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VOLUME 7 - CHAPTER 83
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83.3 Conspiracy: Defenses And Defense Theories

    83.3.8 Multiple Conspiracy: Defense Theories

    83.3.8.1 Defense Theory That The Evidence Shows Separate Multiple Conspiracies Rather Than One Single Conspiracy Alleged By The Prosecution
    83.3.8.2 Defense Theory That Each Separately Charged Conspiracy Must Be Considered Separately
    83.3.8.3 Defense Theory That Multiple Charged Conspiracies Are Only One Conspiracy

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VOLUME 7 - CHAPTER 83

RATIONALE: When only a single conspiracy is charged and the evidence may be construed to include multiple conspiracies an explanatory instruction may be necessary to assure the jury understands how the existence of multiple conspiracies may affect its determination of the issues. If multiple conspiracies are proven but not charged, special instruction may be appropriate to assure that the jury unanimously agrees that the defendant participated in the charged conspiracy.

    Also, both the doctrines of vicarious liability (see FORECITE National™ Chapter 63 [Liability For Acts Of Coconspirators (Pinkerton)]) and admissibility of coconspirators' statements (see FORECITE National™  83.4.3.1 [Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants]) must be limited to the applicable conspiracy. (See People v. Skelton (CA 1980) 109 CA3d 691, 717 [167 CR 636].)

POINTS AND AUTHORITIES: "[A] defendant is entitled to a multiple conspiracy charge if he or she requests it and there is a factual and legal basis for it. [Citation.]" (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § A(3).) When a conspiracy involves a multiplicity of objects, the jury should be required to determine whether the evidence establishes a single or multiple conspiracy. (See e.g., People v. Lopez (CA 1994) 21 CA4th 1551, 1557-58 [26 CR2d 741]; People v. Skelton (CA 1980) 109 CA3d 691, 718 [167 CR 636].)

    "Whether single or multiple conspiracies have been proved is usually a question of fact to be resolved by the jury under proper instructions. [Citations.]" (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.08 [Multiple Conspiracies-Material Variance From The Indictment] commentary (1991).) "[W]hen the evidence is such that the jury could within reason find more than one conspiracy, the trial court should give the jury a multiple conspiracy instruction." (U.S. v. Warner (6th Cir. 1982) 690 F2d 545, 551; U.S. v. Davenport (6th Cir. 1987) 808 F2d 1212, 1217.) "Where one single conspiracy is charged, ‘proof of different and disconnected ones will not sustain a conviction.’ [Citations.]" (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.08 [Multiple Conspiracies-Material Variance From The Indictment] commentary (1991); see also 5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.22 [Conspirators Liability Of Substantive Count] (1997); 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06G [Conspiracy: Single/Multiple Conspiracies] (2000); 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 8.17 [Multiple Conspiracies] (2000); 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 13.3 [Multiple Conspiracies (For Use With General Conspiracy Charge)] (1997) and Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 64 [Multiple Conspiracies (Various Principal Offenses)] (1988).)

    "Upon request, a trial judge should instruct on single versus multiple conspiracies in any case in which there is an evidentiary basis to support it. [Citations] However, 'a multiple conspiracy instruction is not required unless the proof at trial demonstrates ... separate conspiracies unrelated to the overall conspiracy charged in the indictment.' [Citations]." (HORN’S FEDERAL JURY INSTRUCTIONS, FOURTH CIRCUIT EDITION 2.52 fn 1 [Single Versus Multiple Conspiracies] (TRCC 1999).)

    The criteria to consider include: (1) the existence of a common goal, (2) the nature of the criminal scheme, and (3) the overlap of the participants in the various dealings of the conspiracy. (U.S. v. Taylor (11th Cir. 1994) 17 F3d 333, 337; U.S. v. Ragins (4th Cir. 1988) 840 F2d 1184, 1189) [the court must examine: (1) the time periods covered by the conspiracies; (2) the places where the conspiracies occurred; (3) the persons charged as coconspirators; (4) the overt acts committed in furtherance of the conspiracies, or any other descriptions of the offenses charged which reveal the nature and scope of the activities prosecuted; and (5) the substantive statutes alleged to have been violated].)

    "The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy. If so, there is but a single conspiracy." (Skelton, 109 CA3d at 718; see also U.S. v. Muyet (E.D.N.Y. 1998) 994 FSupp 501, 513 [a single conspiracy exists where there is "mutual dependence and assistance among the spheres ... a common aim or purpose among the participants ... or a permissible inference, from the nature and scope of the operation, that each actor was aware of his part in a larger operation where others performed similar roles equally important to the success of the venture"].) On the other hand, if each separate agreement had "its own distinct illegal end" and there was "no drawing of all together in a single, over-all, comprehensive plan," then each separate agreement is a separate conspiracy. (Skelton, 109 CA3d at 717-18.)

