MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006 (Updated 2008)
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Chapter 6 Final Instructions: Elements Of Offenses (updated 1/2008)

    6.18.152(1)     Bankruptcy - Fraudulent Concealment of Assets - Elements of the Offense (10/2007)
    6.18.201B1     Bribery of a Public Official (18 USC 201(b)(1)) (1/2008)
    6.18.201B1-1  Bribery of a Public Official – "Public Official" Defined (1/2008)
    6.18.201B1-2  Bribery of a Public Official – "Official Act" Defined (1/2008)
    6.18.201B1-3  Bribery of a Public Official – "Corruptly" Defined (1/2008)
    6.18.201B2     Receiving Bribe by Public Official (18 USC 201(b)(2)) (1/2008)
    6.18.201B2-1  Receiving Bribe by Public Official – "Corruptly" Defined (1/2008)
    6.18.201B3     Bribery of a Witness (18 USC 201(b)(3)) (1/2008)
    6.18.201B4     Soliciting Bribe by Witness (18 USC 201(b)(4)) (1/2008)
    6.18.201C1A  Illegal Gratuity to a Public Official (18 USC 201(c)(1)(A)) (1/2008)
    6.18.201C1B  Receiving Illegal Gratuity by a Public Official (18 USC 201(c)(1)(B)) (1/2008)
    6.18.371A      Conspiracy to Commit an Offense Against the United States – Basic Elements 
                           (approved by Model Criminal Jury Instruction Committee 4/07)
    6.18.371B      Conspiracy to Defraud the United States – Basic Elements (4/07)
    6.18.371C      Conspiracy – Existence of an Agreement (4/07)
    6.18.371D      Conspiracy – Membership in the Agreement (4/07)
    6.18.371E       Conspiracy – Mental States (4/07)
    6.18.371F       Conspiracy – Overt Acts (4/07)
    6.18.371G      Conspiracy – Success Immaterial (4/07)
    6.18.371H      Conspiracy – Single or Multiple Conspiracies (4/07)
    6.18.371I       Conspiracy – Duration (4/07)
    6.18.371J       Conspiracy – Withdrawal Before the Commission of an Overt Act as 
                           a Defense to Conspiracy (4/07)
    6.18.371K     Conspiracy – Withdrawal as Defense to Conspiracy Based on Statute 
                          of Limitations (4/07)
    6.18.371L      Conspiracy – Acts and Statements of Co-Conspirators (4/07)
    6.18.656         Misapplication of Bank Funds (18 USC 656) (12/2007)
    6.18.656-1     Misapplication of Bank Funds - Intent to Defraud Defined (12/2007)
    6.18.922A      False Statement in Purchase of a Firearm (18 USC 922(a)(6)) (8/07)
    6.18.922A-1   Firearm Offenses – Dealer Defined (8/07)
    6.18.922A-2   Firearm Offenses – Firearm Defined (8/07)
    6.18.922A-3   Firearm Offenses – Material Defined (8/07)
    6.18.922D      Sale of Firearm to Convicted Felon (18 USC 922(d)(1)) (8/07)
    6.18.922D-1   Firearm Offenses – Reasonable Cause to Believe Defined (8/07)
    6.18.922G      Felon In Possession of Firearm (18 USC 922(g))(non-bifurcated 
                           proceeding) (8/07)
    6.18.922G-1   Felon In Possession of Firearm (18 USC 922(g))(bifurcated 
                           proceeding) (8/07)
    6.18.922G-2   Proof of Prior Conviction (8/07)
    6.18.922G-3   Evidence of Prior Conviction of Defendant Charged with Possession of 
                           a Firearm by a Convicted Felon (18 USC 922(g)) (8/07)
    6.18.922G-4   Firearm Offenses – Knowing Possession Defined (8/07)
    6.18.922G-5   Firearm Offenses – In or Affecting Interstate or Foreign Commerce 
                           Defined (8/07)
    6.18.922J        Possession of Stolen Firearm (18 USC 922(j)) (8/07)
    6.18.922K      Possession of Firearm With Serial Number Removed, Obliterated, or 
                           Altered (18 USC 922(k)) (8/07)
    6.18.924A       Possession of a Firearm In Furtherance of Crime of Violence or Drug 
                            Trafficking Crime (18 USC 924(c)(1)) (8/07)
    6.18.924A-1    "In Furtherance of" Defined (8/07)
    6.18.924B        Using or Carrying a Firearm During Any Crime of Violence or Drug 
                            Trafficking Crime (18 USC 924(c)(1)) (8/07)
    6.18.1341        Mail Fraud – Elements of the Offense (10/2007)
    6.18.1341-1     Mail, Wire, or Bank Fraud – "Scheme to Defraud or to Obtain Money or Property" 
                             Defined (10/2007)
    6.18.1341-2     Mail, Wire, or Bank Fraud- Unanimity Required (10/2007)
    6.18.1341-3     Mail or Wire Fraud – Protected Interests: Honest Services (10/2007)
    6.18.1341-4     Mail or Wire Fraud – "Intent to Defraud" Defined (10/2007)
    6.18.1341-5     Mail Fraud – "Use of the Mails" Defined (10/2007)
    6.18.1341-6     Mail Fraud – Each Use of the Mails a Separate Offense (10/2007)
    6.18.1343        Wire Fraud – Elements of the Offense (10/2007)
    6.18.1343-1     Wire Fraud – "Transmits by means of wire, radio, or television communication in interstate 
                             commerce" - Defined (10/2007)
    6.18.1343-2     Wire Fraud – Each Transmission by Wire Communication a Separate Offense (10/2007)
    6.18.1344        Bank Fraud - Elements of the Offense (10/2007)
    6.18.1344-1     Bank Fraud – "Intent to Defraud" Defined (10/2007)
    6.18.1347        Health Care Fraud - Elements of the Offense (10/2007)
    6.18.1347-1    Health Care Fraud – "Intent to Defraud" Defined (10/2007)
    6.18.1347-2    Health Care Fraud - Affecting Interstate Commerce (10/2007)
    6.18.1951        Hobbs Act - Elements of the Offense (18 USC 1951) (1/2008)
    6.18.1951-1     Hobbs Act - Robbery Defined (1/2008)
    6.18.1951-2     Hobbs Act - Extortion by Force, Violence, or Fear (1/2008)
    6.18.1951-3     Hobbs Act - "Unlawful Taking by Force, Violence or Fear" Defined (1/2008)
    6.18.1951-4     Hobbs Act - "Fear of Injury" Defined (1/2008)
    6.18.1951-5     Hobbs Act - Property Defined (1/2008)
    6.18.1951-6     Hobbs Act - Extortion Under Color of Official Right (1/2008)
    6.18.1951-7     Hobbs Act - Affecting Interstate Commerce
    6.18.1956A      Money Laundering - Elements of the Offense (18 USC 1956(a)(1)) (9/07)
    6.18.1956-1     Money Laundering - Conducting a Financial Transaction Defined (9/07)
    6.18.1956-2     Money Laundering - Interstate Commerce Defined (9/07)
    6.18.1956-3     Money Laundering - Proceeds of a Specified Unlawful Activity Defined (9/07)
    6.18.1956-4     Money Laundering - Knowledge that Property Represents Proceeds 
                            of Some Form of Unlawful Activity Defined (9/07)
    6.18.1956-5     Money Laundering - Intent to Promote, Intent to Conceal or Disguise, 
                             Intent to Avoid Reporting Requirement Defined (9/07)
    6.18.1956-6     Money Laundering - Unanimity Required (9/07)
    6.21.841A       Controlled Substances – Possession with Intent to (Manufacture) (Distribute) 
                            (21 USC 841(a) & (b)) (9/2007)
    6.21.841-1      Controlled Substances – Possession Defined (9/2007)
    6.21.841-2      Controlled Substances – Distribute Defined (9/2007)
    6.21.841-3      Controlled Substances – Controlled Substance Defined (9/2007)
    6.21.841-4      Controlled Substances – Knowingly or Intentionally Defined (9/2007)
    6.21.841-5      Controlled Substances – Intent to Manufacture or Distribute Defined (9/2007)
    6.21.841B      Controlled Substances – (Manufacture) (Distribute) a Controlled Substance 
                           (21 USC 841(a) & (b)) (9/2007)
    6.21.841C      Controlled Substances – Special Interrogatories and Verdict Forms With Respect to Weight (9/2007)
    6.21.844         Controlled Substances – Possession (21 USC 844) (9/2007)
    6.21.846A      Controlled Substances – Attempt to (Distribute) (Possess with Intent to Manufacture / Distribute) 
                           (Manufacture) (Possess) (21 USC 846) (9/2007)
    6.21.846B      Controlled Substances – Conspiracy to (Distribute) (Possess with Intent to Manufacture / Distribute) 
                          (Manufacture) (Possess) (21 USC 846) (9/2007)
    6.21.853        Criminal Forfeiture of Property (Controlled Substances) (21 USC 853) (1/2008)
    6.26.5861       Possession of an Unregistered Firearm (26 USC 5861) (8/07)

