The Shellow Collection: Acting In Concert

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Acting In Concert

1. Acting In Concert: Defined
2. Jury Must Unanimously Agree On Identity Persons Defendant Acted In Concert With

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1. Acting In Concert: Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

Acting in concert means more than acting with a common goal or toward the same objective. Two persons may have the same goal in mind and attempt to accomplish it by the same means without acting in concert. [Acting in concert means that these persons are acting together; that they have agreed to cooperate in the venture. Persons do not act in concert unless they have agreed.]

Although it is necessary that the government prove beyond a reasonable doubt that a person acted in concert with five or more persons before (he/she) can be convicted for engaging in a continuing criminal enterprise, [it is not necessary that (he/she) acted in concert with them at the same time. (He/She) may have acted in concert with the one at one time, and others, at other times.]

AUTHORITIES:

United States v. Phillips, 664 F.2d 971 (5th Cir. 1981); United States v. Barnes, 604 F.2d 121 (2d Cir. 1979); United States v. Valenzuela, 596 F.2d 1361 (9th Cir. 1979); United States v. Jeffers, 532 F.2d 1101 (7th Cir. 1976), aff'd in part, vacated in part on other grounds, 432 U.S. 137 (1977); Jeffers v. United States, 432 U.S. 137 (1977); United States v. Fry, 413 F. Supp. 1269 (D. Mich. 1976).

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985) [bracketed material only].

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Accomplices.

See also THE SHELLOW COLLECTION: Controlled Substances (Continuing Criminal Enterprise) (21 USC 848).

RELATED NCJIC MATERIALS:

See NCJIC Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2. Jury Must Unanimously Agree On Identity Persons Defendant Acted In Concert With

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

If you find, beyond a reasonable doubt, that the defendant committed a violation of ___________ (crime[s], e.g., the controlled substance laws) and that this offense was part of a continuing series of violations of ___________ (crime[s], e.g., the controlled substance laws) , you must also decide whether the defendant committed this series of violations in concert with one or more persons. These persons do not have to be named in the indictment. [They could be others, not named, who you find, beyond a reasonable doubt, were persons with whom the defendant committed the violations. You must, however, unanimously agree on which one or more people the defendant committed the violations with.]

You do not have to find that the one or more persons acted together at the same time, or that the defendant personally dealt with them together. You also do not have to find that the defendant had the same relationship with each of the one or more persons. You must unanimously agree, however, on the identity of at least one person with whom the defendant acted in committing the series of offenses alleged by the government. [If you cannot so unanimously agree, you must find the defendant not guilty of Count One.]

AUTHORITIES:

United States v. Sperling, 506 F.2d 1323 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975); United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982); United States v. Smith, 690 F.2d 748 (9th Cir. 1982), cert. denied, 103 S.Ct. 1435 (1983); United States v. Raffone, 693 F.2d 1343 (llth Cir. 1982), cert. denied, 103 S.Ct. 2094 (1983).