THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Conspiracy Generally: General Instructions
1. Conspiracy Defined
2. Conspiracy: Elements
3. Conspiracy: General Considerations
4. General Considerations Or Evidence Of
Conspiracy
5. Conspiracy: All Elements Must Be Proved
As To Defendant
6. Knowledge Element Must Be Proven As To
Each Defendant
7. Conspirator Must Act With Knowledge;
Independent Evidence Of Participation
8. Conspiracy: Requirement Of Unlawful
Object
9. Conspiracy: Illegal Purpose Must Be
Proved
10. Conspiracy: Cautionary Instruction; First Amendment
11. Conspiracy: Wheel And Spoke Theory
12. Conspiracy: Definition Of "Overt Act In
Furtherance"
13. Proof Of Overt Act; Unproved Overt Acts Must Be
Disregarded
14. Requirement Of Overt Act In Furtherance
15. Conspiracy: Consciously Parallel Conduct
16. Complicity As Conscious Connection To Conspiracy;
Defendant Must
Know He Is Connected to Conspiracy
17. Conspiracy: Jury Unanimity As To Overt Act
18. Jury Unanimity Required As To Identity Of
Co-Conspirators
19. Conspiracy: Requirement Of Separate Target Offense
20. Act Must Advance Conspiracy To Be "In
Furtherance"
21. Conspiracy: Conduct Must Be Shown To Be In
Furtherance
22. Conspiracy: Prosecution Must Prove That Defendant
Conspired With At
Least One Other Person
23. No Conspiracy Without At Least Two Co-Conspirators
24. Conspiracy: An Agreement, Not A Group
25. Conspiracy: Prior Mutual Agreement Required
26. Lack Of Formal Agreement
27. Conspiracy: Liability For Fair Purpose Of Agreement
28. Liability For Acts Of Co-Conspirators:
Foreseeability Required
29. Conspiracy: Scope Of Liability
30. Liability Only While Member Of Conspiracy
31. Conspirator Not Liable For Acts Or Statements Of
Coconspirator Before
Formation Of Conspiracy Or After Termination Of Conspiracy
32. Conspiracy: Jurisdiction Must Be Proven
33. Conspiracy: Government Limited By Date Alleged In
Bill Of Particulars
34. Time Period Of Conspiracy And Enterprise
35. Continuation Of Conspiracy
36. Conspiracy And The Statute of Limitations (Federal)
37. Pinkerton: Not Applicable To Attempts
38. Conduct/Acts Prior To Charged Conspiracy
39. Proof Of Single Conspiracy Required
40. Conspiracy: Duplicate Charges
41. Conspiracy To Violate Multiple Statutes: Jury Must
Specify Single
Statute Defendant Conspired To Violate
42. Multiple Conspiracies
43. Jury May Consider Acquittal Of Co-Conspirator
44. Conspiracy To Commit Perjury
45. Conspiracy And Lesser Included Offenses
46. Conspiracy: Frame Up Defense Theory; Jury Must
Acquit If Defendant’s
Theory Creates Reasonable Doubt
47. Conspiracy: Defense Theory Of Mistake Of Identity
48. Agreement On Conspiratorial Purposes To Impair Or
Impede Governmental Function
49. Conspiracy To Violate Federal Tax Law
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Conspiracy Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A conspiracy is an agreement by two or more persons to act together in order to accomplish an unlawful objective.
In order for a conspiracy to be formed it is not necessary that the participants meet together and enter into a formal agreement. It is sufficient that they come to a mutual understanding that they will act together to accomplish their unlawful objective.
Because a conspiracy is characterized by secrecy it is often impossible to prove its existence by direct evidence. A conspiracy may, however, be inferred from the conduct of the parties and from other circumstances.
The fact that the conduct of two or more persons may have been similar or that they may have met or associated with each other does not, without more, establish that they were members of a conspiracy.
In order to be a member of a conspiracy, a person need not know all the other members of the conspiracy nor all of the means by which the objective of the conspiracy is to be accomplished.
The members of a conspiracy may perform separate and distinct acts in furtherance of the objective of the conspiracy. A person may be a conspirator even though (he/she) plays only a minor role in the conspiracy.
It is not necessary that a person be a member of the conspiracy from its beginning. Different persons may become members of a conspiracy at different times and at different places. Once a person becomes a member of a conspiracy, (he/she) remains a member unless and until (he/she) takes definite and positive action to dissociate (himself/herself) from the conspiracy.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
SAMPLE INSTRUCTION # 2:
A conspiracy is a combination of two or more parties to accomplish some unlawful purpose or to accomplish some lawful purpose by unlawful means. The gist of the offense is the agreement among the conspirators to commit the offense, along with an act by one or more of the conspirators to achieve the object of the conspiracy.
The evidence must prove beyond a reasonable doubt that the alleged conspiracy was knowingly formed, that one or more of the methods or means described in the indictment was used in an effort to effect or accomplish some object or purpose of the conspiracy charged, and that two or more parties, including at least one of the accused, were knowing and intentional members of the conspiracy. Mere similarity of conduct among various parties, and the fact that they may have been associated with each other and may have assembled together and discussed common aims and interests, do not, without more, establish the existence of a conspiracy.