(Please note that this chapter is not complete. As new instructions are approved by the Model Criminal Jury Instruction Committee, they will be added.)

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.152(1)
Bankruptcy - Fraudulent Concealment of Assets - Elements of the Offense

Count (number) of the indictment charges the defendant (name) with bankruptcy fraud, which is a violation of federal law.

In order to find (name) guilty of this offense, you must find that the government proved each of the following four elements beyond a reasonable doubt:

First: That a bankruptcy case was pending on or about (specify time alleged in the indictment) in which (name of debtor) was the Debtor;

Second: That (describe the property alleged in the indictment) was a part of the bankruptcy estate of the Debtor;

Third: That (name) concealed (describe the property alleged in the indictment) from the [(custodian)(trustee)(Marshal)(person)] charged with the custody and control of that property; and

Fourth: That (name) acted knowingly and with the intent to defraud.

The term "debtor" means the (person) (business) for whom a bankruptcy case has been commenced. When a debtor files a petition seeking protection from creditors under the bankruptcy laws, a "bankruptcy estate" is created. The bankruptcy estate is comprised of all property belonging to the debtor as of the time the bankruptcy case is filed, regardless of where that property is located or who holds the property. [The "bankruptcy estate" also includes proceeds, products, rents, or profits of or from the property of the estate, but it does not include earnings from services performed by an individual after the case is filed.]

Property may be concealed in a number of different ways. "Concealment" can mean hiding property or assets. It also includes preventing the discovery of assets, transferring property, or withholding information that is required to be made known. Concealment of property of the bankruptcy estate may include transferring property to a third party or entity, destroying the property, withholding knowledge concerning the existence or whereabouts of the property, or knowingly doing anything else by which the defendant acts to hinder, unreasonably delay or defraud any creditors. The government need not prove that the concealment was successful.

An act is done knowingly if it is done voluntarily and intentionally, and not because of mistake, accident or other innocent reason.

An act is done with intent to defraud if it is done with the intent to deceive any creditor, trustee or bankruptcy judge.

See Eighth Circuit § 6.18.152A, Fifth Circuit § 2.10; Sand 15-7.

18 USC 152(1) provides:

A person who (1) knowingly and fraudulently conceals from a custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or, in connection with a case under title 11, from creditors or the United States Trustee, any property belonging to the estate of a debtor; * * * shall be fined under this title, imprisoned not more than 5 years, or both.

This instruction should be given only if the defendant is charged under this section. It does not apply to other violations of Section 152.

In United States v. Zerbach, 47 F.3d 1252, 1261 (3d Cir. 1995), the Third Circuit noted that "[t]he statutory requirement that the underlying acts be performed ‘knowingly’ requires only that the act be voluntary and intentional and not that a person knows that he is breaking the law." Good faith belief in the lawfulness of the conduct is not a defense to bankruptcy fraud. See Zerbach, 47 F.3d at 1261.

In United States v. Thayer, 201 F.3d 214, 224-25 (3d Cir. 1999), the Third Circuit held that the following charge adequately informed the jurors of the elements of the offense, including the intent to conceal:

Counts 28 through 37 charge[ ] willful concealment of assets from the Bankruptcy Court. The law provides whoever knowingly and fraudulently conceals from the custodians, trustee, marshal or other officer of the bankruptcy [court] charged with the control or custody of property, or from creditors in any case in bankruptcy shall be guilty of a felony.

The elements are: One, on or about the date alleged in the indictment, the proceeding in bankruptcy was in existence. That's not in dispute. Two, the defendant fraudulently concealed the property described in the indictment from creditors in the bankruptcy proceedings. And, three, that such property belonged to the estate of the debtor.

A person fraudulently conceals property of the estate of a debtor when that person knowingly withholds information or property or knowingly acts for the purpose of preventing the discovery of such property, intending to deceive or cheat a creditor, a trustee, or a custodian or a bankruptcy judge.

Fraudulently concealing property of the estate of the debtor may include transferring property to a third party, destroying the property, withholding knowledge concerning the existence or whereabouts of property, or knowingly doing anything else by which the person acts to hinder, delay or defraud any of the creditors.

The act of concealment does not depend on the amount or value of the property involved. It is sufficient if a substantial amount of property was knowingly and fraudulently concealed or transferred by the accused as charged in the indictment . . . .

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Count (number) of the indictment charges the defendant (name) with bribery of a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) gave, offered, or promised something of value, that is (specify thing of value) to (name of official);

Second: That (name of official) was, at that time, a public official; and

Third: That (name) did so corruptly with the intent to influence an official act, that is, (name) intended to give (specify thing of value) in exchange for an official act.

Comment

O’Malley, § 27.03.

18 USC 201(b)(1) provides that anyone who

directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent--

(A) to influence any official act; or

(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person.

commits a federal offense. In some cases, the court may want to modify the instruction to inform the jury that the bribe may be direct or indirect, that the defendant may be convicted of the offense based on an offer or promise to bribe, or that the conviction may be based on the intent defined in § 201(b)(1)(B) or (C). In addition to the elements instruction, the court should give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined), Instruction 6.18.201B1-3 (Bribery of a Public Official – "Corruptly" Defined), and, if appropriate, Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined). Giving an illegal gratuity to a public official in violation of 18 USC 201(c)(1)(A) may be a lesser included offense. See Instruction 6.18.201C.

The statute requires proof that the defendant intended to influence an official act. "In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act." United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 (1999).

A quid pro quo may be implicit as well as explicit. Evans v. United States, 504 U.S. 255, 268 (1992). The improper benefit may consist of money, property, services, or any other act which advances the official's personal or business interests, including a loan. See United States v. Kemp, ___ F.3d ___, 2007 WL 2410132, *17-18 (3d Cir. Aug. 27, 2007).

