FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 83
Go to Volume
7 Table of Contents - Go to Chapter
83 Table of Contents
83.3 Conspiracy: Defenses And Defense Theories
83.3.13 Coconspirator Issues
83.3.13.1 Conspiracy: Limiting Instruction That Subsequent Concealment By One Conspirator May Not Be Considered As To Other Coconspirators
83.3.13.2 Conspiracy: Decision Must Be As To Each Defendant
83.3.13.3 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants
83.3.13.4 Limiting Instructions When Prosecution Elicits Coconspirator's Plea Or Conviction For Same Charge Alleged Against The Defendant
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 83
83.3.13.1 Conspiracy: Limiting Instruction That Subsequent Concealment By One Conspirator May Not Be Considered As To Other Coconspirators
RATIONALE: Without a limiting instruction the jury may improperly consider post-offense concealment by one alleged coconspirator against the other alleged conspirators.
POINTS AND AUTHORITIES: See Commonwealth v. Haag (PA 1989) 562 A2d 289, 296 [conspiracy usually terminates when object crime is committed; subsequent concealment of evidence by one coconspirator is not admissible against others unless parties have agreed to cover-up as part of their original agreement.]
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.4].
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The prosecution contends that __________________ (insert alleged conspirator's name) attempted to conceal the conspiracy after the [conspiratorial objective was attained] [conspiracy was abandoned]. This contention, even if proven applies only to the issue of where _____________ was a member of any conspiracy proven by the prosecution. Any attempts by ______________ to conceal must not be considered in deciding [whether the conspiracy existed] [and] [whether any other person, including defendant __________________, was a member of any conspiracy proven by the prosecution].
[Source: FORECITE National™.]
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 83
83.3.13.2 Conspiracy: Decision Must Be As To Each Defendant
RATIONALE: When it is argued that the defendant was not a conspirator while others were, it is crucial for the jury to consider each codefendant separately. The determination of whether each defendant was a member of the conspiracy must be done independently. This presents a difficult task for the jury and specific instruction on the nature of this task may be appropriate.
POINTS AND AUTHORITIES: To sustain a defendant's conviction for conspiracy requires proof of the existence of the conspiracy and that the defendant was a knowing and willful member of the conspiracy. (See FORECITE National™ 83.3.5.1 [Conspiracy: Dual Intent Requirement].) The absence of evidence, or the existence of only slight evidence, linking the defendant to the object of the conspiracy requires a finding that the evidence was insufficient as a matter of law. (See FORECITE National™ 83.3.6.12 [Conspiracy: Mere Presence Insufficient To Prove Membership].)
"The core of a conspiracy is an agreement to commit an unlawful act." (U.S. v. Esparsen (10th Cir. 1991) 930 F2d 1461, 1471; see also U.S. v. Kelly (3rd Cir. 1989) 892 F2d 255, 258 ["The essence of a conspiracy is an agreement"].) To find a single conspiracy, the jury must be convinced beyond a reasonable doubt that the alleged co-conspirators' agreement encompassed a common, illicit goal. (See U.S. v. Dickey (10th Cir. 1984) 736 F2d 571, 582.) Thus, to establish that a defendant was a member of the broad, single conspiracy alleged, it must be proven that he or she had a "unity of purpose or a common design and understanding" with the co-conspirators and with the intent to commit the offense which was the object of the conspiracy. (U.S. v. Fox (10th Cir. 1990) 902 F2d 1508, 1514 [quoting U.S. v. Kendall (10th Cir.1985) 766 F2d 1426, 1531]; see also U.S. v. Wexler (3rd Cir. 1988) 838 F2d 88, 91; U.S. v. Coleman (3rd Cir. 1987) 811 F2d 804, 808; U.S. v. Ammar (3rd Cir. 1983) 714 F2d 238, 246 [guidelines for admitting coconspirator statements into evidence].)
It is therefore necessary "'to determine what kind of agreement or understanding existed as to each [conspirator],'" (U.S. v. Record (10th Cir. 1989) 873 F2d 1363, 1368 [quoting U.S. v. Borelli (2d Cir.1964) 336 F2d 376, 384]) [emphasis added]), and for the government to establish with respect to that conspirator that "'the essential element of interdependence'" existed among the conspirator and her or his alleged co-conspirators. (Fox, 902 F2d at 1514 [quoting Dickey, 736 F2d at 582]; see also U.S. v. Varelli (7th Cir.1969) 407 F2d 735, 743 [in order to be part of conspiracy defendant must promote venture and make it her or his own].) This is because "guilt remains individual and personal, even as respects conspiracies, and is not a matter of mass application." (Fox, 902 F2d at 1514; see also U.S. v. Kotteakos (1946) 328 US 750, 772 [66 SCt 1239; 90 LEd 1557]; U.S. v. Harrison (10th Cir. 1991) 942 F2d 751, 755-56.)