AUTHORITY:
United States v. Van Dakar, 343 F. Supp. 993 (C.D. Cal. 1972).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kehm, No. 84-3028 (7th Cir. 1986).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Conspiracy: Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The offense of conspiracy has three essential elements, each of which must be proved to your satisfaction beyond a reasonable doubt. These elements are:
First: That the conspiracy described in the Indictment was willfully formed, and was existing at or about the time alleged;
Second: That the accused willfully became a member of the conspiracy; and
Third: That one of the conspirators thereafter knowingly committed within the ____________ (jurisdiction, e.g., Western District of Washington) at least one overt act in furtherance of some object or purpose of the conspiracy.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Conspiracy: General Considerations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before you may find the defendant has become a member of any conspiracy, the evidence must show beyond a reasonable doubt that the conspiracy was knowingly formed, and that each person who claimed to have been a member willfully participated in the unlawful plan, with the specific intent to advance or further the object or purpose of the conspiracy. The defendant must be found to have acted or participated voluntarily and intentionally, and with specific intent to do something which the law forbids, or with specific intent to fail to do something which the law required to be done.\
The defendant cannot be found guilty by association with others, and (his/her) contacts, whether business or social, are presumed innocent unless circumstances indicate otherwise. Concert of action is not enough. Mere approval or knowledge of the object of a conspiracy without an agreement to cooperate and achieve its object and purpose does not make a party a member of a conspiracy. Mere opportunity to commit an offense does not warrant a conviction. There is no logical relationship between what a person could have known or intended and what (he/she) specifically intended. The crime is the intentional agreement or understanding itself.
AUTHORITIES:
United States v. Van Dakar, 343 F. Supp. (C.D. Cal. 1972) and United States v. McDonald, 576 F.2d 1350 (9th Cir. 1978), cert. denied, 439 U.S. 830, and United States v. Pearlstein, 576 F.2d 531 (3d Cir. 1978). See generally, 2 Devitt & Blackmar, Federal Jury Practice and Instructions, §27.04 and §27.05 (3d ed.).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kehm, No. 84-3028 (7th Cir. 1986).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. General Considerations Or Evidence Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In the first count of this indictment, __________ (name of defendant) is charged with conspiring with persons known and unknown to the grand jury. It is further alleged that this conspiracy occurred in the _________ (jurisdiction e.g., Eastern District of Wisconsin) and elsewhere.
Accordingly, it is necessary for the jury to determine who were members of this conspiracy, that is, who entered into the conspiratorial agreement, and, should the jury find that a conspiracy was formed, whether the government has proven beyond a reasonable doubt that __________ (name of defendant) was a member of it. Accordingly, your first step might well be to review the evidence and determine whether a conspiracy existed.
Conspiracies, like all business ventures, are typically distinguished by cooperative relationships between the parties that facilitate the achievement of a goal. They are evidenced by lower transaction costs. If the parties must negotiate the terms of every transaction, or seek to maximize their gains at the expense of others, the transaction costs among the group are probably high and a conspiracy probably does not exist.
Transactions in large quantities of ________ (insert e.g., drugs, stolen goods, etc.), prolonged cooperation between the parties, and evidence that the parties have standardized their transactions with one another, are all relevant factors in determining if a conspiracy exists.
Although it is sometimes said that a conspiracy consists of a group of persons, that is not quite accurate. A conspiracy is an agreement and the group of persons are merely those who have entered into this agreement.
If you find that the government has proven that some conspiracy exists, then you must determine what the aims or objects of that conspiracy were. This is necessary because in order to determine whether any one person was proven to be a member of that conspiracy, it will be necessary that you examine the intent of that person.
For example, in order for the government to establish that __________ (name of defendant) was a member of a conspiracy, it is necessary that it prove not only that he had the intent to enter into the agreement, but also that he had the intent to accomplish the objectives of the agreement. Unless these intents are proven, the government has not proven that __________ (name of defendant) was a member of the conspiracy.
AUTHORITIES:
United States v. Kozinski, 16 F.3d 795, 807-08 (7th Cir. 1994); United States v. Townsend, 924 F.2d 1385, 1394-1395 (7th Cir. 1991); United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.) (en banc) (plurality opinion), cert. denied, 114 S.Ct. 482 (1993).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Conspiracy: All Elements Must Be Proved As To Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to establish the offense of conspiracy, the government must prove these elements beyond a reasonable doubt:
1. That the alleged conspiracy existed, and
2. That the defendant knowingly and intentionally became a member of the conspiracy and knew its purpose.
A conspiracy is a combination of two or more persons to accomplish an unlawful purpose. Here the unlawful purpose was ___________ (object). A conspiracy may be established even if its purpose was not accomplished.
In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants. To be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished.
In determining whether the defendant became a member of the conspiracy you may consider only the evidence you have heard of acts and statements of the defendant.
[To be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished. The government must prove beyond a reasonable doubt, by the defendant's own words or conduct, that the defendant was aware of the common purpose and was a willing participant.]
The government must prove beyond a reasonable doubt, from the defendant's own acts and statements, that (he/she) was aware of the common purpose and was a willing participant.
AUTHORITIES:
United States v. Martinez de Ortiz, 883 F.2d 515 (7th Cir. 1989); Federal Criminal Jury Instructions of the Seventh Circuit 5.08 [formerly 5.11 (1980)], modified.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Knowledge Element Must Be Proven As To Each Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The knowledge requisite for a conviction for conspiracy must be proven as to each defendant.
AUTHORITY:
United States v. Tavoularis, 545 F.2d 1070, 1974 (2d Cir. 1975).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Conspirator Must Act With Knowledge; Independent Evidence Of Participation
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
For a single act to be sufficient to draw an actor within the ambit of a conspiracy to ____________ (crime), there must be independent evidence tending to prove that the defendant in question had some knowledge of the broader conspiracy, or the single act itself must be one from which such knowledge may be inferred.