In addition, a conviction under this section may be based on a stream of benefits to the public official or to a third party whom the official favors, and the government does not need to establish that any specific benefit was given in exchange for a specific official act. Payments in violation of the statute may be made with the intent to retain the official's services on an "as needed" basis, so that whenever the opportunity presents itself the official will take specific action on the payor's behalf. See Kemp, ___ F.3d at ___.

To violate the statute, the defendant’s act of bribery need not be calculated to induce unlawful conduct by the public official. In United States v. Labovitz, 251 F.2d 393 (3d Cir. 1958), the Third Circuit stated:

[E]ither an intention to influence official behavior or an intention to induce unlawful action will supply the culpability which the statute requires. * * * "The statute is violated when a bribe is given or an offer to bribe is made regardless of the occasion therefor, provided it is done with the requisite intent and provided the acceptor or the offeree of the bribe is a person of the sort described in the statute."

251 F.2d at 394 (citations omitted).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B1-1
Bribery of a Public Official – "Public Official" Defined

The term "public official" means (a Member of Congress, or) an officer or employee or person acting (for) (on behalf of) the United States, or any department, agency or branch of the United States Government, in any official function, under or by authority of any such department, agency, or branch of government.

The term "public official" includes any employee of the United States government as well as any person who is performing work for or acting on behalf of the United States government.

O’Malley § 27.07.

18 USC 201(a)(1)provides:

the term "public official" means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror.

In some cases, the court may want to define "public official " for the jury.

In Dixson v. United States, 465 U.S. 482 (1984), the Supreme Court concluded that "[t]he term public official is not limited to persons in a formal employment or agency relationship with the Government." 465 U.S. at 494. The Court identified the appropriate inquiry as "whether the person occupies a position of public trust with official federal responsibilities." 465 U.S. at 496.

To clarify, the Court explained, "[t]o be a public official under section 201(a), an individual must possess some degree of official responsibility for carrying out a federal program or policy." 465 U.S. at 499.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B1-2
Bribery of a Public Official – "Official Act" Defined

The term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust. The government must prove that (name) intended to influence a specific act or acts.

The term "official act" includes the decisions or actions generally expected of the public official. These decisions or actions do not need to be specifically described in any law, rule, or job description to be considered to be an "official act."

O’Malley § 27.08; United States v. Sun-Diamond Growers of California, 526 U.S. 398,

405-06 (1999).

18 USC 201(a)(3) provides:

the term "official act" means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.

In some cases, the court may want to define "official act" for the jury.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B1-3
Bribery of a Public Official – "Corruptly" Defined

A person offers a thing of value to a public official "corruptly" if the person acts knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the offer of the thing of value to the public official.

Corrupt acts are ordinarily motivated by a hope or expectation of either financial gain or other benefit to one's self, or some aid or profit to another.

[It is not necessary for the government to prove that the public official was actually influenced, or actually performed an official act, or was even aware of the bribe. What the government must prove beyond a reasonable doubt is that the defendant acted with corrupt intent to bribe a public official, regardless whether the act was successful.]

O’Malley § 27.09.

In United States v. Traitz, 871 F.2d 368 (3d Cir. 1989), the Third Circuit explained:

This statute has been said to require that the alleged briber offer the bribe with a "corrupt intent" to influence official conduct. This requires the government to show that the "money was knowingly offered to an official with the intent and expectation that, in exchange for the money, some act of a public official would be influenced." Provided that the money is offered with corrupt intent, "the official does not necessarily even need to be aware of the bribe ... so long as a bribe is offered or promised with the required intent to influence any official act the crime is committed."

871 F.2d at 396 (citations omitted).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B2 
Receiving Bribe by Public Official (18 USC201(b)(2))

Count (number) of the indictment charges the defendant (name) with demanding, seeking, or receiving a bribe while a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) demanded, sought, or received something of value, that is, (specify item described in the indictment);

Second: That (name) was, at that time, a public official of the United States (or was acting on behalf of the United States); and

Third: That (name) did so corruptly in return for being influenced in the performance of an official act, that is, (name) intended to perform an official act in exchange for (specify thing of value).

O’Malley § 27.06

18 USC 201(b)(2) provides that whoever

being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person

commits a federal offense. In some cases, the court may want to modify the instruction to inform the jury that the bribe may be direct or indirect, that the defendant may be convicted of the offense based on an agreement to accept a bribe, or that the conviction may be based on the intent defined in § 201(b)(1)(B) or (C). In addition to the elements instruction, the court should also give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined), Instruction 6.18.201B1-3 (Bribery of a Public Official – "Corruptly" Defined), and, if appropriate, Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B2-1
Receiving Bribe by Public Official – "Corruptly" Defined

A public official demands, seeks, or receives a thing of value corruptly if the official accepts the item knowingly and intentionally with the purpose either of accomplishing an unlawful end or unlawful result or of accomplishing some otherwise lawful end or lawful result influenced by the receipt of the thing of value.

Corrupt acts are ordinarily motivated by a hope or expectation of either financial gain or other benefit to one's self, or some aid or profit to another.

O’Malley § 27.09.

In United States v. Traitz, 871 F.2d 368 (3d Cir. 1989), the Third Circuit explained:

This statute has been said to require that the alleged briber offer the bribe with a "corrupt intent" to influence official conduct. This requires the government to show that the "money was knowingly offered to an official with the intent and expectation that, in exchange for the money, some act of a public official would be influenced." Provided that the money is offered with corrupt intent, "the official does not necessarily even need to be aware of the bribe ... so long as a bribe is offered or promised with the required intent to influence any official act the crime is committed."

871 F.2d at 396 (citations omitted).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B3 
Bribery of a Witness 
(18 USC201(b)(3))

Count (number) of the indictment charges the defendant (name) with (briefly describe charged offense; e.g., with offering a bribe to a witness), which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name of witness) was to be a witness under oath or affirmation at (describe proceeding, e.g., a trial before the United States District Court for the Eastern District of Pennsylvania);

Second: That (name) [(gave) (offered) (promised)] something of value to (name of witness); and

Third: That (name) did this act corruptly, that is, with the intent to influence [(name of witness's) testimony] [(name of witness) to be absent from the proceeding described].

Eighth Circuit § 6.18.201C.

18 USC201(b)(3) provides that whoever

directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom

commits a federal offense. The court should also modify and give Instruction 6.18.201B1-3 (Bribery of a Public Official – "Corruptly" Defined). In some cases, the court may want to modify this instruction to inform the jury that the bribe may be direct or indirect or that the defendant may be convicted of the offense based on an offer or promise to bribe.

Section 201(d) provides:

Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the preparation of such opinion, and in appearing and testifying.

18 USC 201(d).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201B4 
Soliciting Bribe by Witness 
(18 USC201(b)(4))

Count (number) of the indictment charges the defendant (name) with (briefly describe charged offense; soliciting a bribe while a witness), which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) was to be a witness under oath or affirmation at (specify proceeding, e.g., a trial before the United States District Court for the Eastern District of Pennsylvania);

Second: That (name) [(asked for) (demanded) (accepted) (agreed to receive)] something of value (personally) (for (specify person or entity)); and

Third: That (name) did so corruptly, that is, in return for [(being influenced in (his)(her) testimony at) (absenting (himself) (herself) from)] (specify proceeding).

Eighth Circuit § 6.18.201D.

18 USC201(b)(4) provides that whoever

directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom

commits a federal offense. The court should also modify and give Instruction 6.18.201B2-1 (Receiving Bribe by Public Official – "Corruptly" Defined).

