THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Conspiracy: Evidence
1. Evidence Seized Must
Be Product Of Conspiracy
2. Conspiracy: Use Of
Circumstantial Evidence Does Not Lessen Burden
3. Casual Talk Not
Evidence
4. Inference Of
Conspiratorial Activity: Requirement Of Specific Evidence
5. Post-Conspiracy Conduct
Not Evidence Against Others
6. Conspiracy: When
Exculpatory Evidence Takes On Added Importance
7. Conspiracy: Physical
Evidence Requires Link To Defendant; Disregard
Unconnected Evidence
8. Trial Or Conviction Of
Alleged Co-Conspirators Not Evidence
9. Uncharged Offenses:
Only Evidence Of Charged Conspiracy To Be Considered
10. Conspiracy: Disregard
Co-Defendant Guilty Pleas
11. Conspiracy: Witness Found Guilty
Or Guilty Plea Not Evidence As To Defendant
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Evidence Seized Must Be Product Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The notes seized from ________ (location) on ________ (date) cannot be considered as evidence against __________ (name of defendant) unless the prosecution has proven that these notes were written by a member of a conspiracy of which __________ (name of defendant) was proven beyond a reasonable to be a member and further that the notes were written between _________ (beginning date of conspiracy) and ________ (ending date of conspiracy).
AUTHORITIES:
United States v. Harvey, 117 F.3d 1044, 1049-1050 (7th Cir. 1997); United States v. Lamon, 930 F.2d 1183, 1192 (7th Cir. 1991).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Conspiracy: Use Of Circumstantial Evidence Does Not Lessen Burden
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Conspiracies rarely are memorialized by a written contract and are generally proved by circumstantial evidence. This general rule, however, does not relieve the [state] [Government] of its burden to prove every element of the crime beyond a reasonable doubt. Merely showing that certain persons engaged in some conversations which might have ended in some firm commitments is not enough. The [state] [Government] must establish beyond a reasonable doubt that there was a meeting of the minds to consummate the illegal transaction, essential to the conspiracy.
AUTHORITIES:
United States v. Melchor-Lopez, 627 F.2d 886 (9th Cir. 1980), citing United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) and United States v. Trowery, 542 F.2d 623 (3d Cir.), cert. denied, 429 U.S. 1104 (1976).
SAMPLE INSTRUCTION # 2:
A conspiracy is a combination or agreement to violate the law. Since a conspiracy by its very nature is a clandestine offense, proof of the agreement must ordinarily rest upon inferences drawn from competent circumstantial evidence. However, the use of circumstantial evidence to support a conviction does not relieve the prosecution from showing some knowledge, explicit or implied, in each defendant of the principal purpose of the conspiracy, and some act or action indicating participation therein.
AUTHORITY:
Miller v. United States, 382 F.2d 583 (9th Cir.), cert. denied, 390 U.S. 984 (1967).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 25.12 Circumstantial Evidence.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Casual Talk Not Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that mere casual talk or descriptions of past events by one person to another may not be considered as evidence against the defendant, even if those persons may have conspired with each other or with the defendant. Only statements by a conspirator during the conspiracy and that tend to further the conspiracy's goals may be considered.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Curley, Case No. 93-CR-86-S (W.D. Wis. 1994) (without last sentence).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Inference Of Conspiratorial Activity: Requirement Of Specific Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An inference of conspiratorial activity cannot be drawn from a bald statement that some subject may have been discussed. That inference requires knowing the details of the discussion, the persons who discussed it, or what, if anything, was done as a result.
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Co., Ltd., 505 F. Supp. 1207 (E.D. Pa. 1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Post-Conspiracy Conduct Not Evidence Against Others
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The actions, statements and writings of one who is claimed to have conspired with others are not evidence against the others, if these actions, statements and writings occurred after the alleged conspiracy was ended. Then such actions, statements and writings are only evidence against the person who acted, spoke or authored the writings.
