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83.3 Conspiracy: Defenses And Defense Theories

    83.3.3 Existence Of Conspiracy: Miscellaneous Defense Theories

    83.3.3.1 Defense Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy
    83.3.3.2 Conspiracy: Adding Or Removing Conspiracy Members Does Not Create A New Conspiracy
    83.3.3.3 Defense Theory That Conspiracy Terminated When The Criminal Object Was Attained Or Defeated
    83.3.3.4 Circumstances Which Are Not Sufficient To Prove Conspiracy
    83.3.3.5 Conspiracy: Requirement Of More Than One Conspirator -- "The Plurality Requirement" (Collateral Estoppel)
    83.3.3.6 Jury Should First Decide Whether Conspiracy Existed Then Whether Defendant Was a Member of the Conspiracy
    83.3.3.7 Issues Related To Duration Of Conspiracy
    83.3.3.8 "Rule Of Consistency:" Acquittal Of Codefendants Does Not Bar Later Conviction Of Severed Coconspirator

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    83.3.3.1    Defense Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy

RATIONALE: There is no such thing as a one person conspiracy. Because a conspiracy requires at least two members, the guilt of at least on other coconspirator is an essential element of the charge. Therefore, when appropriate, the defense should be able to obtain specific instruction on the theory that there is no conspiracy unless at least one other person is also found to be guilty of conspiracy.

POINTS AND AUTHORITIES: Conspiracy is a joint offense. Therefore, to convict the defendant of conspiracy, it is necessary that the jury also find that at least one other conspirator equally guilty of the same offense. (See People v. Austin (CA 1994) 23 CA4th 1596 [28 CR2d 885]; see also People v. Superior Court (Jackson) (CA 1975) 44 CA3d 494, 498 [118 CR 702]; People v. James (CA 1961) 189 CA2d 14, 16 [10 CR 809]; People v. Alexander (MI 1971) 192 NW2d 371; People v. Frye (MI 1929) 227 NW 748; see also FORECITE National™ 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory]; but see FORECITE National™ 83.3.3.8 ["Rule Of Consistency:" Acquittal Of Codefendants Does Not Bar Later Conviction Of Severed Coconspirator].)

    Thus, "[t]he conviction of a defendant in a conspiracy prosecution will not be upheld where all the other alleged conspirators have been acquitted." (Wharton's Criminal Procedure (West, 13th ed. 1989) § 503, p. 297.) There is no such thing as a one-person conspiracy. (See People v. Cooper (MI 1950) 40 NW2d 708, 710; see also U.S. v. Bucuvalas (1st Cir. 1990) 909 F2d 593, 596 ["It has been and remains, the rule that where the evidence against all of an individual’s alleged coconspirators is deemed legally insufficient, the evidence against that individual is by definition also insufficient]; People v. Blakes (MI 1969) 170 NW2d 832, 834; Gardner v. State (MD 1979) 408 A2d 1317, 1319-20 [rule of consistency provides that acquittal as to all but one conspirator requires an acquittal as to the final conspirator]; Regle v. State (MD 1970) 264 A2d 119, 122 ["It is the well-settled general rule that one defendant in a prosecution for conspiracy cannot be convicted where all of his alleged coconspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal"]; Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:13; Robinson, Criminal Law Defenses (West, 1984) § 82 pp. 372-91; but see U.S. v. Zuniga-Salinas (5th Cir. 1992) 952 F2d 876, 878 [acquittal of defendant’s only alleged coconspirator did not require defendant’s acquittal on conspiracy charges]; U.S. v. Church (11th Cir. 1992) 955 F2d 688, 695.)

    Hence, even though conviction of the other conspirator is not necessarily required (see FORECITE National™ 257.1 [Collateral Estoppel]; FORECITE National™ 83.3.3.5 [Conspiracy: Requirement Of More Than One Conspirator -- "The Plurality Requirement" (Collateral Estoppel)]), in the context of convicting the defendant, a necessary element of the conspiracy charge is the guilt of the other conspirator.

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].

    The defendant may not be convicted of conspiracy unless at least one of the persons with whom [he] [she] is alleged to have conspired has also been proven guilty of conspiracy beyond a reasonable doubt.

[Source: FORECITE National™.]

    A defendant may not be convicted of conspiracy absent proof beyond a reasonable doubt that __________ (insert alleged co-conspirator(s)) [is] [are] guilty of conspiracy. If you have a reasonable doubt as to whether _________ [is] [are] guilty of conspiracy, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of conspiracy.

