7TH CIRCUIT CHAPTER 5

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Responsibility

        5.01     Responsibility
        5.02     Personal Responsibility Of Corporate Agent
        5.03     Entity Responsibility--Entity Defendant--Agency (a)
        5.04     Entity Responsibility--Entity Defendant--Agency (b)
        5.05     Joint Venture
        5.06     Acting Through Another / Aiding And Abetting
        5.07     Accessory After The Fact
        5.08     Conspiracy
        5.09     Conspirator’s Liability For Substantive Crimes Committed by Coconspirators; Conspiracy Charged--Elements
        5.10     Conspirator's Liability For Substantive Crimes Committed by Coconspirators; Conspiracy Not Charged In The Indictment – Elements
        5.11     Mere Presence / Association / Activity
        5.12     Conspiracy--Withdrawal
        5.13     Conspiracy--Withdrawal--Statute of Limitations

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.01 Responsibility

A person responsible for the conduct of another may be found guilty even though the one who it is claimed committed the crime has not been found guilty.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.02 Personal Responsibility of Corporate Agent

FORECITE National™ Materials Related To This Instruction:

69.1 Personal Responsibility Of Corporate Agent

A person is responsible for conduct that he performs or causes to be performed in behalf of a corporation just as though the conduct were performed in his own behalf. However, a person is not responsible for the conduct of others performed in behalf of a corporation merely because that person is an officer, employee, or other agent of a corporation.

Committee Comment

The first sentence of this instruction states the common sense rule that the fact that actions are taken with the intent to further corporate business does not relieve the agent of criminal responsibility for those actions. See United States v. Wise, 370 U.S. 405 (1962); United States v. Bach, 151 F.2d 177, 179 (7th Cir. 1945). "[T]he law is that, unless there is a clear legislative instruction to the contrary, any corporate officer who participates, in whole or in part, in a proscribed transaction on behalf of the corporation (and if the proscription is absolute, no consciousness on the part of the officer of the violation is required) is subject to the penal sanctions imposed by the statute defining the offense as well as the corporation on whose behalf he is acting." I National Commission on Reform of Federal Criminal Laws, Working Papers 178 (1970).

The second sentence of the instruction expands upon an idea implicit in the first sentence -- a corporate officer's criminal responsibility is not enlarged merely because of his corporate office. The corporate agent is, of course, responsible for his own conduct, and is responsible for the conduct of others according to the ordinary rules of accountability. This instruction does not exclude the possibility that a criminal statute may impose a special duty on corporate officers, see, e.g., United States v. Park, 421 U.S. 659, 667-76 (1975) and United States v. Doig, 950 F.2d 411, 414 (7th Cir. 1991), but in such event, as the Court in Park noted, criminal liability attaches not because of a corporate officer's position, but because the officer acts or fails to act in conformity with the duty imposed by statute. Id. at 674. See also United States v. McMullen, 516 F.2d 917, 921 (7th Cir.), cert. denied, 423 U.S. 915 (1975) (persons required to collect, account for, and pay over withholding taxes include all those with significant control over the financial decision making process within a corporation). See generally Developments in the Law--Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv.L.Rev. 1227, 1259-75 (1979).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.03 Entity Responsibility--Entity Defendant--Agency (a)

FORECITE National™ Materials Related To This Instruction:

Chapter 69: Corporate Liability

[Name of entity] is a [corporation, partnership, voluntary association]. A [corporation] [partnership] [voluntary association] may be found guilty of an offense. A [corporation, partnership, voluntary association] acts only through its agents and employees, that is, those [directors], officers, agents, employees, or other persons authorized or employed to act for it. To sustain the charge of _____________ against [name of entity], the government must prove the following propositions:

First, the offense charged was committed by [an] agent[s] or employee[s] of [name of entity];

Second, in committing the offense, [the] agent[s] or employee[s] intended, at least in part, to benefit [name of entity];

Third, the acts by [the] agent[s] or employee[s] were committed within the authority or scope of [his/her/their] employment.

