The Overt Act

Fundamentals of Criminal Law by Adam J. McKee

In the landscape of conspiracy law, the requirement for an overt act has become increasingly emphasized in both federal statutes and state laws. This element necessitates that at least one member of the conspiracy takes an overt act in furtherance of the criminal agreement. Interestingly, the law is quite forgiving about what constitutes an ‘overt act’; even actions that appear insignificant or far removed from the ultimate criminal objective can satisfy this requirement.

As noted by Justice Oliver Wendell Holmes, the focal point of a conspiracy is the illegal agreement. An overt act, however trivial, substantiates that the conspirators have moved beyond mere discussion, thereby posing a social danger. Historically, attending a Communist Party meeting has been considered an overt act in furtherance of a conspiracy to subvert the U.S. government. In another case, the simple act of purchasing dynamite sufficed for a conspiracy to demolish a school building.

It’s important to highlight that an overt act by any conspirator is attributed to every member of the conspiracy, providing a legal basis to prosecute all involved. The overt act requirement aims to narrow down conspiracy prosecutions to agreements that have transcended mere planning, signifying a genuine social threat.

The Expansive Reach of the RICO Act

Initially enacted in 1970, the Racketeer Influenced and Corrupt Organizations Act (RICO) serves as a robust federal tool to dismantle organized criminal enterprises in the United States. To secure a RICO conviction, the prosecution must prove that the defendant engaged in at least two instances of ‘racketeering activity’ and maintained a stake in or participated in a criminal enterprise impacting interstate or foreign commerce.

‘Racketeering activity’ under RICO encompasses a wide array of criminal actions, including murder, kidnapping, and bribery, among others. It even includes activities indictable under title 18 of the U.S. Penal Code.

Before RICO, dealing with organized crime was markedly challenging for prosecutors. Criminal organizations could remain largely untouched as prosecutors could only target individual members for discrete crimes. RICO changed the game by allowing prosecution of the organization as a whole, proving instrumental in cases against the Mafia, street gangs, and even corrupt political entities.

Though initially designed to dismantle the Mafia, RICO’s broad scope means it has been applied far beyond its original intent. Over the decades, it has been employed against a plethora of organized entities, from street gangs to corrupt governmental departments, highlighting its versatility and enduring relevance in the fight against organized crime.

Turning Cases Over to Federal Prosecutors

One of the most nuanced questions in the administration of justice pertains to when local law enforcement agencies should defer to federal prosecutors in conspiracy cases. While state conspiracy laws are comprehensive, there are specific scenarios where involving federal authorities is more advantageous or appropriate. Here are some key factors that local law enforcement may consider:

Interstate and International Dimensions

One of the most straightforward criteria is the geographic scope of the conspiracy. If a conspiracy crosses state lines or even international borders, local law enforcement may find it beneficial to turn the case over to federal prosecutors. Federal agencies like the FBI have broader jurisdiction and resources to handle such expansive cases, and federal laws might offer more severe penalties for crimes that have wider-reaching implications.

Complexity and Resource Constraints

The complexity of the case is another factor to consider. Conspiracies involving intricate financial transactions, cybercrime, or organized criminal networks often require specialized investigative skills and resources that local law enforcement may not possess. In these situations, federal agencies can bring specialized expertise and advanced technologies to bear on the case, making it more likely that the prosecution will be successful.

Political Sensitivity and High-Profile Nature

Sometimes, the case may involve politically sensitive issues or high-profile individuals where the impartiality of local or state law enforcement might be questioned. In such instances, transferring the case to the federal level can lend an extra layer of credibility and impartiality to the prosecution. Moreover, federal prosecutors are often better equipped to handle the media and public relations aspects of high-profile cases.

Legal Advantages

In some cases, federal conspiracy laws may simply be better suited to prosecuting the offenders. For instance, the Racketeer Influenced and Corrupt Organizations Act (RICO) allows for the prosecution of individuals who are part of a broader criminal enterprise, which might not be easily prosecutable under state law. Federal convictions can also carry stiffer penalties, especially for drug-related conspiracies or those involving national security.

The decision to turn cases over to federal prosecutors is a complex one that involves multiple considerations including jurisdiction, resources, the nature of the crime, and the penalties available under federal law. Ultimately, the goal is to ensure that justice is served in the most effective and impartial manner possible.

References and Further Reading

Conspiracy.” Encyclopedia of Crime and Justice.

Racketeer Influenced and Corrupt Organizations Act (RICO)Gale Encyclopedia of U.S. Economic History.  

Modification History

File Created:  07/13/2018

Last Modified:  09/13/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License


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