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VOLUME 7 - CHAPTER 83
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83.3 Conspiracy: Defenses And Defense Theories

    83.3.12 Agreement: Defense Theories

    83.3.12.1 Conspiracy: Agreement Is The Actus Reus
    83.3.12.2 Conspiracy: Defense Theory That There Was No Firm, Common, Understanding Sufficient To Constitute An Agreement
    83.3.12.3 Conspiracy: Defense Theory That The Conspirators Did Not Agree To Commit The Same Offense
    83.3.12.4 Conspiracy: Defense Theory That There Was No Agreement Because The Terms Were Still Being Negotiated

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VOLUME 7 - CHAPTER 83

PRACTICE NOTE: "The prohibition against criminal conspiracy...does not punish mere thought; the criminal agreement itself is the actus reus and has been so viewed since Regina v. Bass." (U.S. v. Shabani (1994) 513 US 10, 16 [115 SCt 382; 130 LEd2d 225.)

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

VOLUME 7 - CHAPTER 83

RATIONALE: If the only evidence of agreement shows that the parties were tentative when "agreeing" or were vague about what they were agreeing to, there may be a question of whether the agreement element has been met.  Therefore, an explanatory instruction may be appropriate to head off possible jury misconceptions about the meaning of the agreement requirement. 

POINTS AND AUTHORITIES: The agreement to commit a crime is an essential element of conspiracy. (See FORECITE National™ 83.3.12.1 [Conspiracy: Agreement Is The Actus Reus]; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903A, [Conspiracy: Basic Instruction] p. 6 (Pennsylvania Bar Institute, PBI Press, 09/95).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 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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VOLUME 7 - CHAPTER 83

PRACTICE NOTE: Even though two conspirators may intend to achieve an unlawful goal, where the unlawful goals are different there is no meeting of the minds and, hence, no conspiracy. (See U.S. v. Rosenblatt (2nd Cir. 1977) 554 F2d 36, 41-2; U.S. v. Giunta (4th Cir. 1991) 925 F2d 758, 765-67; McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § A(2) [Object of Agreement].)

    See also FORECITE National™ 83.3.5.6 [Conspiracy: Lack Of "Meeting Of The Minds" As Defense Theory].

RESEARCH NOTES:

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

VOLUME 7 - CHAPTER 83

RATIONALE: There is no agreement until negotiation is completed and there is a meeting of the minds. When appropriate it may be necessary to instruction the jury so they understand the difference between mere negotiation and a completed agreement.

POINTS AND AUTHORITIES: There is no conspiratorial agreement where the terms of the criminal agreement are still being negotiated. (LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.4, fn. 89.1; see also U.S. v. Iennaco (DC Cir. 1990) 893 F2d 394, 398; Mondello v. State (WY 1992) 843 P2d 1152, 1163.) Hence, a refusal of one party to agree to essential terms of the proposed agreement precludes the finding of a conspiratorial agreement. (See U.S. v. Melchor-Lopez (9th Cir. 1980) 627 F2d 886, 892.)

    See also FORECITE National™ 83.3.2 [Buyer-Seller Relationship Is Not A Conspiracy].

    See also FORECITE National™ 33.1.2 [Possession Of Recently Stolen Property: Agreement To Purchase Not Sufficient].

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].

    A completed agreement necessary to establish conspiracy requires a meeting of the minds that has gone beyond the negotiations stage. Each party must have committed to the essential terms of the agreement without the anticipation of any further negotiation as to these essential terms.

[Source: FORECITE National™.]