For an act to be within the authority of an agent or the scope of the employment of an employee, it must deal with a matter whose performance is generally entrusted to the agent or employee by [name of entity].

It is not necessary that the particular act was itself authorized or directed by [name of entity].

If an agent or an employee was acting within the authority or scope of [his/her] employment, [name of entity] is not relieved of its responsibility because the act was illegal, contrary to [name of entity]'s instructions, or against its general policies. You may, however, consider the existence of [name of entity]'s policies and instructions and the diligence of its efforts to enforce them in determining whether [the] agent[s] or employee[s] [was/were] acting with intent to benefit [name of entity] or within the scope of [his/her/their] employment.

Committee Comment

This instruction adopts the position of the majority of the courts of appeals which have considered the question of the responsibility of a corporation for the criminal conduct of its agents. The majority view is that unless the criminal statute explicitly provides otherwise, a corporation is vicariously criminally liable for the crimes committed by its agents acting within the scope of their employment--that is, within their actual or apparent authority and on behalf of the corporation. See Standard Oil Co. v. United States, 307 F.2d 120 (5th Cir. 1962); Developments in the Law--Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, 92 Harv. L. Rev. 1227, 1247-51 (1979). Under this view, which simply constitutes an application of respondent superior principles to criminal statutes, it may be irrelevant that the agent is not a high

managerial official, that the corporation may have specifically instructed the agent not to engage in the proscribed conduct, or that the statute is one that requires willful or knowing violations, rather than one that imposes strict liability. See, e. g., United States v. Hilton Hotels Corp., 467F.2d 1000 (9th Cir. 1972), cert. denied, 409 U.S. 1125 (1973); Continental Baking Co. v. United States, 281 F.2d 137 (6th Cir. 1960); United States v. Armour & Co., 168 F.2d 342 (3d Cir. 1948); but see Holland Furnace Co. v. United States, 158 F.2d 2 (6th Cir. 1946). The stated rationale is that the criminal statutes impose a duty upon the corporation to prevent its employees from committing the statutory violations.

Under the line of cases beginning with United States v. Parfait Powder Puff Co., 163 F.2d 1008, 1009 (7th Cir. 1947) (imputing liability to the corporation for violation of the Food and Drug Act), the Seventh Circuit holds corporations to a strict liability standard in regulatory cases. See also United States v. H.B. Gregory Co., 502 F.2d 700, 705-06 (7th Cir. 1973)(same); United States v. Kaadt, 171 F.2d 600, 604 (7th Cir. 1948)(same). Cf. United States v. Dotterweich, 320 U.S. 277, 285 (1943) ("Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless").

In non-regulatory cases, however, intent to benefit the corporation is treated as a separate element. See, e.g., United States v. One Parcel of Land Located at 7326 Highway 45 N., Three Lakes, 965 F.2d 311, 316 (7th Cir. 1992), which holds that agents are outside the scope of their employment when not acting at least in part for the benefit of the corporation, implying that the intent to benefit is an element of corporate responsibility. See also United States v. Barrett, 51 F.3d 86, 89 (7th Cir. 1995) ("common sense dictates that when an employee acts to the detriment of his employer and in violation of the law, his actions normally will be deemed to fall outside the scope of his employment and thus will not be imputed to his employer."). Cf. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 446 (7th Cir. 1994)(a sexual harassment case in which the Seventh Circuit noted that "[k]nowledge of the agent is imputed to the corporate principal only if the agent receives the knowledge while acting within the scope of the agent’s authority and when the knowledge concerns a matter within the scope of that authority"); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992) (same).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.04 Entity Responsibility--Entity Defendant--Agency (b)

FORECITE National™ Materials Related To This Instruction:

Chapter 69: Corporate Liability

If you find that an act of an agent was not committed within the scope of his employment, then you must consider whether the corporation later approved the act. An act is approved if, after it is performed, another agent of the corporation, with the authority to perform or authorize the act, and with the intent to benefit the corporation, either expressly approves or engages in conduct that is consistent with approving the act. A corporation is legally responsible for any act or omission approved by its agents.

