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83.3 Conspiracy: Defenses And Defense Theories

    83.3.6 Defendant's Membership In Conspiracy: Defense Theories

    83.3.6.1 Conspiracy: Defense Theory The Defendant Committed The Crime As An Independent Or Spontaneous Act Apart From The Conspiracy
    83.3.6.2 Conspiracy: Membership In Uncharged Conspiracy
    83.3.6.3 Conspiracy: Defense Theory That There Is No Joint Responsibility Because Defendant And Coconspirator Were Members Of Different Conspiracies
    83.3.6.4 Conspiracy: Joint Responsibility -- Withdrawal As Defense Theory
    83.3.6.5 Conspiracy: Defense Theory That Knowing Association Is Insufficient
    83.3.6.6 Conspiracy: Defense Theory That Family Relationship Is Insufficient
    83.3.6.7 Conspiracy: Membership Must Be Based On Acts and Statements Of The Defendant
    83.3.6.8 Conspiracy: Defense Theory That Friendship Between Defendant And Conspirator Is Insufficient
    83.3.6.9 Conspiracy: Defense Theory That Sympathy To The Conspiratorial Objectives Is Insufficient
    83.3.6.10 Conspiracy: Defense Theory That Meeting And Talking Insufficient To Prove Agreement
    83.3.6.11 Conspiracy: Commission Of Act Which Furthers The Conspiracy Does Not Prove Membership In Conspiracy
    83.3.6.12 Conspiracy: Mere Presence Insufficient To Prove Membership
    83.3.6.13 Defense Theory That Defendant Merely Approved Of Or Acquiesced In Object Of The Conspiracy Without Joining It
    83.3.6.14 Conspiracy: Defense Theory That Failure To Prevent The Crime Does Not Establish Membership In Conspiracy
    83.3.6.15 Conspiracy: Defense Theory That More Than "Slight Evidence" Or "Slight Connection" Required
    83.3.6.16 Conspiracy: Defense Theory That Mere Suspicion Or Conjecture Is Insufficient
    83.3.6.17 Conspiracy: Jury Should First Decide Whether Conspiracy Existed Then Whether Defendant Was a Member of the Conspiracy
    83.3.6.18 Mere Presence Or Association: Omission Of The Term "Mere"
    83.3.6.19 Conspiracy: Doing Similar Things Or Producing Similar Results Not Sufficient (Parallelism)
    83.3.6.20 Gang Members' General Agreement To Support Each Other In Fights Is Insufficient To Prove Conspiracy To Commit Assault
    83.3.6.21 Conspiracy: Defense Theory That Purchase Or Solicitation Of Conspiracy's Services Does Not Prove Membership

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RATIONALE: When the defense contends that the crime alleged to be the object of the conspiracy was an independent or spontaneous action apart from any agreement the jury may not understand the prosecution's burden to disprove this theory beyond a reasonable doubt.

POINTS AND AUTHORITIES: When the defense contends that the defendant's act (e.g., an assault) was independent or spontaneous rather than pursuant to an agreement or understanding with another, the defense should have a right to an instruction informing the jury that it cannot convict of conspiracy unless it is proven beyond reasonable doubt that the defendant's act was not independent or spontaneous. (See Commonwealth v. Kennedy (PA1982) 453 A2d 927, 930 [more than mere association of participants in crime must be shown]; see also PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903B, note [Conspiracy: Circumstantial Evidence Of Agreement And Intent-Presence And Knowledge Not Enough] p.2 (Pennsylvania Bar Institute, PBI Press, 09/95).)

    See also FORECITE National™ 64.6.8 [Accomplice Liability: Independent Impulse Of Another].

    See also FORECITE National™ 83.3.4.3 [Conspiracy: Defense Theory That Payment Of Money To A Coconspirator To Secure Agreement Is Not Overt Act].

    See also FORECITE National™ 83.3.4.4 [Defense Theory That Overt Act Was Not Independent Of The Acts Which Made Up The Conspiracy Agreement].

