENERALLY

      The criminal tax statutes in Title 26 of the United States Code do not

include a statute for the crime of conspiracy. [FN2]  As a result, tax-related

conspiracies are generally prosecuted under 18 U.S.C. § 371, the general

conspiracy statute.  Section 371 sets out two types of conspiracies.  United

States v. Hitt, 249 F.3d 1010, 1015 (D.C. Cir. 2001); 

United States

 v.

Kraig, 99 F.3d 1361, 1366 (6th Cir. 1996); 

United States

 v. Helmsley,

941 F.2d 71, 90 (2d Cir. 1991); 
United States
 v. Arch Trading 
Co.
,

987 F.2d 1087, 1091 (4th Cir. 1993).

      Section 371 may also be violated by conspiring or agreeing to defraud the

United States

.  "To conspire to defraud the 

United States

 means primarily to

cheat the Government out of property or money, but it also means to interfere

with or obstruct one of its lawful governmental functions by deceit, craft, or

trickery, or at least by means that are dishonest."  Hammerschmidt v. United

States, 265 

U.S.

 182, 188 (1924).  See also, 

United States

 v.

Collins, 78 F.3d 1021, 1037 (6th Cir.1996).  In criminal tax prosecutions,

this conduct is typically charged as a "Klein conspiracy," where the government

alleges the defendant conspired to defraud the 

United States

 for the purpose of

"impeding, impairing, obstructing and defeating the lawful government functions

of the Internal Revenue Service of the Department of the Treasury in the

ascertainment, computation, assessment, and collection of the revenue: to wit,

income taxes."  

United States

 v. Klein, 247 F.2d 908, 915 (2d Cir. 1957). 

See also United States v. Furkin, 119 F.3d 1276, 1280-81 (7th Cir.

1996); Kraig, 99 F.3d at 1366; 

United States

 v. Sturman, 951 F.2d

1466, 1472 (6th Cir. 1991); Alexander v. Thornburgh, 943 F.2d 825, 829

(8th Cir. 1991); Helmsley, 941 F.2d at 90-91; 

United States

 v.

Vogt, 910 F.2d 1184, 1202 (4th Cir. 1990); 

United States

 v. Cambara,

902 F.2d 144, 146 (1st Cir. 1990).

      The body of law on conspiracy covers a large number of issues which have

been thoroughly analyzed and summarized in various treatises and other sources. 

See, e.g., P. Marcus, Prosecution and Defense of Criminal Conspiracy

Cases (1979); O,Malley, Grenig, and Lee, Federal Jury Practice and

Instructions: Criminal, ch. 31 (5th Ed. 2000) (successor to Devitt &

Blackmar); Goldstein, Conspiracy to Defraud the 

United States

, 68 Yale

L.J. 405 (1959).  As such, the following discussion is intended to highlight only

those issues relevant to criminal tax prosecutions.

---

                             23.03 ELEMENTS

      To establish a violation of 18 U.S.C. § 371, the following elements

must be proved beyond a reasonable doubt:

      1.    The existence of an agreement by two or more persons to commit an

            offense against the 
United States
 or defraud the 

United States

;

      2.    The defendant's knowing and voluntary participation in the

            conspiracy; and

      3.    The commission of an overt act in furtherance of the conspiracy.

            [FN3]

United States
 v. Falcone, 311 
U.S.
 205, 210 (1940); 

United States

 v.

Hitt, 249 F.3d 1010, 1015 (D.C. Cir. 2001); 

United States

 v.

Fleschner, 98 F3d 155, 159-60 (4th Cir. 1996); 

United States

 v.

Rankin, 870 F.2d 109, 113 (3d Cir. 1989); 

United States

 v. Yamin,

868 F.2d 130, 133 (5th Cir. 1989); 

United States

 v. Mealy, 851 F.2d 890,

896 (7th Cir. 1988); 

United States

 v. Wiley, 846 F.2d 150, 153-54 (2d Cir.

1988); 

United States

 v. Cerone, 830 F.2d 938, 944 (8th Cir. 1987);

United States

 v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987); United

States v. Gonzalez, 797 F.2d 915, 916 (10th Cir. 1986); 

United States

 v.