AUTHORITIES:
United States v. Baker, 499 F.2d 845 (7th Cir. 1974).
SAMPLE INSTRUCTION # 2:
For a [single] act to be sufficient to draw an actor within the ambit of a conspiracy to violate the ___________ (e.g., federal narcotics laws), there must be independent evidence tending to prove that the defendant had some knowledge of the broader conspiracy, or the [single] act itself must be one from which such knowledge may be inferred.
AUTHORITY:
United States v. Baker, 499 F.2d 845 (7th Cir. 1974).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982) [bracketed material deleted]; United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 3:
Once the existence of a conspiracy has been established, independent evidence is necessary to show a defendant's connection with the conspiracy.
AUTHORITIES:
United States v. Fielding, 645 F.2d 719, 726 n.13 (9th Cir. 1981) [as modified], citing, United States v. Dunn, 564 F.2d 348, 356-57 (9th Cir. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Conspiracy: Requirement Of Unlawful Object
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If the defendant conspired with others, but the object of that conspiracy was lawful, then there is not the malice necessary to support a conviction, and you must find the defendant not guilty.
AUTHORITY:
People v. Barkelow, 37 Mich. 455 (Mich. 1877): An information for conspiracy to defraud is bad if it does not show unlawful means to be used. (Com. v. Prius 9 Gray 127; State v. Burnham 15 N. H. 396); and where the object of the conspiracy is lawful, the information is bad if it does not show a combination to use unlawful means. (People v. Marion 28 Mich. 257; Burson v. Huntington 21 Mich. 432.)
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
See also THE SHELLOW COLLECTION: Conspiracy: Illegal Purpose Must Be Proved.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.7 [Object Of Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Conspiracy: Illegal Purpose Must Be Proved
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to prove that __________ (name of defendant) acted wilfully and maliciously as required by the charge in the complaint, the state must prove beyond a reasonable doubt that __________ (name of defendant) knew that the purpose of the charged conspiracy was unlawful. If after considering all the evidence there remains a reasonable possibility that __________ (name of defendant) believed in good faith that the purpose of the agreement was legal, you must find (him/her) not guilty.
AUTHORITY:
Ratzlaf v. United States, 114 S.Ct. 655 (1994) [in money laundering context, "wilfull" requires government to prove defendant knew his conduct was unlawful]; Cheek v. United States, 498 U.S. 192, 201-02 (1991) [in tax context, wilfulness requires proof that defendant knew conduct was unlawful, or lacked good faith belief in its lawfulness].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.7 [Object Of Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Conspiracy: Cautionary Instruction; First Amendment
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Conspiracy is a crime that is different from other offenses because it does not require that a defendant actually achieve the object of the conspiracy. That is, a defendant can be convicted of a conspiracy to _________ (object of conspiracy, e.g., distribute controlled substances) even though he never actually ____________ (crime e.g., distributed such substances). This is so because the only element of the conspiracy charge is the agreement. No act must be performed by any of the conspirators in order for the crime to be complete. It is complete upon the agreement and, because of this, it is important that certain further instructions be given to you.
Since the only element of a conspiracy is the agreement, a jury must be careful not to convict a defendant for activities which appear to be in furtherance of an agreement but actually are not. As I am certain all of you know, the First Amendment to the United States Constitution guarantees everyone the freedom of speech and freedom to associate with anyone they like. However, the First Amendment does not protect a person from entering into an unlawful agreement.
In considering whether there was proof beyond a reasonable doubt that a defendant entered into an unlawful agreement you should consider whether there has been evidence of that agreement; or whether there is merely evidence that the defendant was present at meetings at which mutual objectives were discussed; or whether the defendant and others engaged in similar acts without agreeing that they would do so. Mere association with conspirators, even by those who were in sympathy with the objects of the conspiracy, does not make those persons conspirators. In order to be a conspirator it is necessary that the individual actually agree with one or more persons to engage in the criminal behavior I have described.
Although the evidence you hear involving all crimes should be scrutinized with care, particular caution ought to be exercised in considering whether an individual has been proven to be a probable member of a criminal conspiracy. That is, while association and conversations among persons may be evidence that they have entered into an unlawful agreement, the conversations and associations in themselves do not constitute the conspiracy. The conspiracy lies in the agreement, and without the agreement there is no conspiracy.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 258.1 [First Amendment Defenses: Specification Of Prosecution's Burden].
See NCJIC 300.16 [First Amendment].
See NCJIC 309.5.2 [Guilt By Association].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Conspiracy: Wheel And Spoke Theory
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Where it is alleged that a conspiracy consists of the defendant who engages in numerous transactions with other persons and this conspiracy appears as a wheel with one of the persons at the hub and the other persons as the spokes, the government must prove that the spokes were connected by a rim. That is, those persons who are at the spokes of the alleged conspiracy must be shown to have greater knowledge than their individual participation and transactions with the hub.
AUTHORITY:
United States v. Estrada, 441 F.2d 873, 879 (9th Cir. 1971).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981).
SAMPLE INSTRUCTION # 2:
This indictment charges a single conspiracy. By way of illustration, an indictment might allege that A, B, C and D were all members of the same conspiracy. If you find instead that A had a conspiracy with B, that A had a separate conspiracy with C, and that A had a third conspiracy with D, then you must acquit the defendants, because these are not the conspiracies charged in the indictment. In other words, if defendant or witness A is the hub of a conspiracy, and each of the other witnesses or defendants are spokes, you must find that a rim connects each of the spokes, meaning that each of the defendants are connected to one another as part of the same conspiracy, before you may convict.