Section 201(d) provides:

Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the preparation of such opinion, and in appearing and testifying.

18 USC 201(d).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201C1A 
Illegal Gratuity to a Public Official 
(18 USC 201(c)(1)(A))

Count (number) of the indictment charges the defendant (name) with giving an illegal gratuity to a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name of official) was a public official or a former public official;

Second: That (name) knowingly directly or indirectly (gave) (offered) (promised) something of value to (name of official),and that this was not provided by law for the proper discharge of (name of official’s) official duty; and

Third: That (name) did so (for) (because of) an official act (performed) (that was going to be performed) by (name of official). To establish this element, the government must prove that there was a link between the offer or giving of the thing of value and a specific official act for or because of which it was offered or given. It is not sufficient that the gratuity was offered or given because (name of public official) had authority over matters in which (name) had an interest, or that the gratuity was offered or given solely for social reasons or friendship. The government, however, does not need to show that the gratuity influenced or was intended to influence the official act; it is sufficient if the gratuity was a reward for some future act that the public official would later take (and may already have determined to take), or for a past act that (he)(she) had already taken.

Fifth Circuit § 2.14.

18 USC 201(c)(1) provides that whoever, otherwise than as provided by law for the proper discharge of official duty,

(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official

commits a federal offense. The court should also give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined), Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined), and Instruction 5.02 (Knowingly). Giving an illegal gratuity to a public official in violation of 18 USC 201(c)(1)(A) may be a lesser included offense of the crime of bribing a public official in violation of 18 USC 201(b)(1). See Instruction 6.18.201B1.

In United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978), the Third Circuit described the requirements of the statute:

What is proscribed, simply put, is a public official's receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver.

580 F.2d at 69.

This provision of § 201 "requires a showing that something of value was given, offered, or promised to a public official . . . ‘for or because of any official act performed or to be performed by such public official.’" United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999). In Sun-Diamond, the Court explained the difference between bribery and giving an illegal gratuity:

The distinguishing feature of each crime is its intent element. Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

526 U.S. at 404-05.

Merely giving a gratuity to an official to foster good will does not violate the statute. The government must prove that the defendant gave the gratuity to the official "for or because of" the official’s position, and "not solely for reasons of friendship or social purposes." United States v. Standefer, 610 F.2d 1076, 1080 (3d Cir. 1979). Furthermore, the gratuity must be linked to a specific official act or acts. See Sun-Diamond Growers of California, 526 U.S. at 407-08. "[I]n order to establish a violation of 18 USC 201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given." Sun-Diamond Growers of California, 526 U.S. at 414.

In United States v. Holck, 398 F.Supp.2d 338 (E.D.Pa. 2005), aff’d sub nom. United States v. Kemp, ___ F.3d ___, 2007 WL 2410132 (3d Cir. Aug. 27, 2007), the district court discussed whether Sun-Growers requires a specific temporal relationship between the gratuity and the official act. The district court focused on the decision of the D.C. Circuit in United States v. Schaffer, 183 F.3d 833 (D.C. Cir. 1999), which the defendants cited as requiring proof of such a relationship:

On the surface, it might appear that Schaffer provides some persuasive authority for [the defendants’] temporal attenuation argument. However, there are two main reasons why this Court does not take it as such.

First, as the D.C. Circuit recognized, the U.S. Supreme Court has clearly left the magnitude of the necessary link "in doubt." Schaffer is a D.C. Circuit opinion, which is obviously not binding in the courts of the Third Circuit. Moreover, research indicates that no other courts (including the Third Circuit) have cited to Schaffer for a specific principle related to "temporal attenuation;" nor have any courts generally opined on an appropriate temporal benchmark. As such, Schaffer is not only inapposite on the facts, it stands on its own in the legal landscape, and is far from "established" law that would control here.

Second, and perhaps more important, a more nuanced reading of Schaffer than that offered by counsel for [defendants] suggests that Schaffer is better understood as a case about the knowledge--rather than the mere time frame--required to establish the required link. Schaffer was acquitted of the gratuity charges not simply because there was a long period of time between the gifts and the USDA's policy revisions, but, rather, because of a finding that there was no evidence that Schaffer knew or anticipated anything about those policy revisions (or any other decisions affecting Tyson within Espy's purview) at the time of the gift giving. See Schaffer, 183 F.3d at 833. If evidence had demonstrated that Schaffer had actually known about the potential USDA policy revisions, nothing in Schaffer says that the D.C. Circuit would have refused to affirm the jury's verdict merely because of significant temporal attenuation between the gifts and the actual policy revisions. Knowledge may or may not be a product of temporal attenuation (i.e., one could easily conceive of a situation where a lack of knowledge was due to something other than an issue of timing). The factual scenario in Schaffer happened to involve a question of knowledge that hinged on the timing of an outside event, but a case could just as easily turn on something else.

398 F.Supp.2d at 353-54.

The court continued:

[T]he appropriate question under conspiracy and bribery jurisprudence is not whether the favorable loans and [the public official’s] official actions were greatly attenuated in time, but, rather, whether [the defendants] knew or anticipated anything when they made the favorable loans with regard to future acts of [the public official] (e.g., the NTI line of credit), or did [the public official’s] actions regarding the NTI line of credit evidence a payback as consideration for their having made the loans. The actions of [the defendants] were not so temporally attenuated that the jury could not find their conduct with regard to both the loans and the NTI line of credit evidenced the scheme to corrupt [the public official].

398 F.Supp.2d at 354.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.201C1B 
Receiving Illegal Gratuity by a Public Official 
(18 USC 201(c)(1)(B))

Count (number) of the indictment charges the defendant (name) with receiving a gratuity while a public official, which is a violation of federal law.

In order to find the defendant guilty of this offense, you must find that the government proved each of the following three elements beyond a reasonable doubt:

First: That (name) was a public official (or a former public official);

Second: That (name) knowingly directly or indirectly (demanded) (sought) (received) (accepted) (agreed to receive or accept) something of value, and that this was not provided by law for the proper discharge of (name’s) official duty; and

Third: That (name) did so (for) (because of) an official act (name) (had performed) (was going to perform). To establish this element, the government must prove that there was a link between the thing of value sought or received and a specific official act for or because of which it was sought or received. It is not sufficient that the gratuity was sought or received because (name) had authority over matters in which (name of donor) had an interest, or that the gratuity was offered or given solely for social reasons or friendship. The government, however, does not need to show that the gratuity influenced or was intended to influence the official act; it is sufficient if the gratuity was a reward for some future act that (name) would later take (and may already have determined to take), or for a past act that (he)(she) had already taken.

Sand, Form Instruction 16-14.

18 USC 201(c)(1)(B) provides that whoever, otherwise than as provided by law for the proper discharge of official duty,

being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person

commits a federal offense. The court should also instruct the jury on the meaning of knowingly. See Instruction 5.02 (Knowingly). In some cases, the court may also wish to give Instruction 6.18.201B1-1 (Bribery of a Public Official – "Public Official" Defined) and Instruction 6.18.201B1-2 (Bribery of a Public Official – "Official Act" Defined). Receiving an illegal gratuity while a public official in violation of 18 USC 201(c)(1)(B) may be a lesser included offense of the crime of receiving a bribe by a public official in violation of 18 USC 201(b)(2). See Instruction 6.18.201B2.

In United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978), the Third Circuit described the requirements of the statute:

What is proscribed, simply put, is a public official's receipt of a gratuity, to which he was not legally entitled, given to him in the course of his everyday duties, for or because of any official act performed or to be performed by such public official, and he was in a position to use his authority in a manner which could affect the gift-giver.