Porter, 764 F.2d 1, 15 (1st Cir. 1985); 

United States

 v. Cure,

804 F.2d 625, 628 (11th Cir. 1986); 

United States

 v. Treadwell, 760 F.2d

327, 333 (D.C. Cir. 1985); 

United States

 v. Bostic, 480 F.2d 965, 968

(6th Cir. 1973).

---

                            23.04  AGREEMENT

23.04[1]  Proof of Agreement

      The essence of the crime of conspiracy is the agreement.  

United States

v. Falcone, 311 

U.S.

 205, 210 (1940).  Stated another way, without an

agreement there can be no conspiracy.  Further, because the agreement is the

essence of the crime, success of the conspiracy is irrelevant.  

United States

v. Labat, 905 F.2d 18, 21 (2d Cir. 1990); 

United States

 v. Kibby,

848 F.2d 920, 922 (8th Cir. 1988); 

United States

 v. Nicoll, 664 F.2d 1308,

1315 (5th Cir. 1982);.  It is for this reason that a defendant may be charged

with conspiracy as well as the substantive offense which served as the object of

the conspiracy. Iannelli v. 
United States
, 420 

U.S.

 770, 791 (1975);

Pinkerton v. 
United States
, 328 

U.S.

 640, 645-46 (1946).

      The agreement need not be expressly stated, be in writing, or cover 

all the details of how it is to be carried out.  

United States

 v. 

Aubin, 87 F.3d 141, 145 (5th Cir. 1996); 

United States

 v. 

Boone, 951 F.2d 1526, 1543 (9th Cir. 1992); 

United States

 v. 

DePew, 932 F.2d 324, 328 (4th Cir. 1991); 

United States

 v. 

Hopkins
, 916 F.2d 207, 212 (5th Cir. 1990); 

United States

 v. 

Pearce, 912 F.2d 159, 161 (6th Cir. 1990); 

United States

 v. 

Powell, 853 F.2d 601, 604 (8th Cir. 1988).  

      Rather, the existence of an agreement may be proved by inference from the

actions and statements of the conspirators or from the surrounding circumstances

of the scheme.  Glasser v. 
United States
, 315 

U.S.

 60, 80 (1942);

United States

 v. Collins, 78 F.3d. 1021, 1037 (6th Cir. 1996); United

States v. Young, 954 F.2d 614, 618-19 (10th Cir. 1992); 

United States

 v.

Penagos, 823 F.2d 346, 348 (9th Cir. 1987); 

United States

 v. Mariani,

725 F.2d 862, 865-66 (2d Cir. 1984); 

United States

 v. Ballard, 663 F.2d

534, 543 (6th Cir. 1981).

      Moreover, the government is not required to prove that the members of the

conspiracy directly stated to each other the purpose of the agreement or all of

the details of the agreement.  

United States

 v. Gonzalez, 940 F.2d 1413,

1417 (11th Cir. 1991); 

United States

 v. McNeese, 901 F.2d 585, 599

(7th Cir. 1990); 

United States

 v. Schultz, 855 F.2d 1217, 1221 (6th Cir.

1988).

23.04[2]  Two or More Persons

      A defendant cannot conspire with himself or herself.  Morrison v.

California
, 291 

U.S.

 82, 92 (1934).  In order to establish the existence of

an agreement, the government must show that the defendant and at least one other

person reached an understanding or agreement to carry out the objective of the

conspiracy.  

United States

 v. Giry, 818 F.2d 120, 125 (1st Cir. 1987);

United States

 v. Barnes, 604 F.2d 121, 161 (2d Cir. 1979); United

States v. Chase, 372 F.2d 453, 459 (4th Cir. 1967); Sears v. United

States, 343 F.2d 139, 141-42 (5th Cir. 1965).

        It makes no difference whether the other person is another defendant or

even named in the indictment.  
Rogers
 v. 
United States
, 340 

U.S.

 367, 375

(1951) ("identity of the other members of the conspiracy is not needed, inasmuch

as one person can be convicted of conspiring with persons whose names are

unknown").  See also United States v. Galvan, 961 F.2d 738, 742

(8th Cir. 1992); 

United States

 v. Rey, 923 F.2d 1217, 1222 (6th Cir.