    See also FORECITE National™ 83.3.4.8 [Defense Theory That Overt Act Was Not Done In Furtherance Of The Conspiracy], SAMPLE INSTRUCTION 3.    

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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VOLUME 7 - CHAPTER 83

RATIONALE: Without an explanatory instruction the jury may improperly convict the defendant based on his or her participation in an uncharged conspiracy.

POINTS AND AUTHORITIES: "[I]n separate but jointly tried conspiracies, limiting instructions are required to prevent guilt of those participating in one conspiracy from being transferred to those participating in a separate conspiracy. (U.S. v. Varelli (7th Cir. 1969) 407 F2d 735, 747; U.S. v. Jackson (8th Cir. 1982) 696 F2d 578, 585-86; U.S. v. Snider (8th Cir. 1983) 720 F2d 985, 990; U.S. v. Warner (6th Cir. 1982) 690 F2d 545, 551; U.S. v. Flood (7th Cir. 1992) 965 F2d 505, 508-09; U.S. v. Perry (9th Cir. 1977) 550 F2d 524, 533; see also 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06G [Conspiracy: Single/Multiple Conspiracies] Committee Commentary (2000).)

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

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

    The Government must convince you beyond a reasonable doubt that each defendant was a member of the conspiracy charged in the indictment. If the Government fails to prove this as to a defendant, then you must find that defendant not guilty of the conspiracy charge, even if you find that [he] [she] was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict.

[Source: 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06G [Conspiracy: Single/Multiple Conspiracies] ¶ 3 (2000).]

    You must decide whether the conspiracy charged in the indictment existed, and, if it did, who at least some of its members were. If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even though you may find that some other conspiracy existed. Similarly, if you find that any defendant was not a member of the charged conspiracy, then you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.

[Source: 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.17 [Multiple Conspiracies] (2000).]

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RATIONALE: Joint responsibility under conspiracy law only applies if the defendant and the other person are members of the same conspiracy. Hence, the defense should have a right to an instruction on the theory that there is no joint responsibility if the defendant and the other person are members of different conspiracies.

POINTS AND AUTHORITIES: Vicarious liability for the acts and declarations of a coconspirator is predicated upon the defendant's membership in the same conspiracy as the coconspirator. In cases where the evidence provides a basis for finding multiple conspiracies (see FORECITE National™ 83.3.8 [Multiple Conspiracy: Defense Theories]), the jury should be instructed that the defendant and coconspirator must be members of the same conspiracy for the rules of vicarious liability and joint responsibility to apply. (People v. Skelton (CA 1980) 109 CA3d 691, 717-18 [167 CR 636].)

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

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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RATIONALE: The defendant should not be responsible for acts committed by other coconspirators after the defendant has withdrawn from the conspiracy.

POINTS AND AUTHORITIES: The common law recognizes the defense of withdrawal with regard to conspiracy as to subsequent substantive crimes committed by other conspirators. While such withdrawal may not create a defense to the charge of conspiracy -- unless the withdrawal occurred before the commission of an overt act (see FORECITE National™ 83.3.11.6 [Conspiracy: Withdrawal Before Commission Of Overt Act As Complete Defense]) -- the withdrawal should prevent the defendant from being liable for any criminal acts that are committed at a time when he is no longer a member of the conspiracy. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.5(f); see also VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL 14.260, comment [Withdraw Or Change Of Mind] (Lexis, 2000); MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:08, comment [Conspiracy] (Micpel, 1995); 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.11B [Withdrawal As A Defense To Substantive Offenses Committed By Others] (1991).)

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: It is a defense theory to conspiracy upon which the jury should be instructed that neither association with the other alleged conspirators nor knowledge of the conspiracy is alone sufficient to convict. This is so because the defendant must intend to enter into an agreement with the others and intend to commit the target offense.

