Civil Rights Conspiracy Pleading Notes

Once a conspiracy is established, only slight evidence is required to connect a co-conspirator. United States v. Turner, 528 F.2d 143 (9th Cir. 1975), Cert. denied, 429 U.S. 837, 97 S. Ct. 105, 50 L. Ed. 2d 103 (1976); United States v. Rodriguez, 498 F.2d 302 (5th Cir. 1974); United States v. Marrapese, 486 F.2d 918 (2nd Cir. 1973), Cert. denied, 415 U.S. 994, 94 S. Ct. 1597, 39 L. Ed. 2d 891 (1974).

"Participation in the criminal venture may be established by circumstantial evidence and the level of participation may be of 'relatively slight moment.'" United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999) (internal citation omitted) (quoting United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir. 1997)).”

United States v. Isaac-Sigala, 448 F.3d 1206, 1210 (10th Cir. 2006).

“In United States v. Andrews, 585 F.2d 961 (10th Cir. 1978), we discussed the crime of conspiracy. We noted that HN2the essence of the crime "is an agreement to violate the law." We also noted that "once a conspiracy is established, only slight evidence is required to connect a co-conspirator." Furthermore, we said that "a party may join an ongoing conspiracy during its progress and may become criminally liable for all acts done in furtherance of the scheme."

    United States v. Boothman, 654 F.2d 700, 703 (10th Cir. 1981).

“’[O]nly allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain other action of the alleged conspirators taken to achieve that purpose will be deemed sufficient . . . .’”

            Dutton, 1997 WL 732856 at *2 (quoting Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989)(internal citations omitted)). Further, “[a]greement is the sine qua non of a conspiracy.” Spencer v. Steinman, 968 F. Supp. 1011, 1020 (E.D. Pa. 1997).

Civil Rights Conspiracy After Twombly

            The plaintiff’s complaint and now amended complaint against the defendant law firm XXXXXX  and its named defendant co-conspirators does not allege the parties’ independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism, which would make Bell Atlantic Corp. v. Twombly, 550 U .S. 544, 570 (2007) apply. Instead the complaint and amended complaint describes specific agreements between particular individual co-conspirators forming the conspiracy and the entry into the pre existing conspiracy by new comer defendants like former XXXXXX and XXXXXX.

Although the Twombly court acknowledged that for purposes of summary judgment a plaintiff must present evidence that tends to exclude the possibility of independent action, 550 U.S. at 554, and that the district court below had held that plaintiffs must allege additional facts that tended to exclude independent self-interested conduct, id. at 552, it specifically held that, to survive a motion to dismiss, plaintiffs need only “enough factual matter (taken as true) to suggest that an agreement was made,” id. at 556; see also 2 Areeda & Hovenkamp § 307d1 (3d ed. 2007) (“[T]he Supreme Court did not hold that the same standard applies to a complaint and a discovery record . . . . The ‘plausibly suggesting’ threshold for a conspiracy complaint remains considerably less than the ‘tends to rule out the possibility’ standard for summary judgment.”). And Phillips v. County of Allegheny, 515 F.3d 224, 2e4 (3d Cir.2008)(quoting Twombly, 550 U.S. at 556). The Seventh Circuit has now stated:

Therefore, although the plaintiff is required to plead more than bare legal conclusions to survive a motion to dismiss, once the plaintiff pleads sufficient factual material to state a plausible claim--that is, sufficient to put the defendant on notice of a plausible claim against it--nothing in Iqbal or Twombly precludes the plaintiff from later suggesting to the court a set of facts, consistent with the well-pleaded complaint, that shows that the complaint should not be dismissed."

Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146–47 (7th Cir. 2010).

            The Twombly court noted, in dicta, that had the claim of agreement in that case not rested on the parallel conduct described in the complaint, “we doubt that the . . . references to an agreement among the [Baby Bells] would have given the notice required by Rule 8 . . [because] the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies.” 550 at 565 n.10. Here the plaintiff’s complaint and amended complaint describe the date and agreements and specific conduct in furtherance of the conspiracy by the defendant BRIAN FROST and the particular appropriate named co-conspirator.

"Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a 'short and plain statement of the claim showing that the pleader is entitled to relief.' Twombly and Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2). Rather, those decisions confirmed that Rule 8(a)(2) is satisfied 'when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S. Ct. at 1949; see Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007).

Hamilton v. Palm, 621 F.3d 816, 817–18 (8th Cir. 2010). 

