SAMPLE INSTRUCTION:

    There is no conspiracy unless two or more separate parties combine and affirmatively agree together. In this case, you must find that there was no conspiracy unless the plaintiffs have established by evidence which is clear, convincing and satisfactory that [Corporation A] affirmatively joined and participated in an unlawful agreement with [Corporation B]. An agreement between two agents of the same corporation is not sufficient.

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    A corporation and a single employee of that corporation cannot conspire with each other. In order for a corporation to become a member of a conspiracy, there must be two or more co-conspirators other than the corporation itself, at least one of whom is an agent of the corporation acting within the scope of his or her agency.

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    The acts and declarations of an agent or employee cannot be attributed, as those of a co-conspirator, to the principal or employer. Similarly, acts and declarations which have been imputed to a corporate principal cannot be attributed, as those of a co-conspirator, to its employees or agents. These rules apply even though the employee and employer or principal and agent are jointly indicted and charged with being members of the same conspiracy.

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    A specific criminal intent is an element of the crime of conspiracy charged in this indictment. Accordingly, an employer may be penalized for an employee's criminal act only if the agent acted within the scope of his employment, and not if the agent acted for some purpose other than that of serving his employer. The corporation does not acquire that knowledge or possess the requisite state of mind essential for criminal responsibility through the activities of unfaithful agents or employees whose conduct was undertaken to advance either their own interests or the interests of parties other than their corporate employer.

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SAMPLE INSTRUCTION # 1:

    I have indicated to you that there are circumstances in which the knowledge of a corporate employee becomes the knowledge of the corporate principal. The converse is never true. Merely because a corporation is found to have knowledge by virtue of the fact that a corporate employee had knowledge does not permit the imputation of this knowledge to other corporate employees.

    Actual knowledge is required of all natural persons before any natural defendant can be found guilty of a conspiracy. There are many elements of the crime of conspiracy and each of these elements must be proven beyond a reasonable doubt as to any defendant for which the government desires a conviction.

    Perhaps the most complex of these elements is called specific intent. It is difficult to define; it is difficult to comprehend; but it is necessary for the jury to grasp its meaning and to apply the law.

    Perhaps the best discussion of the meaning of specific intent in the context of a conspiracy prosecution was that of Judge Learned Hand who said that it was perfectly proper to convict a person for running a red light even though he did not know that the light was red, but that a person could not be convicted of a conspiracy to run the red light without actual knowledge that the light was red. This analogy may be of some assistance and if it is I urge that you consider it. However, the question of specific intent must be faced in the context of the conspiracy charged in this indictment and analogies may not be of much help.

    The government has charged these defendants with a conspiracy to defraud . This is not a conspiracy to defraud . In order for the government to prove its case it is necessary that it prove that the defendants had the specific intent to enter into an agreement the purpose of which was to defraud the . If this was not the specific intent of these defendants, then, regardless of what other agreements they may have had, they must be acquitted of the charge.

SAMPLE INSTRUCTION # 2:

    I have indicated to you that there are circumstances in which the knowledge of a corporate employee becomes the knowledge of the corporate principal. However, merely because a corporation is found to have knowledge by virtue of the fact that a corporate employee had knowledge does not permit the imputation of this knowledge to other corporate employees.

    Actual knowledge is required of all natural persons before any natural defendant can be found guilty of a conspiracy. There are many elements of the crime of conspiracy and each of these elements must be proven beyond a reasonable doubt as to any defendant for which the government desires a conviction.

    Perhaps the most complex of these elements is called specific intent. It is difficult to define; it is difficult to comprehend; but it is necessary for the jury to grasp its meaning and to apply the law.

    Perhaps the best discussion of the meaning of specific intent in the context of a conspiracy prosecution was that of Judge Learned Hand who said that it was perfectly proper to convict a person for running a red light even though he did not know that the light was red, but that a person could not be convicted of a conspiracy to run the red light without actual knowledge that the light was red. This analogy may be of some assistance and if it is I urge that you consider it. However, the question of specific intent must be faced in the context of the conspiracy charged in this indictment and analogies may not be of much help.

    The government has charged these defendants with a conspiracy to defraud . This is not a conspiracy to defraud . In order for the government to prove its case it is necessary that it prove that the defendants had the specific intent to enter into an agreement the purpose of which was to defraud the . If this was not the specific intent of these defendants, then, regardless of what other agreements they may have had, they must be acquitted of the charge.

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SAMPLE INSTRUCTION:

    It is basic that you must have at least two persons or entities to have a conspiracy. A corporation cannot conspire with itself, any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation. Accordingly, a corporation cannot conspire with its own employees or its own agents.

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    I have attempted to discuss with you the circumstances in which the acts and declarations of one member of a conspiracy may be imputed, under certain circumstances, to other defendants who have been found to be members of the same conspiracy. The problem, of imputing such acts and declarations, becomes substantially more complex when the question of corporate defendants is involved. Thus, although a corporation may be responsible for the acts and declarations of persons proven to be its agents who are acting within the scope of their actual authority, a corporation cannot be responsible for the acts and declarations which have been imputed to a different corporation.

