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83.3 Conspiracy: Defenses And Defense Theories

    83.3.5 Conspiracy: Mental State -- Defense Theories

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    83.3.5.1    Conspiracy: Dual Intent Requirement

RATIONALE: Without explanation the jury may improperly assume that only a single intent is necessary to prove conspiracy.

POINTS AND AUTHORITIES: "The prosecution must prove beyond a reasonable doubt that each defendant had two types of intent before you may find that he has joined any conspiracy: an intent to commit the substantive, illegal act which are the alleged object of the conspiracy, and an intent to agree with others or another to commit those acts." (Hrones & Czar, Criminal Practice Handbook (1998 Supp.) § 5-17(b)(1) Inst. No. 20, ¶ 4; see also Wharton’s Criminal Law (West, 15th ed. 1998 Supp.) § 680, p. 542 ["A dual mental state is required for conspiracy: (1) the intent required to commit the crime contemplated, and (2) the intent to act together in carrying out the common purpose." [footnote omitted]].)

    Conspiracy involves the intent to agree or conspire and the intent to commit the offense or other objective of the conspiracy. (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 55.03 [Anticipatory Crimes-Conspiracy] comment p. 154 (Kansas Judicial Council, 3rd ed. 1999).) "In a conspiracy, two different types of intent are generally required -- the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy." (U.S. v. U.S. Gypsum Co. (1978) 438 US 422, 443, fn. 20 [98 SCt 2864; 57 LEd2d 854]; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.03 [Defendant’s Connection To The Conspiracy], commentary (1991).)

    The failure to instruct upon the "dual intent" element of conspiracy was held to be reversible error in People v. Miller (CA 1996) 46 CA4th 412, 424-27 [53 CR2d 773].

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].

See 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 4.03 [Conspiracy 18 USC 371, 21 USC 846].

    A "conspiracy" is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which each member becomes the agent of every other member.

    For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

    First: That two or more persons, directly or indirectly, reached an agreement to _______ [describe the object of the conspiracy];

    Second: That the defendant knew of the unlawful purpose of the agreement; and

    Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose.

[Source: 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.89 [Controlled Substances-Conspiracy] ¶¶ 2-5 (1997); see also 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI61.2 [RICO-Conspiracy Offense] (1997).]

    (1) If you are convinced that there was a criminal agreement, then you must decide whether the government has proved that the defendants knowingly and voluntarily joined that agreement. You must consider each defendant separately in this regard. To convict any defendant, the government must prove that he knew the conspiracy's main purpose, and that he voluntarily joined it intending to help advance or achieve its goals.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.03 [Defendant’s Connection To The Conspiracy] (1991).]

    In order to prove the defendant guilty of conspiracy, each of the following elements must be proven beyond a reasonable doubt.

    1.    The defendant and one or more other persons entered into an agreement to commit the crime of __________;

    2.    The defendant and other [party] [parties] to the agreement each had the specific intent to agree to commit the crime of __________;

    3.    The defendant and other [party] [parties] to the agreement each had the specific intent to commit the crime of __________;

    4.    The defendant and other [party] [parties] each had actual knowledge of the existence of the agreement and the full scope, design and purpose of the agreement; and

    5.    At least one overt act was committed by a party to the agreement after the defendant entered the agreement but before the offense of __________ was completed. It is not necessary to the guilt of any particular defendant that defendant personally committed the overt act, if [he] [she] was one of the conspirators when such an act was committed.

[Source: FORECITE National™^.]

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PRACTICE NOTE: Where the object of the conspiracy is a crime which does not require criminal intent, the jury should be instructed that the defendant must have known that the object of the conspiracy was criminal or unlawful. (See U.S. v. Gallerani (2nd Cir. 1995) 68 F3d 611, 618 [failure to instruct on element of unlawful object of conspiracy was reversible error]; Cruz v. U.S. (10th Cir. 1939) 106 F2d 828, 830 [in order to establish a criminal conspiracy (for a mala prohibita crime), a "corrupt motive" or intent must be shown; there must be an evil design, a wrongful purpose]; U.S. v. Reminga (W.D.Mich. 1980) 493 FSupp 1351, 1360-61; Mitchell v. State (AL 1946) 27 So2d 36, 38; Commonwealth v. Gormley (PA 1921) 77 Pa. Super. 298, 301-03; People v. Powell (NY 1875) 63 NY 88; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.4(5); see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003), Chapter 7, § N(3) [Innocent Intent].)