AUTHORITIES:
Kotteakos v. United States, 328 U.S. 750 (1946); United States v. Varelli, 407 F.2d 735 (7th Cir. 1969); United States v. Coward, 630 F.2d 229 (4th Cir. 1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Conspiracy: Definition Of "Overt Act In Furtherance"
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An overt act is any act, committed by any member of a conspiracy, which furthers the objective of that conspiracy. That act need not be in violation of any law.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 3.2.6 [Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms].
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.4 [Overt Acts: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Proof Of Overt Act; Unproved Overt Acts Must Be Disregarded
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A conspiracy conviction may not rest solely upon proof of an overt act not charged in the indictment.
SAMPLE INSTRUCTION # 2:
Where no evidence is introduced to prove an overt act charged in the indictment, that overt act should not be considered in arriving at your verdict as to the guilt or innocence of a defendant of the offense of conspiracy.
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.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.4 [Overt Acts: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Requirement Of Overt Act In Furtherance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to convict any of the defendants of the crime of conspiracy as charged in Count(s) _____ of the indictment, it is necessary for the government to prove beyond a reasonable doubt that one or more of the defendants committed an overt act in furtherance of the conspiracy after the agreement which is the subject of the conspiracy was formed.
AUTHORITY:
United States v. King, 521 F.2d 61 (10th Cir. 1975); Contra: United States v. Ricardo, 619 F.2d 1124 (5th Cir. 1980); United States v. Knuckles, 581 F.2d 305 (2d Cir.), cert. denied, 439 U.S. 986 (1978); United States v. Dryer, 533 F.2d 112 (3d Cir. 1976); United States v. Umentum, 547 F.2d 987 (7th Cir. 1976), cert. denied, 430 U.S. 983 (1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.4 [Overt Acts: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Conspiracy: Consciously Parallel Conduct
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is clear that evidence of consciously parallel conduct alone is not sufficient to support an inference of conspiracy. Conscious parallelism is not even evidence of agreement unless there are some other facts indicating that the decisions of the alleged conspirators were interdependent; that the decisions were consistent with the individual self-interest of those concerned only if they all decided the same way.
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1172 (E.D. Pa. 1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.6.5 [Conspiracy: Defense Theory That Knowing Association Is Insufficient].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Complicity As Conscious Connection To Conspiracy; Defendant Must Know He/She Is Connected to Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In measuring an alleged conspirator's complicity, there must be evidence beyond a reasonable doubt that the defendant had a connection with the conspiracy and that (he/she) knew that (he/she) was connected with the conspiracy.
AUTHORITY:
United States v. Miranda-Uriarte, 649 F.2d 1345, 1352 (9th Cir. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Conspiracy: Jury Unanimity As To Overt Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In considering the offense of conspiracy, it is necessary that an overt act be proven to have been committed by a conspirator before any defendant may be found guilty of the conspiracy. It is not sufficient if some of you believe beyond a reasonable doubt that one overt act was committed, while others of you believe beyond a reasonable doubt that only another overt act was committed. You must unanimously agree and find beyond a reasonable doubt that the same overt act was committed before any person may be convicted of a conspiracy.
AUTHORITIES:
United States v. Sarno, 456 F.2d 875 (1st Cir. 1972); cf. United States v. Driscoll, 449 F.2d 894 (2d Cir.), cert. denied, 405 U.S. 920 (1971).
SAMPLE INSTRUCTION # 2:
In considering the offense of conspiracy, it is necessary that an act in furtherance of the conspiracy be proven to have been committed by a conspirator before any defendant may be found guilty of the conspiracy. It is not sufficient if some of you believe beyond a reasonable doubt that such an act was committed, while others of you believe beyond a reasonable doubt that only a different act in furtherance was committed. You must unanimously agree and find beyond a reasonable doubt that the same act in furtherance was committed before any person may be convicted of a conspiracy.
AUTHORITIES:
United States v. Sarno, 456 F.2d 875 (1st Cir. 1972); cf. United States v. Driscoll, 449 F.2d 894 (2d Cir.), cert. denied, 405 U.S. 920 (1971).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Vitek Supply Corp., Case No. 95-CR-221 (E.D. Wis. 1996).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 273.10.5 [Jury Unanimity: Conspiracy].
See NCJIC 273.10.5.3 [Jury Unanimity As To Overt Acts].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Jury Unanimity Required As To Identity Of Co-Conspirators
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You will note that in Count ___ of the indictment the defendant is charged with a conspiracy but the indictment does not name the persons with whom [defendant] is alleged to have conspired. This does not give you free rein in your deliberations to find (him/her) guilty merely because (he/she) may have conspired with someone. Before [defendant] can be found guilty of this offense, you must unanimously agree as to the identities of the persons with whom (he/she) conspired. That is, a verdict of guilty cannot be returned if some of you conclude that (he/she) conspired only with certain persons and others of you conclude that (he/she) conspired with other, different persons.
A verdict of guilty on Count ___ cannot be returned unless you unanimously agree as to the identities of the persons who were members of the conspiracy alleged in this count.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 273.10.5 [Jury Unanimity: Conspiracy].
See NCJIC 273.10.5.7 [No Jury Unanimity As To Members Of The Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Conspiracy: Requirement Of Separate Target Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A conspiracy is not merely an agreement. It is an agreement with a particular kind of object -- an agreement to commit a crime. When the sale of some commodity, such as illegal drugs, is the substantive crime, the sale agreement itself cannot be the conspiracy, for it has no separate criminal object. What is required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself.
