Conspiracy to Defraud the U.S. Elements of the Offense

To convict under the defraud clause of 18 U.S.C. § 371, the government must prove that two or more people agreed to defraud the United States or one of its agencies, that the defendant knowingly and voluntarily joined that agreement, and that at least one conspirator committed an overt act in furtherance of it.

Defrauding the United States, for these purposes, means impairing, obstructing, or defeating a lawful government function by deceit, craft, trickery, or dishonest means. No monetary loss is required. Law Offices Of SRIS, P.C. has been practicing since 1997. To discuss a § 371 charge, request a consultation at (888) 437-7747.

Element One: An Agreement to Defraud

The agreement need not be written or explicit and may be inferred from conduct, but it requires a meeting of minds on the objective. Commercial relationships, parallel conduct, and repeated dealings do not by themselves satisfy it.

The object must be interference with a lawful government function through dishonest means. Two components sit inside that. The function must be identified: the assessment and collection of tax, the honest administration of a contract award, the integrity of a licensing or benefit process. And the means must be deceptive rather than merely aggressive or legally mistaken.

What is not required is a substantive offence. Unlike the offence clause of the same statute, the defraud clause does not require the government to identify a federal crime the conspirators agreed to commit.

Element Two: Knowing and Voluntary Participation

The defendant must have known the essential nature of the plan and joined it deliberately. Knowledge of every detail is not required, but general awareness of the unlawful objective is, together with a choice to advance it.

Association with conspirators, presence when the matter was discussed, and professional work performed on information supplied by a client do not establish membership. The government must connect the defendant to the objective rather than to the people involved.

Element Three: An Overt Act

At least one conspirator must have committed an act in furtherance of the agreement, and the indictment must allege it. The act need not be unlawful in itself, and need not have been committed by the defendant.

This element distinguishes § 371 from the fraud conspiracy provision at 18 U.S.C. § 1349, which contains no overt act requirement. It gives the defence something concrete to test: whether the act occurred, when it occurred relative to the agreement, and whether it genuinely furthered the conspiracy rather than simply happening during the same period.

Frequently Asked Questions

What are the elements of a Klein conspiracy?

An agreement between two or more people to defraud the United States or an agency of it, the defendant’s knowing and voluntary participation in that agreement, and an overt act in furtherance committed by at least one conspirator. Defrauding means impairing a lawful government function by deceit, craft, trickery, or dishonest means.

Does the government have to prove a loss?

No. The defraud clause protects the integrity of government functions rather than the public purse, so no monetary loss is required for conviction. Loss becomes relevant at sentencing, where the advisory Guidelines range is driven by the tax loss in tax cases or the government loss in procurement and programme cases.

Does a substantive crime have to be identified?

Not under the defraud clause. That is its distinguishing feature. The offence clause of the same statute requires an agreement to commit a specific federal offence; the defraud clause requires only an agreement to impair a government function by dishonest means, which is why prosecutors use it where a substantive theory would be difficult.

What does dishonest means require?

Deceit, craft, trickery, or comparable dishonesty. Conduct that was aggressive, uncooperative, or legally wrong without being deceptive does not satisfy the element. That boundary is one of the more productive places to contest a defraud-clause charge, because prosecutors sometimes charge it where the real complaint concerns a legal position.

Who must commit the overt act?

Any one conspirator, not necessarily the defendant. The act need not be unlawful in itself, and ordinary conduct such as a call, a meeting, or a filing can suffice. What it must be is in furtherance of the agreement, so timing and purpose are open to challenge and the indictment must allege the act.

How is this different from § 1349?

Section 1349 covers conspiracies to commit offences within the federal fraud chapter, requires no overt act, and carries the penalties of the predicate offence. Section 371 covers conspiracies to commit any federal offence or to defraud the United States, requires an overt act, and carries its own statutory maximum. The two are frequently charged in the same indictment.

Working With Law Offices Of SRIS, P.C.

Reading a § 371 defraud count against the elements identifies what government function is alleged to have been impaired, what specific deception is said to have impaired it, and whether the pleaded overt act actually furthered any agreement. Those three questions frame the entire defence.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

Related pages

• Conspiracy to defraud the U.S. defense lawyer
• Conspiracy to defraud the U.S. defenses
• Conspiracy to defraud the U.S. penalties and sentencing
• Charged under 18 U.S.C. § 371: what happens next
• Conspiracy to commit fraud: elements

This page provides general information about the elements of conspiracy to defraud the United States and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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These are the elements the government must prove. Our page on conspiracy to defraud the US charges covers the offence as a whole.