POINTS AND AUTHORITIES: To prove a conspiracy, the government must prove that the conspiracy existed, that the defendants knew of it, and that with knowledge, they voluntarily joined it. (U.S. v. Sullivan (11th Cir. 1985) 763 F2d 1215, 1218; U.S. v. Badolato (11th Cir.1983) 701 F2d 915, 919-20; U.S. v. Rogers (11th Cir.1983) 701 F2d 871, 873; see also FORECITE National™ 83.3.5.1 [Conspiracy: Dual Intent Requirement].)

    Hence, even knowing association with a conspirator is not sufficient to convict the defendant of conspiracy. (See U.S. v. Dean (5th Cir. 1995) 59 F3d 1479, 1486; see also Lacaze v. U.S. (5th Cir. 1968) 391 F2d 516, 519; U.S. v. Bautista-Avila (9th Cir. 1993) 6 F3d 1360, 1362; U.S. v. Fox (9th Cir. 1990) 902 F2d 1508, 1517; U.S. v. Hernandez (11th Cir. 1998) 141 F3d 1042, 1055 [knowledge alone is an insufficient basis for a conspiracy conviction]; U.S. v. Knowles (11th Cir. 1995) 66 F3d 1146, 1156; Trautz v. Weisman (S.D.N.Y. 1992) 809 FSupp 239, 246; Raimi v. Furlong (FL 1997) 702 So2d 1273, 1285 [mere knowledge of the conspiracy is insufficient]; Acquah v. State (MD 1996) 686 A2d 690, 701; Jones v. State (MD 1969) 259 A2d 807, 813; State v. Mouzon (SC 1997) 485 SE2d 918, 922-23; 16 Am. Jur.2d, Conspiracy, § 42; SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-2-8, comment [Conspiracy-Association Not Agreement] (State Bar of South Dakota, 1996) ["Mere knowledge, acquiescence, or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy....].)

    See also FORECITE National™ 251.6 [Mere Presence, Knowledge, Association, Etc.].

    See also FORECITE National™ 83.3.6.12 [Conspiracy: Mere Presence Insufficient To Prove Membership].

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

Conspiracy: Mere Knowledge, Acquiescence, Association Or Presence Is Insufficient To Prove An Agreement. See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § A(6).

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

    You may not convict the defendant simply because [he] [she] knew of the existence of the conspiracy during [his] [her] association with the other alleged conspirators. You may not find that defendant committed the crime of conspiracy unless all the required elements, upon which I have previously instructed you, have been proven beyond a reasonable doubt.

[Source: FORECITE National™.]

    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).]

    You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

[Source: U.S. v. Quesada Morales (8th Cir. 1997) 113 F3d 116, 120.]

    Meeting to discuss common interests or goals does not, by itself, establish a conspiratorial agreement.

[Cf. IOWA CRIMINAL JURY INSTRUCTIONS 600.3 [Conspiracy - Mere Association] (Iowa State Bar Association, 1988).]

    Mere association, acquaintance, or family relationship with an alleged conspirator is not enough to prove membership in the alleged conspiracy.

[Cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 5 2C:5-2 [General Provisions: Conspiracy] p. 3, ¶ 3 (New Jersey ICLE 4th ed. 1997).]

    Mere awareness of the conspiracy is not enough to establish a person's guilt of conspiracy.

[Cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 5 2C:5-2 [General Provisions: Conspiracy] p. 3, ¶ 3 (New Jersey ICLE 4th ed. 1997).]

    Similar conduct among various persons does not prove a conspiracy.  This is so even if the persons may have associated with each other, or may have assembled together and discussed common aims and interest.

[See IOWA CRIMINAL JURY INSTRUCTIONS 600.6 [Conspiracy-Conduct Or Statements Of Othes] (Iowa State Bar Association, 1991); see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-2-8 [Conspiracy-Association Not Agreement] (State Bar of South Dakota, 1996).]

    A person does not become a member of a conspiracy merely by associating with, and/or being friends with, one or more persons who are conspirators. This is so even if the defendant also knew of the existence of the conspiracy.

[Source: United States v. Lennick, 18 F3d 814, 817 (9th Cir. 1994); United States v. Melchor, 627 F2d 886, 891 (9th Cir. 1980).]