The Eleventh Circuit has stressed that at the pleading stage, there is no “probability” requirement:

Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295-1296 (11th Cir. 2007) ('The Court has instructed us that the rule 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of' the necessary element.') (quoting Twombly, 550 U.S. at 556, 127 S. Ct. at 1965)."

Speaker v. U.S. HHS CDC, 623 F.3d 1371, 1380 (11th Cir. 2010).

Civil Rights Conspiracy

“HN2Section 241 of the Civil Rights Act of 1866 and 1870 states:If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; . . .

They shall be fined under this title or imprisoned not more than ten years, or both; . . .18 U.S.C. § 241 (1999).”


United States v. Whitney, 229 F.3d 1296, 1309 (10th Cir. 2000)

“HN4Section 241 does not require proof of an overt act in furtherance of the conspiracy. See United States v. Crochiere, 129 F.3d 233, 237-38 (1st Cir. 1997) (stating that "the Supreme Court case of United States v. Shabani, 513 U.S. 10, 130 L. Ed. 2d 225, 115 S. Ct. 382 (1994) . . . requires a holding that § 241 contains no overt act requirement");see also United States v. Skillman, 922 F.2d 1370, 1375 (9th Cir. 1991) (stating that § 241 does not require proof of an overt act in furtherance of the conspiracy); United States v. Morado, 454 F.2d 167, 169 (5th Cir.1972); cf. Shabani, 513 U.S. at 14-15 (noting, in its holding that the federal drug conspiracy statute, 21 U.S.C. § 846, does not require an overt act, that the language of the statute does not require an overt act, and that the Court has not inferred such a requirement from congressional silence in other conspiracy statutes).


Here, Mr. Whitney does not challenge the existence of a conspiracy to interfere with the Madkins' exercise of federal rights by burning a cross in their front yard. See Aplt's Br. at 17 (conceding "the government proved that Raymond Roland and Anthony Whitney conspired to threaten the victims"). Rather, Mr. Whitney solely contends the government failed to "prove that he became a member of that conspiracy." Id.”


United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000).

Establishing a Civil Rights Conspiracy by Circumstantial Evidence

“HN5The government need not offer direct proof of an express agreement on the part of the defendant. See United States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998). Instead, the agreement may be informal and may be inferred entirely from circumstantial evidence. See id. "The defendant's participation in, or connection to, the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt." United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990) (citation and quotations omitted). Moreover, an agreement may be inferred from a variety of circumstances, such as, "sharing a common motive, presence in a situation where one could assume participants would not allow bystanders, repeated acts, mutual knowledge with joint action, and the giving out of misinformation to cover up [the illegal activity]." United States v. Davis, 810 F.2d 474, 477 (5th Cir. 1987) [**8]  (citations omitted); see also United States v. Piche, 981 F.2d 706, 717 (4th Cir. 1992); United States v. Ellis, 595 F.2d 154, 160 (3d Cir. 1979).”


United States v. Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000).

Stricter Standards

“18 U.S.C. Sec. 241 is a conspiracy statute and, as such, it requires that "the prosecution ... show that the offender acted with a specific intent to interfere with the federal rights in question." Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct. 2253, 2262, 41 L.Ed.2d 20 (1974) (citations omitted). In order to violate Sec. 241 Del Bono would have had to know that the goal of the conspiracy was to prevent Anderson from testifying. United States v. Barker, 546 F.2d 940 (D.C.Cir.1976) (intent required is intent to interfere with the specific federal right in question). There is no such evidence here nor any evidence from which an inference to that effect could be drawn. In a section 241 case, the record must be scrutinized with great care for such evidence of conspiracy, since conspiracy cannot be proven "... by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes." Anderson, 417 U.S. at 224, 94 S.Ct. at 2262 (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943)).”


