THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Conspiracy: Intent
1. Conspiracy: Intent
Required For Membership
2. Conspiracy: Knowledge
And Specific Intent
3. Conspiracy: Corrupt
Intent
4. Conspiracy: Dual Intent
Requirement
5. Single Act Must Show
Intent
6. Requirement Of
Agreement To Do Wrongful Act
7. Conspiracy: Wrongful
Intent May Not Be Presumed From Commission Of An Act
8. Conspiracy: Intent Not
Proven By Reference To Conduct Of Another
9. Conspiracy: Prosecution
Must Prove Intentional Participation
10. Prosecution Must Prove Intent To
Join Conspiracy
11. Intent Defense Theory: No
Specific Intent To Form Agreement
12. Conspiracy: Innocent Conduct
Which Leads To Violation
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Conspiracy: Intent Required For Membership
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
To establish that a defendant is guilty of conspiracy, the government must prove that the defendant knew of the conspiracy and intended to join and associate (himself/herself) with its criminal design and purpose.
AUTHORITIES:
United States v. Kozinski, 16 F.3d 795, 807 (7th Cir. 1994), 1994 WL 47984 at 6-7; United States v. Auerbach, 913 F.2d 407, 414-15 (7th Cir. 1990).
SAMPLE INSTRUCTION # 2:
In deciding whether a defendant joined a criminal agreement -- that is, a conspiracy -- you must be satisfied that the defendant you are considering intended each of two things: first, that he or she intended the goals of the agreement to succeed; and second, that he or she intended to join that agreement, knowing the goals. If the evidence does not prove both intentions beyond a reasonable doubt, you must acquit that defendant of the conspiracy charge.
AUTHORITIES:
United States v. United States Gypsum Co., 438 U.S. 422, 443 n.20 (1978); United States v. Haldeman, 559 F.2d 31, 112-13 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977); United States v. Flaherty, 668 F.2d 566, 580 (1st Cir. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Conspiracy – Membership.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Conspiracy: Knowledge And Specific Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The specific intent requirement necessary to convict a defendant is not identical to mere knowledge that another defendant may plan an unlawful action. Without knowledge, however, the intent cannot exist. Furthermore, to establish this specific intent, the evidence of knowledge must be clear and not equivocal. This is because you cannot convict for conspiracy by piling inference upon inference.
AUTHORITIES:
United States v. Klein, 515 F.2d 751 (3d Cir. 1975).
SAMPLE INSTRUCTION # 2:
The specific intent which must be proven by the government in order to prove the conspiracy charged in this indictment is like that of all other crimes arising out of deceit or deception. The burden is on the government to establish beyond a reasonable doubt that the defendants not only knowingly conspired to commit acts which the law forbids, but that they entered into this conspiracy with the intent to violate the law. Whether or not a defendant had the specific intent to conspire is governed by the conduct and state of mind of the defendant rather than by the objects of the conspiracy.
AUTHORITIES:
United States v. Bryza, 522 F.2d 414, 421 (7th Cir. 1975) [suitably modified].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
SAMPLE INSTRUCTION # 3:
One of the essential elements of the offense is that each defendant knowingly participated in this alleged conspiracy with the intent to commit the offense or the fraud which was the object of the conspiracy. The specific intent required for the crime of conspiracy is the intent to advance or further the unlawful object of the conspiracy. If the government has not proven this specific intent as to a defendant, that defendant must be acquitted.
AUTHORITIES:
United States v. Haldeman, 559 F.2d 31, 112 (D.C. Cir. 1976) [en banc] [per curiam].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See NCJIC Chapter 47: Knowledge.
See generally NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Conspiracy: Corrupt Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When a prosecution is brought for conspiracy, there must be a "corrupt intent" which means the conscious and intentional purpose to break the law.
AUTHORITY:
Landen v. United States, 299 F. 75, 78 (6th Cir. 1924).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.5.2 [Conspiracy: Defense Theory Of No Wrongful Purpose Or Corrupt Motive].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Conspiracy: Dual Intent Requirement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
I further instruct you that the specific intent which the government must prove as an element of the conspiracy charged in this indictment is in reality two states of mind. The first intent which the government must prove beyond a reasonable doubt in order to find any defendant guilty of the conspiracy is an intent to agree, that is, the intent to form an agreement with others. The second intent is an intent to achieve the object of the agreement and thus of the conspiracy. [You must consider both aspects of specific intent in weighing the strength of the government's case.]