Committee Comment

The instruction provides for corporate criminal liability when the corporation ratifies the conduct of employees who had acted outside the scope of their employment. See generally Steere Tank Lines, Inc. v. United States, 330 F.2d 719 (5th Cir. 1963). It is patterned on ordinary agency principles. There are no Seventh Circuit cases on point. To the extent the Seventh Circuit does not follow ordinary agency principles, the instruction should, of course, be modified.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.05 Joint Venture

An offense may be committed by more than one person. A defendant's guilt may be established without proof that the defendant personally performed every act constituting the crime charged.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.06 Acting Through Another / Aiding and Abetting

FORECITE National™ Materials Related To This Instruction:

Chapter 64: Accomplice Liability (Aiding and Abetting, Accessory Before The Fact, Etc.)

(a) Any person who knowingly [aids], [counsels], [commands], [induces] [or] [procures] the commission of an offense may be found guilty of that offense. That person must knowingly associate with the criminal activity, participate in the activity, and try to make it succeed.

(b) If a defendant knowingly caused the acts of another, the defendant is responsible for those acts as though he/she personally committed them.

Committee Comment

This instruction requires modification in the event the crime charged is in fact an omission to do an act required by law.

This instruction covers some of the same ground as No. 5.11 (Mere Presence/ Association/Activity). Sometimes both No. 5.11 and this instruction will be required.

A defendant need not be specifically charged with aiding and abetting under Title 18 USC 2 to be convicted as an accessory. One can be charged as a principal and convicted as an aider and abettor. See United States v. Loscalzo, 18 F.3d 374, 383 (7th Cir. 1994); United States v. Tucker, 552 F.2d 202 (7th Cir. 1977); Levine v. United States, 430 F.2d 641 (7th Cir. 1970), cert. denied, 401 U.S. 949 (1971).

In United States v. Ortega, 44 F.3d 505 (7th Cir. 1995), the Seventh Circuit defined an aider and abettor as one who, "knowing what the principal was trying to do, rendered assistance that he believed would (whether or not he cared that it would) make the principal’s success more likely -- in other words did what he could do or what he was asked to do to help make success more likely." Id. at 508. Thus, the Court’s view in Ortega was that although the defendant must have deliberately acted in a way to make the offense succeed, the defendant need not have desired that it succeed.

Yet, in United States v. Garcia, 45 F.3d 196 (7th Cir. 1995), decided after Ortega, the Court defined an aider and abettor as one who, with "knowledge of the illegal activity that is being aided and abetted, [has] a desire to help the activity succeed and [engages in] some act of helping." Id. at 199 (emphasis omitted).

The current instruction uses the language "try to make it succeed." Although that language clearly comports with the Court’s definition in Garcia, it may or may not meet its earlier definition in Ortega. If it is determined that Ortega contains the correct definition of "aiding and abetting," then the following instruction may be more appropriate:

Any person who knowingly aids, counsels, commands, induces, procures, or authorizes the commission of a crime may be found guilty of that crime.

However, that person must knowingly associate with the criminal activity, participate in the activity, and act in a way that the person knows will help the activity succeed. In other words, it is not enough that a person happens to act in a way that advances the criminal activity if that person has no knowledge that a crime is being committed or is about to be committed.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.07 Accessory After the Fact

FORECITE National™ Materials Related To This Instruction:

Chapter 68: Accessory After The Fact

An accessory after the fact is one who, with knowledge that an offense was committed, receives, relieves, comforts or assists the offender with the intent to hinder or prevent the offender's (apprehension) (trial) or (punishment).

