Conspiracy is probably the most charged offense in the federal courts. At core, its elements are simple (generally). A and B have completed the crime of conspiracy if they (1) have an agreement to do something illegal and (2) some co-conspirator committed an overt act in furtherance of the conspiracy. The overt act does not have to be illegal.
So, if Larry says to Doug, “Let’s lie through email to potential investors about how viable our real estate plan is,” then Doug says “That’s a great idea, let’s do it!” and the two put together a letter they would email to potential investors that contains a number of lies about how viable an investment is, they’ve probably conspired to commit wire fraud.
The tricky bit is that the agreement that’s at the core of a conspiracy charge — like many kinds of contracts — can be implied. It’s rare that folks in a conspiracy negotiate the terms of the conspiracy or memorialize it.
So, if Larry and Doug just sit down and work — together — on a letter that lies to investors, one may (depending on the other facts in the case) think that the two have an implied agreement to commit fraud and that they’re guilty of participating in a fraud conspiracy.
The tricky part is when one person says, in essence, it would be really freaking cool to do X (where X is illegal) but doesn’t really mean that she wants to do X.
For example, some people may think that it would be funny to blow a raspberry on Justice Scalia’s belly. But just because Doug tells Larry that it would be cool to blow a raspberry on Justice Scalia’s belly, and Larry then looks up Justice Scalia’s next public appearance, does not necessarily mean that either one of them actually intends to storm Justice Scalia’s security detail just to blow on the Justice’s stomach.
And, of course, a jury is most likely to find that Doug and Larry are guilty the more they’re doing something that the jurors themselves think of as not funny and, in fact, really quite repugnant.
Like kidnapping, killing, and eating women, or trying to foment a jihad….