You should consider this instruction in making your determination of whether a conspiracy existed, who were parties to that agreement, and whether the government has proven beyond a reasonable doubt that __________ (name of defendant) was a conspirator.
AUTHORITY:
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.) (en banc) (plurality opinion), cert. denied,510 U.S. 982 (1993).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Margarito Garcia, Case No. 97CR159 (E.D. Wis. 1998) (Randa, J.).
SAMPLE INSTRUCTION # 2:
When the sale of some commodity, such as illegal drugs, is the substantive crime, the sale agreement itself cannot be the conspiracy, for it has no separate criminal object. What is required for conspiracy in such a case is an agreement to commit some other crime beyond the crime constituted by the agreement itself.
That is, the government must prove an agreement to commit a crime distinct from the mere purchase or sale of drugs.
AUTHORITIES:
United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993)(en banc); ¶2, United States v. Katalinich, 113 F.2d 1475, 1480 (7th Cir. 1997); United States v. Berry, 113 F.3d 1020, 1022-23 (7th Cir. 1998); United States v. Hall, 109 F.3d 1227, 1232 (7th Cir. 1997); United States v. Garcia, 89 F.3d 362, 365 (7th Cir.), cert. den.136 L.Ed 2d 340 (1996).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.7.5 [Conspiracy: Requirement That The Target Offense Be Defined].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Act Must Advance Conspiracy To Be "In Furtherance"
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining whether an act is in furtherance of a conspiracy you must analyze whether the act furthered the objectives of the conspiracy or whether it merely furthered the interests of a conspirator. If the act merely furthered the interests of a conspirator but did not contribute to the success of the conspiracy itself, then it is not an act in furtherance of a conspiracy.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See also NCJIC 83.3.4.8 [Defense Theory That Overt Act Was Not Done In Furtherance Of The Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Conspiracy: Conduct Must Be Shown To Be In Furtherance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The Jury may not speculate on conversations about which it has heard no testimony. It cannot infer that these conversations were in furtherance of a conspiracy.
Similarly, the jury may not speculate whether acts observed and testified to were in furtherance of a conspiracy unless evidence is adduced that they were.
AUTHORITY:
United States v. Driscoll, 449 F.2d 894, 897-98 (1st Cir. 1971).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982).
SAMPLE INSTRUCTION # 2:
The jury may not speculate on conversation about which it has heard no testimony. It cannot infer that these conversations were in furtherance of a conspiracy. Similarly, the jury may not speculate whether acts observed and testified to were in furtherance of the conspiracy unless evidence is adduced that they in fact were. An innocent act is not in furtherance of a conspiracy and cannot be held by a jury to be such.
AUTHORITIES:
United States v. Driscoll, 449 F.2d 894, 897-898 (lst Cir. 1971).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
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: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See also NCJIC 83.3.4.8 [Defense Theory That Overt Act Was Not Done In Furtherance Of The Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Conspiracy: Prosecution Must Prove That Defendant Conspired With At Least One Other Person
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If the government has proven only that some persons agreed to commit perjury in the trial of ____________________, then the government has not proven a conspiracy to obstruct justice and ________________ (name of defendant) must be found not guilty on Count ____.
AUTHORITIES:
In re Michael, 326 U.S. 224, 227-28 (1945); United States v. Rankin, 870 F.2d 109, 111 (3rd Cir. 1989); United States v. Griffin, 589 F.2d 200 (5th Cir.), cert. denied, 444 U.S. 825 (1979); United States v. Essex, 407 F.2d 214, 216-18 (6th Cir. 1969).
SAMPLE INSTRUCTION # 2:
In order to find ________________ (name of defendant) guilty of Count I you must find that ________________ (name of defendant) agreed with one or more of the following persons intentionally to testify falsely at the trial of _______________ for the purpose of providing ______________ with an alibi from ________________ (date) to ________________ (date): (list persons) ________________________.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See also NCJIC 83.3.3.1 [Defense Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy].
See also NCJIC 83.3.3.5 [Conspiracy: Requirement Of More Than One Conspirator -- "The Plurality Requirement" (Collateral Estoppel)].
See also NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. No Conspiracy Without At Least Two Co-Conspirators
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
All three defendants are named in the conspiracy charge. If for any reason you believe that the government has not proved all of the elements of the conspiracy offense beyond a reasonable doubt as to any two of the defendants, then you must find all three defendants not guilty.
AUTHORITY:
United States v. Pearson, 667 F.2d 12, 13 (5th Cir. 1982).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See also NCJIC 83.3.3.5 [Conspiracy: Requirement Of More Than One Conspirator -- "The Plurality Requirement" (Collateral Estoppel)].
See also NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. Conspiracy: An Agreement, Not A Group
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Conspiracy is an agreement, not a group.
AUTHORITIES:
United States v. Thompson, 944 F.2d 1331, 1343 (7th Cir. 1991), citing United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir. 1991) and United States v. Varelli, 407 F.2d 735, 741-42 (7th Cir. 1969).
SAMPLE INSTRUCTION # 2:
A conspiracy is an agreement and not a group of persons. Accordingly, in order for a defendant to be proven guilty of aiding and abetting a conspiracy, the government must prove beyond a reasonable doubt that he aided and abetted the formation of the agreement. If all the government has proven is that a defendant aided and abetted acts by conspirators, the defendant must be found not guilty.