[Source: FORECITE National™.]

USE NOTE: Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (See FORECITE National™ 250.4.2 [Defendant's Right To Directly Relate The Defense Theory To Prosecution's Burden].)

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PRACTICE NOTE:  When a new person joins a pre-existing conspiracy, or when an existing member withdraws, a new conspiracy is not created.  (Wharton’s Criminal Law (West, 15th ed. 1993) § 679, pp. 540-41.)

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: If the object of the conspiracy has been either attained or defeated there is no longer any purpose for the conspiracy and, therefore, it should be considered to be terminated. When such a defense theory is raised an explanatory instruction may be necessary so the jury understands this issue.

POINTS AND AUTHORITIES: Duration of a conspiracy depends on the fact-specific scope of the original agreement, but generally a conspiracy terminates upon accomplishment of the principal objective unless specific evidence is introduced indicating that the scope of the original agreement included acts taken to conceal the criminal activity. (Lutwak v. U.S. (1953) 344 US 604, 616 [73 SCt 481; 97 LEd2d 593]; see also Krulewitch v. U.S. (1949) 336 US 440 at 442-43 [69 SCt 716; 93 LEd2d 790]; Smith v. State (DE 1994) 647 A2d 1083, 1089.)

    Hence, the duration of a conspiracy is generally a question of fact for the jury. (People v. Hardy (CA 1992) 2 C4th 86, 143 [5 CR2d 796].) The general rule is that the conspiracy ends when its object is either attained or defeated. (Ibid.; see also U.S. v. McKinney (7th Cir. 1992) 954 F2d 471, 475; but see Bergeron v. State (WI 1978) 271 NW2d 386, 392 [conspiracy continues during the course of the concealment].) It may extend beyond the actual crime only upon independent proof that there were subsequent activities contemplated and undertaken by the conspirators in pursuit of the objectives of the conspiracy. (People v. Leach (CA 1975) 15 C3d 419, 432, 436 [124 CR 752] [insurance conspiracy normally terminates upon receipt of insurance proceeds]; People v. Saling (CA 1972) 7 C3d 844, 852 [103 CR 698].) Actions exerted after attainment or defeat of the conspirators objective to conceal the substantive crime or the conspiracy are not proof of a continuing conspiracy. (People v. Zamora (CA 1976) 18 C3d 538, 560 [134 CR 784].) In Hardy the court held that there is no sua sponte duty to instruct the jury to determine when the conspiracy ended. However, if the theory of the defense is that the conspiracy had ended then the defendant should have a right to a pinpoint instruction upon this defense. (See FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].)

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

PRACTICE NOTE: Effect Of Withdrawal. See FORECITE National™ 83.3.3.7 [Issues Related To Duration Of Conspiracy].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

    It is for you, the jury -- considering the unique circumstances and the nature and purpose of the conspiracy -- to decide precisely when the conspiracy has ended. A conspiracy normally comes to an end when the substantive crime which is the primary goal of the conspiracy has either been attained or defeated unless there is independent proof of subsequent activities contemplated and undertaken by the conspirators in pursuit of the objective[s] of the conspiracy. Actions taken after attainment or defeat of the conspiracy's objective to conceal the substantive crime or the conspiracy are not proof of a continuing conspiracy.

[Source: FORECITE National™.]

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    1.    Mere associating with others

    2.    Mere discussing common goals with others

    3.    Mere similarity of conduct between or among various persons

    4.    Mere presence where a crime takes place or is discussed

    5.    Mere knowledge of the criminal conduct.

(WYOMING CRIMINAL PATTERN JURY INSTRUCTIONS, WPIC 13.04 [Defendant’s Awareness Of Conspiracy] (Wyoming State Bar, 1996).)

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: In jurisdictions where conspiracy requires a bilateral agreement between at least two coconspirators, it may be appropriate to give a defense theory instruction on this requirement.

POINTS AND AUTHORITIES:  A conspiracy requires an agreement between two or more persons.  (LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.5(g).)