    A conspiracy is not proven merely by knowing association among two or more persons. To be guilty the alleged conspirator must intentionally participate in the conspiracy with the intent to further the common design and purpose of the conspiracy.

[See PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 55.06 [Anticipatory Crimes-Conspiracy-Act In Furtherance Defined] comment p. 157 (Kansas Judicial Council, 3rd ed. 1996 Supp.); see also IOWA CRIMINAL JURY INSTRUCTIONS 600.6 [Conspiracy-Conduct Or Statements Of Othes] (Iowa State Bar Association, 1991); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-2-8, comment [Conspiracy-Association Not Agreement] (State Bar of South Dakota, 1996).]

    Mere knowledge, acquiescence or approval of the object of the agreement without cooperation or agreement to cooperate is not sufficient to make one a party to a conspiracy to commit the criminal act.

[See State v. Lynch (CT 1990) 574 A2d 230, 234; cf. CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 3.3, [Inchoate Offenses-Conspiracy] ¶ 3, sent. 4 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

SAMPLE INSTRUCTION # 13:

SAMPLE INSTRUCTION # 14:

SAMPLE INSTRUCTION # 15:

    Merely associating with other persons and discussing common goals, mere similarity of conduct between or among such persons, merely being present at the place where a crime takes place or is discussed, or even knowing about criminal conduct is not sufficient to prove the defendant guilty of conspiracy.

[Cf. O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS § 31.05 [Instructions--Specific Crimes] (West, 5th ed. 2000).] 

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RATIONALE: A corollary to the principle that mere association does not establish conspiracy is the more specific proposition that a family relationship is also insufficient. An instruction on such a defense theory should be given when appropriate.

POINTS AND AUTHORITIES: Mere association is insufficient to prove a conspiracy. (See FORECITE National™ 83.3.6.5 [Conspiracy: Defense Theory That Knowing Association Is Insufficient].) This rule applies to family relationships. For example, while spouses may engage in a conspiracy, the mere fact that two persons are spouses living together is insufficient in itself to establish conspiracy. (See e.g., Cotter v. Commonwealth (VA 1995) 452 SE2d 20,23; Jones v. Commonwealth (VA 1990) see also FORECITE National™ 56.2.5 [Possession: Ownership Or Occupancy 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].

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RATIONALE: Unless the defendant personally commits acts or makes statements sufficient to prove membership in a conspiracy, the defendant cannot be convicted of conspiracy. When appropriate the defendant should have the right to a defense theory instruction on this principle.

POINTS AND AUTHORITIES: Participation in a conspiracy "must be proved with evidence of the defendant’s own words and actions." (U.S. v. Sturman (7th Cir. 1995) 49 F3d 1275, 1280; see also McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § D(1).) However, the defendant’s words or actions may be proven by the testimony of others as to what the defendant said or did. (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, § D(1); see also U.S. v. Monteiro (1st Cir. 1989) 871 F2d 204, 208; U.S. v. Rawwad (1st Cir. 1986) 807 F2d 294, 296; U.S. v. Loscalzo (7th Cir. 1994) 18 F3d 374, 383 ["[W]hile only the defendant’s acts or statements could be used to prove...defendant’s membership in a conspiracy, evidence of the defendant’s acts or statements may be provided by the statements of coconspirators"]; U.S. v. Martinez de Ortiz (7th Cir. 1990) 907 F2d 629, 634-35.)

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 determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants. However, in determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.08 [Conspiracy], Committee comment (1999).]

    In deciding whether [a particular] [the] defendant joined the conspiracy, you must base your decision only on what the defendant did or said. In determining what [that] [the] defendant did or said, you may consider [that] [the] defendant’s own words or acts. You may also consider the words or acts of other persons to decide what [that] [the] defendant did or said, and you may use them to help you understand what [that] [the] defendant did or said.

[See Martinez de Ortiz (7th Cir. 1990) 907 F2d 629, 635; cf.  7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.08 [Conspiracy], Committee comment (1999).]