1991); 

United States

 v. Lewis, 902 F.2d 1176, 1181 (5th Cir. 1990);

United States
 v. Allen, 613 F.2d 1248, 1253 (3d Cir. 1980); 

United States

v. 

Anderson

, 611 F.2d 504, 511 (4th Cir. 1979);.

      23.04[2][a] Limitation on Naming Unindicted Coconspirators

      Prosecutors should be aware that it is the position of the Department of

Justice that, in the absence of some sound reason, it is not desirable to

identify unindicted coconspirators in conspiracy indictments.  

United States

Attorneys' Manual (USAM) 9-11.130 (Sept.  1997).  The recommended practice in

such cases is to merely allege that the defendant "conspired with another person

or persons known to the grand jury" and supply the identity, if requested, in a

bill of particulars.  The above policy does not apply, however, where the fact

of the person's conspiratorial involvement is a matter of public record or

knowledge.

      23.04[2][b] Conspiring With Government Agents

      Because the government must prove that at least two culpable parties

reached  an agreement, proof of an agreement solely between a defendant and a

government agent or informer will not support a conspiracy conviction.  

Rogers

v. 
United States
, 340 
U.S.
 367, 375 (1951); Morrison v. 

California

,

291 
U.S.
 82, 92 (1934); 

United States

 v. Giry, 818 F.2d 120, 125 (1st Cir.

1987); United States v. Escobar de Bright, 742 F.2d 1096, 1099 (9th Cir.

1984); 

United States

 v. Pennell, 737 F.2d 521, 536 (6th Cir. 1984);

United States
 v. Barnes, 604 F.2d 121, 161 (2d Cir. 1979); 

United States

v. Chase, 372 F.2d 453, 459 (4th Cir. 1967);

      Even though it is impossible to conspire with an undercover agent or

informer, this issue should be distinguished from instances where a valid

agreement exists between two or more conspirators, one of whom committed overt

acts solely with a government agent.  In these situations, it is proper to charge

and prove at trial an overt act that involves only one of the conspirators and

an undercover agent.  

United States

 v. Enstam, 622 F.2d 857, 867 (5th Cir.

1980).

      23.04[2][c] Corporations as Conspirators

      A corporation may be criminally liable for conspiracy under section 371. 

United States

 v. Stevens, 909 F.2d 431, 432-34 (11th Cir. 1990); United

States v. S & Vee Cartage Co., 704 F.2d 914, 920 (6th Cir. 1983).  Moreover,

a corporation can enter into a conspiracy with its own employees.  United

States v. Ams Sintering 
Co.
, 927 F.2d 232, 236 (6th Cir. 1990); United

States v. Hartley, 678 F.2d 961, 972 (11th Cir. 1982).

23.04[3] Scope of the Agreement -- Single or Multiple Objects

      A single conspiracy may have multiple objectives and involve a number of

sub-agreements to commit each of the specified objectives.  Braverman v.

United States
, 317 
U.S.
 49, 53 (1942); 

United States

 v. Berger, 224

F.3d 107, 113-115 (2d Cir. 2000); 

United States

 v. Maldonado-Rivera,

922 F.2d 934, 963 (2d Cir. 1990); 

United States

 v. Warner, 690 F.2d 545,

550 n.8 (6th Cir. 1982); United States v. Rodriguez, 585 F.2d 1234,

1248-49 (5th Cir. 1978).  Multiple-object conspiracy cases frequently raise the

issue of single or multiple conspiracies.  In determining whether a single

conspiracy or multiple conspiracies exist, the courts consider whether there is

one agreement to commit multiple objectives or more than one agreement, each with

a separate object.  The general test is whether there was "one overall agreement"

to perform various functions to achieve the objectives of the conspiracy. 

See Berger, 224 F.3d at113-115; United States v. Leavis,

853 F.2d 215, 218 (4th Cir. 1988); 

United States

 v. Springer, 831 F.2d

781, 784 (8th Cir. 1984); 

United States

 v. Arbelaez, 719 F.2d 1453, 1457

(9th Cir. 1983); 

United States

 v. Warner, 690 F.2d 545, 548-49 (6th Cir.