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.08 Conspiracy

FORECITE National™ Materials Related To This Instruction:

Chapter 83: Conspiracy

A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose. To sustain the charge of conspiracy, the government must prove:

First, that the conspiracy as charged in Count __ existed, [and]

Second, that the defendant knowingly became a member of the conspiracy with an intention to further the conspiracy [, and]

[Third, that an overt act was committed by at least one conspirator in furtherance of the conspiracy.]

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all of the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

[A conspiracy may be established even if its purpose was not accomplished.]

[It is not necessary that all the overt acts charged in the indictment be proved, and the overt act proved may itself be a lawful act.]

[To be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which its purpose was to be accomplished. The government must prove beyond a reasonable doubt that the defendant was aware of the common purpose and was a willing participant.]

Committee Comment

(a) Under United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), the trial judge must preliminarily determine whether co-conspirator's statements will be admissible under FRE 801(d)(2)(e) at trial. In making this determination the judge must decide "if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy...." Santiago, supra at 1134 (quoting United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977) ). This standard, denominated by the Seventh Circuit as a "preponderance" standard, Santiago, supra at 1135, is a higher standard than the former "prima facie" test. If the trial judge determines the statements are admissible, the jury may consider them as it considers all other evidence. See also United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991); and United States v. Wesson, 33 F.3d 788, 796 (7th Cir. 1994), cert. denied, 115 S.Ct. 773 (1995).

Whether a co-conspirator*s statements can be considered in determining membership of the defendant in the conspiracy was addressed in Bourjaily v. United States, 483 U.S. 171, 176-81 (1987). Under Santiago, the government must make a preliminary offering of evidence to show: 1) a conspiracy existed, 2) the defendant and declarant were members thereof, and 3) the proffered statements were made during and in furtherance of the conspiracy. Santiago, 582 F.2d at 1134-35. Bourjaily allows the court to consider the statements in question (the ones seeking to be admitted) to determine whether the three Santiago criteria have been met. This ruling seems to supercede United States v. Glaser, 315 U.S. 60, 74-75 (1942) which held that membership can only be proved by the defendants own acts. Bourjaily, 483 U.S. at 178.

Lastly, United States v. Shoffner, 826 F.2d 619, 627 (7th Cir.), cert. denied, 484 U.S. 958 (1987) held that once the court has made a determination that the charged conspiracy has been established, only slight evidence is required to link the defendant to the conspiracy. Also see United States v. Martinez de Ortiz, 907 F.2d 629, 632, cert. denied, 498 U.S. 1029 (1991).

(b) The following instruction is frequently given in conspiracy cases in this Circuit:

In deciding whether the charged conspiracy exists, you may consider the actions and statements of every one of the alleged participants. An agreement may be proved from all the circumstances and the words and conduct of all the alleged participants which are shown by the evidence. In deciding whether [a particular] [the] defendant joined the charged conspiracy, you may consider only what that defendant did or said. You may consider what other persons did or said, but only to help you understand what [a particular] [the] defendant did or said. You may not decide that a defendant joined a conspiracy solely because of what someone else did or said.

The Committee is of the view that the second paragraph of this instruction does not accurately state the law following Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775 (1987). Seventh Circuit cases construing Bourjaily have held that properly-admitted hearsay, including statements admitted under the co-conspirator exception to the hearsay rule (FRE 801(d)(2)(E)), may be used to prove what another person did or said that may demonstrate their membership in the conspiracy. See, e.g., United States v. Espino, 32 F.3d 253, 259 (7th Cir. 1994); United States v. Loscalzo, 18 F.3d 374, 383 (7th Cir. 1994) ("[W]hile only the defendant's acts or statements could be used to prove that defendant's membership in a conspiracy, evidence of the defendant's acts or statements may be provided by the statements of coconspirators."); United States v. Brown, 940 F.2d 1090, 1093-94 (7th Cir. 1991). This point is illustrated in United States v. Martinez de Ortiz, 907 F.2d 629, 633 (7th Cir. 1990) (en banc), wherein the court offered an example in which "B told C something like: 'I just received a phone call from A, who said that he would bring the cocaine to the meeting point at 10:00 tonight.'" The court said that assuming the judge found B's statement admissible as a co-conspirator's declaration, it was relevant to whether A was a member of the conspiracy, id. at 633, i.e. that the jury could decide from B's statement that A had made the call and the statements described, and could consider those facts in deciding whether A joined. Because the import of these cases is that properly admitted hearsay may be used to prove the truth of anything contained therein, the Committee believes that an instruction on this point generally will not be necessary. In cases in which the trial court feels the matter needs to be addressed, the Committee recommends that the following paragraph, based on an instruction offered by the en banc court in Martinez de Ortiz, 907 F.2d 635, be given in place of the second paragraph of the instruction quoted above:

In deciding whether [a particular] [the] defendant joined the charged conspiracy, you must base your decision only on what that defendant did or said. In determining what [that] [the] defendant did or said, you may consider [that] [the] defendant's own words or acts. You may also consider the words or acts of other persons to decide what [that] [the] defendant did or said, and you may use them to help you understand what [that] [the] defendant did or said.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.09 Conspirator’s Liability for Substantive Crimes
Committed by Co-conspirators; Conspiracy Charged--Elements

FORECITE National™ Materials Related To This Instruction:

Chapter 63: Liability For Acts Of Coconspirators (Pinkerton)

A conspirator is responsible for offenses committed by his/her fellow conspirators if he/she was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of and as a foreseeable consequence of the conspiracy. Therefore, if you find a defendant guilty of the conspiracy charged in Count(s) _____ and if you find beyond a reasonable doubt that while he/she was a member of the conspiracy, his/her fellow conspirator(s) committed the offense(s) in Count(s) _____ in furtherance of and as a foreseeable consequence of that conspiracy, then you should find him/her guilty of Count(s) _____.

Committee Comment

See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946); United States v. Redwine, 715 F.2d 315, 322 (7th Cir. 1983), cert. denied, 467 U.S. 1216 (1984); United States v. Kimmons, 917 F.2d 1011, 1017 (7th Cir. 1990); United States v. Villagrana, 5 F.3d 1048, 1052 (7th Cir. 1993); United States v. Chairez, 33 F.3d 823 (7th Cir. 1994), where the court found a co-conspirator vicariously liable under Pinkerton despite his claim that he did not know or suspect the presence of a gun in the vehicle.

7^th CIRCUIT FEDERAL INSTRUCTIONS 1999

5.10 Conspirator's Liability for Substantive Crimes Committed by
Co-conspirators; Conspiracy Not Charged in
The Indictment–Elements

FORECITE National™ Materials Related To This Instruction:

Chapter 63: Liability For Acts Of Coconspirators (Pinkerton)

A conspirator is a person who knowingly and intentionally agrees with one or more persons to accomplish an unlawful purpose. A conspirator is responsible for offenses committed by his fellow conspirators if he was a member of the conspiracy when the offense was committed and if the offense was committed in furtherance of and as a foreseeable consequence of the conspiracy.

Therefore, if you find beyond a reasonable doubt that the defendant was a member of a conspiracy at the time that [one of] his fellow conspirators committed the offense charged in Count(s) ____ in furtherance of and as a foreseeable consequence of that conspiracy, then you should find him guilty of Count(s) ____.

Committee Comment

See Pinkerton v. United States, 328 U.S. 640, 647-48 (1946); United States v. Redwine, 715 F.2d 315, 322 (7th Cir. 1983), cert. denied, 467 U.S. 1216 (1984); United States v. Kimmons, 917 F.2d 1011, 1017 (7th Cir. 1990); United States v. Villagrana, 5 F.3d 1048, 1052 (7th Cir. 1993); United States v. Chiarez, 33 F.3d 823 (7th Cir. 1994), where the court found a co-conspirator vicariously liable under Pinkerton despite his claim that he did not know or suspect the presence of a gun in the vehicle).