In sum, when defendants are tried together, the jury must determine each individual case and consider the nature of the alleged participation of each defendant separately. (See People v. Heidt (MI 1945) 20 NW2d 751, 757.)
See FORECITE National™ 276.7.2 [Multiple Defendants: Separate Consideration Of Multiple Defendants].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.4].
PRACTICE NOTE: The difficulty of instructing the jury on this issue may be a consideration in whether to move for severance. (See generally FORECITE National™ 16.19.1 [Severance Of Parties: Cautionary Instruction].)
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
Each defendant is individually entitled to, and must receive, your determination whether [he] [she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he] [she] was a conspirator by deciding whether [he] [she] willfully, intentionally, and knowingly joined with any other or others in the alleged conspiracy.
[See People v. Hardy (CA 1992) 2 C4th 86, 151 [5 CR2d 796].]
SAMPLE INSTRUCTION # 2:
Each defendant is entitled to have his or her case decided individually. You must decide whether each defendant was a member of the alleged conspiracy as if that defendant was being tried separately. This includes the requirement that any evidence that was admitted as to only certain defendants not be considered for any purpose as to the defendant against who it was not admitted.
It is not enough to find that there was a criminal agreement to commit __________ (alleged object of conspiracy). Even if you do find that there was a conspiracy you must still separately decide whether each defendant separately was a member of that conspiracy.
[See People v. Heidt (MI 1945) 20 NW2d 751, 757; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 10.5 [Case Must Be Considered As To Each Defendant] (ICLE, 2nd ed. 1997).]
SAMPLE INSTRUCTION # 3:
The inferences rising from "keeping bad company" are not enough to convict a defendant of conspiracy. There must be evidence showing that the defendant in some sense promoted the venture himself, made it his own, or had a stake in the outcome.
[Source: U.S. v. Gonzalez (D. N.J. 1990) 729 FSupp 1057, 1060.]
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 83
83.3.13.3 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants
RATIONALE: In some situations a coconspirator's statements may be admissible against one codefendant and not another. If that is the case, special instruction will be necessary to assure the jury understands the limited admissibility of the evidence.
POINTS AND AUTHORITIES: When a coconspirator's statements are admissible against one defendant, and not another, the standard pattern instructions should be modified to clearly inform the jury that it may only consider the statements against the defendant against whom they are admissible. (See generally FORECITE National™ 26.10 [Evidence Not Admitted Against All Codefendants]; see also FORECITE National™ 34.3.4 [Limitation Of Flight Evidence To Applicable Codefendant]; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903A, note [Conspiracy: Basic Instruction] p. 5 (Pennsylvania Bar Institute, PBI Press, 09/95).)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.4].
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
You are not to consider the statement[s] of __________ (insert name of coconspirator making statements) as evidence against __________ (insert name of codefendant against whom the statements are inadmissible).
[Source: FORECITE National™.]
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information
VOLUME 7 - CHAPTER 83
83.3.13.4 Limiting Instruction When Prosecution Elicits Alleged Coconspirator’s Guilty Plea Or Conviction Of The Same Charge For Which The Defendant Is On Trial
RATIONALE: Evidence that a coconspirator plead guilty is highly prejudicial because it tempts the jury to assume that the other alleged coconspirators are also guilty. Hence, when the coconspirator's plea is admitted (e.g., to impeach his or her testimony) a special cautionary/limiting instruction may be appropriate.
POINTS AND AUTHORITIES: Generally a party may impeach its own witnesses with evidence of prior convictions of the witness. (See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § I.) However, a special problem arises when the prosecution seeks to elicit on direct examination of a cooperating coconspirator that the witness was convicted of the same crime for which the defendant is on trial. "[A] defendant has ‘a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.’ [Citation.]" (U.S. v. Thomas (3rd Cir. 1993) 998 F2d 1202, 1207.) Accordingly, the admission of a coconspirator’s guilty plea has been held to be reversible error. (Ibid.)
If the plea is admitted counsel should consider requesting an instruction which clearly limits the evidence to its bearing on the coconspirator’s credibility and not the defendant’s guilt. (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § I; see also U.S. v. Romeros (5th Cir. 1979) 600 F2d 1104, 1105; U.S. v. Shorter (7th Cir. 1995) 54 F3d 1248, 1259.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.4].
PRACTICE NOTE/CAVEAT: If the coconspirator does not testify, admission of his or her guilty plea or conviction for the offense for which the defendant is on trial would be serious error because it deprives the accused of his or her right of cross-examination. (See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 6, § I.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.3.11 [Conspiracy].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 83.1.2 [Conspiracy: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The prosecution has sought to impeach the testimony of witness __________ with evidence that [he] [she] [pled guilty to] [was convicted of] the same pffense[s] alleged against the defendant in the case now before you. Your consideration of witness ____________'s. [guilty plea] [conviction] must be strictly limited to the purpose of evaluating [his] [her] [believability] [credibility]. The defendant is entitled to have [his] [her] case determined only on the evidence admitted against [him] [her].
[Source: FORECITE National™.]