    As an example of this problem and as illustrative only, if the evidence were to show that a corporate agent acting within the scope of his actual authority made a statement in furtherance of a conspiracy and that statement was imputed to a corporate defendant, the statement could not be further attributed to a second corporate defendant even though it were alleged that both corporate defendants were members of the same conspiracy.

    Another way of expressing this rule of law is that while individual defendants who are found to be members of the same conspiracy act as each others agents for the purposes of attributing their acts and declarations to each other, corporate defendants who are found to be members of the same conspiracy do not have the acts which are attributed to them re-attributed to other corporate defendants.

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SAMPLE INSTRUCTION:

    A conspiracy is a group of people bound together by a common agreement to achieve an unlawful purpose. Conspirators need not have the same stake in the venture. Under some circumstances an employee may conspire with his employer, but the fact of employment standing alone does not make the employee a conspirator with his employer.

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SAMPLE INSTRUCTION # 1:

    In this trial the government has offered the statements of a number of persons. Perhaps one of the most complex matters you will have to consider is the extent to which the statement of one person becomes, as a matter of law, the statement of another. I have explained that this situation can arise in prosecutions in which the government has proven beyond a doubt that there is a conspiracy and that both the declaring and the person against whom the statement is sought to be admitted are found beyond a reasonable doubt to be members of that conspiracy. I shall now further discuss situations in which the statements of one person may be considered by a jury against another party:

    Where a party is a natural person, any statement made by him either publicly or secretly is his.

    Where the natural person has an agent who makes a statement to a third person, the statement is the principal's if the agent was authorized to make the statement or was authorized to make on the principal's behalf true statements concerning the subject matter.

    Where the agent makes a report to the principal or to another agent, and all that appears is that the principal had authorized the agent to make such a report, a statement in the report is not the principal's and is not an admission of the principal. Authority merely to report to a principal or to a fellow agent is not authority to commit the principal.

    However, if the principal expressly said, either before or after the agent spoke, that he vouched for the agent's statement or wanted action taken upon it, then it is his statement even though it was not made for communication to the outside world. The basis for regarding the statement as the principal's is that he has expressly authorized it to be used or has adopted it. Even if the principal does not expressly vouch for the agent's statement, if he acts or conducts his business in such a way as to show by implication that he adopted the statement, then such parts of the statement as he acted upon are his. And to that extent the statement is receivable against the principal as an adoptive admission.

    A corporation may make its statement by a vote of the shareholders, or on most matters by a vote of the directors. And whether these be open or secret votes, they are admissions of the corporation. Where officers and employees of a corporation speak to the outside world, the corporate principal like the individual principal is held accountable for the agent's statement if he was authorized to make the statement or was authorized to make, on the principal's behalf, true statements concerning the subject matter. However, where these agents report to other corporate agents, the mere fact that the corporation gave the agents authority to make such internal reports does not make statements in those reports the statements of the corporation. If on the other hand shareholders or directors authorize or adopt the internal statement of the agent as the statement of the corporation, then they are statements of the corporate principal.

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SAMPLE INSTRUCTION # 2:

    In this trial the government has offered the statements of a number of persons. Perhaps one of the most complex matters you will have to consider is the extent to which the statement of one person becomes, as a matter of law, the statement of another. I have explained that this situation can arise in prosecutions in which the government has proven beyond a doubt that there is a conspiracy and that both the declaring and the person against whom the statement is sought to be admitted are both found beyond a reasonable doubt to be a member of that conspiracy. I shall now further discuss situations in which the statements of a party may be considered by a jury:

    Where a party is a natural person, any statement made by him either publicly or secretly is his.

    Where the natural person has an agent who makes a statement to a third person, the statement is the principal's if the agent was authorized to make the statement or was authorized to make on the principal's behalf true statements concerning the subject matter.

    Where the agent makes a report to the principal or to another agent, and all that appears is that the principal had authorized the agent to make such a report, a statement in the report is not the principal's and is not an extra-judicial admission of the principal. Authority merely to report to a principal or a fellow agent is not authority to commit the principal.

    However, if the principal expressly said, either before or after the agent spoke, that he vouched for the agent's statement or wanted action taken upon it, then it is his statement even though it was not made for communication to the outside world. The basis for regarding the statement as the principal's is that he has expressly authorized it to be used or has adopted it. Even if the principal does not expressly vouch for the agent's statement, if he acts or conducts his business in such a way as to show by implication that he adopted the statement, then such parts of the statement as he acted upon are his. And to that extent the statement is receivable against the principal as an adoptive admission.

    A corporation may make its statement by a vote of the shareholders, or on most matters by a vote of the directors. And whether these be open or secret votes, they are admissions of the corporation. Where officers and employees of a corporation speak to the outside world, the corporate principal like the individual principal is held accountable for the agent's statement if he was authorized to make the statement or was authorized to make on the principal's behalf, true statements concerning the subject matter. However, where these agents report to other corporate agents, the mere fact that the corporation gave the agents authority to make such intra-mural reports does not make statements in those reports the statements of the corporation. However, where shareholders or directors authorize or adopt the intra-company statement of the agent as the statement of the corporation, then they are statements of the corporate principal.

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