580 F.2d at 69.

In United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404 (1999). In Sun-Diamond, the Court explained the difference between bribery and giving an illegal gratuity:

The distinguishing feature of each crime is its intent element. Bribery requires intent "to influence" an official act or "to be influenced" in an official act, while illegal gratuity requires only that the gratuity be given or accepted "for or because of" an official act. In other words, for bribery there must be a quid pro quo-a specific intent to give or receive something of value in exchange for an official act. An illegal gratuity, on the other hand, may constitute merely a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.

526 U.S. at 404-05. The gratuity must be linked to a specific official act or acts. See Sun-Diamond Growers of California, 526 U.S. at 407-08. "[I]n order to establish a violation of 18 USC 201(c)(1)(A), the Government must prove a link between a thing of value conferred upon a public official and a specific ‘official act’ for or because of which it was given." Sun-Diamond Growers of California, 526 U.S. at 414.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

6.18.371A
Conspiracy To Commit An Offense Against The United States
Basic Elements (18 USC 371)

See O’Malley §§ 31.01 - 31.03. For variations in other Circuits, see First Circuit § 4.03; Fifth Circuit § 2.20; Sixth Circuit §§ 3.01A & 3.01B; Seventh Circuit § 5.08; Eighth Circuit § 5.06A; Ninth Circuit § 8.16.

The general federal conspiracy statute,18 USC 371 provides: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor."

This instruction is for conspiracies to commit an offense against the United States. Instruction 6.18.371B should be used when the indictment charges a conspiracy to defraud the United States. In addition to instructing on the elements of conspiracy to commit an offense against the United States, the trial judge must also instruct on the elements of the substantive offense(s) that is (are) the object of the conspiracy. See, e.g., United States v. Yasbin, 159 F.2d 705 (3d Cir. 1947) ("An examination of the record in this case discloses that while the trial judge charged the jury as to the elements of the crime of conspiracy he did not instruct them as to the elements of the substantive offense involved in the conspiracy. Consequently the judgment of the conviction is reversed . . . ."). If the defendant is also charged with the substantive offense(s), the trial judge will already be explaining those elements in the instructions; if the substantive offense(s) is (are) not charged, the court must define the elements of the object offense(s) here.

There are also specific federal statutes covering conspiracies to commit specific offenses. Some of these specific statutes do not require proof of an overt act. See in particular 21 USC 846 (conspiracy to commit federal drug offenses; no overt act required). Instructions on these specific conspiracy statutes are in Chapter 6 of these model instructions. See Instructions ___.

The Third Circuit has used a variety of words to describe the elements of a section 371 conspiracy, but these different articulations state essentially the same elements. Compare United States v. Rankin, 870 F.2d 109, 113 (3d Cir. 1989); United States v. Shoup, 608 F.2d 950, 956 (3d Cir. 1979) with United States v. Uzzolino, 651 F.2d 207, 214 (3d Cir. 1981); United States v. Small, 472 F.2d 818, 819 (3d Cir. 1971).

The elements and consequences of a conspiracy charge are defined in fair detail by the case law, because of the significant number of conspiracy prosecutions in the federal courts generally and within the Third Circuit more specifically. As a result, many aspects of conspiracy law need their own instruction, and we have addressed that need in the instructions that follow. In those instructions, alternative language is included to use depending on whether the conspiracy is to commit a federal offense or to defraud the United States.

Conspiracy also has consequences with respect to criminal responsibility for substantive offenses, as well as the admissibility of acts and statements of co-conspirators. See Instructions 7.03 (Responsibility for Substantive Offenses Committed by Co-Conspirators (Pinkerton Liability), 7.04 (Withdrawal as a Defense to Substantive Offenses Committed by Co-Conspirators), and 6.18.371L (Acts and Statements of Co-Conspirators).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

This should be the first instruction on conspiracy when the charge is conspiracy to defraud the United States under 18 USC 371. See the Comment to Instruction 6.18.371A.

For cases discussing the broad interpretation of "defraud the United States" stated in this instruction, see, e.g., Hass v. Henkel, 216 U.S. 462, 479 (1910); Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); Glasser v. United States, 315 U.S. 60, 66 (1942); Bridges v. United States, 346 U.S. 209, 221, n. 19 (1953). Except under unusual circumstances, see Bridges v. United States, 346 U.S. at 215-224, fraud is an essential element of the offense. United States v. Vazquez, 319 F.2d 381, 384 (3d Cir. 1963).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.04. For variations in other Circuits, see Sixth Circuit § 3.02; Eighth Circuit § 5.06B.

Agreement is the essential element of conspiracy and the evil at which the crime of conspiracy is directed. See, e.g., Iannelli v. United States, 420 U.S. 770, 777 n. 10 (1975); United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). Numerous Third Circuit cases have discussed what the government is and is not required to prove in order to establish the existence of an agreement. See, e.g., United States v. Basroon, 38 Fed. Appx. 772 (3d Cir. 2002); United States v. Appelwhaite, 195 F.3d 679 (3d Cir. 1999); United States v. Messerlian, 832 F.2d 778 (3d Cir. 1987); United States v. Addonizio, 449 F.2d 100 (3d Cir. 1971); United States v. Frank, 290 F.2d 195 (3d Cir. 1961); United States v. Lester, 282 F.2d 750 (3d Cir. 1960).

If the indictment charges an agreement to commit several offenses, the bracketed final paragraph should be given.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.05. For variations in other Circuits, see Sixth Circuit § 3.03; Eighth Circuit § 5.06B.

Some cases have suggested that once the existence of a conspiracy is established, only "slight evidence" is needed to allow the jury to find that the defendant was a member. See, e.g., United States v. Kates, 508 F.2d 308, 310 n. 4 (3d Cir. 1975); United States v. Weber, 437 F.2d 327, 336 (3d Cir. 1970). This idea is not included in the instruction because of concern that it would dilute the government’s burden of proving beyond a reasonable doubt that the defendant was a member of the conspiracy. Also see United States v. Cooper, 567 F.2d 252, 255 (3d Cir. 1977) ("One may not be convicted of conspiracy solely for keeping bad company.").

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

Neither O’Malley nor the other Circuits include a separate instruction on the required state of mind element for conspiracy. The trial judge may feel that it is not necessary to give this instruction, in addition to instructions on the Basic Elements (Instructions 6.18.371A and 6.18.371B), Existence of an Agreement (Instruction 6.18.371C), and Membership in the Agreement (Instruction 6.18.371D), all of which reference the mental state requirements.

In United States v. Korey, 472 F.3d 89 (3d Cir. 2007) (conspiracy to distribute a controlled substance under 18 USC 846), the Third Circuit stated that, "‘[o]ne of the requisite elements the government must show in a conspiracy case is that the alleged conspirators shared a "unity of purpose", the intent to achieve a common goal, and an agreement to work together toward the goal.’ " 472 F.3d at 93 (quoting United States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004), in turn quoting United States v. Wexler, 838 F.2d 88, 90-91 (3d Cir.1988)). In Korey, the court held that the trial judge erred by instructing the jury that it could convict if it found merely that the defendant agreed to accept cocaine in payment for killing the victim, without clearly instructing that the jury must find that the government proved a unity of purpose between defendant and his alleged conspirator.

