THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Conspiracy: Multiplicity
1. Conspiracy:
Multiplicity
2. Multiple Conspiracies
3. Specific Conspiracy
Must Be Proved As Charged
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Conspiracy: Multiplicity
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you conclude, based on all the evidence, that __________ (name of defendant) in fact devised a scheme with the intent to ____________ (name of target offense) as charged in more than one count in the indictment, but you conclude that there was only one scheme and that all acts were part of that one scheme, then you may convict that defendant of only one count in the indictment.
AUTHORITY:
U.S. Const., amend. V (double jeopardy clause); see also Braverman v. United States, 317 U.S. 49, 52-54 (1942) (single conspiracy may have multiple objects; one conviction only).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.8 [Multiple Conspiracy: Defense Theories].
See NCJIC 276.8.1 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)].
See NCJIC 276.8.2.5 [Conspiracy And Substantive Offense Should Be Considered Separately].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Multiple Conspiracies
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You must determine whether the conspiracy charged in Count ____ existed and, if it did, whether the defendant was a member of it. If you have a reasonable doubt that the conspiracy charged existed, then you must return a not guilty verdict, even though you find that some other conspiracy existed. If you have a reasonable doubt that a defendant was not a member of the conspiracy charged in Count ____, then you must find the defendant not guilty, even though that defendant may have been a member of some other conspiracy.
AUTHORITIES:
Fifth Circuit Pattern Instruction 2.21 [Multiple Conspiracies] [formerly 2.22 (modified)]; United States v. Dennis, 917 F.2d 1031, 1033 (7th Cir. 1990).
SAMPLE INSTRUCTION # 2:
The government has proven that __________ (name of defendant) had an agreement with a supplier of [controlled substance] and that ________ (Conspirator A) had entered into this agreement as well.
And the government has further proven that __________ (name of defendant) entered an agreement with ________ (Conspirator A) and that ________ (Conspirator B) and ________ (Conspirator CA) had entered into that agreement as well.
But if the government did not prove beyond a reasonable doubt that there was an overall conspiratorial agreement into which __________ (name of defendant), ________ (Conspirator A), ________ (Conspirator B), ________ (Conspirator C) and others had entered, then the government has not proven the conspiracy charged [in Count ___] and __________ (name of defendant) should be found not guilty of that charge.
AUTHORITY:
United States v. Stevenson, 3 F.3d 1005, 1009-11 (7th Cir. 1993).
SAMPLE INSTRUCTION # 3:
__________ (name of defendant) is charged with a number of crimes in which the government alleges that (he/she) acted or agreed with other persons. In Count 1 (he/she) is charged with acting in concert with ___ unnamed persons; in Count 2 (he/she) is charged with conspiring with ___ named persons and other unnamed persons; similarly, in Count 3 (he/she) is charged with a different conspiracy, but one with at least the same members as are charged in Count 2; in Counts 4 through _____ (he/she) is charged with aiding and abetting named and unnamed persons in the _________ (crime, e.g., possession and importation of controlled substance); finally, in Count ____ (he/she) is charged with being employed by and associated with an enterprise, which consisted of a group of persons who were associated for the purpose of _____________ (purpose e.g., smuggling a controlled substance into the United States and distributing the controlled substance after it was imported).
Although each of these offenses charges that __________ (name of defendant) in some way was associated with others in the commission of these offenses, each defines different crimes with different elements. (He/She) may be guilty of one and not guilty of another. The evidence against (him/her) on each of the offenses must be considered as though (he/she) were being tried for that offense alone.
While the commission of one of these crimes may be some proof of the commission of others, they are separate offenses and mere proof of one does not prove another.
[Although both Count ___ and Count ___ use the word "enterprise" they are used in different senses. That is, the word "enterprise" in Count ___ does not mean the same as the word "enterprise" in Count ___.]
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.8 [Multiple Conspiracy: Defense Theories].
See NCJIC 276.8.1 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)].
See NCJIC 276.8.2.5 [Conspiracy And Substantive Offense Should Be Considered Separately].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Specific Conspiracy Must Be Proved As Charged
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
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 conspiracy as it is charged in the indictment existed between the defendant and another person or other people. You may do this only by considering the evidence of the defendant's own acts and statements.
