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273.10 Juror Unanimity: Specific Offenses

    273.10.5 Jury Unanimity: Conspiracy

    273.10.5.1 Potential For Jury Unanimity Issues As To Conspiracy Charge
    273.10.5.2 Jury Unanimity Not Required As Between Conspiracy And Other Theories Of Liability
    273.10.5.3 Jury Unanimity As To Overt Acts
    273.10.5.4 Jury Unanimity: That Overt Act Preceded The Crime Which Was The Object Of The Conspiracy
    273.10.5.5 Jury Unanimity As To Multiple Object Conspiracies
    273.10.5.6 Jury Unanimity As To Object Of Conspiracy When Relevant To Sentencing
    273.10.5.7 No Jury Unanimity As To Members Of The Conspiracy
    273.10.5.8 Jury Unanimity As To Predicate Acts To Conspiracy Charge

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PRACTICE NOTE: Conspiracy charges pose a more varied set of unanimity issues than do other criminal charges, and are more likely to pose jury unanimity issues than are other offenses. This is true for two reasons. First, since conspiracy charges often allege multiple acts, unanimity issues are an inherent feature of many conspiracy charges. Second, conspiracy charges can pose unique unanimity issues not applicable to other offenses such as multiple objectives and overt acts. (See generally, McSorley, Portable Guide to Federal Conspiracy Law - Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 4, § C [Duplicity].)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: Jurors need not agree unanimously as to whether a defendant is guilty as a principal, a conspirator or an aider and abettor, as long as all jurors agree that the defendant is guilty of the underlying offense charged. (Holland v. State (WI 1979) 280 NW2d 288, 292-293; May v. State (WI 1979) 283 NW2d 460, 465.)

    See also FORECITE National™ 273.7.1.4 [Jury Unanimity: Direct Perpetrator vs. Accomplice Liability].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    273.10.5.3    Jury Unanimity As To Overt Acts

PRACTICE NOTE: There is a split in authority as to whether unanimity is required regarding overt acts.

    For example, the 8th and 9th Circuits explicitly require jurors to agree unanimously as to at least one specific charged, overt act.  (See 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 and Pennsylvania also explicitly require such instruction. (See State v. Merino (HI 1996) 915 P2d 672; see also HAWAII PATTERN JURY INSTRUCTIONS - CRIMINAL, HAWJIC 14.07B [Criminal Conspiracy--Theft In The Second Degree] (West, 1998) [jury must unanimously agree as to the particular overt act committed]; PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 12.903A, note [Conspiracy: Basic Introduction] (Pennsylvania Bar Institute, PBI Press, 09/95).) This approach is consistent with the view that juror unanimity should be required as to any predicate acts which are essential to the charge. (See FORECITE National™ 273.9 [Jury Unanimity As To Predicate Acts Of Compound Offenses].)

    Other jurisdictions recommend, but do not require special unanimity instruction as to overt acts, and hold that a trial court’s failure to observe that recommended practice violates a defendant’s 6th Amendment and due process rights to the extent that case specific considerations indicate that a non-unanimous verdict will have significant adverse legal or penal consequences for the defendant. (See e.g., U.S. v. Shaoul (2d Cir.1994) 41 F3d 811, 818; see also People v. Jackson (CA 1996) 13 C4th 1164, 1227, fn 15 [56 CR2d 49] [California Supreme Court endorsed use of a special finding requiring jury unanimity as to a conspiracy defendant’s commission of one or more specific overt acts. as "a proper safeguard of defendant's right of due process..." but declined to rule on whether a conspiracy defendant is entitled to a unanimity instruction as to overt acts].)

    Other courts have held that a jury need not be unanimous as to which overt act formed the basis for its guilty verdict on a conspiracy charge where the various overt acts alleged fell into the same "conceptual group." (See e.g., U. S. v. Sutherland (5th Cir.1981) 656 F2d 1181, 1202; U.S. v. Hubbard (DC Cir. 1989) 889 F2d 277, 278; People v. Russo (2001) 25 C4th 1124 [108 CR2d 436].)