The Supreme Court noted in United States v. United States Gypsum Co., 438 U.S. 422, 443 n. 20 (1978), that, "[i]n a conspiracy, two different types of intent are generally required – the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. See W. LaFave & A. Scott, Criminal Law 464- 465 (1972)." Also see, e.g., United States v. Shoup, 608 F.2d 950, 956 n. 9 (3d Cir. 1979) (quoting United States Gypsum). Knowingly facilitating a conspiracy or the commission of the objective of a conspiracy is not enough alone to make one guilty of conspiracy. United States v. Carlucci, 288 F.2d 691 (3d Cir 1961); United States v. Giuliano, 263 F.2d 582, 583 (3d Cir. 1959) (a legitimate vendor’s sale of supplies to conspirators was insufficient to convict the vendor of conspiracy). However, intent or purpose may be inferred from knowledge if the inference is reasonable under the circumstances. Ingram v. United States, 360 U.S. 672, 680 (1959) ("What was said in Direct Sales Co. v. United States on behalf of a unanimous Court is of particular relevance here: ‘Without the knowledge, the intent cannot exist. . . . Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal. . . . This, because charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes," quoting Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943).); United States v. Falcone, 311 U.S. 205 (1940); People v. Lauria, 251 Cal App.. 471, 59 Cal. Rptr. 628 (1967). Courts have also observed that receiving a benefit from or having a stake in the object of a conspiracy is evidence of intent, but is not necessary to prove intent. See, e.g., Direct Sales Co. v. United States, 319 U.S. 703, 713 (1943); United States v. Pedroni, 45 Fed. Appx. 103, 108 (3d Cir. 2002) (not precedential); United States v. Shoup, 608 F.2d at 957.

In United States v. Brodie, 403 F. 3d 123, 147 (3d Cir. 2005), the Third Circuit also stated that, "the government, in proving a conspiracy under 18 USC 371, was required to prove at least the degree of criminal intent necessary for the underlying substantive offense of violating the American Cuban embargo. See United States v. Feola, 420 U.S. 671, 686. . . ." The mental state required for the underlying offense in Brodie was specific intent, which "[i]n the context of [that] offense ... demands that the government prove that a defendant had general knowledge of the law which forbade his actions and acted with the specific intent to circumvent that law." Brodie, 403 F.3d at 147.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.07. For variations in other Circuits, see Sixth Circuit § 3.04; Eighth Circuit § 5.06D.

A failure to act or an omission can be an overt act, where the co-conspirator who failed to act had a legal duty to perform the act and he or she omitted performance in order to further the achievement of the objectives of the conspiracy. See, e.g., United States v. Curran, 20 F.3d 560 (3d Cir. 1994) (conspiracy conviction vacated where jury misled into believing defendant acted unlawfully by omitting performance of an act that he was under no legal duty to perform). When the indictment alleges failure to act or omission as an overt act, Instruction 5.10 should be given.

Commission of an overt act is an element of an 18 USC 371 conspiracy, but there are other, specific conspiracy statutes that do not require an overt act. See, e.g., 21 USC 846 (conspiracy to commit federal drug offenses). A single overt act by any member of the conspiracy is sufficient to satisfy this element, United States v. Nelson, 852 F.2d 706, 713 (3d Cir. 1988 ); United States v. Kapp, 781 F.2d 1008, 1012 (3d Cir. 1986), as long as the act was committed to further the conspiracy and tended towards that end. See, e.g., United States v. Small, 472 F.2d 818, 819 (3d Cir. 1972). The Pinkerton rule of co-conspirator responsibility applies to overt acts, as it does to substantive offenses. See Instruction 5.06D. Acts as innocent as writing a letter or talking on the telephone may constitute sufficient overt acts. United States v. Nelson, 852 F.2d at 706, 713. Also see, e.g., United States v. Braverman, 317 U.S. 49, 53 (1942); United States v. Adamo, 534 F.2d 31, 39 (3d Cir. 1976).

The overt acts must have been committed during the existence of the conspiracy. When the defense argues that this temporal connection has not been proved, the court should be careful to instruct that the overt act must have been committed during the conspiracy, not before its formation or after its termination.

The government may satisfy the overt act element by proving "overt acts not listed in the indictment, so long as there is no prejudice to the defendants thereby." United States v. Schurr, 794 F.2d 903, 908 n. 4 (3d Cir. 1986); United States v. Adamo, 534 F.2d at 39 (slight differences in the dates of overt acts as proven compared to those alleged).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.08. For variations in other Circuits, see Sixth Circuit § 3.13; Eighth Circuit § 5.06E.

"The crime of conspiracy is separate and distinct from the related substantive offense." United States v. Watkins, 339 F.3d 167, 178 (3d Cir. 2003). See United States v. Uzzolino, 651 F.2d 207 (3d Cir. 1981) (defendant acquitted of embezzlement but convicted of conspiracy to embezzle pension funds). Commission of the substantive offense that was the objective of the conspiracy is not a prerequisite to conviction of conspiracy. United States v. Shoup, 608 F.2d 950, 956 (3d Cir. 1979). Although there are no Third Circuit cases on this precise point, the same would be true for defrauding the United States; that is, a defendant can be convicted of conspiracy to defraud the United States even though the United States was not defrauded.

The Model Jury Instructions in the Sixth Circuit include the following instruction, but there are no Third Circuit cases on this point:

§ 3.13 Impossibility Of Success

One last point about conspiracy. It is no defense to a conspiracy charge that success was impossible because of circumstances that the defendants did not know about. This means that you may find the defendants guilty of conspiracy even if it was impossible for them to successfully complete the crime that they agreed to commit.

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

See O’Malley § 31.09. For variations in other Circuits, see Fifth Circuit § 2.21; Sixth Circuit §§ 3.08 & 3.09; Eighth Circuit § 5.06G; Ninth Circuit § 8.17.

Defendants charged in an indictment alleging a single conspiracy often argue that the evidence actually proved multiple conspiracies and that they were a member of some conspiracy other than the one charged. Where a single conspiracy is alleged in the indictment, there may be a fatal variance if the evidence at trial proves only the existence of multiple, separate and independent conspiracies. See, e.g., United States v. Kotteakos, 328 U.S. 750, 757-58 (1946); United States v. Perez, 280 F.3d 318, 345-46 (3d Cir. 2002); United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989) (citing United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986)). Whether a variance between the evidence and the indictment requires reversal of a conviction depends on whether the variance prejudiced the defendant. See, e.g., United States v. Kotteakos, 328 U.S. at 757-58; United States v. Daraio, 445 F.3d 253, 259-64 (3d Cir. 2006) (discussing the similarities and differences between a constructive amendment of an indictment and a variance).

Defendants may request an instruction on multiple conspiracies based on the "rim-less wheel" metaphor used by the Supreme Court in United States v. Kotteakos, 328 U.S. 750, 754-55 (1946). In Kotteakos, the indictment charged one single conspiracy among the defendants, but the Court held that there was a fatal variance between the evidence and the indictment, because the evidence proved multiple, separate conspiracies (which the government had conceded), and the defendant was prejudiced by the variance (which the government did not concede). The evidence against the alleged co-conspirators was similar, showing that they had all transacted illegal business with the same person, but it also showed that the defendants had no relationship with or connection to each other except for their similar, but independent illegal business dealings with the same person. The Supreme Court agreed with the conclusion of the Court of Appeals that the evidence showed "at least eight, and perhaps more, separate and independent groups, none of which had any connection with any other, though all dealt independently with Brown as their agent." The pattern shown was "that of separate spokes meeting at a common center [or hub]," but without the rim of the wheel to enclose the spokes and prove one overall conspiracy. 328 U.S. at 755.