AUTHORITIES:
Fed. R. Evid. 801(d)(2)(E); United States v. Engelmann, 648 F.2d 473 (8th Cir. 1981); United States v. Silverstein, 737 F.2d 864 (10th Cir. 1984).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Conspiracy: When Exculpatory Evidence Takes On Added Importance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Where the evidence against an accused is based solely on the testimony of an alleged co-conspirator or informer, testimony which contradicts such evidence takes on added importance.
AUTHORITY:
United States v. Arendale, 444 F.2d 1260, 1269 (5th Cir. 1971).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Conspiracy: Physical Evidence Requires Link To Defendant; Disregard Unconnected Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The _________ (item of physical evidence seized) on _______ (date) cannot be considered as evidence against _______________ (name of defendant) defendant], or some member of a conspiracy of which the prosecution proved beyond a reasonable doubt that __________ (name of defendant) was a member, had knowledge that the _________ (item of physical evidence seized) was _______________________ (location seized from) and intended the _________ (item of physical evidence seized) to further the conspiracy charged in Count _____ of the indictment.
SAMPLE INSTRUCTION # 2:
In considering the evidence in this case, you should disregard any evidence which was not shown to be connected to __________ (name of defendant) or to a person you have found beyond a reasonable doubt to have conspired with __________ (name of defendant).
SAMPLE INSTRUCTION # 3:
In considering the evidence in this case, you should disregard any evidence which was not shown to be connected in some fashion to _______________ (name of defendant) or to a person you have found beyond a reasonable doubt to have been a member of a conspiracy of which the prosecution has proven beyond a reasonable doubt that _______________ (name of defendant) was also a member.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Trial Or Conviction Of Alleged Co-Conspirators Not Evidence
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Neither the conviction[s] of ______________, nor the trial of ______________, is evidence against the defendant. The fact that others may have been convicted of a conspiracy in which it is charged that the defendant was a member, is not evidence that (he/she) was a member of such conspiracy.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 19.4 [Disposition Of Charges As To Codefendant].
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Uncharged Offenses: Only Evidence Of Charged Conspiracy To Be Considered
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed not to consider as evidence against the defendant evidence of conspiracies other than the conspiracy charged by Count I of the indictment.
AUTHORITY:
United States v. Lindsay, 602 F.2d 785, 789 (7th Cir. 1979).
SAMPLE INSTRUCTION # 2:
No defendant may be found guilty of offenses not charged in the indictment; so, if you do not find the single, common conspiracy as charged, you may not find the defendant guilty, even though you find other distinct conspiracies may have been formed within the period covered by the indictment.
AUTHORITIES:
United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].
See NCJIC 26.5.3 [Uncharged Acts: Limiting Instructions].
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Conspiracy: Disregard Co-Defendant Guilty Pleas
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering whether defendant is guilty of the offense of conspiring with and others, I instruct you that you must totally disregard any evidence you may have heard concerning pleas of guilty by other co-defendants.
AUTHORITIES:
United States v. Harrell, 436 F.2d 606, 616 (5th Cir. 1970).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 19.4 [Disposition Of Charges As To Codefendant].
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Conspiracy: Witness Found Guilty Or Guilty Plea Not Evidence As To Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The witness, ___________ (name of witness), has pleaded guilty to a crime. You may give (his/her) testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care. Moreover, (his/her) guilty plea is not to be considered as evidence against the defendant.
The conspiracy offense to which ___________ (name of witness) has pleaded guilty is not the same offense as the conspiracy offense for which [this] [these] defendant(s) are on trial.
AUTHORITY:
Seventh Circuit Pattern Instructions 3.13 [formerly 3.23] (modified).
SAMPLE INSTRUCTION # 2:
The witness[es], ______________ [and ______________], has [have] pleaded guilty to the conspiracy for which the defendant is now on trial. You may give (his/her) [their] testimony such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care. Moreover, their guilty pleas are not to be considered of evidence against the defendant.
AUTHORITY:
Federal Criminal Jury Instructions of the Seventh Circuit, 3.13 [formerly 3.23] [modified for witnesses' and defendants' names].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Evidence.
RELATED NCJIC MATERIALS:
See NCJIC 19.4 [Disposition Of Charges As To Codefendant].
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC Volume 4: Evidence--Issues And Instructions (Chapters 24-42).