    In deciding whether a conspiracy exists, consider the actions and statements of all the alleged participants. In deciding whether a particular defendant was a member of the conspiracy, consider only that person’s acts and statements. A person cannot be bound by the acts or statements of other participants unless and until the prosecution has proved beyond a reasonable doubt that a conspiracy existed and that that person was one of its members.

[See U.S. v. Sturman (7th Cir. 1995) 49 F3d 1275, 1280; cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 10.038 [Proof Of Membership In Conspiracy] (CLE State Bar of Arizona, 1996); O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 17.05 ["Willfully" - Defined (Non Tax Cases)] (West, 5th ed. 2000).]

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RATIONALE: A corollary to the principle that mere association does not establish conspiracy is the more specific proposition that a friendship is also insufficient. Hence, an instruction on such a defense theory should be given when appropriate.

POINTS AND AUTHORITIES: Mere association is insufficient to prove a conspiracy. (See FORECITE National™ 83.3.6.5 [Conspiracy: Defense Theory That Knowing Association Is Insufficient].) This principle also applies to friendship between the alleged conspirators. (See U.S. v. Ramirez (9th Cir. 1999) 176 F3d 1179, 1181.)

    See also FORECITE National™ 83.3.6.6 [Conspiracy: Defense Theory That Family Relationship Is Insufficient].

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: "A person does not become a conspirator merely because he knows of a conspiracy or happens to be sympathetic with its objectives." ( Wharton’s Criminal Law (West, 15th ed. 1998 Supp.) § 679, p. 541.)

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: Because conspiracy requires intent to agree to commit the intended offense, meeting and talking do not alone prove a conspiracy.

POINTS AND AUTHORITIES: "Mere association..., similarity of conduct..., assembl[y]...and [discussion of] common aims" does not necessarily establish the existence of a conspiracy." (U.S. v. Davenport (6th Cir. 1987) 808 F2d 1212, 1218.)

    See also FORECITE National™ 83.3.6.5 [Conspiracy: Defense Theory That Knowing Association Is Insufficient].

    See also FORECITE National™ 83.3.6.6 [Conspiracy: Defense Theory That Family Relationship Is Insufficient].

    See also FORECITE National™ 83.3.6.8 [Conspiracy: Defense Theory That Friendship Between Defendant And Conspirator Is Insufficient].

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

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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RATIONALE: Without special instruction the jury may assume that membership in the conspiracy can be proven simply by commission of acts which further the object of the conspiracy.

POINTS AND AUTHORITIES: Conspiracy requires knowledge and the dual intent to agree and to commit the object crime of the conspiracy. (See FORECITE National™ 83.3.5.1 [Conspiracy: Dual Intent Requirement].) Hence, even if an act committed by the defendant has the effect of furthering the conspiracy, the commission of such an act does not necessarily make the defendant a conspirator. (U.S. v. Falcone (1940) 311 US 205, 210-11 [61 SCt 204; 85 LEd 128]; see also FORECITE National™ 83.3.6.12 [Conspiracy: Mere Presence Insufficient To Prove Membership].)

    An instruction to this effect has been given for many years in the 7th Circuit. It is derived from cases such as Dennis v. U.S. (10th Cir. 1962) 302 F2d 5, 12-13; U.S. v. Benz (11th Cir. 1984) 740 F2d 903, 910-11.

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].

    Just because a defendant may have done something that happened to help a conspiracy does not necessarily make him a conspirator.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.03 [Defendant’s Connection To The Conspiracy] ¶ 3, sent. 2 (1991).]

    A person who has no knowledge of a conspiracy but happens to act in a way which furthers some object of the conspiracy does not thereby become a conspirator.

[See U.S. v. Falcone (1940) 311 US 205, 210-11 [61 SCt 204; 85 LEd 128]; Dennis v. U.S. (10th Cir. 1962) 302 F2d 5, 12-13; cf. REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 10.038 [Proof Of Membership In Conspiracy] (CLE State Bar of Arizona, 1996); O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 17.05 ["Willfully" - Defined (Non Tax Cases)] (West, 5th ed. 2000); MICHIGAN CRIMINAL JURY INSTRUCTIONS 10.3 [Membership] sent. 4 (ICLE, 2nd ed. 1999); SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-2-7 [Conspiracy-Membership] (State Bar of South Dakota, 2000) ["The fact that a person commits illegal acts that further the object of a conspiracy does not make him a conspirator...."].]

