Many defendants are charged with conspiracy. This is an easy crime for the government to prove as it only requires an agreement between the parties to perform a particular act in the furtherance of that agreement.
The essence of conspiracy is the agreement to commit an illegal act. Iannelli v. United States, 420 U.S. 770, 43 L.Ed.2d 616, 95 S.Ct. 1284 (1975); United States v. Snider, 720 F.2d 985 (8th Cir. 1983), cert. denied, 465 U.S. 1107, 80 L.Ed.2d 142, 104 S.Ct. 1613 (1984). The agreement must be between two or more persons. United States v. Moss, 591 F.2d 428 (8th Cir. 1979). A government agent or informant cannot be the only other member of the conspiracy. See, e.g., United States v. Mahkimetas, 991 F.2d 379, 383 (7th Cir. 1993) (joining nine other circuits, the court noted that a conspiracy “may be formed between a criminally-motivated person and a government agent or informer”); Montgomery v. United States, 853 F.2d 83 (2nd Cir. 1988); United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984). United States v. Shabani, 63 U.S.L.W. 4001 (U.S. Nov. 1, 1994) (a federal drug conspiracy in violation of 21 U.S.C. 846 does not require that any co-conspirator commit an overt act). If the statute requires an overt act and there is none, an essential element of this claimed conspiracy is missing and Rule 80(d)(2)(E) would not apply. United States v. Soto, 716 F.2d 989 (2nd Cir. 1983) (mere presence, even with knowledge that a crime is being committed there, is not sufficient to establish that defendant was a member of the conspiracy). Single acts, without more, are also insufficient to link a defendant to a conspiracy. United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir. 1989). See also United States v. Arvanitis, 902 F.2d 489 (7th Cir. 1990) (statement by one of the RICO conspirators was improperly admitted against the defendant because proof that the defendant was a purchaser of the RICO conspiracy’s services was not sufficient to establish the defendant’s participation in that conspiracy); United States v. DeNoia, 451 F.2d 979 (2nd Cir. 1971) (mere delivery of heroin to an alleged co-conspirator while carrying a firearm was not enough to convict for conspiracy).