1982).

      A single conspiracy does not become multiple conspiracies simply because

of personnel changes or because its members are cast in different roles. 

United States

 v. Richerson, 833 F.2d 1147, 1153-54 (5th Cir. 1987);

United States

 v. Spector, 793 F.2d 932, 935-36 (8th Cir. 1986); United

States v. Cambindo-Valencia, 609 F.2d 603, 625 (2d Cir. 1979); United

States v. Mayes, 512 F.2d 637, 642 (6th Cir. 1975).  In determining whether

there is a single conspiracy or multiple conspiracies, the courts apply a

totality of the circumstances test under which a combination of the following

factors are considered: (1) commonality of goals; (2) nature of the scheme; and

(3) overlapping of participants in the various dealings.  See Berger,

224 F.3d at114-115; United States v. David, 940 F.2d 722, 724 (10th Cir.

1991); 

United States

 v. Tarantino, 846 F.2d 1384, 1392-93 (D.C. Cir.

1988); 

United States

 v. Smith, 789 F.2d 196, 201-02 (3d Cir. 1986);

United States

 v. DeLuna, 763 F.2d 897, 918 (8th Cir. 1985); United

States v. Plotke, 725 F.2d 1303, 1308 (11th Cir. 1984); 

United States

 v.

Mayo, 646 F.2d 369, 372 (9th Cir. 1981); 

United States

 v. Bastone,

526 F.2d 971, 979-80 (7th Cir. 1975);.  See also 

United States

 v.

Marable, 578 F.2d 151, 154 (5th Cir. 1978) (court looks to (1) time;

(2) coconspirators; (3) statutory offenses charged; (4) overt acts charged; and,

(5) location where the events took place).

---

                           23.05  MEMBERSHIP

23.05[1] Intent Requirement

      In order to establish a defendant's membership in a conspiracy, the

government must prove that the defendant knew of the conspiracy and that he or

she intended to join it and to accomplish the object of the conspiracy.  See

United States

 v. Berger, 224 F.3d 107, 114-115 (2d Cir. 2000); United

States v. Dale, 991 F.2d 819, 851 (D.C. Cir. 1993); 

United States

 v.

Lynch, 934 F.2d 1226, 1231 (11th Cir. 1991); 

United States

 v. Brown,

934 F.2d 886, 889 (7th Cir. 1991); 

United States

 v. Esparza, 876 F.2d

1390, 1392 (9th Cir. 1989); 

United States

 v. Rankin, 870 F.2d 109, 113

(3d Cir.1989); 

United States

 v. Yanin, 868 F.2d 130, 133 (5th Cir.

1989); 

United States

 v. Zimmerman, 832 F.2d 454, 457 (8th Cir. 1987);

United States

 v. Christian, 786 F.2d 203, 211 (6th Cir. 1986); United

States v. Southland, 760 F.2d 1366, 1169 (2d Cir. 1985); 

United States

 v.

Norris, 749 F.2d 1116, 1121 (4th Cir. 1984); 

United States

 v.

Flaherty, 668 F.2d 566, 580 (1st Cir. 1981);.  A defendant may become a

member of a conspiracy without knowing all of the details of the unlawful scheme

and without knowing all of the members.  Blumenthal v. 

United States

,

332 
U.S.
 539, 557 (1947); 

United States

 v. Horn, 946 F.2d 738, 740

(10th Cir. 1991); 

United States

 v. Noble, 754 F.2d 1324, 1327 (7th Cir.

1985); 
United States
 v. 

Massa

, 740 F.2d 629, 636 (8th Cir. 1984);

United States

 v. Diecidue, 603 F.2d 535, 548 (5th Cir. 1979). 

      Similarly, a defendant may become a member of a conspiracy even if that

person agrees to play a minor role in the conspiracy, so long as he or she

understands the essential nature of the scheme and intentionally joins in it. 

United States

 v. Andrews, 953 F.2d 1312, 1318 (11th Cir. 1992); United

States v. 
Medina
, 940 F.2d 1247, 1250 (9th Cir. 1991); 

United States

 v.