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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    83.3.5.3    Defense Theory That Defendant Did Not Have The Required Intent

PRACTICE NOTE: The charged defendant must harbor the requisite intent. (Commonwealth v. Schomaker (PA 1983) 461 A2d 1220, 1223 ["[F]or a conviction on criminal conspiracy charges, intent must be proven. Intent is the sine qua non of a conspiracy. A lesser standard cannot be interposed in its stead"].)

    In some cases -- especially where it is alleged that the defendant joined the conspiracy after its formation -- it may be less clear that the charged conspirator must personally form the necessary specific intent. This is especially true in a conspiracy prosecution where "a weak case against one defendant will be strengthened by a mass of evidence relevant only to his codefendants." (Castro v. Superior Court (CA 1970) 9 CA3d 675, 692 [88 CR 500]; see also U.S. v. Wilson (DC Cir. 1998) 160 F3d 732, 738 [person's general knowledge of a planned crime is insufficient to prove conspiracy]; People v. Fulton (CA 1984) 155 CA3d 91, 101 [201 CR 879] [recognizing the potential for unfairness inherent in a conspiracy charge].)

    For a discussion of the required intent see FORECITE National™ 83.3.5.1 [Conspiracy: Dual Intent Requirement].

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: While some requirement of knowledge may be implicit in the intent element of conspiracy, when the defense theory is lack of knowledge, a defense theory instruction may be necessary to assure the jury properly considers the issue.

POINTS AND AUTHORITIES: "Knowledge of the objective of a conspiracy is an essential element of a conspiracy conviction." (U.S. v. Krasovich (9th Cir. 1987) 819 F2d 253, 255.) "Without the knowledge, the intent cannot exist .... Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal ...." (Ingram v. U.S. (1959) 360 US 672, 680 [79 SCt 1314; 3 LEd2d 1503] [internal quotes and citations omitted, quoting Direct Sales v. U.S. (1943) 319 US 703, 711 [63 SCt 1265; 87 LEd 1647]]; see also U.S. v. Christian (6th Cir. 1986) 786 F2d 203, 211; U.S. v. Bibby (6th Cir. 1985) 752 F2d 1116, 1124; Turner v. State (TX 1986) 720 SW2d 161.)

    Knowledge is a required element of conspiracy because a person does not have the intent to bring about an unlawful result if he or she does not know the facts which make that result unlawful.  (Perkins & Boyce, Criminal Law (Foundation Press, 1982) Ch 6, § 5, Conspiracy, p. 697.)

    Moreover, the defendant must have actual knowledge of the existence of the conspiracy. (U.S. v. Falcone (1940) 311 US 205, 210-11 [61 SCt 204; 85 LEd 128].) "[K]nowledge of the objective of the conspiracy is an essential element of any conspiracy conviction." (U.S. v. Krasovich (9th Cir. 1987) 819 F2d 253, 255; see also DeVries v. Brumback (CA 1960) 53 C2d 643, 648 [2 CR 764] [conspiracy conviction embodies jury finding the defendant acted with "full knowledge of [the conspiracy's] scope and design"].)

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

NOTE: Knowledge may be negated by intoxication. (See FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].)

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

    To convict any defendant, the government must prove that he knew the conspiracy’s main purpose, and that he voluntarily joined it intending to help advance or achieve its goals.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.03 [Defendant’s Connection To The Conspiracy] ¶ 1, sent. 3 (1991).]

    Proof that a defendant simply knew about a conspiracy, or was present at times, or associated with members of the group, is not enough, even if he approved of what was happening or did not object to it.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.03 [Defendant’s Connection To The Conspiracy] ¶ 3, sent. 1 (1991).]

    What the government must prove is that a defendant knew the conspiracy’s main purpose, and that he voluntarily joined it intending to help advance or achieve its goals. This is essential.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.03 [Defendant’s Connection To The Conspiracy] ¶ 4 (1991).]