If you find that no such conspiracy existed, then you find the defendant not guilty. If you find that the defendant was a member of some conspiracy, but not the one charged in the indictment, then you must find the defendant not guilty.
AUTHORITIES:
United States v. Tramunti, 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423 U.S. 832 (1975).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985).
SAMPLE INSTRUCTION # 2:
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 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. However, if you are satisfied that such a conspiracy existed, you must then determine who were the members of that conspiracy.
If you should find that a particular defendant was a member of another conspiracy, not the conspiracy charged in the indictment, then you must acquit that defendant. In other words, to find a defendant guilty you must find that he or she was a member of the conspiracy charged in the indictment.
In determining whether any defendant was a party to the conspiracy charged, each defendant is entitled to individual consideration of the proof respecting (him/her), including any evidence of his knowledge or lack of knowledge, (his/her) status, (his/her) participation in key conversations, (his/her) participation in the plan, scheme or arrangements alleged in the indictment.
AUTHORITIES:
United States v. Elam, 678 F.2d 1234, 1252 n.30 (5th Cir. 1982).
SAMPLE INSTRUCTION # 3:
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 conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed, then you must acquit. However, if you are satisfied that such a conspiracy existed, you must [unanimously] determine who were members of that conspiracy[, and unanimously agree as to the identity of at least one of the other members of the alleged conspiracy].
If you find that the defendant is a member of another conspiracy and not the one charged in the indictment, then you must acquit (him/her). In other words, to find the defendant guilty you must find that (he/she) was a member of the conspiracy charged in the indictment and not some other conspiracy.
AUTHORITIES:
United States v. Abraham, 541 F.2d 1234 (7th Cir. 1976), cert. denied, 429 U.S. 1102 (1977).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982) [bracketed material deleted; parenthetical material added]; United States v. Robinson, Case No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 4:
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 conspiracy charged in the indictment existed between two or more conspirators. If you find that no such conspiracy existed, then you must acquit. However, if you are satisfied that such a conspiracy existed, you must determine who were the members of that conspiracy.
If you find that a particular defendant is a member of another conspiracy, not the one charged in the indictment, then you must acquit that defendant. In other words, to find a defendant guilty you must find that (he/she) was a member of the conspiracy charged in the indictment and not some other conspiracy.
AUTHORITIES:
United States v. Abraham, 541 F.2d 1234 (7th Cir. 1976), cert. denied, 429 U.S. 1102 (1977); United States v. Tramunti, 513 F.2d 1087, 1107 (2d Cir. 1975).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, Case No. 78-CR-106 (E.D. Wis. 1979); United States v. Jackson, No. 89-CR-62 (E.D. Wis. 1990) (first paragraph omitted).
SAMPLE INSTRUCTION # 5:
Proof of several separate conspiracies is not proof of the single, overall conspiracy charged in this indictment. What you must do is determine whether the conspiracy that is charged in the indictment between two or more conspirators. If you find that the conspiracy charged against defendants did not exist, then you must acquit defendants of that charge. However, if you are satisfied that the conspiracy existed, you must determine who were the members of that conspiracy.
If you find that defendants were members of a conspiracy other than the one charged in Count ____ and were not members of the conspiracy charged in the indictment, then you must acquit them. In other words, to find the defendants guilty of Count _____ , you must find that they were members of the conspiracy charged in that count and not some other conspiracy.
AUTHORITIES:
Modified for multiple defendants and multiple conspiracies from the following authorities: United States v. Abraham, 541 F.2d 1234 (7th Cir. 1976), cert. denied, 429 U.S. 1102 (1977); United States v. Bynum, 485 F.2d 497 (2d Cir. 1973).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Willie Williams, 78-CR-106.
SAMPLE INSTRUCTION # 6:
In order to satisfy yourself that the conspiracy charged in Count ___ of the indictment existed, you must find that the single conspiracy charged in that count was satisfactorily proved and not that another illegal agreement was entered into. Proof of the existence of several conspiracies is not proof of the single overall conspiracy charged in that count unless one of the several conspiracies which is proved is the single conspiracy charged. What you must do is determine whether the conspiracy charged in Count ___ of the indictment existed between the defendant __________ (name of defendant) and the alleged conspirators. If you find that no such conspiracy existed, then you must acquit the defendants on Count ___, even if it appears that some other illicit agreement or agreements were made.