    Still other courts affirmed conspiracy convictions notwithstanding failure to give special unanimity instruction as to overt acts, where jurors explicitly convicted the defendant of at least one overt act charged by the prosecution. (U.S. v. Sutherland 656 F2d 1181, 1203; U.S. v. Hubbard (DC Cir. 1989) 889 F2d 277, 279-80 [appellant convicted of one underlying offense and all but one of alleged overt acts fell within same conceptual group]; U.S. v. Alli-Balogun (2nd Cir. 1995) 72 F3d 9, 12-13.)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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PRACTICE NOTE: An overt act must precede the crime which is the object of the conspiracy. Therefore, even if unanimity is not required as to overt acts (but see FORECITE National™ 273.10.5.3 [Unanimity As To Overt Acts]), at a minimum the jury must unanimously agree that an overt act was committed prior to the completion of the objective of the conspiracy. (See FORECITE National™ 83.3.4.5 [Conspiracy: Defense Theory That The Overt Act Was Committed After Completion Of The Criminal Objective].)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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    See FORECITE National™ 83.3.7.2 [Conspiracy: Defense Theory That No Single Objective Of The Conspiracy Has Been Proven (Unanimity As To Object)].

    See FORECITE National™ 273.10.5.6 [Jury Unanimity As To Object Of Conspiracy When Relevant To Sentencing].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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RATIONALE: When neither the verdict nor instructions required the jury to unanimously agree on at least one object of the conspiracy, the sentencing court should not be permitted to rely on one object or the other to increase the sentence.

POINTS AND AUTHORITIES: U.S. v. Alvarez (11th Cir. 1984) 735 F2d 461 held that a conspiracy conviction must be reversed where there was evidence of two objectives (possession to distribute cocaine and marijuana) and the jury was not required to unanimously agree as to at least one of those objectives. Reversal was required because the penalty for possession to distribute cocaine was 15 years but the penalty for marijuana was 5 years. (See also U.S. v. McKinley (11th Cir. 1993) 995 F2d 1020, 1025 [conviction remanded, where trial judge rejected special verdict forms specifying which, of four object offenses, entailing diverse sentencing exposures, defendant was guilty of]; U.S. v. Dennis (11th Cir. 1986) 786 F2d 1029, 1039 n 11; U.S. v. Gomez-Geraldo (5th Cir. 1981) 652 F2d 452 [special jury verdict form was used to assure unanimity and determine maximum sentencing range where defendant was charged with conspiracy to import both marijuana and cocaine].)

    Alvarez was subsequently criticized on the basis that sentencing factors need not be found by the jury. (See e.g., U.S. v. Coy (11th Cir. 1994) 19 F3d 629, 636; see also U.S. v. Deisch (5th Cir. 1994) 20 F3d 139, 150; U.S. v. Wood (8th Cir. 1987) 834 F2d 1382, 1389.) However, the United States Supreme Court has held that such sentencing factors, which increase the maximum sentence eligibility, are elements which must be submitted to and found by the jury. (Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435]; see also FORECITE National™  300.21.2 [Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment].)

    In light of Apprendi, the rationale of cases such as Alvarez should be heeded and juror unanimity should be required when multiple conspiratorial objects could affect sentencing.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.8].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

    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 which is proved is the single conspiracy which 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 did exist, 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 such Defendant was a member of the conspiracy charged in the indictment and not a member of some other separate conspiracy.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL OI 13.3 [Multiple Conspiracies (For Use With General Conspiracy Charge] (1997).]

    The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy 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] [three, etc.] offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]

[8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.06F [Conspiracy: Multiple Offenses] (2000).]

    If you find beyond a reasonable doubt that the defendant guilty of conspiracy, you must specify the object or objects of the conspiracy which you have unanimously found beyond a reasonable doubt.

    We, the jury, unanimously find beyond a reasonable doubt the [object] [objects] of the conspiracy [was] [were]:

    1. ____________________________

    2. ____________________________

    3. ____________________________

    4. ____________________________.

[See REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI 10.034 [Form Of Verdict For Objects Of Single Conspiracy] (CLE State Bar of Arizona, 1996); see also CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 6.26 [Jury Finding-Objects Of Conspiracy] (2000).]

    To prove the defendant guilty of conspiracy the prosecution is required to prove that the defendant agreed to accomplish one of the alleged objectives of the conspiracy.  You may not convict the defendant unless all twelve jurors unanimously agree beyond a reasonable doubt as to at least one of the alleged objectives.

[See CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.93, comment [Conspiracy, Basic Instruction] p. 519 (Bar Association of the District of Columbia, 4th ed. 1993).]

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    273.10.5.7    No Jury Unanimity As To Members Of The Conspiracy

PRACTICE NOTE: Jurors need not be unanimous as to identities of defendant’s coconspirators. (U.S. v. Harris (DC Cir. 1991) 959 F2d 246, 254-55.)

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].

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

    See FORECITE National™ 273.10.5.3 [Unanimity As To Overt Acts].

See generally, FORECITE National™ 305.10.4 [Jury Unanimity].

See generally FORECITE National™ 273.1.5 [Jury Unanimity: Federal Model Instructions And Notes].