SAMPLE INSTRUCTION # 3:

    If a defendant performed acts that advanced a criminal activity but had no knowledge that a crime was being committed or was about to be committed, those acts alone are not sufficient to establish the defendant’s guilt.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.11(b) [Mere Presence/Association/Activity] (1999).]

    Evidence of the commission of an act which furthered the purpose of an alleged conspiracy is not, in itself, sufficient to prove the person committing the act was a member of the conspiracy.

[See U.S. v. Falcone (1940) 311 US 205, 210-11 [61 SCt 204; 85 LEd 128]; Dennis v. U.S. (10th Cir. 1962) 302 F2d 5, 12-13; cf. SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-2-12 [Conspiracy-Commission Of Act In Furtherance Of A Conspiracy Not Proof Of Membership] (State Bar of South Dakota, 2000); IOWA CRIMINAL JURY INSTRUCTIONS 600.4 [Conspiracy - Overt Act] (Iowa State Bar Association, 1997); 16 Am. Jur.2d, Conspiracy, § 14.]

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RATIONALE: When the jury could find that the defendant was a knowing spectator, a defense theory/cautionary instruction may be appropriate to assure the jury knows that such a finding is insufficient to convict of conspiracy.

POINTS AND AUTHORITIES: "...[P]roof that defendant knew of the conspiracy is not enough to establish that he was a member; mere presence, association with conspirators, acquiescence in or even approval of the acts of conspirators, without more, is not sufficient to establish that a defendant joined the conspiracy." (Hrones & Czar, Criminal Practice Handbook (1998 Supp.) § 5-17(b)(1) Inst. No. 20, ¶ 4; see also U.S. v. DeLutis (1st Cir. 1983) 722 F2d 902, 906-07; U.S. v. Flaherty (1st Cir. 1981) 668 F2d 566, 580-8; U.S. v. Cox (8th Cir. 1991) 942 F2d 1282, 1286 [conspiracy conviction improper when based on defendant’s presence with the others at the time of arrest without evidence of agreement to take part in the crime]; Commonwealth v. Ocasio (PA 1993) 619 A2d 352, 354 [equal access to drugs insufficient to support conspiracy conviction]; Commonwealth v. Henderson (PA 1977) 378 A2d 393, 398-99 [error for trial court to refuse requested instruction regarding mere presence and knowledge]; Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:8, p. 25-27 ["presence must be associated with knowledge of and participation in the conspiracy with the purpose of furthering its ends"]; SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903B, note [Conspiracy: Circumstantial Evidence Of Agreement And Intent--Presence And Knowledge Not Enough] (Pennsylvania Bar Institute, PBI Press, 09/95) ["....instruction is appropriate when the evidence is conflicting or ambiguous and one reasonable hypothesis is that the defendant was merely a knowing spectator to a crime committed by his associates rather than a party to a conspiracy with the active perpetrators"].)

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 # 1:

    Now, although mere presence or mere association with conspirators is not enough, it's a factor that you may consider among others to determine whether a defendant was a member of the conspiracy. The defendant’s presence may establish his membership in a conspiracy, if all the circumstances considered together show that his presence was meant to advance the goals of that conspiracy.

    He must not only have been present, he must have known about the conspiracy, he must have intended by his presence to participate in the conspiracy or to help it succeed.

    In other words, presence itself may demonstrate membership in a conspiracy only if the presence is a functional part of the conspiracy.

[See U.S. v. Locascio (2nd Cir. 1993) 6 F3d 924, 945.]

