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83.3 Conspiracy: Defenses And Defense Theories

    83.3.11 Conspiracy: Withdrawal As Defense Theory

    83.3.11.1 Withdrawal As Defense To Conspiracy: Requirement Of Affirmative Act Inconsistent With Object Of Conspiracy
    83.3.11.2 Conspiracy: Effect Of Withdrawal
    83.3.11.3 Conspiracy: Withdrawal--Defense Theory That Defendant's Specific Actions Were Inconsistent With The Object Of The Conspiracy
    83.3.11.4 Withdrawal From Conspiracy: Sufficiency Of Showing
    83.3.11.5 Conspiracy: Withdrawal As Defense Theory - Defendant Need Only Raise A Reasonable Doubt
    83.3.11.6 Conspiracy: Withdrawal Before Commission Of Overt Act As Complete Defense
    83.3.11.7 Conspiracy: Withdrawal As Defense To Substantive Offenses Committed By Others
    83.3.11.8 Conspiracy: Withdrawal As Defense Based On Statute Of Limitations
    83.3.11.9 Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory
    83.3.11.10 Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of Limitation
    83.3.11.11 Conspiracy: Withdrawal As Defense Theory To Retroactive Imposition Of Sentencing Amendment

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PRACTICE NOTE: "Withdrawal from a conspiracy is an affirmative defense. [Citation.] Mere cessation of activity in furtherance of an illegal conspiracy does not necessarily constitute withdrawal. The 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. [Citations.]" (U.S. v. Chambers (6th Cir. 1991) 944 F2d 1253, 1265; see also U.S. v. Piva (1st Cir. 1989) 870 F2d 753, 756-57 ["defendant has the substantial burden of proving "that he undertook affirmative steps, inconsistent with the objects of the conspiracy, to disavow or to defeat the conspiratorial objectives, and either communicated those acts in a manner reasonably calculated to reach his co-conspirators or disclosed the illegal scheme to law enforcement authorities"]; U.S. v. Gonzalez (11th Cir. 1991) 940 F2d 1413, 1427 [same]; State v. Speed (KS 1998) 961 P2d 13, 32 [withdrawal is a defense to a charge of conspiracy]; but see U.S. v. Collins (11th Cir. 1986) 779 F2d 1520, 1527 ["Once the evidence showed that the conspiracy was complete, withdrawal was no longer legally possible from the completed crime of conspiracy"].)

    See also FORECITE National™ 83.3.11.3 [Conspiracy: Withdrawal--Defense Theory That Defendant’s Specific Actions Were Inconsistent With The Object Of The Conspiracy].

    See also FORECITE National™ 83.3.11.4 [Withdrawal From Conspiracy: Sufficiency Of Showing].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: If commission of an overt act is a necessary element of the conspiracy, withdrawal before commission of the overt act may be a complete defense. (United States v. Grimmett, 150 F3d 958, 961 (9th Cir. 1998); United States v. Marolla, 766 F2d 457 (11th Cir. 1985); see also FORECITE National™ 83.3.11.5 [Conspiracy: Withdrawal As Defense Theory: Defendant Need Only Raise A Reasonable Doubt].) If the withdrawal is after the overt act then it may be a defense to vicarious liability for the subsequent words or acts of coconspirators. (See FORECITE National™ 83.3.6.4 [Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory].) It may also be relevant to other issues which the jury must decide. (See FORECITE National™ 83.3.3.7 [Issues Related To Duration Of Conspiracy].)

    Withdrawal may also be a defense to retroactive imposition of a sentencing amendment. (See FORECITE National™ 83.3.11.11 [Conspiracy: Withdrawal As Defense Theory To Retroactive Imposition Of Sentencing Amendment].)

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without a special defense theory instruction the jury may not fully consider the defendant's withdrawal defense.

POINTS AND AUTHORITIES: In U.S. v. U.S. Gypsum Co. (1978) 438 US 422, 463-65 [98 SCt 2864; 57 LEd2d 854] , 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 requests." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.12 [Conspiracy-Withdrawal] Committee comment (1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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RATIONALE: When the defense has advanced a theory of withdrawal from the conspiracy, special instruction on withdrawal, and the specific actions relevant thereto, should be available to assure the jury understands and considers the defense theory.