    "In determining whether the evidence showed single or multiple conspiracies, [one] must bear in mind that the essence of the crime of conspiracy is agreement. ‘[I]n order to prove a single conspiracy, the government must show that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal.’" (U.S. v. Warner (6th Cir. 1982) 690 F2d 545, 548-49.)

    In sum, if there is any evidence to support a multiple theories instruction it should be given when requested as a defense theory. (See e.g., U.S. v. Greer (5th Cir. 1991) 939 F2d 1076, 1088 [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]; see also FORECITE National™ 83.3.8.3 [Defense Theory That Multiple Charged Conspiracies Are Only One Conspiracy].)

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

NOTES: Different Test For Multiple Victims. There is a conflict in the cases as to whether separate conspiracies may be founded upon violent crimes committed upon multiple victims. (See People v. Lopez (CA 1994) 21 CA4th 1551, 1558, fn 2 [26 CR2d 741].) If such a test is utilized, then the above instruction should be modified to reflect the different test. However, the significance of the jury's determination of whether or not separate conspiracies were proven will be the same.

Relevance To Sentencing: Specification of the conspiracy's object by the jury may be relevant to sentencing if two conspiracies are charged based on the same course of conduct. "Whenever a conspiracy has a broader objective than just the charged crime, the sentencing court can reasonably find separate intents and objectives. [Citations] [Original emphasis]." (In re Jones (CA 1994) 26 CA4th 1759, 1766 [32 CR2d 473].) The possibility of multiple punishment may be a consideration in determining whether to instruct the jury on the object of the conspiracy and/or whether to require the jury to specifically find the objective.

    See also FORECITE National™ 300.21.2 [Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment].

Conspiracy: Multiple Conspiracy Instruction. See Caplow & Griffin, Multi-defendant Criminal Cases: Federal Law & Procedure (West, 1998) § 15:8.

Conspiracy: Multiple Conspiracies Versus Single Conspiracy. See McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7.

See also generally, FORECITE National™ 305.3.11 [Conspiracy].

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

    If you find the existence of a conspiracy beyond a reasonable doubt, you must decide whether there was a single conspiracy or multiple conspiracies. If there was one overall agreement among the various parties to perform various functions to carry out the objectives of the conspiracy, then there is but a single conspiracy. If there were separate agreements each of which had its own distinct, illegal end and which were not drawn together in a single, overall, comprehensive plan, then each such agreement is a separate conspiracy.

    [Each alleged conspiracy is charged in a separate count. You must decide each count separately. You must not convict the defendant on any count unless you unanimously agree that the prosecution has proven that the defendant participated in a separate conspiracy as to that count.]

    [The information alleges only a single count of conspiracy. If you find the existence of multiple conspiracies, defendant may be found guilty of conspiracy if the proof shows beyond a reasonable doubt that [he] [she] participated in one or more of the conspiracies. However, to find the defendant guilty of conspiracy you must unanimously agree as to which conspiracy or conspiracies [he] [she] participated in. It is not necessary that the particular conspiracy or conspiracies agreed upon be stated in your verdict.]

[Source: FORECITE National™.]

    (1)    The indictment charges that the defendants were all members of one single conspiracy to commit the crime of _____.

    (2)    Some of the defendants have argued that there were really two separate conspiracies -- one between _____ to commit the crime of _____ and another one between _____ to commit the crime of _____.

    (3)    To convict any one of the defendants of the conspiracy charge, the government must convince you beyond a reasonable doubt that the defendant was a member of the conspiracy charged in the indictment. If the government fails to prove this, then you must find that defendant not guilty of the conspiracy charge, even if you find that he was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict.

    (4)    But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the government also proved that he was a member of the conspiracy charged in the indictment.

[Source: 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.08 [Multiple Conspiracies-Material Variance From The Indictment] (1991); see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 3.09 [Multiple Conspiracies-Factors In Determining] (1991).]

    In this instance, with regard to the alleged conspiracy, the indictment charges that the Defendants conspired [to rob a federally insured bank and to transport a stolen motor vehicle in interstate commerce]. It is charged, in other words, that they conspired to commit two separate, substantive crimes or offenses.

    In such a case it is not necessary for the Government to prove that the Defendant under consideration willfully conspired to commit both of those substantive offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, that the Defendant willfully conspired with someone to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the two offenses the Defendant conspired to commit.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 13.2 [Multiple Objects (For Use With General Conspiracy Charge) (18 USC § 371)] (1997).]

    You are further instructed, with regard to the alleged conspiracy offense, that proof of several separate conspiracies is not proof of the single overall conspiracy charged in the indictment unless one of the several conspiracies that is proved is the single conspiracy that the indictment charges.

    What you must do is determine whether the single conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed, then you must acquit the defendants of that charge. However, if you decide that such a conspiracy existed, you must then determine who the members were; and, if you should find that a particular defendant was a member of some other conspiracy, not the one charged in the indictment, then you must acquit that defendant.