    If you believe that ___________________ (names of alleged coconspirators) committed the [____________________] and that the defendant was in their company, present at the scene and knew they were committing that crime, you cannot infer, from those facts alone, that the defendant was guilty of conspiracy. The defendant is not guilty unless he and the others had an agreement or common understanding and shared the intention to commit the [__________________]. Consider all the evidence, including the evidence of the defendant’s presence and knowledge and the words and behavior of the defendant and the others, when you are deciding whether the required elements of agreement and shared intent have been proved beyond a reasonable doubt. Put simply, you may not convict the defendant of conspiracy unless it is proved beyond a reasonable doubt that (he/she) was a party to a conspiracy and not simply because (he/she) was a knowing spectator to a crime committed by his companion.

[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903B [Conspiracy: Circumstantial Evidence Of Agreement And Intent--Presence And Knowledge Not Enough] (Pennsylvania Bar Institute, PBI Press, 09/95); see also Commonwealth v. Ocasio (PA 1993) 619 A2d 352, 354; Commonwealth v. Henderson (PA 1977) 378 A2d 393, 398-99.]

For additional Sample Instructions see FORECITE National™ 83.3.6.5 [Conspiracy: Defense Theory That Knowing Association Is Insufficient] and FORECITE National™ 251.6 [Mere Presence, Knowledge, Association, Etc.].

SAMPLE INSTRUCTION # 4:

    Presence of a person at the location of a conspiracy’s activities, while the activities are taking place, knowing that they are taking place, without proof of intentional participation in the conspiracy, cannot support a conspiracy conviction. It is extremely imprudent to remain knowingly in the presence of an ongoing criminal conspiracy, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.

[Source adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092.]

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RATIONALE: Conspiracy requires an intent to agree and to commit the target offense. Without specific explanation the jury may not properly consider the defense theory that the defendant's approval of or acquiescence in the object or purpose of the conspiracy does not prove the required intent.

POINTS AND AUTHORITIES: U.S. v. DeLutis (1st Cir. 1983) 722 F2d 902, 905; see also U.S. v. Flaherty (1st Cir. 1981) 668 F2d 566, 580; U.S. v. Hopkins (10th Cir. 1984) 716 F2d 739, 748, on rehearing, 744 F2d 716; People v. Horn (CA 1974) 12 C3d 290, 296 [115 CR 516] [conspiracy requires specific intent to agree or conspire]; State v. Lynch (CT 1990) 574 A2d 230, 234 [must show defendant "knowingly engaged in a mutual plan to do a forbidden act;" mere presence at scene of crime, even when coupled with knowledge of crime, is insufficient].

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].

    Mere knowledge of, approval of and/or acquiescence in the object and purpose of a conspiracy without the intent to join in the conspiratorial agreement and to help achieve its object or purpose, does not make one a party to a conspiracy.

[Source: FORECITE National™.]

     Even if the defendant knew about the conspiracy, acquiesced in it, and/or approved of it, this is not enough, without more, to establish that [he] [she] was a member of the conspiracy.

[See State v. Lynch (CT 1990) 574 A2d 230, 234; cf. Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) Inst. No. 20, ¶ 3; CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 3.3 [Inchoate Offenses-Conspiracy] ¶ 3, sent. 4 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

    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).]

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PRACTICE NOTE: Failure to prevent a conspiracy from being carried out does not make a person criminally liable as a conspirator.  (Wharton’s Criminal Law (West, 15th ed. 1998 Supp.) § 679, p. 541.)

    See also FORECITE National™ 64.1.4 [Accomplice Liability: Innocent Acts Which Aid Commission Of The Crime Not Sufficient].

    See also FORECITE National™ 64.2 [Accomplice Liability: Mere Presence Insufficient].

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: "'Conspiracy' is a net in which prosecutors catch many little fish. We should not go out of our way to tighten the mesh. Prosecutors have many legitimate advantages in the criminal process. Defendants’ great counter weight is the requirement that the prosecution establish guilt beyond a reasonable doubt. References to 'slight evidence' and 'slight connection' reduce the power of that requirement." (U.S. v. Martinez de Ortiz (7th Cir. 1989) 883 F2d 515, 524 (Easterbrook, J., concurring); see also U.S. v. Durrive (7th Cir. 1990) 902 F2d 1221, 1225.)