AUTHORITIES:
United States v. Townsend, 924 F.2d 1385, 1390 (7th Cir. 1991); People v. Strauch, 240 Ill. 60, 73 88 N.E. 155, 159 (1909).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See 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
25. Conspiracy: Prior Mutual Agreement Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the conspiracy charged in the indictment, evidence that some of the persons acted illegally with the same end in view, will not support this charge unless the acts of such persons were done pursuant to a prior mutual agreement to act together to accomplish the illegal purpose charged.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.12 [Agreement: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
26. Lack Of Formal Agreement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Although the Court has instructed you that it is not necessary to prove that the [parties] [defendants] ever came together and entered into any formal agreement or arrangement among themselves, the Court does not mean to imply that a conspiracy as alleged in the indictment in fact existed. You must be satisfied beyond a reasonable doubt that such a conspiracy existed [and that some of the defendants joined it] before you can regard the acts of [the] [any] defendant as being in furtherance of the conspiracy alleged in this indictment.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.12 [Agreement: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
27. Conspiracy: Liability For Fair Purpose Of Agreement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to be convicted of a conspiracy one must have knowledge of such conspiracy and must intend to join or associate himself with the objective of the conspiracy. The defendant must be aware of the essential nature and scope of the enterprise and intend to participate. Nobody is liable in conspiracy except for the fair purpose of the agreement as he understands it. There must be proof beyond a reasonable doubt that the defendant knew the purpose of the activities he was alleged to have done. The Government must show an agreement on the part of each defendant to commit the charged offense.
AUTHORITY:
United States v. Jordan, 627 F.2d 683 (5th Cir. 1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.12 [Agreement: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
28. Liability For Acts Of Co-Conspirators: Foreseeability Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Each member of a criminal conspiracy is responsible for those actions of (his/her) co-conspirators which are done during the existence of the conspiracy and which are done to further the objectives of the conspiracy.
A conspirator is liable for the acts of (his/her) co-conspirators even though (he/she) is unaware that the specific act would occur or that it did occur, so long as the act was in furtherance of the conspiracy, and so long as it was reasonably foreseeable that the act would be performed by one or more members of the conspiracy.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
SAMPLE INSTRUCTION # 2:
One who has been proven to be a member of a conspiracy is considered an agent of all others who have been proven to be members of the same conspiracy. It is for this reason that each person who has been proven to be a member of a specific conspiracy is bound by the acts and declarations of others who have been proven to be members of the same conspiracy as though he himself had performed those acts and made those declarations. However, not all statements or acts by a co-conspirator are admissible against and binding upon those who have been proven to be members of the same conspiracy. Only those acts and declarations which were made during the pendency of the conspiracy, and in furtherance of it, are binding upon co-conspirators. That is, only statements and acts made during the actual existence of the conspiracy are binding upon co-conspirators who do not personally make those statements and commit those acts.
Similarly, acts and statements must be in furtherance of a specific conspiracy in order to be binding upon co-conspirators who did not act and who did not make the statements. By statements in furtherance of a conspiracy, I mean statements which tend to further the course of the conspiracy and tend to promote and to make it succeed. Statements which recite previous acts of coconspirators and which have no tendency to promote the success of a conspiracy or encourage others to join it are not statements made in furtherance of a conspiracy, and are not evidence against anyone except the person who actually made the statements.
In the same way, not every act committed by a co-conspirator can be considered an act of his fellow conspirators. It is only those acts which tend to further the interests of a conspiracy, and to make it succeed, which are acts in furtherance of a conspiracy and which are attributable to non-acting conspirators.
Thus, if there was testimony concerning the acts and declarations of a person who is claimed to be a member of a conspiracy, you must first determine whether he was a member of that specific conspiracy and whether that specific conspiracy was the conspiracy charged in the indictment. If you find that he was a member of a conspiracy charged in the indictment, then you must determine whether the acts and declarations are of such a nature that they should be binding upon others who were proven to be members of the same conspiracy. As to each act and declaration, you must determine whether the act or declaration was during the pendency or existence of that conspiracy and whether it tended to make a conspiracy succeed. Only after you have engaged in this analysis as to each of the alleged acts and declarations of persons found to be co-conspirators can it be said that you have analyzed this evidence in accordance with these instructions and in accordance with law.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 63: Liability For Acts Of Coconspirators (Pinkerton).
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
29. Conspiracy: Scope Of Liability
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
One who is a member of a criminal conspiracy is responsible for each of the crimes committed by other members of the conspiracy regardless whether (he/she) personally participated in the commission of those crimes or whether they were committed by other members of the criminal organization.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 63: Liability For Acts Of Coconspirators (Pinkerton).
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
30. Liability Only While Member Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A defendant cannot be held criminally liable for substantive offenses committed by members of a conspiracy before the defendant had joined or after (he/she) had withdrawn from the conspiracy.
AUTHORITIES:
Glazerman v. United States, 421 F.2d 547, 551 (10th Cir. 1970).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 63: Liability For Acts Of Coconspirators (Pinkerton).
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
31. Conspirator Not Liable For Acts Or Statements Of Coconspirator Before Formation Of Conspiracy Or After Termination Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
There can be no furtherance of a conspiracy that has ended. Therefore, the declarations of a conspirator do not bind co-conspirators if made after the conspiracy is ended.
AUTHORITY:
Lutwak v. United States, 344 U.S. 604, 617-18 (1953).
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.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 63: Liability For Acts Of Coconspirators (Pinkerton).
See also generally NCJIC Chapter 83: Conspiracy.
See also generally NCJIC 83.4 [ Conspiracy: Hearsay Statements Of Coconspirator].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
32. Conspiracy: Jurisdiction Must Be Proven
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
To convict the defendant on the conspiracy charge in Count _____, you must find by a preponderance of the evidence that the offense charged in Count _____ occurred in the _________ (jurisdiction, e.g., Eastern District of Wisconsin).