Warner, 690 F.2d 545, 550 (6th Cir. 1982). 

23.05[2] Proof of Membership

      Although the government must prove that a defendant was a member of a

conspiracy, this  requirement may be satisfied by a showing of only a "slight

connection" to the conspiracy so long as the connection is proven beyond a

reasonable doubt.  

United States

 v. Boone, 951 F.2d 1526, 1543 (9th Cir.

1991); 

United States

 v. Moya-Gomez, 860 F.2d 706, 758-59 (7th Cir.

1988); 

United States

 v. Christian, 786 F.2d 203,  211 (6th Cir. 1986).

      A defendant's knowledge of a conspiracy need not be proved by direct

evidence; circumstantial evidence is sufficient. 

United States

 v. Hayes,

190 F.3d 939, 946 (9th Cir. 1999), aff'd en banc, 231 F.3d 663, 667

n.1 (9th Cir. 2000), cert. denied, 121 S.Ct. 1388 (2001);  

United States

 v. David, 940 F.2d 722, 724 (1st Cir. 1991); United

States v. Beale, 921 F.2d 1412, 1430 (11th Cir. 1991); 

United States

 v.

Christian, 786 F.2d 203, 211 (6th Cir. 1986).  Generally, this knowledge can

be inferred from the defendant's own acts and statements.   

United States

 v.

Kane, 944 F.2d 1406, 1410 (7th Cir. 1991); 

United States

 v. Martin,

920 F.2d 345, 348 (6th Cir. 1990).

      Mere presence at the scene of a transaction or event is insufficient, of

itself, to make someone a member of a conspiracy.  

United States

 v.

Cintolo, 818 F.2d 980, 1003 (1st Cir. 1987); 

United States

 v. Holcomb,

797 F.2d 1320, 1327 (5th Cir. 1986); 

United States

 v. Raymond, 793 F.2d

928, 932 (8th Cir. 1986); 

United States

 v. Marian, 725 F.2d 862, 865

(2d Cir. 1984); 

United States

 v. Bostic, 480 F.2d 965, 968 (6th Cir.

1973).

      Similarly, merely acting in the same way as others or merely associating

with others does not prove that someone joined in an agreement or understanding. 

United States
 v. 

Davenport

, 808 F.2d 1212, 1218 (6th Cir. 1987); United

States v. Apker, 705 F.2d 293, 298 (8th Cir. 1983).  Also, mere knowledge

that something illegal is going on is insufficient to show membership in a

conspiracy.  

United States

 v. Schmidt, 947 F.2d 362, 365 (9th Cir.

1991); 

United States

 v. Brown, 584 F.2d 252, 260 (8th Cir. 1978);

United States

 v. Webb, 359 F.2d 558, 562 (6th Cir. 1966).

23.05[3] Pinkerton Liability

      A conspirator is responsible for offenses committed by another member of

the conspiracy if the conspirator was a member of the conspiracy when the offense

was committed and if the offense was committed in furtherance of, or as a

foreseeable consequence of, the conspiracy.  Pinkerton v. 

United States

,

328 

U.S.

 640, 645-48 (1946).  The government is not required to prove that each

defendant specifically agreed to commit the offense or knew that the offense

would be committed.  

United States

 v. Lemm, 680 F.2d 1193, 1204 (8th Cir.

1982); 

United States

 v. Etheridge, 424 F.2d 951, 965 (6th Cir. 1970). 

Rather, it is sufficient if the government establishes that the offense was in

furtherance of the conspiracy or was reasonably foreseen as a necessary or

natural consequence of the unlawful agreement. 

United States

 v. Carpenter,

961 F.2d 824, 828 (9th Cir. 1992); 

United States

 v. Eyster, 948 F.2d 1196,

1206 (11th Cir. 1991); 

United States

 v. Cummings, 937 F.2d 941, 944

(4th Cir. 1991); 

United States

 v. Labat, 905 F.2d 18, 21 (2d Cir.

