18 USC 1349 — Conspiracy and Attempt to Commit Health Care Fraud

18 USC 1349 is the federal statute that lets prosecutors charge attempt or conspiracy to commit health care fraud. Its most important feature is that an attempt or conspiracy is punished just as severely as the completed crime — so a conspiracy to commit health care fraud carries the same up-to-10-year exposure as the fraud itself. And unlike the general federal conspiracy statute, 18 USC 1349 does not require the government to prove an overt act; the agreement alone, joined knowingly, can be enough to convict.

This page explains how 18 USC 1349 works, what the government must prove for a conspiracy and for an attempt, why conspiracy charges are so powerful for prosecutors, the penalties, and how these charges are defended. It is a plain-English legal reference for anyone facing a health care fraud conspiracy allegation in California. To see how we defend these cases, visit our federal health care fraud defense page.

Summary of the Statute

18 USC 1349 applies to the fraud offenses in Chapter 63 of Title 18 — including health care fraud, mail fraud, wire fraud, and bank fraud. It provides, in a single sentence, that any person who attempts or conspires to commit one of those offenses is subject to the same penalties as those prescribed for the offense itself. Short as it is, that sentence carries enormous weight.

In health care fraud prosecutions, 18 USC 1349 is almost a default charge. Because most significant health care fraud cases involve more than one person — an owner, a physician, billers, marketers, patient recruiters — the government frequently builds the entire case around a 18 USC 1347 conspiracy. The conspiracy charge becomes the umbrella under which the whole prosecution is organized, allowing the government to present a single, unified narrative of a scheme and to hold each alleged participant responsible for it. For a defendant, that means the case may be less about what you personally did than about what the group is alleged to have agreed to do.

What the Government Must Prove

The elements depend on whether the charge is conspiracy or attempt, and the two are proven differently.

For a Conspiracy

The government must prove that two or more people agreed to commit health care fraud, and that the defendant knowingly and voluntarily joined that agreement with the intent to further it. Notably, it does not have to prove an overt act in furtherance of the conspiracy — a key difference from the general conspiracy statute, 18 USC 371, which does require one. Under 1349, the agreement itself is the crime. The defense often focuses on two questions: whether a genuine agreement to defraud actually existed, and whether the defendant truly knew of and intended to join an unlawful scheme, as opposed to simply performing a job, following instructions, or doing business with the wrong people.

For an Attempt

The government must prove that the defendant intended to commit health care fraud and took a substantial step toward completing it — something beyond mere preparation that strongly corroborates the criminal intent. The defense can challenge whether the defendant’s conduct ever crossed the line from preparation into a genuine attempt, and whether the required intent to defraud was present at all.

Why Conspiracy Charges Are So Powerful

Conspiracy law gives prosecutors several structural advantages, which is exactly why 18 USC 1349 appears in so many health care fraud indictments. Statements made by one alleged co-conspirator in furtherance of the scheme can sometimes be used as evidence against the others. A defendant can be held responsible for the reasonably foreseeable acts of co-conspirators, even acts the defendant did not personally carry out or know the details of. And the absence of an overt-act requirement lowers the government’s burden compared with general conspiracy charges, meaning the case can be built on the agreement itself.

These same features are why defense strategy matters so much in multi-defendant cases. People on the periphery of a scheme — employees following directions, vendors providing ordinary services, professionals doing legitimate work for an organization later accused of fraud — can find themselves charged as full conspirators and exposed to the same penalties as the alleged ringleaders. Separating lawful conduct and mere association from a knowing agreement to defraud is frequently the heart of the defense, and it is why individual representation, focused on one client’s actual knowledge and intent, is so important when many defendants are charged together.

Penalties Under 18 USC 1349

18 USC 1349 has no separate penalty of its own. Instead, it borrows the penalty of the underlying offense — so the exposure depends entirely on the target crime that the defendant is alleged to have conspired or attempted to commit.

Because the conspiracy carries the same maximum as the completed crime — and because sentencing is then driven by the U.S. Sentencing Guidelines loss amount attributed to the whole scheme — a defendant convicted of conspiracy can face exposure far beyond their individual role or personal gain. A relatively minor participant can be sentenced based on the total alleged loss of a scheme they barely touched, which is why disputing both the scope of the agreement and the loss attributable to a particular defendant is central to sentencing advocacy. Restitution, forfeiture, and program exclusion typically follow as well, just as with a substantive fraud conviction.

Related Federal Statutes

• 18 USC 1347 (health care fraud) — the most common object of a health care fraud conspiracy.
• 42 USC 1320a-7b (Anti-Kickback Statute) — kickback schemes are frequently charged as conspiracies.
• 18 USC 1035 (false statements) — false statement counts often accompany a conspiracy charge.
• 18 USC 1028A (aggravated identity theft) — may be added where patient identities are misused within the scheme.

How Conspiracy Charges Are Defended

The strongest defenses usually attack the existence of an agreement or the defendant’s knowing participation in it. Demonstrating that the defendant performed legitimate work, did not know of any fraudulent purpose, or affirmatively withdrew from the alleged conspiracy can be decisive. A person who provided ordinary services — billing, marketing, transportation, medical care — without knowledge that they were part of a fraud is not a conspirator simply because others around them were committing crimes.

Where the government relies heavily on cooperating witnesses — often co-defendants who have negotiated reduced sentences in exchange for testimony — challenging their credibility and motives is frequently central, since their accounts of “the agreement” may be self-serving. In multi-defendant cases, the priority is separating one client’s conduct and knowledge from the group to avoid guilt by association, and ensuring the jury evaluates that client individually rather than lumping everyone together. For more on how these large, multi-party cases are built and investigated, see our explainer on OIG health care investigations. The right defense depends on the specific evidence of agreement and intent.

Facing a Conspiracy Charge? Contact Us

A health care fraud conspiracy charge can carry the same penalties as the underlying fraud — even for someone on the edges of a scheme — which is why individual, focused representation matters so much. The earlier you involve experienced counsel, the better. KN Law Firm, APLC defends these cases in the U.S. District Court for the Central District of California and before the Ninth Circuit. Call (888) 950-0011 for a free, confidential consultation with attorney Chris Nalchadjian, available 24/7 in English and Spanish.