Written Statement of NACDL member John D. Cline, Esq. of San Francisco, CA before the House Committee on the Judiciary Over-Criminalization Task Force Re: Reform of the Federal Criminal Code

The U.S. Supreme Court held in Pinkerton v. United States that a conspirator is criminally liable for the foreseeable substantive crimes of his co-conspirators in furtherance of the conspiracy, even if the conspirator himself played no part in the substantive offense and did not intend that it occur. Find case-based tools on conspiracy here.

Experienced litigators discuss RICO and conspiracy charges, accomplice liability and related issues in defending pregnancy-related prosecutions in a post-Dobbs environment.

The problem of overcriminalization is multifaceted, with many aspects that pervade our criminal legal system, including the criminalization of conduct that is not harmful to society or others; criminal statutes that lack adequate mens rea, or intent, requirements; ambiguous and vague language in criminal statutes that provide insufficient notice and insufficient limitation on what conduct is criminalized; and the imposition of vicarious liability with insufficient requirement that the charged person was involved in, or even knew about, the underlying conduct.

NACDL is actively working on reform in the area of conspiracy law. Currently, the federal criminal code has a number of conspiracy provisions, but the provision to defraud the United States, 18 U.S.C. § 371, is especially worrisome. It has been interpreted to include almost any effort to interfere with a function of the federal government through deceit. NACDL is working to reform this vague provision, and other aspects of criminal conspiracy law, to ensure only those truly deserving of punishment are swept up in its net.

Conspiracy, RICO, and accomplice liability resources relating to the defense of pregnancy-related charges provided by NACDL for the criminal defense community. Resources are provided without warranty or guarantee. Please consult the laws and rules of your state and local authorities. Please log in to access them. Membership is NOT required.

At its spring 2015 meeting in Las Vegas, NACDL’s Board of Directors unanimously approved a resolution on criminal conspiracy law reform. The resolution is guided by a position paper drafted by NACDL’s Conspiracy Reform Subcommittee and adopts the recommendations therein. [Released April 2015]

Comparative table on sentencing for fraud cases and guidelines comparison for 2005 to 2009.

NACDL adopts recommendations to reform flaws in criminal conspiracy law, and to calls for principled limits on the application of conspiracy law that recognize the inherent evidentiary, outcome reliability, and constitutional problems associated with all forms of conspiracy.

DOJ has had mixed success in the prosecution of traders. Where is the dividing line between illegal activity and savvy trading? Susan Brune and Erin Dougherty review the major categories of recent prosecutions and highlight the key issues that have presented obstacles to conviction – and opportunities for the defense.

How can a defense attorney minimize the potentially long-lasting impact of burdensome pretrial release conditions? How can the defense attorney engage in meaningful review, especially when the assistant U.S. attorney refuses to produce an exhibit list?

This Article argues that to impose criminal liability, prosecutors ought to be required to prove a conspiracy's dangerousness. In doing so, it also provides insight into conspiracy law that Katyal and Goldstein leave unilluminated. Their opinions on conspiracy's dangerousness diverge because they assume different group data sets: Katyal views only criminal conspiracies, and Goldstein views groups in general. This Article applies a neutral, systemic analysis where theirs do not and thus generates workable, effective reforms where theirs cannot.

Opinions of the U.S. Supreme Court in Pinkerton et. al. v. United States 328 U.S. 640 (1946)

NACDL President Lisa Wayne's letter to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding proposed changes to the criminal code that would affect which and how crimes are punished, as addressed in the Criminal Code Modernization and Simplification Act of 2011 (H.R. 1823).

A conspiracy is often easier for the government to prove than the underlying substantive offenses. The upcoming wire fraud trial of Elizabeth Holmes, who founded the Theranos company, provides an example of the prosecution’s advantages in conspiracy law. How can the defense fight back?