A conspiracy occurs where the agreement is formed, where a defendant joins the agreement, or where an overt act in furtherance of the agreement is begun, continued, or completed.
SAMPLE INSTRUCTION # 2:
Some of the events that you have heard about allegedly happened outside the _________ (jurisdiction, e.g., Eastern District of Wisconsin), including in ____________ (first county). There is no requirement that the entire conspiracy take place here in the _________ (jurisdiction, e.g., Eastern District of Wisconsin). But for you to return a guilty verdict on the conspiracy charge, the government must convince you that either the agreement, or one of the overt acts, took place in the _________ (jurisdiction, e.g., Eastern District of Wisconsin), which includes ____________ (other county/counties).
Unlike all the other elements that I have described, this is a fact that the government only has to prove by a preponderance of the evidence. This means the government only has to convince you that it is more likely than not that part of the conspiracy took place here.
Remember that all the other elements that I have described must be proved beyond a reasonable doubt.
AUTHORITY:
Sixth Circuit Pattern Criminal Jury Instructions 3.07 [Venue] (1991).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.1.7 [Conspiracy: Defense Theory That Agreement Or Overt Act Did Not Occur In The Venue Where The Charges Were Brought].
See NCJIC 257.10.2 [Territorial Jurisdiction: Crime Consummated, Or Some Acts Committed, Outside Of The State].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
33. Conspiracy: Government Limited By Date Alleged In Bill Of Particulars
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining whether the defendants had the specific intent required for a finding of conspiracy, you must keep in mind that the government has identified _________ (date) and no other time as the date upon which the alleged _________ (crime, e.g., extortion) occurred. By filing a document called a bill of particulars, the government has strictly limited itself to the particular date which it has alleged.
AUTHORITIES:
United States v. Haskins, 345 F.2d 111 (6th Cir. 1965); United States v. Raineri, 91 F.R.D. 159 (W.D. Wis. 1980); United States v. Leonelli, 428 F. Supp. 880 (S.D.N.Y. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].
See NCJIC Chapter 83: Conspiracy.
See also NCJIC 300.2 [Due Process: Notice].
See also NCJIC 305.20.4 [Time Or Date Of Offense].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
34. Time Period Of Conspiracy And Enterprise
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You will note that the indictment charges that the conspiracy and the criminal enterprise allegedly continued during certain dates. The government does not have to prove that the crime was committed during those exact dates, so long as the government proves beyond a reasonable doubt that the defendant committed the crime during dates reasonably near the dates stated in the indictment, _____ (date) through about _____ (date).
AUTHORITY:
Fifth Circuit Pattern Jury Instructions (Criminal Cases) 1.18 [On Or About] [formerly No. 1.19 (1991)].
SAMPLE INSTRUCTION # 2:
The government has charged that during certain times, __________ (name of defendant) was a member of a conspiracy and a criminal enterprise. The government does not have to prove that the crime was committed on those exact dates, so long as the government proves beyond a reasonable doubt that the defendant was a member of the conspiracy or the criminal enterprise during dates reasonably near the time periods charged.
AUTHORITY:
Federal Judicial Center, Pattern Criminal Jury Instruction 47 ["On or About": Required Proof] (1987).
SAMPLE INSTRUCTION # 3:
The government need not prove the time period of the charged conspiracy or the charged criminal enterprise exactly. However, the dates on which the conspiracy started and ended must be reasonably close to the dates charged in the indictment. Any differences must be a matter of understandable imprecision in witnesses' memories because of the passage of time or other reason, not a matter of times distinctly different than those charged in the indictment.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].
See NCJIC Chapter 83: Conspiracy.
See also NCJIC 300.2 [Due Process: Notice].
See also NCJIC 305.20.4 [Time Or Date Of Offense].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
35. Continuation Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to determine whether the particular conspiracy in which the defendant joined continued after ________ (date), you must find that one or more of the members of the conspiracy performed some act or engaged in some practice after that date in furtherance of the purpose and objectives of the conspiracy.
The government has alleged several overt acts in the indictment that supposedly furthered the charged conspiracy. You must determine when these acts occurred. The government must prove to you and you must find, beyond a reasonable doubt, that one or more of these acts occurred after ________ (date).
AUTHORITIES:
18 USC §3282; United States v. Alfonso-Perez, 535 F.2d 1362, 1364 (2d Cir. 1976); United States v. Borelli, 336 F.2d 376, 385-87 (2d Cir. 1963), cert. denied, 379 U.S. 960 (1965).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.3.3 [Defense Theory That Conspiracy Terminated When The Criminal Object Was Attained Or Defeated].
See NCJIC 83.3.9 [Duration: Defense Theories].
See also NCJIC 300.2 [Due Process: Notice].
See also NCJIC 305.20.4 [Time Or Date Of Offense].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
36. Conspiracy And The Statute of Limitations (Federal)
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Federal law provides that a defendant cannot be convicted of a crime if that crime was committed more than five years before the indictment was returned against (him/her). In this case the indictment was returned against __________ (name of defendant) on __________ (date of indictment). Accordingly, __________ (name of defendant) cannot be convicted of the conspiracy charged if (his/her) participation in that conspiracy terminated on or before ______ (date of conspiracy). That is, if (he/she) was not a member of that conspiracy within five years prior to __________ (date of indictment)], regardless of what other evidence you may have heard, (he/she) may not be convicted of the conspiracy charged.