    Hence, it has been held that the acquittal of all other conspirators is a bar to conviction of the remaining conspirator. (See U.S. v. Rodriguez (2nd Cir. 1993) 983 F2d 455, 458-59 [most federal circuits now depart from the traditional rule that conviction of only one defendant in conspiracy prosecution cannot stand where all other alleged conspirators are acquitted]; see also People v. Superior Court (Jackson) (CA 1975) 44 CA3d 494 [118 CR 702].) However, this rule is not universal. (See Wharton’s Criminal Law (West, 15th ed. 1996) § 679, pp. 537-39.)

    See also FORECITE National™ 64.6.3 [Accomplice Liability: "Feigned Perpetrator" Defense].

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™ 305.5.6 [Equitable Estoppel].

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

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    83.3.3.6    Jury Should First Decide Whether Conspiracy Existed Then Whether Defendant Was A Member Of The Conspiracy

RATIONALE: Without an explantory instruction the jury may not fully understand the need to separately decide the issues of whether a conspiracy existed and whether the defendant was a member of the conspiracy.

POINTS AND AUTHORITIES: "[P]roof of an agreement between two persons is an absolute prerequisite to obtaining a conspiracy conviction..." (U.S. v. Pennell (6th Circuit 1984) 737 F2d 521, 536; see also U.S. v. Montgomery (9th Cir. 1998) 150 F3d 983, 998.)

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].

    In considering the conspiracy charge, first decide whether or not the conspiracy existed.  If you find beyond a reasonable doubt that the conspiracy did exist, you must next decide whether the accused knowingly joined the conspiracy [and whether an overt act was committed in furtherance of the conspiracy].

[See generally U.S. v. Pennell (6th Circuit 1984) 737 F2d 521, 536; cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 10.0310 [Consideration Of Evidence Of Success Of Conspiracy] (CLE State Bar of Arizona, 1996).]

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PRACTICE NOTE: The duration of a conspiracy may be relevant to various issues that a jury may have to decide. (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.12 [Duration Of A Conspiracy] (1991).) These include: statute of limitations issues (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.04 [Overt Acts] (1991)); single vs. multiple conspiracy issues (see 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.08 [Multiple Conspiracies-Material Variance From The Indictment]; 3.09 [Multiple Conspiracies-Factors In Determining] (1991)); and whether coconspirators are responsible for substantive offenses committed by other members of the conspiracy. (See 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.10 [Pinkerton Liability For Substantive Offenses Committed By Others] (1991).)

    See FORECITE National™ 83.3.11 [Conspiracy: Withdrawal As Defense Theory].

    See FORECITE National™ 83.3.3.3 [Defense Theory That Conspiracy Terminated When The Criminal Object Was Attained Or Defeated].

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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    83.3.3.8    "Rule Of Consistency:" Acquittal Of Codefendants Does Not Bar Later Conviction Of Severed Coconspirator

PRACTICE NOTE:  In State v. Johnson (MD 2002) 788 A2d 628, the court sought to determine whether the rule of consistency bars the an accused's conviction of conspiracy to commit murder when all of the named co-conspirators were acquitted of conspiracy in a prior and separate trial.  The defendant in Johnson argued that where a separate trial is forced on the defendant due to circumstances beyond his control (i.e. his counsel's conflict of interest), fundamental fairness requires that the rule of consistency be applied as if the defendant had been jointly tried with his conspirators. The Johnson court held that, notwithstanding that the trial court's objective was to secure fundamental fairness for respondent by ensuring that he was not represented by an attorney who acknowledged a personal conflict of interest, the question of whether the rule of consistency applies should never be dependent upon the defendant's subjective desires concerning the determination to separate the trials. "To require courts to enforce different standards with respect to inconsistent verdicts depending on whether the severance was voluntary or involuntary, wanted or unwanted, is unworkable."  (Johnson, 788 A2d at 630.)  Consistent with the decision in Gardner v. State (MD 1979) 408 A2d 1317, the court held that the rule of consistency is inapplicable to verdicts issued in separate trials.  "A symmetry of results, while ideal, is not necessary to ensure the attainment of justice. Asymmetrical or inconsistent verdicts may be the result of the failure of the government to produce evidence at trial satisfying the jury of guilt beyond a reasonable doubt as to some of the named co-conspirators. [Citations.] Whether the evidence itself differs from one trial to another or whether two juries reasonably might have taken different views of the same evidence, an acquittal is not tantamount to a determination of innocence. [Citations.]"  (Johnson, at 635.)

