18 U.S.C. § 1349 - Attempt and Conspiracy
A conspiracy or attempt to commit fraud is a separate statute and applies to mail, wire, bank, securities, and healthcare fraud. The penalties for violating this federal law are the same as the underlying offense.
While the 18 U.S.C. 1349 attempt and conspiracy is similar to the 18 U.S.C. 371 general conspiracy statute, it does not require proof of an overt act. Just agreeing to commit fraud is sufficient to convict.
Section 1349 allows the federal government to prosecute cases where federal fraud was attempted but ultimately unsuccessful.
18 U.S. Code 1349 says, “Anyone who attempts or conspires to commit any offense under this chapter shall be subject to the same penalties as those prescribed for the crime, the commission of which was the object of the attempt or conspiracy.
Simply put, whether the federal crime was successfully committed or not, the penalties will be the same. This federal law is a helpful government weapon for federal criminal investigations. As noted, if you are convicted of violating this law, the penalties for attempting or conspiring to commit a federal crime are the same.
What is an “Attempt?”
While there is no specific definition, in any “attempt” to commit fraud, the federal prosecutor will try to prove the following two crucial factors, which must be proven beyond a reasonable doubt to obtain a conviction:
- You intended to commit the underlying offense; and
- You took substantial steps toward committing the offense well above mere preparation.
Simply put, to convict you of violating 18 U.S.C. 1349 attempt and conspiracy law, the federal prosecutor must prove elements of the crime listed above.
Suppose you only had the intent to commit a crime. In that case, it would not be considered a criminal attempt. In other words, the intent would have to be followed up with doing something that is a substantial step toward completing the federal offense.
However, the attempt statute defined under Section 1349 provides broad prosecutorial discretion. In many federal fraud investigations, attempt charges are standard.
What is a ‘Substantial Step?”
Attempt and substantial steps are often debated as they can be interpreted differently. Federal law does not provide a definition, but as noted, attempt charges are pretty standard in federal fraud cases.
There is no clear definition for a “substantial step” other than it requires more than just preparing a plan. However, you must take action that could lead to completing the crime. For example, purchasing a weapon to commit a crime would be a substantial step.
What is a “Conspiracy?”
Attempt allegations typically are related to one defendant, but “conspiracy” prosecutions involve two or more people. Sometimes, they even include businesses and large corporations.
Federal prosecutors could prove the existence of a conspiracy in different ways, but they are generally based on establishing two crucial elements of the crime, such as the following:
- Two or more people agreed to commit an underlying offense,
- An overt act was taken toward completing the offense.
Conspiracy allegations are also common during federal fraud-related investigations because fraudulent schemes often involve multiple parties working together. Completing the conspiracy is not required to establish a criminal liability like an attempt. This is one of the main reasons why federal prosecutors often use conspiracy allegations in fraud cases.
What Are the Related Federal Laws?
18 U.S. Code Chapter 63 mail fraud and other fraud offenses have several federal laws related to Section 1349 attempt and conspiracy that are often filed along with other fraud offense statutes. Such as the following:
- 18 U.S.C. 1341 - Frauds and swindles;
- 18 U.S.C. 1342 - Fictitious name or address;
- 18 U.S.C. 1343 - Fraud by wire, radio, or television;
- 18 U.S.C. 1344 - Bank fraud;
- 18 U.S.C. 1345 - Injunctions against fraud;
- 18 U.S.C. 1346 - Definition of “scheme or artifice to defraud;”
- 18 U.S.C. 1347 - Healthcare fraud;
- 18 U.S.C. 1348 - Securities and commodities fraud;
- 18 U.S.C. 1350 - Failure of corporate officers to certify financial reports;
- 18 U.S.C. 1351 - Fraud in foreign labor contracting.
What Are the Penalties?
Suppose you are convicted of violating 18 U.S.C. 1349 attempt and conspiracy law. In that case, you are facing the following penalties:
- Fines of up to $1,000,000;
- Up to 30 years in a federal prison,
- Ordered to pay reimbursement for prosecution expenses.
Notably, the fines and jail sentences will depend on the fraud committed. For example, bank fraud will typically carry harsher penalties than mail fraud.
What Are the Legal Defenses?
If accused of violating 18 U.S.C. 1349, our federal criminal defense lawyers could use different strategies on your behalf, as discussed below.
Maybe there was no intent to commit the crime, which is sometimes difficult to prove, and the burden of proof is on the federal prosecution. Evidence of intent can be subjective and might be insufficient to convict you. The lack of intent is the most common defense in fraud-related cases.
Recall that this federal law covers all crimes listed in Chapter 63 of Title 18 of the United States Code, such as bank fraud, healthcare fraud, securities fraud, mail fraud, and wire fraud.
Maybe we can argue there was no agreement. A conspiracy requires proof that you agreed with at least one other person to commit fraud. Thus, the case details might make it reasonable to challenge the allegation that you entered into such an agreement.
Maybe we can argue that no further substantial steps have been taken. Suppose there was an explicit agreement with someone to commit a crime, but there is not enough evidence to prove that you took a substantial step (overt act) to carry out the agreement. In that case, you may be able to avoid a conviction.
Notably, the standard of proof will often vary, and an effective strategy must be built around the details of the case. Negotiating a plea agreement with lesser penalties might be best if guilt is not in doubt.
If you are the target of a federal criminal investigation, you should contact our law firm for a free case evaluation. The Hedding Law Firm provides legal representation throughout the United States on federal criminal matters. We are located in Los Angeles, California.