In Blumenthal v. United States, 332 U.S. 539 (1948), however, the Supreme Court distinguished Kotteakos and held that the evidence in the case before it did prove that all five defendants joined a single conspiracy. The Court in Blumenthal reasoned:

We think that in the special circumstances of this case the two agreements were merely steps in the formation of the larger and ultimate [sic] more general conspiracy. In that view it would be a perversion of justice to regard the salesmen's ignorance of the unknown owner's participation as furnishing adequate ground for reversal of their convictions. Nor does anything in the Kotteakos decision require this. The scheme was in fact the same scheme; the salesmen knew or must have known that others unknown to them were sharing in so large a project; and it hardly can be sufficient to relieve them that they did not know, when they joined the scheme, who those people were or exactly the parts they were playing in carrying out the common design and object of all. By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features and broad scope, though not of its exact limits, and by their common single goal.

The case therefore is very different from the facts admitted to exist in the Kotteakos case.... [In that case] no two of those agreements were tied together as stages in the formation of a large all-inclusive combination, all directed to achieving a single unlawful end or result. On the contrary each separate agreement had its own distinct, illegal end. Each loan was an end in itself, separate from all others, although all were alike in having similar illegal objects. Except for Brown, the common figure, no conspirator was interested in whether any loan except his own went through.... The conspiracies therefore were distinct and disconnected, not parts of a larger general scheme, both in the phase of agreement with Brown and also in the absence of any aid given to others as well as in specific object and result. There was no drawing of all together in a single, over-all, comprehensive plan.

Here the contrary is true. All knew of and joined in the overriding scheme. All intended to aid the owner ... to sell the whiskey unlawfully, though the two groups of defendants differed on the proof in knowledge and belief concerning the owner's identity. All by reason of their knowledge of the plan's general scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey. True, each salesman aided in selling only his part. But he knew the lot to be sold was larger and thus that he was aiding in a larger plan. He thus became a party to it and not merely to the integrating agreement with Weiss and Goldsmith.

We think therefore that in every practical sense the unique facts of this case reveal a single conspiracy of which the several agreements were essential and integral steps....

332 U.S. at 557-59.

In United States v. Smith, 82 F.3d 1261 (3d Cir. 1996), the Third Circuit held that, for Double Jeopardy purposes, the evidence showed not one single conspiracy but multiple, separate conspiracies. The Third Circuit compared Kotteakos and Blumenthal, and then stated, "Following the law established in Kotteakos and Blumenthal, in numerous variance cases we have drawn a distinction between multiple and single conspiracies based upon the existence of a commitment to a single set of objectives." 789 F.2d at 1270 (citations omitted).

The ultimate [question] is ... whether two groups of conspirators alleged by the government to have entered separate agreements are actually all committed to the same set of objectives in a single conspiracy. [Proof] of a single conspiracy will be made when the record reveals a degree of participant overlap, which together with other factors, permits an inference that members of each alleged conspiracy were aware of the activities and objectives of the other conspiracy and had some interest in the accomplishment of those objectives. When, as here, [the government] claims that there was a single hub and spoke conspiracy despite the presence of spoke conspirators who lacked knowledge of each other's activities, a factfinder will be unable to infer the existence of but one conspiracy in the absence of evidence that the activities of the spoke participants were, to some degree, interdependent or mutually supportive.

789 F.2d at 1271 (citations omitted). The Third Circuit also noted Justice Stevens’ observation in United States v. Broce, that "the fact that there may be an ongoing, core conspiracy is not inconsistent with the prosecution of a member of that conspiracy for separate illegal agreements with others entered into in furtherance of the overall objective of the core conspiracy." Id. at 1272-73, citing 488 U.S. 563, 580-81 (Stevens, J., concurring). Also see, e.g., United States v. Castro, 776 F.2d 1118, 1124 n. 4 (3d Cir. 1985) (noting that, "[t]he ‘wheel’ conspiracy describes an arrangement of co-conspirators around a central figure, or ‘hub,’ who deals separately with peripheral figures, or ‘spokes.’ Each of the spokes is a member of the conspiracy even though they may not have any direct relations with one another. These peripherial [sic] members must have been aware of one another and have done something in furtherance of a single, illegal enterprise, however, or it is said that the conspiracy alleged lacks ‘the rim of the wheel to enclose the spokes.’" Citing Kotteakos and Blumenthal).

In United States v. Boyd, 595 F.2d 120 (3d Cir. 1978), the Third Circuit explained:

The gist of a criminal conspiracy, the agreement between co-conspirators, may continue over an extended period of time and involve numerous transactions. Parties may join the conspiracy after its inception, and may withdraw and terminate their relationship with the conspiracy prior to its completion. The fact that conspirators individually or in groups perform different tasks in pursuing the common goal does not, by itself, necessitate a finding of several distinct conspiracies. And even if a small group of co-conspirators are at the heart of an unlawful agreement, others who knowingly participate with the core members and others to achieve a common goal may be members of a single conspiracy.

It follows from these basic principles that the government, without committing a variance between a single conspiracy charged in an indictment and its proof at trial, may establish the existence of a continuing core conspiracy which attracts different members at different times and which involves different sub-groups committing acts in furtherance of the overall plan.

595 F.2d at 123 (citations omitted). See also United States v. Lee, 359 F.3d 194, 207 (3d Cir. 2004), quoting United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989), and United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986) ("[A] finding of a master conspiracy with subschemes does not constitute a finding of multiple, unrelated conspiracies."); United States v. Salerno, 485 F.2d 260, 262 (3d Cir. 1973) (defendants who provided counterfeit securities on only a few occasions to a core conspiracy which engaged in persistent securities fraud could be convicted of aiding and abetting the conspiracy).

In United States v. Kelly, 892 F.2d 255, 258 (3d Cir.1989), the Third Circuit discussed the analysis to use in determining a single rather than multiple, separate conspiracies:

We will employ a three-step inquiry to determine whether a series of events constitutes a single conspiracy or separate and unrelated conspiracies. United States v. DeVarona, 872 F.2d 114 (5th Cir.1989). First, we examine whether there was a common goal among the conspirators. DeVarona, 872 F.2d at 118. Second, we look at the nature of the scheme to determine whether "the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators. DeVarona, 872, F.2d at 119 (quoting United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973), cert. denied, 417 U.S. 945 (1974)). Third, we examine the extent to which the participants overlap in the various dealings. DeVarona, 872 F.2d at 118.

Also see, e.g., United States v. Sourlis, 953 F. Supp. 568, 573-74 (D. N.J. 1996) (stating that the Third Circuit "has developed the following factors for variance cases to determine whether a single conspiracy exists: 1) whether there existed common or similar goals; 2) whether there existed common or similar methods; and 3) whether there existed an overlapping of participants.... Sometimes, although not always, the court of appeals has considered a fourth factor: whether the agreement or scheme contemplated a continuity in purpose, performance, and result." Citations omitted).