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5.11 Mere Presence / Association / Activity

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83.3.6.12 Conspiracy: Mere Presence Insufficient To Prove Membership

(a) A defendant’s presence at the scene of a crime and knowledge that a crime is being committed is not alone sufficient to establish the defendant’s guilt. [A defendant’s association with conspirators [or persons involved in a criminal enterprise] is not by itself sufficient to prove his/her participation or membership in a conspiracy [criminal enterprise].]

(b) If a defendant performed acts that advanced a criminal activity but had no knowledge that a crime was being committed or was about to be committed, those acts alone are not sufficient to establish the defendant’s guilt.

Committee Comment

As a general rule, (a) and (b) are alternative instructions. The bracketed paragraph in (a) may be used as additional or substitute language in cases involving charges of conspiracy, RICO or CCE.

It is the Committee’s position that the presence instruction should be used in a limited fashion. If there is no evidence other than mere presence at the scene of the crime, then presumably a motion for a directed verdict or judgment of acquittal would be granted by the trial judge. However, there may be some cases where a defendant is present and takes some action which is the subject of conflicting testimony. In those situations the Committee believes that a presence instruction might be appropriate.

The instruction (a) restates traditional law. See United States v. Valenzuela, 596 F.2d 824, 830-31 (9th Cir.), cert. denied, 441 U.S. 965 (1979), United States v. Garguilo, 310 F.2d 249, 253 (2d Cir. 1962), United States v. Moya-Gomez, 860 F.2d 706, 759 (7th Cir. 1988), cert. denied, 492 U.S. 908 (1989), United States v. Jones, 950 F.2d 1309, 1313 (7th Cir. 1991), cert. denied, 503 U.S. 996 (1992). It omits the word "mere," commonly used to modify "presence." The omission is due to the Committee’s belief that "mere" is unnecessary and, in some situations, misleading or argumentative.

The instruction (a) is most often given in conspiracy (United States v. Quintana, 508 F.2d 867, 880 (7th Cir. 1975), United States v. Williams, 798 F.2d 1024, 1028-29 (7th Cir. 1986), United States v. Atterson, 926 F.2d 649, 655-56 (7th Cir.), cert. denied, 501 U.S. 1259 (1991)) and aiding and abetting cases, Nye & Nissen v. United States, 336 U.S. 613, 619 (1949), United States v. Townsend, 924 F.2d 1385, 1393-94 (7th Cir. 1991), United States v. Boykins, 9 F.3d 1278, 1287-88 (7th Cir. 1993)).

Instruction (a) reflects the notion that "mere association with conspirators or those involved in a criminal enterprise is insufficient to prove defendant*s participation or membership in a conspiracy." United States v. Garcia, 562 F.2d 411, 414 (7th Cir. 1977), United States v. Moya-Gomez, 860 F.2d 706, 759 (7th Cir. 1988), cert. denied, 492 U.S. 908 (1989) ("‘presence or a single act will suffice if the circumstances permit the inference that the presence or act was intended to advance the ends of the conspiracy.’" quoting United States v. Mancillas, 580 F.2d 1301, 1308 (7th Cir.), cert. denied, 439 U.S. 958 (1978)), United States v. Paiz, 905 F.2d 1014, 1020-21 (7th Cir. 1990), cert. denied, 499 U.S. 924 (1991) (reaffirms that "mere association" is not enough).

The instruction (a) may also be given where a defendant charged with a substantive crime such as assault, alleges that although he was present at the scene of the crime, he did not do it.

Instruction (b) has been given by judges in this district for many years. It stems from cases such as Dennis v. United States, 302 F.2d 5, 12-13 (10th Cir. 1962); United States v. Benz, 740 F.2d 903, 910-11 (11th Cir. 1984). More recent appellate support may be found in United States v. Windom, 19 F.3d 1190 (7th Cir. 1994).