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: While the prosecution is not required to prove a written or express agreement, the agreement must be established by reasonable inferences arising from the facts and circumstances and not from mere suspicion or conjecture. (See Commonwealth v. Savage (PA 1989) 566 A2d 272, 276.)

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

    See FORECITE National™ 83.3.3.6 [Jury Should First Decide Whether Conspiracy Existed Then Whether Defendant Was a Member of the Conspiracy].

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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    83.3.6.18    Mere Presence Or Association: Omission Of The Term "Mere"

RATIONALE: While many instructions speak in terms of "mere presence" or "mere association" as not being sufficient to establish the defendant’s guilt, the term "mere" may be "unnecessary and, in some situations, misleading or argumentative."

POINTS AND AUTHORITIES: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 5.11(a) [Mere Presence/Association/Activity], comment (1999).

    See also FORECITE National™ 64.2 [Accomplice Liability: Mere Presence Insufficient].

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: Because conspiracy requires intent, it is not enough to merely prove that similarity of conduct among two or more persons.

POINTS AND AUTHORITIES: See Blumenthal v. U.S. (8th Cir. 1937) 88 F2d 522, 530-32.

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 mere fact that different persons engaged in similar conduct does not alone establish a conspiracy.

[See Blumenthal v. U.S. (8th Cir. 1937) 88 F2d 522, 530-32; cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.06 [Conspiracy] ¶ 4, sent. 5 (Lexis, 2nd ed. 1988).]

    The mere fact that the defendant may have associated, assembled or met with another person or persons and discussed common aims and interests with this person or these persons does not prove the existence of a conspiracy or of defendant’s membership in any conspiracy. Merely sharing objectives, meeting together, and/or engaging in similar or parallel conduct is not sufficient to prove the existence of a conspiracy or the defendant's membership in any conspiracy.

[See Blumenthal v. U.S. (8th Cir. 1937) 88 F2d 522, 530-32; cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(A), inst. 3 [Mere Knowledge/Mere Association/Mere Parallelism] p. 228 (South Carolina CLE, 1994).]

    A conspiracy is not proven simply by showing that the alleged parties have done similar things or that their actions were directed toward a single result.

[Cf. MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 5.11 [Nature Of Agreement Required] (West, 3d ed. 1990); see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(A), inst. 3 [Mere Knowledge/Mere Association/Mere Parallelism] p. 228 (South Carolina CLE, 1994); O’Malley Grenig, & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 31.05 [Conspiracy-Membership in an Agreement] ¶ 3 (West, 5th ed. 2000).]

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PRACTICE NOTE: In Mitchell v. Prunty (9th Cir. 1997) 107 F3d 1337, 1342 the 9th Circuit held that "[m]embership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement or instigation needed to establish aiding and abetting." In overturning the state conviction of a gang member that rested on a theory that the defendant aided and abetted a member by "fanning the fires of gang warfare," the Mitchell opinion expressed concern that allowing a conviction on this basis would "smack of guilt by association." (Mitchell, 107 F3d at 1342.) In U.S. v. Garcia (9th Cir. 1998) 151 F3d 1243, a similar conclusion was reached with regard to the sufficiency of gang membership to support a conspiracy conviction. The court concluded that "evidence of gang membership cannot itself prove that an individual has entered a criminal agreement to attack members of rival gangs. ...[A] general practice of supporting one another in fights, which is one of the ordinary characteristics of gangs, does not constitute the type of illegal objective that can form the predicate for a conspiracy charge.  [Footnote omitted]." (Garcia, 151 F3d at 1247.)

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: As a corollary to the principle that a buyer-seller relationship does not prove a conspiracy, mere purchase or solicitation of a conspiracy's services is likewise insufficient. (See e.g., U.S. v. Arvanitis (7th Cir. 1990) 902 F2d 489, 500 [defendant's mere solicitation or purchase of services of conspiracy did not prove his participation in conspiracy itself].)

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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