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PRACTICE NOTE: An error in defining the requisite intent for the underlying offense infects the intent for the conspiracy count. (See Direct Sales Co. v. U.S. (1943) 319 US 703, 711 [63 SCt 1265, 1269; 87 LEd 1674]; see also Ingram v. U.S. (1959) 360 US 672, 681 [79 SCt 1314; 3 LEd2d 1503] [holding that lack of knowledge of a tax liability meant that defendants could not be convicted of conspiracy to evade taxes]; U.S. v. Young Ho Kim (9th Cir. 1995) 65 F3d 123, 126.)

    See also FORECITE National™ 83.3.5.3 [Defense Theory that Defendant Did Not Have The Required Intent].

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 theory focuses on the adequacy of the agreement, the jury should understand the requirement that there be a "meeting of the minds" between the defendant and the other alleged conspirators.

POINTS AND AUTHORITIES: Since it is the agreement that is criminalized, it is vital to determine what kind of agreement or understanding existed as to each defendant, and whether there was, in fact, any agreement, i.e., meeting of the minds on the essential nature of the plan or scheme. If there is no "meeting of minds" as to the object, there is no agreement and hence no conspiracy.  (See Krulewitch v. U.S. (1949) 336 US 440, 448 [69 SCt 716; 93 LEd 790] (Jackson, J., concurring); U.S. v. Elder (2nd Cir. 1996) 88 F3d 127, 129; U.S. v. Toler (11th Cir 1998) 144 F3d 1423, 1426; McDowell v. Jones, 990 F2d 433, 434 (8th Cir. 1993) [meeting of minds essential for conspiracy under 42 USC 1985]; Acquah v. State (MD 1996) 686 A2d 690, 701; see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § A(6).)

    See also FORECITE National™ 83.3.6.10 [Conspiracy: Defense Theory That Meeting And Talking Insufficient To Prove Agreement].

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 agreement is a meeting of the minds of two or more people, with each person intending and expressing the same purpose.

[See U.S. v. Toler (11th Cir 1998) 144 F3d 1423, 1426; U.S. v. Elder (2nd Cir. 1996) 88 F3d 127, 129; cf. McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § A(6); MICHIGAN CRIMINAL JURY INSTRUCTIONS 10.2 [ Agreement] ¶ 1 (ICLE, 2nd ed. 1999).]

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PRACTICE NOTE: See U.S. v. Burroughs (5th Cir. 1989) 876 F2d 366, 366-70.

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: A defendant’s mistake of fact may negate criminal intent for both a conspiracy and a substantive offense. (United States v. Ruiz, 59 F3d 1151 (11th Cir. 1995).)  As stated by Judge Learned Hand, "[n]obody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it." (U.S. v. Peoni (2nd Cir. 1938) 100 F2d 401, 403; see also U.S. v. Giry (1st Cir. 1987) 818 F2d 120, 128; U.S. v. Jordan (5th Cir. 1980) 627 F2d 683, 686; U.S. v. Conroy (5th Cir. 1979) 589 F2d 1258, 1269; Hrones & Czar, Criminal Practice Handbook (1998 Supp.) § 5-17(b)(1) Inst. No. 20, ¶ 3, sent. 3.)

    See also FORECITE National™ 252.8 [Mistake Of Fact].

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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    83.3.5.9    Conspiracy: Degree Of Criminal Intent Must Be At Least That Necessary For The Substantive Offense

PRACTICE NOTE: To prevent seemingly innocuous conduct from unwittingly being criminal, a conspiracy charged under the offense clause of section 371 requires proof of the same mental state as the underlying substantive crime. (Staples v. United States, 114 SCt 1793 (1994); United States v. Ritter, 989 F2d 318, 321 (9th Cir. 1993).) In the seminal case of United States v. Feola, 420 US 671, 686 (1975), the Court observed that ". . . in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the government must prove at least the degree of criminal intent necessary for the substantive offense itself." But section 371 does not require that an accused have known that his conduct violated federal law. (Id. at 687; see also United States v. Hubbard, 96 F3d 1223, 1229 (9th Cir. 1996); McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003), Chapter 2, § D(4).)