1990); 

United States

 v. Redwine, 715 F.2d 315, 322 (7th Cir. 1983);

United States

 v. Heater, 689 F.2d 783, 788 (8th Cir. 1982); United

States v. Tilton, 610 F.2d 302, 309 (5th Cir. 1980); 

United States

 v. Van

Hee, 531 F.2d 352, 357 (6th Cir. 1976); 

      Moreover, there is some authority for the proposition that a person who

joins a conspiracy adopts the prior acts of the other conspirators and may be

held responsible for offenses committed before he or she joined the conspiracy. 

United States
 v. Rea, 958 F.2d 1206, 1214 (2d Cir. 1992); 

United States

v. Cimini, 427 F.2d 129, 130 (6th Cir. 1970).

---

                            23.06 OVERT ACT

23.06[1] Definition

      In order to establish a conspiracy, the government must prove that a member

of the conspiracy committed an overt act in furtherance of the conspiracy.  The

function of the overt act requirement is to show that the conspiracy is at work

and is simply not an agreement existing solely in the minds of the conspirators. 

Yates v. 
United States
, 354 
U.S.
 298, 334 (1957); 

United States

 v.

Arboleda, 929 F.2d 858, 865 (1st Cir. 1991).

      An overt act is any act done by a member of the conspiracy for the purpose

of carrying out or accomplishing the object of the conspiracy.  

United States

v. Falcone, 311 

U.S.

 205, 210 (1940).  Because the purpose of the overt act

requirement is merely to show that the conspiracy is at work, the overt act need

not be criminal in character.  Yates v. 
United States
, 354 

U.S.

 at 334;

Braverman v. 
United States
, 317 
U.S.
 49, 53-54 (1942); 

United States

v. Touhey, 867 F.2d 534, 537 )9th Cir. 1989).  Indeed, it may be totally

legal in itself.  See 

United States

 v. Hermes, 847 F.2d 493, 495

(8th Cir. 1988).

      The government is not required to prove all of the overt acts alleged in

an indictment.  Proof of at least one overt act committed in furtherance of the

conspiracy is sufficient.  

United States

 v. Lewis, 759 F.2d 1316, 1344

(8th Cir. 1985); 

United States

 v. Zielie, 734 F.2d 1447, 1456 (11th Cir.

1984); 
United States
 v. 

Anderson

, 611 F.2d 504, 510 (4th Cir. 1979).  

      Also, it is not essential that the government establish that each

conspirator knew of all the activities of the other conspirators, or that each

conspirator participated in all of the activities of the conspiracy.  United

States v. Berger, 224 F.3d 107, 114-115 (2d Cir. 2000); 

United States

 v.

Colson, 662 F.2d 1389, 1391 (11th Cir. 1981); 

United States

 v.

Brunetti, 615 F.2d 899, 903 (10th Cir. 1980). 

      In connection with pre-trail discovery of overt acts, the government is not

required to disclose all of the overt acts it will establish at trial.  United

States v. 
Murray
, 527 F.2d 401, 411 (5th Cir. 1976); 

United States

 v.

Armocida, 515 F.2d 49, 54 (3d Cir. 1975); 

United States

 v. Carroll,

510 F.2d 507, 509 (2d Cir. 1975).  Moreover, the government may prove at trial

overt acts not charged in the indictment.  

United States

 v. Lewis,

759 F.2d 1316, 1344 (8th Cir. 1985); 

United States

 v. Diecidue, 603 F.2d

535, 563 (5th Cir. 1979); 

United States

 v. Johnson, 575 F.2d 1347, 1357

(5th Cir. 1978); 

United States

 v. Fassoulis, 445 F.2d 13, 19 (2d Cir.

1971).

23.06[2] Acts of Concealment

      Acts of concealment may constitute overt acts.  However, these acts are

only admissible if they were committed prior to the object of the conspiracy

being fully accomplished.  Once accomplished, the conspiracy is over and

subsequent overt acts are not probative of the conspiracy.  Grunewald v.

United States
, 353 

U.S.

 391, 405 (1957).  

      In Grunewald, the Supreme Court was concerned with the government's

attempts to lengthen indefinitely the duration of a conspiracy by simply showing

that the conspirators took steps to cover  their tracks in order to avoid

detection and punishment after the central criminal purpose had been

accomplished.  The Court stressed that a "distinction must be made between acts

of concealment done in furtherance of the main criminal objectives of the

conspiracy, and acts of concealment done after these central objectives have been

obtained, for the purpose only of covering up after the crime."  353 

U.S.

 at 405.

