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83.3 Conspiracy: Defenses And Defense Theories

    83.3.4 Overt Acts: Defense Theories

    83.3.4.1 Cross-Reference Links And Research Notes
    83.3.4.2 Conspiracy: Overt Acts Must Be Proved In Same Manner As Other Elements
    83.3.4.3 Conspiracy: Defense Theory That Payment Of Money To A Coconspirator To Secure Agreement Is Not Overt Act
    83.3.4.4 Defense Theory That Overt Act Was Not Independent Of The Acts Which Made Up The Conspiracy Agreement
    83.3.4.5 Conspiracy: Defense Theory That The Overt Act Was Committed After Completion Of The Criminal Objective
    83.3.4.6 Defense Theory That The Overt Act Alone Does Not Prove The Conspiracy
    83.3.4.7 Defense Theory That Overt Act Was Not Alleged In Charging Document
    83.3.4.8 Defense Theory That Overt Act Was Not Done In Furtherance Of The Conspiracy
    83.3.4.9 Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of Limitations
    83.3.4.10 Conspiracy: Defense Theory That Overt Act Has Not Been Proven
    83.3.4.11 Conspiracy: Defense Theory That No Single Overt Act Has Been Proven (Unanimity As To Overt Act)
    83.3.4.12 Conspiracy: Desired Or Wanted Result Is Not An Overt Act
    83.3.4.13 Overt Act: Passive Receipt Of Funds
    83.3.4.14 Overt Act That Is Also Substantive Count: No Double Jeopardy Problem
    83.3.4.15 Overt Acts Do Not Need To Be Charged
    83.3.4.16 Whether Acquitted Conduct Can Be An Overt Act

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    83.3.4.1    Cross-Reference Links And Research Notes

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: In order to establish a conspiracy, the overt acts must be proven in the same manner as other elements of proof required for the conspiracy. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 22:10 n.1 [Conspiracy-Overt Act–Model Charge—Commentary] (West, 1999); see also People v. Walker (NY 1986) 498 NYS2d 521, 524.)

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: Payment of money by one conspirator to another is not an overt act in furtherance of the conspiracy if the payment is for the purpose of securing agreement to the conspiracy. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 22:10 [Conspiracy-Overt Act–Model Charge--Commentary] (West, 1999); see also People v. Teeter (NY 1976) 382 NYS2d 938, 939.) However, once the agreement has been reached, payment to a conspirator for the purpose of carrying out the object of the conspiracy is an overt act.  (Ibid.; see also People v. Ortiz (NY 1984) 473 NYS2d 288, 292.) The determining factor is whether the purpose of the payment is to further the object of a conspiratorial agreement already formed. (See People v. Ortiz (NY 1984) 473 NYS2d 288, 292; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 22:10 [Conspiracy-Overt Act–Model Charge--Commentary] (West, 1999).)

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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    83.3.4.4    Defense Theory That Overt Act Was Not Independent Of The Acts Which Made Up The Conspiracy Agreement

RATIONALE: Without express instruction the jury may not understand that the overt act must be independent of the acts or statements constituting the original agreement.

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

SAMPLE INSTRUCTION # 1:

    An overt act is something apart from the conspiracy, and is an act to effect the object of the conspiracy.

[Source: Joplin Mercantile Co. v. United States, 236 US 531, 535, 35 SCt 291, 293, 59 LEd 705.]

    The overt act must be entirely independent of the conspiracy. It must not be one of a series of acts constituting the agreement, but it must be a subsequent independent act following a complete agreement or conspiracy, and done to carry into effect the object of the original agreement.

[Source: United States v. Grossman, 55 F2d 408, 410 (E.D. N.Y. 1931); see also Marino v United States, 91 F2d 691 (9th Cir. 1937), cert den, sub nom, Gullo v United States, 302 US 764, 82 LEd 593, 58 S Ct 410 (1938); United States v. Kauffman, 14 U.S.C.M.A. 283, 294 (CMA , 1963).]

    An overt act must be a subsequent, independent act from the completed agreement or conspiracy and done to carry into effect the object of the original combination.

[Source: Schnautz v. United States, 263 F2d 525, 530 (5th Cir. 1959).]