United States v. Coleman, 811 F.2d 804 (3rd Cir. 1987)

No Participation in the Act itself required

“Other courts have upheld conspiracy convictions under § 241 when the defendant did not directly participate in the cross burning. See, e.g., United States v. Montgomery, 23 F.3d 1130, 1132-33 (7th Cir. 1994) (concluding evidence was sufficient to support conviction under 18 U.S.C. § 241 arising out of cross burning even though the defendant discussed building a cross to scare African-American residents out of the neighborhood, and vandalized a car while his co-defendants prepared the cross for burning); United States v. Gresser, 935 F.2d 96, 100-101 (6th Cir. 1991) (holding evidence was sufficient to support conviction under § 241 arising out of cross burning where defendant claimed [**11]  his actions were directed towards particular African-American youths with whom he was involved in an altercation rather than African-Americans in general, and none of the witnesses were able to testify to knowledge of willful formation of conspiracy, to attribute any threatening statements to him, or to link him to the cross burning); Skillman, 922 F.2d at 1372-73 (concluding evidence was sufficient to establish "slight connection" necessary to support conspiracy conviction under § 241 arising out of cross burning when evidence established the defendant transported a Valvoline container, was present during the cross burning, and blamed the cross burning on skinheads in order to avoid going to jail); United States v. White, 788 F.2d 390, 393 (6th Cir. 1986) (concluding evidence supported conviction of conspiracy in violation of § 241 where, although the defendant did not participate in the arson of an African-American home, he had made statements such as, "if that black son of a bitch rebuilt . . . across the street from me . . . I'd burn it down"). Under our standard of  [*1303]  review, the evidence in this case was sufficient for a jury to reasonably conclude [**12]  that Mr. Whitney agreed to the cross burning and thus, that he agreed to interfere with the Madkins' federal rights in violation of § 241.”


United States v. Whitney, 229 F.3d 1296, 1302-1303 (10th Cir. 2000)

Definition of a Conspiracy

The essence of the crime of conspiracy is an agreement to violate the law. United States v. Butler, 494 F.2d 1246 (10th Cir. 1974); Carter v. United States, 333 F.2d 354 (10th Cir. 1964).

The nature of the offense of conspiracy with its attendant aspects of secrecy, often requires that elements of the crime be established by circumstantial evidence. Thus, the common plan or purpose may be inferred from a combination of circumstances. Jordan v. United States, 370 F.2d 126 (10th Cir. 1976), Cert. denied, 386 U.S. 1033, 87 S. Ct. 1484, 18 L. Ed. 2d 595 (1967); Baker v. United States, 329 F.2d 786 (10th Cir. 1964), Cert. denied, 379 U.S. 853, 85 S. Ct. 101, 13 L. Ed. 2d 56 (1964).


“("It is only where means are employed, or purposes are accomplished, which are themselves tortious, that the conspirators who have not acted but have promoted the act will be held liable" (footnotes omitted)); Satin v. Satin, 69 A.D.2d 761, 762, 414 N.Y.S.2d 570, (1979) (Memorandum Decision)”

Beck v. Prupis, 529 U.S. 494, 501 (U.S. 2000).

“("An alleged conspiracy by or agreement between the defendants is not of itself actionable. Some wrongful act to the plaintiff 's damage must have been done by one or more of the defendants, and the fact of a conspiracy merely bears on the liability of the various defendants as joint tort-feasors").” See Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472, 479 (CADC 1983).

Beck v. Prupis, 529 U.S. 494, 503 (U.S. 2000).


HN3The essence of the crime of conspiracy is two or more persons combining with the intent and purpose of committing a public offense by doing an unlawful act or doing a lawful act in an unlawful manner. It is a distinct offense from that which the parties intend to accomplish as the result of the conspiracy, and it is complete when the agreement has been formed and one or more overt acts have been done in furtherance of such unlawful design. And a single conspiracy may have for its object and purpose the violation of two or more criminal laws. To illustrate it would be one offense for two or more persons to enter a post office and kill the postmaster or other persons having custody of [**8]  the public moneys, and it would be another to rob the office of such moneys. But a single conspiracy may have both for its object and purpose. And an indictment charging a single conspiracy to violate two or more separate criminal statutes is not vulnerable for duplicity. United States v. Rabinowich, 238 U.S. 78, 35 S. Ct. 682, 59 L. Ed. 1211; Frohwerk v. United States, 249 U.S. 204, 39 S. Ct. 249, 63 L. Ed. 561; Anderson v. United States, 8 Cir., 273 F. 20; Taylor v. United States, 7 Cir., 2 F. 2d 444; Bailey v. United States, 5 Cir., 5 F. 2d 437; Perry v. United States, 5 Cir., 39 F. 2d 52; Dowdy v. United States, 4 Cir., 46 F. 2d 417; Blum v. United States, 6 Cir., 46 F. 2d 850; Center v. United States, 4 Cir., 96 F. 2d 127.

