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Third, the defendant acted under color of law. Acting “under color of law” means acts done under any state law, county or city ordinance, or other governmental regulation, and acts done according to a custom of some governmental agency. It means that the defendant acted in his or her official capacity or else claimed to do so, but abused or misused his or her power by going beyond the bounds of lawful authority.[1]

7. Conspiracy to violate civil rights

18 U.S.C. § 241 makes it a crime to conspire to deprive a person of his or her civil rights. The government must prove three elements beyond a reasonable doubt to obtain a conviction under section 241:

First, the defendant entered into a conspiracy to injure, oppress, threaten, or intimidate a named victim;

Second, the defendant intended to interfere with the named victim’s exercise or enjoyment of a right that is secured (or protected) by the Constitution (or laws) of the United States; and

Third, the named victim was present in any state, district, or territory of the United States.[2]

8. General conspiracy statute

A conspiracy under 18 U.S.C. § 371 requires the government to prove four elements beyond a reasonable doubt:

First, two or more persons in some way agreed to try to accomplish a shared and unlawful plan;

Second, the defendant knew the unlawful purpose of the plan and willfully joined in it;

Third, during the conspiracy, one of the conspirators knowingly engaged in at least one overt act as described in the indictment; and

Fourth, the overt act was committed at or about the time alleged and with the purpose of carrying out or accomplishing some object of the conspiracy.[3]

In addition to criminalizing an agreement whose object is to violate a federal criminal law, section 371 also criminalizes a conspiracy “to defraud the United States, or any agency thereof for any manner or for any purpose.” This may also include interfering with the performance of official duties by government officials.[4]

  1. ↑ See, e.g., Pattern Crim. Jury Instr. 5th Cir. 2.12 (2019).
  2. ↑ See Modern Federal Jury Instructions-Criminal, LexisNexis Form 485-17-33 (Elements of the Offense).
  3. ↑ See, e.g., Pattern Crim. Jury Instr. 11th Cir. OI O13.1 (WL 2020).
  4. ↑ See United States v. Klein, 247 F.2d 908, 916 (2d Cir. 1957); Practical Law Securities & White Collar Crime, Conspiracy Charges: Overview, w-009-8988 (WL 2022).

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