AUTHORITIES:
United States v. United States Gypsum Co., 438 U.S. 422, 444 n.20 (1978); see generally United States v. Haldeman, 559 F.2d 31, 113 (D.C. Cir. 1976) (en banc) (per curiam), (discussing Harno, Intent in a Criminal Conspiracy, 89 U.Pa.L.Rev. 624, 631 (1941)).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981) [bracketed material deleted].
SAMPLE INSTRUCTION # 2:
In order for the government to prove that a defendant was a member of a conspiracy it is necessary that it prove beyond a reasonable doubt that this defendant had the state of mind of a conspirator.
The government must prove two different intentions: (1) It must prove that this defendant intended to agree with others who have been found to be conspirators; and (2) It must prove that this defendant intended that the object of the conspiracy be achieved.
AUTHORITY:
United States v. United States Gypsum Co., 438 U.S. 422, 443 n.20 (1978).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See also NCJIC 83.3.5.1 [Conspiracy: Dual Intent Requirement].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Single Act Must Show Intent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A single act may be the foundation for drawing the actor within the ambit of a conspiracy. But, since conviction of conspiracy requires an intent to participate in the unlawful enterprise, the single act must be such that one may reasonably infer from it such intent.
AUTHORITIES:
United States v. James, 432 F.2d 303, 305 (5th Cir. 1970); United States v. Aviles, 274 F.2d 179 (2d Cir. 1960).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998);United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See generally NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Requirement Of Agreement To Do Wrongful Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Absent proof beyond a reasonable doubt that a defendant possessed the specific intent to agree to do a wrongful act, the defendant must be acquitted of conspiracy.
AUTHORITY:
United States v. Tyler, 505 F.2d 1329, 1332 (5th Cir. 1975).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.12 [Agreement: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Conspiracy: Wrongful Intent May Not Be Presumed From Commission Of An Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A defendant's state of mind or intent is an element of a criminal conspiracy offense which must be established by evidence and inferences drawn therefrom and cannot be based upon a mere presumption of wrongful intent from proof of some act.
AUTHORITIES:
United States v. United States Gypsum Company, 438 U.S. 422, 435 (1978).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998); United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See generally NCJIC Chapter 83: Conspiracy.
See also generally NCJIC 300.5.2 [Constitutional Claims: Improper Presumption Which Lessens The Prosecution's Burden].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Conspiracy: Intent Not Proven By Reference To Conduct Of Another
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Constructive notice or knowledge of a circumstance, based upon the actual knowledge of a co-conspirator, has no tendency, circumstantial or otherwise, to prove criminal intent. The specific intent of one defendant is not ascertained by reference to the conduct or statements of another even though he has knowledge thereof.
AUTHORITIES:
lst sentence - Phillips v. United States, 356 F.2d 297, 303 (9th Cir. 1965); 2nd sentence - United States v. Spock, 416 F.2d 165 (lst Cir. 1969).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See generally NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Conspiracy: Prosecution Must Prove Intentional Participation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The court instructs the jury that the prosecution must prove that the defendant willfully entered an alleged conspiracy, participated in its formation; or, knowing its existence and purpose, intentionally joined the conspiracy and knowingly aided in the furtherance of such conspiracy, before such defendant can be found guilty of being a member.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Prosecution Must Prove Intent To Join Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to prove a defendant guilty of a conspiracy the government must prove beyond a reasonable doubt that he intended to join the conspiracy.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.5 [Conspiracy: Mental State -- Defense Theories].
See NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Intent Defense Theory: No Specific Intent To Form Agreement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is the defendant’s theory of this case that (he/she) never conspired with ______________ to do anything. As far as the other alleged co-conspirators are concerned, it is the defendant’s theory of the case that (he/she) did not have the specific intent to form any agreement with such other persons concerning ______________.
AUTHORITY:
United States v. Umentum, 547 F.2d 987 (7th Cir. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
See NCJIC 83.3.12 [Agreement: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Conspiracy: Innocent Conduct Which Leads To Violation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Parties to an agreement to engage intentionally in apparently innocent conduct where the unintended result is the violation of a criminal statute do not possess the requisite criminal intent to be convicted of a conspiratorial agreement.
AUTHORITIES:
United States v. Feola, 420 U.S. 671, 691 (1975) [issue undecided].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Linton, No. CR-R-80-24-ECR (D.C. Nevada 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 45.1.1 [Requirement Of Criminal Intent Or Culpable Mental State: General Principles].
See generally NCJIC Chapter 83: Conspiracy.