Troutman v. United States, 100 F.2d 628, 632 (HN3) (10th Cir. 1938).

n6  [***LEdHR1D]  LEdHN[1D][1D]


“Petitioner suggests that we should look to criminal, rather than civil, common-law principles to interpret the statute. We have turned to the common law of criminal conspiracy to define what constitutes a violation of § 1962(d), see Salinas v. United States, 522 U.S. 52, 63-65, 139 L. Ed. 2d 352, 118 S. Ct. 469 (1997), a mere violation being all that is necessary for criminal liability.”

Beck v. Prupis, 529 U.S. 494, 501 (U.S. 2000)





HN4Intent is an element of the crimes charged in the indictment. It must be alleged and proved. One of the acts charged here was that the defendants would and did falsely and fraudulently represent to owners of units that the defendants who had managed and controlled The Union Deposit Company had complied with the terms and requirements of the trust indentures; that they had regularly reported to the trustees the moneys collected; and that they had faithfully deposited with such trustees the moneys and securities as required. The evidence in question was relevant and material upon the question whether a scheme was devised with the fraudulent intent [**11]  and purpose to sell capital stock of little or no value at a greatly inflated or fabricated price for the purpose of relieving the straitened financial  [*633]  condition of the Union Group. It was clearly admissible for the purpose of shedding light upon the good faith or bad faith with which the plan to sell the stock was formed. C/f Coulston v. United States, 10 Cir., 51 F. 2d 178; Butler v. United States, 10 Cir., 53 F. 2d 800.


And the fact that the first default occurred and much of the correspondence passed before the date on which it is alleged that the scheme was formed did not render the evidence inadmissible. When not too remote or unconnected with the alleged scheme as to cast light upon the question of intent, evidence tending to prove relevant acts or conduct which occurred before the date on which it is charged the scheme was devised, or more than three years before the return of the indictment, may be admitted if within the period of limitations the mails were used in furtherance of such scheme. Bowers v. United States, 9 Cir., 244 F. 641; Hatem v. United States, 4 Cir., 42 F. 2d 40. C/f  [**12] Little v. United States, 10 Cir., 73 F. 2d 861, 96 A.L.R. 889. Neither did the fact that the evidence may have tended to establish the crime of embezzlement or that of defrauding the Metropolitan Trust Company warrant its exclusion where it was relevant to an issue in the case. HN5An accused cannot be convicted upon evidence that he committed another crime, and ordinarily evidence of a crime wholly separate and independent and with no relation to the one charged in the indictment is not admissible but relevant evidence which tends to prove a material fact in the case on trial should be admitted even though it tends to show that the accused committed another offense at a different time and place. Suhay v. United States, 10 Cir., 95 F. 2d 890, certiorari denied 304 U.S. 580, 58 S. Ct. 1060, 82 L. Ed. 1543.”

Troutman v. United States, 100 F.2d 628, 632-633 (10th Cir. 1938).

Overt Act

“n4 At common law it was not necessary to aver or prove an overt act. See Hyde v. United States, 225 U.S. 347, 359. The same is true under the Sherman Act. Nash v. United States, 229 U.S. 373, 378; United States v. Socony-Vacuum Oil Co., supra, p. 252. But § 37 of the Criminal Code requires not only an agreement to do the unlawful act but also the doing of "any act to effect the object of the conspiracy." See Hyde v. United States, supra, p. 359.”

Fiswick v. United States, 329 U.S. 211, 216 (U.S. 1946)


Continuing Conspiracy

“Continuity of action to produce the unlawful result, or as stated in United States v. Kissel, supra, p. 607, "continuous cooperation of the conspirators to keep it up," is necessary. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253.”

Fiswick v. United States, 329 U.S. 211, 216 (U.S. 1946).


The Government's evidence may establish an ongoing course of conduct giving rise to one continuing conspiracy, covering an extended period of time. United States v. Bridwell, 583 F.2d 1135 (10th Cir. 1978); United States v. Gunter, 546 F.2d 861 (10th Cir. 1976), Cert. denied, 431 U.S. 920, 97 S. Ct. 2189, 53 L. Ed. 2d 232 (1977).

Accordingly, a party may join an ongoing conspiracy during its progress and become criminally liable for all acts done in furtherance of the scheme. United States v. Gamble, 541 F.2d 873 (10th Cir. 1976); United States v. Thomas, 468 F.2d 422 (10th Cir. 1972), Cert. denied, 410 U.S. 935, 93 S. Ct. 1389, 35 L. Ed. 2d 599 (1973).