    The Johnson court reasoned, "conspiracy as the agreement between two or more people to achieve some unlawful purpose or to employ unlawful means in achieving a lawful purpose. [Citations.] ... The essence of a criminal conspiracy is an unlawful agreement. The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design. In Maryland, the crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown."  (Johnson, at 632.)  The legal tenet known as the "rule of consistency" embodies the postulate that where the participation of only one person is established, the crime of conspiracy cannot exist and a conviction thereunder is void. (See Gardner, 408 A2d at 1319.)  The rule was developed many years ago when the practice was to try all persons charged with the crime of conspiracy together. Under such circumstances, common sense dictated that verdicts based on the same evidence and circumstances should be consistent. Accordingly the rule was developed primarily regarding joint trials. Contrary to inconsistent verdicts in joint trials, inconsistent verdicts in separate trials may result from a variety of differences between the trials in question: the strength of the evidence presented to the jurors, the manner in which the evidence is presented, the availability of witnesses, the quality of the evidence, the ability to establish plausible defenses, the composition of the jury, etc.  Other courts have held the rule of consistency to be inapplicable to separate trials of co-conspirators.  (See Commonwealth v. Byrd (PA 1980) 417 A2d 173, 177 ["different verdicts may well . . . [be] due solely to the different composition of the two juries, . . . [or] a variety of other circumstances, including a difference in the proof offered at trial."]; Commonwealth v. Phillips (PA 1992) 601 A2d 816, 820 ["the prior acquittal of a sole co-conspirator in a separate trial does not preclude finding the subsequently tried co-conspirator guilty of conspiracy"].)  California courts also have recognized that the rule of consistency is a logical imperative only where all conspirators are tried together. (See e.g. People v. Nunez (CA 1986) 183 CA3d 214 [228 CR 64, 65]; People v. Holzer (CA 1972) 25 CA3d 456 [102 CR 11, 12].) (1972).)  This principle is accepted in most state jurisdictions (see e.g. Yedrysek v. State (AR 1987) 739 SW2d 672, 673 ; People v. Palmer (CA 2001) 24 C4th 856 [103 CR2d 13]; Marquiz v. People (CO 1098) 726 P2d 1105, 1108; State v. Powell (FL 1996) 674 So2d 731, 733; Smith v. State (GA 1982) 297 SE2d 273, 274; Commonwealth v. Cerveny (MA 1982) 439 NE2d 754, 757; People v. Anderson (MI 1983) 340 NW2d 634, 636; Platt v. State (NE 1943) 8 NW2d 849, 856; State v. Hawkins (NJ 1981)  428 A2d 1322, 1323-24 [applying the rule of consistency only to verdicts rendered at joint trials]; State v. Valladares (WA 1983) 664 P2d 508, 513) and in most federal jurisdictions (see e.g. United States v. Bucuvalas (1st Cir. 1990) 909 F2d 593, 597; United States v. Thomas (4th Cir. 1990) 900 F2d 37, 40; United States v. Espinosa-Cerpa (5th Cir. 1980) 630 F2d 328, 332-33; United States v. Sachs (6th Cir. 1986) 801 F2d 839, 845; Cortis v. Kenney (8th Cir. 1993) 995 F2d 838, 840; United States v. Andrews (11th Cir. 1989) 850 F2d 1557, 1561; United States v. Dakins (D.C. Cir. 1989) 872 F2d 1061 1065-66.)  Several of these jurisdictions, to some degree, have based their respective decisions to forego applying the rule of consistency on two Supreme Court decisions, Standefer v. United States (1980) 447 US 10 [100 SCt 1999; 64 LEd2d 689] [prior acquittal of principal was irrelevant to the prosecution of the accessory; person could be convicted as an accessory even though the principal was acquitted in a prior proceeding] and United States v. Powell (1984) 469 US 57 [105 SCt 471; 83 LEd 2d 461], which have undermined the rule of consistency.

    Both the Pennsylvania Supreme Court and the California Supreme Court recently went a step further and stated that consistency in verdicts resulting from joint trials was no longer required, so long as the verdicts were supported by the evidence.  (See People v. Palmer (CA 2001) 24 C4th 856 [103 CR2d 13]; Commonwealth v. Campbell (PA 1994), 651 A2d 1096, 1099.)  Thus, if several co-conspirators are tried together, it is a possible outcome in these jurisdictions to have only one of the co-conspirators convicted of conspiracy.  

    But see FORECITE National™ 83.3.3.1 [Defense Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy].