Can I be convicted of conspiring without an overt action?

Question

Under US law, as far as I understand, a conviction of conspiracy requires at least one overt action. If I was in on the conspiracy but didn't do anything - will I be convicted?

Here's an example: me and two buddies meet in a dark room and discuss the best way to murder the president, and how that's what needs to be done (i.e. we agreed to cooperate and coordinate). Then we each go our separate way. One of my buddies goes to a gun shop and buys a rifle, than gets arrested by the FBI that were recording our conversation. But I went home and then to work and didn't do anything. Can the FBI convict me of conspiracy?

Answer 1

It is hard to tell if this constitute criminal conspiracy. The insight and input you contribute to the planning of the crime (and acts you may have taken to acquire the knowledge used in those plans such as a Google search and research to assist in the planning) could itself arguably be an overt act. But facts in the question regarding your participation in the planning meeting isn't specific enough to know.

You've also, probably accidentally, backed into another issue because of the way that this question is framed. If you and anyone else in the group are U.S. citizens, planning to assassinate the President, at least while the President is in office for reasons in any way related to his official duties while in office as President, very likely also constitutes the crime of treason.

This matters because there are quite serious criminal penalties under federal law for a failure of anyone to report an attempt to engage in sedition, when you are aware of it, even though there isn't general duty to report most crimes of which you are aware under federal law.

The crime of failing to report a treasonous plot is called "misprison of treason". See 18 U.S..C. § 2382. This statute states:

Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.

So, even if you haven't engaged in conspiracy to assassinate the President, you are probably still guilty of a serious federal felony.

Answer 2

Since you are asking about conspiracies in general and not specifically conspiracies to assassinate POTUS – that's just an example – I will draw on Washington state law. The relevant law is RCW 9A.28.040. The core of the law is that

(1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.

The primary issue that must be proven at trial is that you agreed to something, not just that you discussed it. It is not a crime to talk about committing a crime, it is a crime to agree to commit a crime. The fact that the other guy took an overt step to do the deed is sufficient for a conviction, if there is an agreement.

There is a problem with your description that you "discuss the best way to murder the president, and how are are that's it's what needs to be done". As an intellectual exercise in spy-theory, one might discuss the best way to commit a crime without agreeing to do so. If, however, you are admitting that you and the others agreed that "it is what needs to be done", you would not need to utter some magic contract-language formula like "We do hereby mutually agree to undertake this task".

The notes on jury instructions for this crime elaborates on "agreement", that

all a prosecutor needs to prove is that the conspirators agreed to undertake a criminal scheme and that they took a substantial step in furtherance of the conspiracy.” State v. Bobic, 140 Wn.2d 250

There is ample case law showing that

An agreement to commit a crime is an essential part of a conspiracy, State v. Miller, 131 Wn.2d 78, 929 P.2d 372 (1997), although the agreement need not be formal. State v. Israel, 113 Wn.App. 243, 284, 54 P.3d 1218 (2002); State v. Barnes, 85 Wn.App. 638, 664, 932 P.2d 669 (1997).

also,

“conspiracy to commit murder by extreme indifference requires that the conduct be intended [and] there must be an agreement (express or implied) to engage in conduct creating a grave risk [of death], but the result of the conduct-death-need not be intended.” In re Sandoval, 189 Wn.2d 811, 828, 408 P.3d 675

There is no finer-grained definition of "agreement" applicable in criminal cases, therefore the jury must apply their ordinary language understanding of what an "agreement" is. On the face of it, there is no reasonable interpretation whereby the defendant did not agree to carrying out the act, but perhaps there are details that are relevant that you didn't reveal.