      In the context of criminal tax conspiracies, the object of the crime is

usually to conceal income and expenses from the IRS.  Indeed, the very definition

of an affirmative act of tax evasion is "any conduct, the likely effect of which

would be to mislead or conceal."  Spies v. 
United States
, 317 

U.S.

 492,

499 (1943).  Overt acts in furtherance of conspiracies to defraud the United

States in connection with tax assessment and collection or to commit tax offenses

generally involve acts which mislead or conceal.  Thus, criminal tax conspiracies

usually contemplate acts of concealment to further the crime and such acts are

admissible as overt acts.  See, e.g., United States v. Vogt,

910 F.2d 1184, 1201-02 (4th Cir. 1990); 

United States

 v. Pinto, 838 F.2d

426, 435 (10th Cir. 1988); 

United States

 v. Cunningham, 723 F.2d 217, 229

(2d Cir. 1983); 

United States

 v. Mackey, 571 F.2d 376, 383-84 (7th Cir.

1978); 

United States

 v. Feldman, 731 F. Supp. 1189, 1197 (S.D.N.Y. 1990). 

Note that care must be taken when drafting an indictment charging a conspiracy 

contemplating concealment.  If the indictment is not properly drafted to include

concealment as an object of the conspiracy, Grunewald might preclude the

admission into evidence of certain acts of concealment.

---

             23.07 CONSPIRACY TO DEFRAUD THE UNITED STATES

23.07[1] Generally

      23.07[1][a] Sec. 371: Two Forms of Conspiracy

      Section 371 is written in the disjunctive and prohibits two distinct types

of conspiracies.  

United States

 v. Hitt, 249 F.3d 1010, 1015 (D.C. Cir. 2001); United

States v. Kraig, 99 F.3d 1361, 1366 (6th Cir. 1996); 

United States

 v. Arch

Trading Co., 987 F.2d 1087, 1091 (4th Cir. 1993); 

United States

 v.

Helmsley, 941 F.2d 71, 90 (2d Cir. 1991).   The first part of the statute,

which is generally known as the "offense clause," prohibits conspiring to commit

offenses that are specifically defined in other federal statutes.  The second

part of the statute, which is generally known as the "defraud clause," prohibits

conspiring to defraud the 

United States

.  

United States

 v. Hurley,

957 F.2d 1, 3 (1st Cir. 1992); 

United States

 v. Touhey, 867 F.2d 534, 536

(9th Cir. 1989); 

United States

 v. Cure, 804 F.2d 625, 628 (11th Cir.

1986).

      The offense clause requires reference in the indictment to another criminal

statute which defines the object of the conspiracy.  The defraud clause, however,

stands on its own and an indictment charging a conspiracy to defraud does not

need to refer to another statute to define the crime.  

United States

 v.

Bilzerian, 926 F.2d 1285, 1301 (2d Cir. 1991); 

United States

 v.

Minarik, 875 F.2d 1186, 1187 (6th Cir. 1989) (see later discussion on

Overlapping Conspiracies; Section 23.07[3], supra).  In criminal tax

prosecutions, section 371 is used to charge conspiracies to commit tax offenses

and/or to defraud the Internal Revenue Service.  

United States

 v. Jerkins,

871 F.2d 598, 602 (6th Cir. 1989); 

United States

 v. Little, 753 F.2d 1420,

1442 (9th Cir. 1984); 

United States

 v. Shermetaro, 625 F.2d 104, 109

(6th Cir. 1980);.

      It should be noted that although section 371 provides for two distinct

types of violations, the courts have consistently held that the statute provides

for one offense, not two.  United States v. Hope, 861 F.2d 1574, 1578 n.8

(11th Cir. 1988); Braverman v. 

United States

, 317 F.2d 49, 52-53 (1942);

but see United States v. Haga, 821 F.2d 1036, 1039 (5th Cir. 1987)

(section 371 makes out  two separate offenses).