If you find that a defendant is a member of some other conspiracy and not the specific one charged in Count ___, then I instruct you that you must acquit that defendant. In other words, to find a defendant guilty, you must find that he knowingly and willingly became a member of the conspiracy charged in Count ___ and not in some other conspiracy.
AUTHORITIES:
Kotteakos v. United States, 328 U.S. 759 (1946); United States v. Lindsey, 602 F.2d 785 (7th Cir. 1979); United States v. Johnson, 515 F.2d 730 (7th Cir. 1975); United States v. Lam Lek Chong, 544 F.2d 58 (2d Cir. 1976); United States v. Toliver, 541 F.2d 958 (2d Cir. 1976); United States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975); United States v. Tramunti, 513 F.2d 1087 (2d Cir. 1975); See also Devitt and Blackmar, §27.16.
SAMPLE INSTRUCTION # 7:
As I have previously instructed you, these defendants are charged with conspiring to violate three separate criminal statutes. If each of you finds beyond a reasonable doubt that a defendant has conspired to violate one of those three criminal statutes, but you are all unable to unanimously specify one single statute which all of you agree that that defendant has conspired to violate, then you cannot return a verdict of guilty.
For example, if six of you found that a defendant conspired to distribute but was innocent of conspiring to import, and if the other six jurors found that defendant guilty of conspiring to import but innocent of either of the conspiracies to distribute, you could not return a verdict of guilty, since you would have failed to have unanimously agreed upon the commission of a single unlawful act.
In other words, before you can find a defendant guilty you must unanimously agree and find that the defendant conspired to violate a single federal statute set out in the indictment
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 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. However, if you are satisfied that such a conspiracy existed, you must then determine who were the members of that conspiracy.
If you should find that a particular defendant was a member of another conspiracy, not the conspiracy charged in the indictment, then you must acquit that defendant. In other words, to find a defendant guilty you must find that he or she was a member of the conspiracy charged in the indictment.
In determining whether any defendant was a party to the conspiracy charged, each defendant is entitled to individual consideration of the proof respecting (him/her), including any evidence of (his/her) knowledge or lack of knowledge, (his/her) status, (his/her) participation in key conversations, (his/her) participation in the plan, scheme or arrangements alleged in the indictment.
AUTHORITIES:
United States v. Elam, 678 F.2d 1234, 1252 n.30 (5th Cir. 1982).
SAMPLE INSTRUCTION # 8:
The indictment charges that [Defendant A], [Defendant B], and [Defendant C] were all members of one single conspiracy to commit the crime of ___________ (crime e.g., distributing a controlled substance).
Another view is that the evidence, even if believed, establishes two separate conspiracies--one between [Defendant A] and [Defendant B] [and others]; and another one between [Defendant B] and [Defendant C].
To convict [Defendant A] of the conspiracy charge, the government must convince you beyond a reasonable doubt that [Defendant A] was a member of the conspiracy charged in the indictment. If the government fails to prove this, then you must find [Defendant A] 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.
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.
AUTHORITIES: Sixth Circuit Pattern Criminal Jury Instructions 3.08 [Multiple Conspiracies – Material Variance From the Indictment] (1991); see also United States v. Duff, 76 F.3d 122, 127 (7th Cir. 1996) [recognizing need for individualized instructions regarding issue of multiple conspiracies].
SAMPLE INSTRUCTION # 9:
In order to find [defendant] guilty of the conspiracy charged, the government must prove beyond a reasonable doubt that a single conspiracy existed. If [other alleged conspirator] made separate arrangements with the witnesses who testified in his behalf, this is not the overall conspiracy charged and the defendant should be found not guilty of that conspiracy.
A single conspiracy does not exist just because a number of people committed illegal acts with the same person. The government must show an agreement among the participants.
AUTHORITIES:
Kotteakos v. United States, 328 U.S. 750, 755 (1946); United States v. Sophie, 900 F.2d 1064, 1080 (7th Cir. 1990).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.8 [Multiple Conspiracy: Defense Theories].
See NCJIC 276.8.1 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)].
See NCJIC 276.8.2.5 [Conspiracy And Substantive Offense Should Be Considered Separately].