    In other words, to find a defendant guilty, you must unanimously find that he was a member of the conspiracy charged in the indictment and not a member of some other separate conspiracy.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 13.3 [Multiple Conspiracies (For Use With General Conspiracy Charge)] (1997); see also (McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7, § A(3).]

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VOLUME 7 - CHAPTER 83

RATIONALE: Without a cautionary instruction the jury may improperly consider related by separately charged conspiracies together.

POINTS AND AUTHORITIES: If multiple conspiracies are charged, then the jury must consider each count separately and unanimously agree as to the existence of a separate conspiracy for that count and the defendant's participation therein. (See FORECITE National™ 276.8.2 [Multiple Counts: Special Instructions].)

    See also FORECITE National™ 83.3.8.1 [Defense Theory That The Evidence Shows Separate Multiple Conspiracies Rather Than Once Simple Conspiracy Alleged By The Prosecution].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 7.4].

See generally, FORECITE National™ 305.3.11 [Conspiracy].

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

    If you find the existence of a conspiracy beyond a reasonable doubt, you must decide whether there was a single conspiracy or multiple conspiracies. If there was one overall agreement among the various parties to perform various functions to carry out the objectives of the conspiracy, then there is but a single conspiracy. If there were separate agreements each of which had its own distinct, illegal end and which were not drawn together in a single, overall, comprehensive plan, then each such agreement is a separate conspiracy.

    [Each alleged conspiracy is charged in a separate count. You must decide each count separately. You must not convict the defendant on any count unless you unanimously agree that the prosecution has proven that the defendant participated in a separate conspiracy as to that count.]

[Source: FORECITE National™.]

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VOLUME 7 - CHAPTER 83

PRACTICE NOTE: When the defendant is separately charged with multiple conspiracies, the defense may be able to argue that there really was only one conspiracy.

    Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts "were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result." (Blumenthal v. U.S. (1947) 332 US 539, 558 [68 SCt 248; 92 LEd 154]; see also U.S. v. Sababu (7th Cir. 1989) 891 F2d 1308, 1322 [the question was not whether different parties joined conspiracy, but whether conspirators were performing different functions in pursuit of common criminal objectives]; U.S. v. Taren-Palma (9th Cir. 1993) 997 F2d 525, 530 [finding multiple conspiracies requires some evidence of separate agreements and purposes]; People v. Skelton (CA 1980) 109 CA3d 691, 717-18 [167 CR 636].)    

    Hence, "[t]o determine whether single or multiple conspiracies are involved, the essential question is the nature of the agreement or agreements, ... but factors such as time intervals, participants, objectives, and number of meetings all must be considered." (State v. Williamson (NC 1993) 430 SE2d 467, 469 [internal citations and quotation marks omitted.]; see also Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:7, p. 23-24.)

    In California, there is a conflict in authority as to whether a conspiracy to commit multiple criminal acts may be the predicate for multiple convictions of conspiracy. In People v. Morocco (CA 1987) 191 CA3d 1449 [237 CR 113], the court relied upon People v. Cook (CA 1984) 151 CA3d 1142 [199 CR 269], to conclude -- in the context of a solicitation charge -- that the question of whether one or multiple solicitations took place is a question of fact. (Morocco, at 1453.) In making this determination, the Morocco court concluded that the jury should be instructed to consider whether the multiple crimes were part of a "larger all-inclusive" plan with a single objective and/or motive. (Ibid.; see also People v. Miley (CA 1984) 158 CA3d 25, 31, fn 4 [204 CR 347].) The same division of the First District Court of Appeal which decided the Morocco case again concluded in People v. Williams (CA 1988) 201 CA3d 439, 444 [247 CR 200], that "whether one or multiple solicitations has occurred is a question of fact." (Williams, 201 CA3d at 444.)

    Two other decisions, however, conflict with Morocco. People v. McLead (CA 1990) 225 CA3d 906, 919-20 [276 CR 187] and People v. Davis (CA 1989) 211 CA3d 317, 322-24 [259 CR 348] disagreed with Morocco's conclusion that the matter is a question of fact for the jury to determine under appropriate instruction, holding instead that the prosecutor has the authority to charge as many conflicting counts as are shown by the evidence.

    See also FORECITE National™ 273.10.5.5 [Jury Unanimity As To Multiple Object Conspiracies].

    See also FORECITE National™ 83.3.8.1 [Defense Theory That The Evidence Shows Separate Multiple Conspiracies Rather Than Once Simple Conspiracy Alleged By The Prosecution].

Annotation, Solicitation To Commit Crime Against More Than One Person Or Property, Made In Single Conversation As Single Or Multiple Crimes, 24 ALR4th 1324.

Multiple Conspiracies. Caplow & Griffin, Multidefendant Criminal Cases: Federal Law & Procedure (West, 1998) § 2:7.

McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 7.

See also generally, FORECITE National™ 305.3.11 [Conspiracy].