Colorado Revised Statute § 18-2-201 defines a criminal conspiracy as two or more people agreeing to commit a crime and taking an “overt step” towards accomplishing it. Conspiracy to commit a crime is punished only slightly less seriously than the intended crime.

To help you better understand how conspiracy laws work, our Denver, Colorado criminal defense lawyers discuss the following topics:

• 1. Elements
• 2. Penalties
• 3. Defenses
• Additional Reading

1. Elements

In Colorado, criminal conspiracy occurs when:

1. two or more persons,
2. with an unlawful purpose,
3. enter into a real agreement or confederation with a common design.¹

It is not necessary that the conduct gets carried out or that the crime is concluded successfully. The agreement itself is the crime, provided at least one “overt act” is taken in furtherance of it.

What is an “Overt Act”?

An overt act is a concrete step to further the conspiracy. Idle talk by itself is not a conspiracy.² 

The overt act can be committed by you or a by a co-conspirator. However, you are not guilty of conspiracy unless you actually take part in

• the planning and/or
• the conduct.

“Passive cognizance” – simply knowing about the conspiracy or even acquiescing to it – does not make you guilty of a crime.³

Additionally, since conspiracy is a “specific intent” crime, you must have intended to engage in specific criminal conduct. It is not enough that you and someone else make an abstract promise to break the law at some point.⁴

Example: Jack and Kate enter into an agreement to burn down Kate’s business for the insurance money. Jack purchases lighter fluid in furtherance of the plan. Here, both Jack and Kate are guilty of conspiracy. Buying the lighter fluid was an overt act, and they both agreed to – and took part in the planning of – the arson.

Conspiring to commit a crime is illegal even if the crime never gets committed.

What if there are a lot of co-conspirators?

You can be convicted of conspiracy even if you do not know all of your co-conspirators. This typically occurs in large-scale criminal enterprises, such as gambling-, drug-, or sex trafficking rings.⁵

 What if my co-conspirators were minors or incompetent?

You can still be convicted of conspiracy even if it turns out your co-conspirator was:

• under 18,
• mentally insane and therefore unable to form a criminal intent, and/or
• otherwise immune to prosecution.⁶

Your intent to engage in criminal conduct is what counts.

What if the conspiracy involved multiple crimes?

If you conspire to commit a number of crimes, you are guilty of only one conspiracy so long as the crimes are part of a single criminal episode.⁷

Example: Wendell, Xavier and Zelda belong to the same gang. Together, they plan how they are going to enter a residence for the purpose of stealing the owner’s cash, guns and drugs. Even though they are conspiring to commit multiple crimes (including burglary and several counts of theft), because the crimes are part of a single planned episode, they can only be charged with one count of conspiracy each (along with any crimes they actually commit or attempt).

Exception: “Wharton’s Rule”

Under “Wharton’s Rule,” an agreement by two people to commit a crime cannot be prosecuted as a conspiracy if the crime itself requires two or more participants. This rule applies to crimes that inherently involve an agreement between two parties, such as:

• bigamy,
• bribery, or
• dueling.

The rationale is that the conspiracy charge would be redundant since the agreement is already an element of the underlying offense. However, Wharton’s Rule generally does not apply if more people are involved in the agreement than are required to commit the crime.⁸

2. Penalties

In Colorado, conspiracy is generally treated as one step less serious than actually doing the intended crime.⁸ For instance, conspiracy to commit a class 1 felony is a class 2 felony, and conspiracy to commit a level 1 drug felony is a level 2 drug felony, etc.⁹

Note that conspiracy to commit a class 2 misdemeanor is also a class 2 misdemeanor.¹⁰ In addition, if the crime you conspire to commit is a crime of violence, then conspiring to commit it is a crime of violence as well.¹¹

Can I be convicted of conspiracy and of the crime I conspired to commit?

Yes. If you conspire to commit a crime AND you commit – or attempt to commit – that crime, you can be punished for BOTH

• the conspiracy AND
• the crime (or the attempt).¹²

Example: Ruth, Sally and Tina conspire to keep a place of prostitution. Eventually, after weeks of planning, they open one. They can be found guilty of both keeping a place of prostitution, a class 2 misdemeanor, and of conspiracy to keep a place of prostitution, a class 2 misdemeanor.

In sum, committing a crime with other people can subject you to more penalties than if you had committed the same crime by yourself. The theory behind punishing both conspiracy and the ultimate crime is that the introduction of additional people creates more potential danger.

For a more comprehensive listing of sentences for conspiracy convictions, see our article on Penalties for a Colorado Conspiracy Conviction.

A common defense to CRS 18-2-201 charges is that the defendant abandoned the conspiracy.

3. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with conspiracy. In our experience, the following six defenses have proven very effective with prosecutors, judges, and juries.

1. You did not actively participate in the conspiracy, or there was no overt act. If you knew about a planned crime but did not agree to commit it, you are not guilty of conspiracy. Likewise, you may not be convicted of conspiracy to commit a crime unless the prosecution can prove that either you or one of your alleged co-conspirators committed an overt act in pursuance of it.¹³
2. You are acquitted of the underlying crime, and there is no other evidence of conspiracy. As discussed above, you can be charged with both conspiracy and commission of the crime. However, if the sole evidence of the conspiracy is evidence that establishes the commission of the crime itself – and you are found not guilty of the crime – your conspiracy charge automatically gets dismissed.¹⁴
3. The “Rule of Consistency” applies. If you and your co-conspirators are tried in the same proceeding (which is usually the case), you cannot be found guilty of conspiracy if your alleged co-conspirators are acquitted.¹⁵ The “Rule of consistency” does not apply, however, if your alleged co-conspirators are acquitted in a different proceeding.¹⁶
4. The planned crime was inherently ridiculous. The court can reduce your sentence or even dismiss the charges if your plan was clearly doomed and presented no public safety risk.¹⁷ However, “mistake of fact” is not a defense to conspiracy: If your conduct could have resulted in a crime if the facts were as you and your co-conspirators believed them to be, and one of you took a step towards completion, then you could be convicted of conspiracy.¹⁸
5. The police committed misconduct. If the evidence of the alleged conspiracy was obtained as the result of an illegal search and seizure, we can bring a motion to suppress the illegally obtained evidence. We may even be able to plea bargain for a charge reduction or dismissal if the police lied under oath, fabricated evidence, coerced your confession, or failed to give you a Miranda warning when required.
6. You abandoned or renounced the conspiracy. You are not criminally liable if you renounced or abandoned the conspiracy in time. Examples are:
   • You thwarted the success of the crime under circumstances showing that you completely and voluntarily renounced your criminal intent;¹⁹
   • You and the other conspirators agreed to call it off;²⁰
   • You gave timely notice to your co-conspirators that you were abandoning the plan;²¹
   • You informed the police or other appropriate law enforcement agency of the existence of the conspiracy and of your participation;²² or
   • Neither you nor any of the other conspirators did any overt act in pursuance of the conspiracy during the applicable statute of limitations for the crime.²³

Another possible way to get a charge reduction or even a dismissal is to “flip” and cooperate with the D.A. as the state prosecutes your co-conspirators.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Intracorporate Plurality in Criminal Conspiracy Law – Hastings Law Journal.
• The Origin and Development of Conspiracy to Defraud – American Journal of Legal History.
• Criminal conspiracy, injunctions and damage suits in labor law – The Journal of Legal History.
• Conspiracy, Concealment and the Statute of Limitations – The Yale Law Journal.
• Group Think: The Law of Conspiracy and Collective Reason – Journal of Criminal Law and Criminology.

Also see our related article on complicity.

Legal References: