Assume that (i) the indictment charges an offense conspiracy for some specific offense of defrauding the Government (let's say a charge of tax evasion with multiple defendants acting in concert), (ii) a defraud conspiracy is not charged, (iii) the jury convicts, and (iv) on appeal, the offense conspiracy is found wanting. Can the court of appeals affirm on the basis that, although not explicitly charged, the offense conspiracy charged necessarily includes a defraud conspiracy (assuming that the evidence is sufficient to support a defraud conspiracy had it been charged)? I would have thought the easy answer is no. But in an older case, the Eleventh Circuit suggested that the conviction could be affirmed.
In United States v. Elkins, 885 F.2d 775 (11th Cir. Ga. 1989), cert. den. 494 U.S. 1005 (U.S. 1990), [also] here, a nontax case, the defendants were charged with conspiring to commit wire fraud against the United States, 18 U.S.C. § 1343 but were not charged with a defraud conspiracy. Based on an intervening Supreme Court case, McNally v. United States, 483 U.S. 350 (U.S. 1987), the Eleventh Circuit found that specific offense conspiracy charged to have been improper. Nevertheless, the Court held that, since the specific offense conspiracy charged necessarily included a claim that the defendants had defrauded the Government, the conviction could be sustained as a defraud conspiracy even though a defraud conspiracy had not been charged.
View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.
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