    An overt act, is an act performed to effect the object of a conspiracy, although it remains separate and distinct from the conspiracy itself. Though the act need not be of a criminal nature, it must be done in furtherance of the object of the conspiracy. However, if the act constitutes a substantive crime, the defendant may be prosecuted for both the conspiracy offense and the substantive crime as separate crimes.

[Source: Iannelli v. United States, 420 US 770, 777, 95 SCt 1284, 1289-90, 43 LEd2d 616 (1975).]

VOLUME 7 - CHAPTER 83

RATIONALE: Because the overt act must be committed in furtherance of the conspiracy, an act committed after the object of the conspiracy has been attained may not be an overt act.

POINTS AND AUTHORITIES: See People v. Zamora (CA 1976) 18 C3d 538, 560 [134 CR 784] ["acts committed by conspirators subsequent to the completion of the crime which is the primary object of the conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy"]; see also People v. Brown (CA 1991) 226 CA3d 1361, 1367-70 [277 CR 309].

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].

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RATIONALE: Without an explanatory instruction the jury may focus only on the overt act and improperly assume that the overt act alone is sufficient to prove the conspiracy.

POINTS AND AUTHORITIES: See Woods v. State (IN 1980) 413 NE2d 572, 573 [conspiratorial agreement cannot be inferred from the commission of criminal act alone, or from overt act alone taken pursuant to criminal activity]; see also FORECITE National™ 83.3.4.8 [Defense Theory That Overt Act Was Not Done In Furtherance Of The Conspiracy].

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].

SAMPLE INSTRUCTION # 2:

    An overt act alone does not constitute a conspiracy.  A person who commits an overt act cannot be convicted of conspiracy unless the person also:

    1.  Agreed with another person to commit the offense of __________________ (target offense); 

AND

    2.  Intended that such offense be committed.

[Cf. IOWA CRIMINAL JURY INSTRUCTIONS 600.4 [Conspiracy - Overt Act] (Iowa State Bar Association, 1998).]

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PRACTICE NOTE: A defendant may not be convicted unless the overt act is expressly alleged in the charging document. (See e.g., State v. Marco (NE 1988) 432 NW2d 1, 3; but see U.S. v. Umentum (7th Cir. 1976) 547 F2d 987, 991.)

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: An overt act may be challenged on the basis that it was not done in the furtherance of the conspiracy. Of the defense relies on such a theory the instructions should adequately define the elements of an overt act.

POINTS AND AUTHORITIES: An overt act must be done knowingly and in furtherance of the conspiracy. (See e.g., State v. Dupuy (AZ 1977) 568 P2d 1049, 1051-52; State v. Sullivan (AZ 1948) 200 P2d 346, 352; Williams v. State (OK 1919) 182 P 718, 724; see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § E.)

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].

    An overt act is any act knowingly committed by one of the conspirators in an effort to accomplish some object of the conspiracy.  To be an overt act an act must further the conspiratorial plan or scheme, and must be knowingly done in furtherance of some object or purpose of the conspiracy.

[See State v. Dupuy (AZ 1977) 568 P2d 1049, 1051-52; Williams v. State (OK 1919) 182 P 718, 724; cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 10.0312 [Definition Of "Overt Act" For Conspiracy] (CLE State Bar of Arizona, 1996); COLORADO JURY INSTRUCTIONS, COLJI - Crim 8:03 8(1) [Criminal Solicitation] (West, 1983).]

    An overt act is an act done in furtherance of the conspiracy and for the purpose of furthering or carrying out the ultimate intent of the agreement.  The act must show a preexisting conspiracy and manifest the intent to commit the crime that is the object of the conspiracy.

[See State v. Dupuy (AZ 1977) 568 P2d 1049, 1051-52; Williams v. State (OK 1919) 182 P 718, 724; cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 2-18 [Overt Act Defined] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 3.4, comment [Elements Of Criminal Conspiracy; Withdrawal] (West, 2nd ed. 1992).]

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RATIONALE: When the statute of limitations is at issue, the jury must find that at least one overt act was committed within the statutory limitation. Without specific instruction on this requirement the jury may improperly assume the statute of limitations is a mere technicality.

POINTS AND AUTHORITIES: Typically the statute of limitations for conspiracy is based on the commission of the last overt act in furtherance of the conspiracy. (See Fiswick v. U.S. (1946) 329 US 211, 216 [67 SCt 224; 91 LEd 196]; U.S. v. Zalman (6th Cir. 1989) 870 F2d 1047, 1057; U.S. v. Perry (8th Cir. 1998) 152 F3d 900, 904; see also People v. Zamora (CA 1976) 18 C3d 538, 548-49 [134 CR 784].)