POINTS AND AUTHORITIES:  "[O]ne who has joined a criminal conspiracy can only effectively withdraw therefrom by some affirmative act bringing home the fact of his withdrawal to his confederates." (Loser v. Superior Court (CA 1947) 78 CA2d 30, 32 [177 P2d 320]; accord People v. Moran (CA 1958) 166 CA2d 410, 415-16 [333 P2d 243].) This test is utilized by "virtually all courts" with the added requirement that the act be sufficient "to inform a reasonable [person]." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.5f, pp. 109-10; see also Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:17; McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § D [Wihdrawal]; Wharton’s Criminal Law (West, 15th ed. 1998 Supp.) § 687, pp. 571-73.)

    As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity, alibi, or self defense, the jury should be instructed that the defendant need only raise a reasonable doubt as to withdrawal. (See FORECITE National™  83.3.11.5 [Conspiracy: Withdrawal As Defense Theory: Defendant Need Only Raise A Reasonable Doubt].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

    Withdrawal may be communicated by an affirmative act bringing home the fact of [his] [her] withdrawal to [his] [her] companions. The affirmative act must be made in time for [his] [her] companions to effectively abandon the conspiracy and in a way which would be sufficient to inform a reasonable person of the withdrawal.

    If you have a reasonable doubt as to whether or not the defendant withdrew from the conspiracy, you must find that [he] [she] did withdraw.

[Source: FORECITE National™.]

    A person is not responsible for the conduct of another, if, before the commission of an offense, he/she effectively ends his/her effort to promote or facilitate the commission of the offense by doing an affirmative act that is inconsistent with the object of the conspiracy and is done in such a way that the coconspirators are reasonably likely to know about it before they carry through with further acts of the conspiracy.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.12 [Conspiracy-Withdrawal] ¶ 1 and 4 (1999).]

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RATIONALE: Because the prosecution has the burden of proving membership in a conspiracy, a defense theory of withdrawal which is based on at least prima facie evidence, should assure the jury understands that the prosecution must prove beyond a reasonable doubt that the defendant did not withdraw.

POINTS AND AUTHORITIES: Although some jurisdictions are to the contrary (see e.g., HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 2.51 [Conspiracy (18 U.S. C. 371)] ¶ 9 (TRCC 1999), because the prosecution must prove conspiracy membership, the burden should be on the prosecution to prove beyond a reasonable doubt that the defendant did not withdraw. (See e.g., U.S. v. Steele (3d Cir.1982) 685 F2d 793, 804; see also U.S. v. Read (7th Cir. 1981) 658 F2d 1225, 1235; U.S. v. Greichunos (E.D. Ill. 1983) 572 FSupp 220, 226; State v. Currie (MN 1964) 126 NW2d 389, 398; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.11A [Withdrawal As A Defense To Conspiracy] (1991); CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.93, comment [Conspiracy: Basic Instruction] p. 519 (Bar Association of the District of Columbia, 4th ed. 1993); OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 2-22, comments [Conspiracy-Definitions] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

    If you have a reasonable doubt as to whether the defendant withdrew from the conspiracy, you must find that [he] [she] did withdraw.

[Source: FORECITE National™.]

    The government has the burden of proving that the defendant did not withdraw from the conspiracy.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.19 [Withdrawal From Conspiracy] (2000).]

    So you may find ___________ guilty only if the government has proved beyond a reasonable doubt that he was a member of the conspiracy at the time an overt act was committed.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 63 [Withdrawal From Conspiracy] (1988).]

    A person who has conspired with another to commit a crime but who withdraws from the agreement and communicates such a withdrawal to the other[s] before an overt act is committed is not guilty of conspiracy. The burden of proof is on the prosecution to prove beyond a reasonable doubt that defendant was a party to the conspiracy when an overt act was committed.

[See generally U.S. v. Steele (3d Cir.1982) 685 F2d 793, 804; see also U.S. v. Read (7th Cir. 1981) 658 F2d 1225, 1235; State v. Currie (MN 1964) 126 NW2d 389; see also MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 5.15 [Withdrawal From Conspiracy] (West, 4th ed. 1999); see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(A), inst. 6 [Effect Of Withdrawal-End Of Collateral Effects Of Conspiracy] p.231, ¶ 3 (South Carolina CLE, 1994).]

    It is the prosecution's burden to prove beyond a reasonable doubt that the defendant[s] did not make an effective withdrawal from the agreement. If the prosecution has failed to sustain that burden, then the defendant[s] must be found not guilty.