Instruction (a) or Instruction (b) may be given where a defendant charged with a substantive crime such as assault or possession of narcotics, alleges that although he/she was present at the scene of the crime, he/she did not do it.

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5.12 Conspiracy--Withdrawal

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83.3.11 Conspiracy: Withdrawal As Defense Theory

A person is not responsible for the conduct of another, if, before the commission of an offense, he effectively ends his effort to promote or facilitate the commission of the offense by:

(a) [wholly depriving his prior efforts of effectiveness in the commission of the crime], or

(b) [giving timely warning to the proper law enforcement authorities], or

(c) [doing an affirmative act that is inconsistent with the object of the conspiracy and is done in such a way that the co-conspirators are reasonably likely to know about it before they carry through with further acts of the conspiracy], or

(d) [making proper effort to prevent the commission of the crime].

Committee Comment

In United States v. U. S. Gypsum Co., 438 U.S. 422, 463-65 (1978), the Supreme Court held that an unnecessarily confining instruction on the issue of withdrawal from a conspiracy constituted reversible error. Thus, when a defendant requests that specific actions introduced at trial which are inconsistent with the object of the conspiracy be included in the withdrawal instruction, the court should comply with such request.

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5.13 Conspiracy--Withdrawal--Statute of Limitations

FORECITE National™ Materials Related To This Instruction:

83.3.11.8 Conspiracy: Withdrawal As Defense Based On Statute Of Limitations

One of the issues in this case is whether (defendant’s name) withdrew from the conspiracy.

In order to withdraw, (defendant’s name) must have taken some affirmative act to terminate his effort to promote or facilitate the conspiracy by

(a) [wholly depriving his prior efforts of effectiveness in the commission of the crime],

(b) [giving timely warning to the proper law enforcement authorities],

(c) [doing an affirmative act that is inconsistent with the object of the conspiracy and is done in such a way that the co-conspirators are reasonably likely to know about it before they carry through with further acts of the conspiracy],

(d) [making proper effort to prevent the commission of the crime].(Defendant’s name) cannot be found guilty of the conspiracy charge if he withdrew from the conspiracy more than five years before the indictment was returned. The indictment in this case was returned on (date). Thus, the government must prove beyond a reasonable doubt that (defendant’s name) did not withdraw from the conspiracy prior to (date).

Committee Comment

The Committee, in its original work published in 1980, recommended that no instruction be given on the statute of limitations for withdrawal from a conspiracy. This position has been revised in light of United States v. Read, 658 F.2d 1225 (7th Cir. 1981). See also United States v. Sax, 39 F.3d 1380 (7th Cir. 1994).

In Read, the Seventh Circuit held that withdrawal is a defense to a conspiracy charge only when coupled with the defense of the statute of limitations. In other words, the defendant must withdraw from the conspiracy more than five years before the indictment is returned so that he is not a member of the conspiracy during the period within the statute of limitations.

The Read court further held that the burden is on the prosecution to disprove the defense of withdrawal beyond a reasonable doubt. However, the defendant has the burden of initially going forward with the evidence that he withdrew prior to the statute of limitations. Once the defendant produces sufficient evidence of withdrawal outside of the statute of limitations, the burden of persuasion is on the government to disprove withdrawal beyond a reasonable doubt and the jury should be so instructed. United States v. Nava-Salazar, 30 F.3d 788 (7th Cir. ), cert. denied, 513 U.S. 1002 (1994); United States v. Starnes, 14 F.3d 1207 (7th Cir.), cert. denied, 512 U.S. 1224 (1994). Read did not change the law regarding the type of evidence necessary to create a jury question on withdrawal. Read, 658 F.2d at 1236 n. 8. In United States v. United States Gypsum Co., 438 U.S. 422, 463-65 (1978), the Supreme Court held that an instruction unnecessarily limiting the type of actions that may constitute withdrawal from a conspiracy is reversible error.

Thus, this instruction should be tailored to the specific actions introduced by the defendant at trial that are inconsistent with the object of the conspiracy.