    Accordingly, the jury should be required to find that at least one of the overt acts occurred within the statute of limitation. (See U.S. v. Nowak (7th Cir. 1971) 448 F2d 134, 140; see also Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:19, p. 44; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.04 [Overt Acts], commentary (1991).)

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

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].

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PRACTICE NOTE: To establish a conspiracy, the overt acts must be proven in the same manner as other elements of proof required for the conspiracy. (See People v. Walker (NY 1986) 498 NYS2d 521, 524; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 22:10 [Conspiracy-Overt Act–Model Charge--Commentary] (West, 1999).)

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 an overt act is an element of the conspiracy charge there may be a requirement that the jury unanimously agree on at least one overt act. When there is evidence of more than one overt act, a defense theory may focus on the lack of evidence as to the various acts. In such a case the jury may not understand the need to unanimously agree as to at least one of the acts.

POINTS AND AUTHORITIES: Some jurisdictions are in conflict regarding the requirement of juror unanimity as to an overt act. For example, People v. Jackson (CA 1996) 13 C4th 1164, 1227 [56 CR2d 49] held that a special finding requiring the jury to unanimously agree on the same overt act or acts in a conspiracy prosecution was "a proper safeguard of defendant's right of due process...." (See also U.S. v. Smith (9th Cir. 1989) 891 F2d 703, 709 [unanimity as to overt act].) However, the Jackson court specifically declined to take a position on the question of whether the defendant is entitled to a unanimity instruction in a conspiracy trial. (Jackson, 13 C4th at 1227, fn 15; see also People v. Von Villas (CA 1992) 10 CA4th 201, 258-61 [13 CR2d 62] [discussing conflict in cases and concluding that unanimity requirement does not apply to an overt act which is part of the "theory" of the case rather than an actual element of conspiracy; see also People v. Von Villas II (CA 1992) 11 CA4th 175, 235 [15 CR2d 112].)

    Other jurisdictions expressly require unanimity. (See e.g., 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06D [Conspiracy: "Overt Act" - Explained] (2000); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 7.9 [Specific Issue Unanimity] (2000); HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 14.07B [Crime Conspiracy--Theft In The Second Degree] (West, 1998) [jury must unanimously agree as to the particular overt act committed]; see also U.S. v. Greer (5th Cir. 1991) 939 F2d 1076, 1988 [while court may decide, as matter of law, that evidence fails to raise factual question for jury, it commits reversible error when it refuses defendant's specific requests to instruct on multiple conspirator theory and theory has any evidentiary support whatsoever]; U.S. v. Jones (9th Cir. 1983) 712 F2d 1316, 1322; Scarborough v. U.S. (DC App. 1987) 522 A2d 869, 872.)

    See also FORECITE National™ 273.10.5 [Jury Unanimity: Conspiracy].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

    The prosecution must prove at least one of the alleged overt acts. You may not find the defendant guilty of conspiracy unless you all agree on what particular overt act was committed and also agree that it was done in furtherance of the conspiracy.

[See U.S. v. Smith (9th Cir. 1989) 891 F2d 703, 709; cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903A, note [Conspiracy: Basic Instruction] (Pennsylvania Bar Institute, PBI Press, 09/95).]

    It is not necessary that the Government prove, beyond a reasonable doubt, that more than one act was done in furtherance of the conspiracy. It is sufficient if the Government proves beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done.

[See 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06D [Conspiracy: "Overt Act" - Explained] ¶ 3 (2000).]

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83.3.4.13    Overt Act: Passive Receipt Of Funds

    The a wire transfer of funds may constitutes an overt act in furtherance of the conspiracy if the prosecution proves beyond a reasonable doubt that such receipt was knowing and intentional.

[See States v. Salmonese (2nd Cir. 12/15/2003, No. 02-1430) 2003 U.S. App. LEXIS 25252, *24.]

SAMPLE INSTRUCTION # 2:

    A conspirator's knowing receipt of criminal proceeds achieved passively through a wire transfer into an account under his control can satisfy the overt act element of conspiracy. 

[See United States v. Ben Zvi, 242 F3d 89 (2nd Cir. 2001).]

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