[See generally U.S. v. Steele (3d Cir.1982) 685 F2d 793, 804;  U.S. v. Read (7th Cir. 1981) 658 F2d 1225, 1235; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 2-21 [Defense Of Withdrawal-Burden Of Proof] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also U.S. v. Steele (3d Cir.1982) 685 F2d 793, 804; U.S. v. Read (7th Cir. 1981) 658 F2d 1225, 1235; State v. Currie (MN 1964) 126 NW2d 389, 398.]

    The prosecution has the burden of proving the defendant did not withdraw from the conspiracy prior to commission of the overt act.

[See generally U.S. v. Steele (3d Cir.1982) 685 F2d 793, 804; U.S. v. Read (7th Cir. 1981) 658 F2d 1225, 1235; State v. Currie (MN 1964) 126 NW2d 389, 398; see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(A), inst. 6 [Effect Of Withdrawal-End Of Collateral Effects Of Conspiracy] p.231, ¶ 3 (South Carolina CLE, 1994); MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 5.15 [Withdrawal From Conspiracy] (West, 4th ed. 1999).]

SAMPLE INSTRUCTION # 7:

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RATIONALE: When an overt act is an element of the crime of conspiracy, no conspiracy liability arises until after an overt act is committed. Therefore, withdrawal before commission of the overt act should preclude a conviction for conspiracy.

POINTS AND AUTHORITIES: To avoid liability for the crime of conspiracy, the defendant must withdraw from the conspiracy before commission of the overt act. (Wharton’s Criminal Law (West, 14th ed. 1981) § 687, pp. 555-57; see also U.S. v. Sarault (9th Cir. 1988) 840 F2d 1479, 1486; U.S. v. Monroe (9th Cir. 1977) 552 F2d 860, 864; U.S. v. Gonzalez (10th Cir. 1986) 797 F2d 915, 916-17; U.S. v. Gigante (E.D.N.Y. 1997) 982 FSupp 140, 170; People v. Sconce (CA 1991) 228 CA3d 693, 701 [279 CR 59].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

    So you may find ___________ guilty only if the government has proved beyond a reasonable doubt that he was a member of the conspiracy at the time an overt act was committed.

[Source: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 63 [Withdrawal From Conspiracy] (1988).]

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    See FORECITE National™ 83.3.6.4 [Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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    83.3.11.8    Conspiracy: Withdrawal As Defense Based On Statute Of Limitations

RATIONALE: The statute of limitations for conspiracy begins to run at the time the defendant withdraws. Therefore, instruction on such a defense theory should be given when appropriate.

POINTS AND AUTHORITIES: "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. [Citations.]" (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.13 [Conspiracy-Withdrawal-Statute Of Limitations] Committee comment (1999); see also U.S. v. Sax (7th Cir. 1994) 39 F3d 1380, 1386-87.)

    See also FORECITE National™ 257.9 [Statute Of Limitations].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Conspiracy: Statute Of Limitations. See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § D(2).

See also generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

    _______________ (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).

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.13 [Conspiracy-Withdrawal-Statute Of Limitations] last paragraph (1999).]

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    See FORECITE National™ 83.3.6.4 [Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 83.3.4.9 [Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of Limitations].

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PRACTICE NOTE: A continuous course of conduct offense cannot logically be "completed" until the last requisite act is performed. Where an offense is of a continuing nature, and the conduct continues after the enactment of a statute, that statute may be applied without violating the ex post facto prohibition. (LaFave & Scott, Substantive Criminal Law (West, 1986) S 2.4(b), p. 142; see also U.S. v. Kohl (9th Cir.1992) 972 F2d 294, 297-298 [application of sentencing guidelines to "straddle" offense].)

    Hence, ex post facto principles are not implicated by a change in the law which occurs after the commencement of the conspiracy but before the conspiracy has been terminated. (People v. Toplitzky (CA 1996) 43 CA4th 491 [51 CR2d 41]; see also People v. Packard (CA 1982) 131 CA3d 622, 627 [182 CR 576].)

    However, if the defendant withdrew from the conspiracy prior to the sentencing amendment then the ex post facto clause of the federal constitution would be violated by applying the amended statute. (See Toplitzky, 43 CA4th at 493-94).

    See also FORECITE National™ 300.21.2 [Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].