Compare United States v. DiPasquale, 740 F.2d 1282 (3d Cir. 1984) (single conspiracy to collect debts through extortion, although multiple extortionate acts committed by varying extortionists over extended period of time, where defendants pooled resources, shared a common space, and used stories of each others’ actions to persuade later victims); United States v. Lester, 282 F.2d 750, 753 (3d Cir. 1960) (single conspiracy to transport stolen property in interstate commerce, where defendant agreed to buy stolen geophysical map with a kick back for successful wells after original conspirator stole it and then original conspirator stole additional maps; conspiracy "committed whether or not the parties comprehend its entire scope, whether they act separately or together, by the same or different means, known or unknown to some of them.") with United States v. Camiel, 689 F.2d 31 (3d Cir. 1982) (no single unitary patronage scheme involving successive chairs of a political party though both used same techniques to secure no-show jobs for party loyalists; reasonable to infer separate conspiracies defined by each chair’s period in the position).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

For variations in other Circuits, see Sixth Circuit § 3.12.

This instruction ordinarily is not necessary in a conspiracy case. It should be given only where the facts present the possibility that a conspiracy terminated before events at issue in the case.

In United States v. DiPasquale, 740 F.2d 1282 (3d Cir. 1984), extortionate collections of claimed debts arising out of the conspirators’ drug transactions demonstrated "a continuity of purpose and a continued performance of acts," and the lapse of a year's time between incidents was not sufficient to prove that the conspiracy had ended. 740 F.2d at 1290, citing United States v. Steele, 685 F. 2d 793, 801 (3d Cir.), cert. denied, 459 U.S. 908 (1982) (where the purpose of a conspiracy to bribe and defraud could not continue after the scheme was disclosed, the conspiracy terminated conclusively on the date when it was disclosed to officials with authority to order a prosecution) and United States v. Mayes, 512 F.2d 637, 642-43 (6th Cir.) (Sixth Circuit stated, "Nor does the fact that the conspiracy continued over a long period of time and contemplated the commission of many illegal acts transform the single conspiracy into several conspiracies.... A conspiracy is completed when the intended purpose of the conspiracy is accomplished. But where a conspiracy contemplates a continuity of purpose and continued performance of acts, it is presumed to exist until there has been an affirmative showing that it has terminated; and its members continue to be conspirators until there has been an affirmative showing that they have withdrawn." citations omitted.).

MODEL CRIMINAL JURY INSTRUCTIONS - THIRD CIRCUIT – 2006

O’Malley § 31.11. For variations in other Circuits, see Sixth Circuit §§ 3.11A-C; Seventh Circuit §§ 5.12, 5.13; Eighth Circuit § 5.06H; Ninth Circuit § 8.19.

Withdrawal can be a defense in different ways:

(1) A defense to conspiracy if, although the jury finds that defendant joined the agreement with the required mental state, the evidence shows that the defendant withdrew before the commission of an overt act; or

(2) A defense to conspiracy and to substantive offenses committed by other co-conspirators where, although the evidence proves that a conspiracy existed, the defendant joined the conspiracy with the required mental state, and an overt act was committed while defendant was a member, the evidence also proves that defendant withdrew and thereafter the statutes of limitation ran before the government obtained an indictment; or

(3) As a defense to substantive offenses committed by other co-conspirators, if the evidence proves that the defendant withdrew before the substantive offenses were committed (see Instruction 7.04 (Withdrawal as a Defense to Substantive Offense Committed by Co-Conspirators)).

See, e.g., United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002); United States v. Boone, 279 F.3d 163, 192 (3d Cir. 2002); United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995); United States v. Steele, 685 F.2d 793, 803 (3d Cir. 1982); United States v. Lowell, 649 F.2d 950, 955 (3d Cir. 1981).

This instruction should be given when the defendant makes a prima facie showing of withdrawal before the commission of an overt act. It should also be given when the defendant makes a prima facie showing of withdrawal after which the period of limitations ran, by using the bracketed alternative, "before / after (date)" language. The Third Circuit has recognized that withdrawal from the conspiracy starts the running of the statute of limitations as to the withdrawing defendant. See, e.g., United States v. Kushner, 305 F. 3d 194, 198 (3d Cir. 2002), citing United States v. Read, 658 F.2d 1225, 1233 (7th Cir.1981) ("Withdrawal becomes a complete defense only when coupled with the defense of the statute of limitations."); United States v. Antar, 53 F.3d 568, 582 (3d Cir. 1995) ("However, if a defendant properly and adequately terminates his or her involvement with the conspiracy, he or she no longer can be held responsible for acts of his or her co-conspirators and the statute of limitations begins to run in his behalf."); United States v. Lowell, 649 F.2d 950, 958 (3d Cir. 1981) (Third Circuit approved the trial court’s instruction that, "If this withdrawal occurs more than five years before the defendant was indicted, he may not be convicted of the conspiracy, even though he at one time was part of it. Unless, within five years of the day on which he was indicted the defendant rejoined the conspiracy and participated in furtherance of it.")

If the trial court is not satisfied that the defendant made a prima facie showing of withdrawal, the court need not give a withdrawal instruction. See, e.g., United States v. Boone, 279 F.3d at 192-93 (holding defendant did not make the prima facie showing required under Antar to warrant an instruction on withdrawal). See discussion below.

Withdrawal Standard.  In United States v. Antar, 53 F.3d 568 (3d Cir. 1995), the Third Circuit held that the trial judge properly refused to dismiss charges of conspiracy and substantive offenses committed by co-conspirators because of the statutes of limitations, finding that the defendant failed to make out a prima facie case of withdrawal. Although Antar involved an 18 USC 1962(d) RICO conspiracy, not a section 371 conspiracy, the Third Circuit noted that, "[i]n this regard, section 1962(d) long has been interpreted against the backdrop of traditional conspiracy law and thus the same analysis applies both to the RICO and section 371 conspiracies." Id. at 582. With respect to the standard for withdrawal, the court stated (id.):

The Supreme Court long ago set forth a rigorous standard for demonstrating withdrawal. In 1912 in Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114 (1912), the Court explained:

Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished, he is still offending. And, we think, consciously offending, offending as certainly ... as at the first moment of his confederation, and continuously through every moment of its existence.... Until he does withdraw there is conscious offending....

Id. at 369-70, 32 S.Ct. at 803 (emphasis added). Thus, we have held that "[m]ere cessation of activity in furtherance of an illegal conspiracy does not necessarily constitute withdrawal." United States v. Steele, 685 F.2d 793, 803 (3d Cir.1982), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982). Rather, "[t]he defendant must present evidence of some affirmative act of withdrawal on his part, typically either a full confession to the authorities or communication to his co-conspirators that he has abandoned the enterprise and its goals. " Id. at 803-04 (emphasis added); see also United States v. Heckman, 479 F.2d 726, 729 (3d Cir.1973). Of course, there is no single way withdrawal can be established; in large part whether a particular action constitutes withdrawal depends on context. Thus, the Supreme Court has cautioned against placing "confining blinders" on the jury's consideration of evidence of withdrawal and has held that "[a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators have generally been regarded as sufficient to establish withdrawal or abandonment." United States v. United States Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887, 57 L.Ed.2d 854 (1978).

In United States v. United States Gypsum Co., 438 U.S. 422, 463-64 (1978), the Supreme Court held it was error to instruct the jury that, "In order to find that a defendant abandoned or withdrew from a conspiracy ... you must find, from the evidence, that he or it took some affirmative action to disavow or defeat its purpose. Mere inaction would not be enough to demonstrate abandonment. To withdraw, a defendant either must have affirmatively notified each other member of the conspiracy he will no longer participate in the undertaking so they understand they can no longer expect his participation or acquiescence, or he must make disclosures of the illegal scheme to law enforcement officials." The Court reasoned that, "The charge, fairly read, limited the jury's consideration to only two circum