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Scoping the Conspiracy

The essence of a conspiracy under 18 U.S.C. section 371 is the agreement to undertake a prohibited object and some reasonably foreseeable overt act in furtherance of that agreement. A critical element of the agreement is its scope. What was the object of the agreement? What actions are reasonably foreseeable in furtherance of the agreement? On those determinations hinge important consequences — (1) the commencement of the statute of limitations for prosecution of the conspiracy and (2) so-called Pinkerton liability for acts committed by coconspirators. In recent related decisions, the First Circuit struggled with (and perhaps misapplied) the law concerning the scope of conspiracy in the context of determining the criminal statute of limitations for an alleged money laundering conspiracy: United States v. Upton, 559 F.3d 3 (1st Cir. 2009) (main opinion), and United States v. Alberico, 559 F.3d 24 (1st Cir. 2009) (opinion in related case decided on the basis of Upton). The issue is what acts, completed after the main objects of the conspiracy have been achieved, can be treated as further acts within the original scope of the conspiracy so as to hold open the statute of limitations. The issue also addresses Pinkerton liability if the further acts are offenses. For example, assume that originally the conspirators specifically agreed that they would not report the proceeds or any earnings from the proceeds on their tax returns for the next 10 years to make the proceeds invisible and thus, they imagine, perfect the original crime. Under Pinkerton, each conspirator would be liable for the other conspirators’ tax crimes associated with the omission (whether tax evasion under section 7201 or tax perjury under section 7206(1)). And, of course, each such tax crime would refresh the statute of limitations on the original conspiracy.