SAMPLE INSTRUCTION # 2:
Federal law provides that a person may not be convicted of a crime if the crime was committed five years or more before the return of the indictment. In this case the indictment was returned on __________ (date of indictment). Thus, in order to convict __________ (name of defendant) of the crime charged in Count ___, the government must prove beyond a reasonable doubt that __________ (crime e.g., possessed or aided and abetted the possession of marijuana) in the ____________ (jurisdiction) on or after ______ (date of conspiracy).
If the government has not proven this, then, regardless of any other evidence you may have heard, __________ (name of defendant) may not be convicted of Count ____.
SAMPLE INSTRUCTION # 3:
The statute of limitations for the conspiracy offense charged in Count ___ is five years. This means that you cannot find the defendant guilty unless you find, unanimously and beyond a reasonable doubt, that part of the conspiracy in which the defendant joined continued to exist after _____ (date), which is exactly five years prior to the date of the indictment in this case.
If you do not find unanimously and beyond a reasonable doubt that the conspiracy existed or continued after _____ (date), you must acquit the defendant.
AUTHORITIES:
18 USC 3282; United States v. Southland Corporation, 760 F.2d 1366, 1373 (2d Cir.), cert. denied, 106 S.Ct. 82 (1985) (jury should be instructed on questions of statute of limitations); United States v. Meeker, 701 F.2d 685, 687 (7th Cir.), cert. denied, 464 U.S. 826 (1983) (defendant must assert statute of limitations defense); United States v. Walsh, 700 F.2d 846, 855 (2d Cir.), cert. denied, 464 U.S. 825 (1983) (recognizes that jury may properly be instructed on statute of limitations issue); United States v. Bethel, 672 F.2d 407, 419-20 (5th Cir. Unit B 1982) (jury must find that at least one racketeering act occurred within five years of the date of the indictment); United States v. Read, 658 F.2d 1225, 1232 (7th Cir. 1981) (a prosecutor must prove conspiracy existed within statute of limitations); United States v. Head, 641 F.2d 174, 177 (4th Cir. 1981) (defendant entitled to instruction requiring jury to find that an overt act was committed within statute of limitations period beyond a reasonable doubt); United States v. Grammatik, 633 F.2d 1013, 1022 (2d Cir. 1980) ("Where the defenses of time-bar or improper venue are squarely interposed, they must be submitted to a properly instructed jury for adjudication."); United States v. Fitzgerald, 579 F.2d 1014, 1021-22 (7th Cir. 1978), cert. denied, 439 U.S. 1002 (1979) (it is proper to instruct the jury on statute of limitations questions); United States v. Alfonso-Perez, 535 F.2d 1362, 1364 (2d Cir. 1976) (jury should have been instructed on statute of limitations questions); United States v. Nowak, 448 F.2d 134, 140 (7th Cir. 1971), cert. denied, 404 U.S. 1039 (1972) (proper to instruct the jury that government must prove at least one overt act occurring within limitations period); United States v. Bareilly, 336 F.2d 376, 385-87 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965) (jury must find beyond a reasonable doubt that the conspiracy continued into the period not barred by the statute of limitations); United States v. Grecians, 572 F. Supp. 220, 225-27 (N.D. Ill. 1983) (new trial required where trial court failed to instruct the jury that government must "prove beyond a reasonable doubt that an overt act in furtherance of the conspiracy took place within the limitations period."); Sample Jury Instructions In Criminal Anti-Trust Cases, No. 67 (A.B.A. 1984) [with modifications]; Grunwald v. United States, 353 U.S. 391, 396 (1957).
SAMPLE INSTRUCTION # 4:
In order to satisfy the federal statute of limitations, you cannot convict the defendant of count ____ of this indictment unless you find unanimously and beyond a reasonable doubt that some member of the alleged conspiracy committed one of the charged overt acts in furtherance of that conspiracy after _____ (date).
If all overt acts were proven to have been committed prior to _____ (date), then, regardless of any other evidence against the defendant, (he/she) must be acquitted of count ____.
Similarly, since the government has the burden of proving that one of these overt acts in furtherance of the conspiracy was committed after _____ (date), if you are confused as to the date of the commission of such an act and cannot decide whether it was committed before or after _____ (date), then the defendant must be acquitted of count ____.
AUTHORITIES:
United States v. Bethea, 672 F.2d 407, 419-20 (5th Cir. Unit B 1982); United States v. Head, 641 F.2d 174, 177 (4th Cir. 1981); United States v. Alfonso-Perez, 535 F.2d 1362, 1364 (2d Cir. 1976); United States v. Borelli, 336 F.2d 376, 385-87 (2d Cir. 1963), cert. denied, 379 U.S. 960 (1965); Yates v. United States, 354 U.S. 298, 311-12 (1957).
SAMPLE INSTRUCTION # 5:
In order to satisfy the federal statute of limitations, you cannot convict a defendant unless you find unanimously and beyond a reasonable doubt that the part of the conspiracy agreement which the defendant may have understood and assented to continued in existence after _____ (date).
AUTHORITIES:
United States v. Bethea, 672 F.2d 407, 419-20 (5th Cir. Unit B 1982); United States v. Head, 641 F.2d 174, 177 (4th Cir. 1981); United States v. Alfonso-Perez, 535 F.2d 1362, 1364 (2d Cir. 1976); United States v. Borelli, 336 F.2d 376, 385-87 (2d Cir. 1963), cert. denied, 379 U.S. 960 (1965); Yates v. United States, 354 U.S. 298, 311-12 (1957).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.4.9 [Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of Limitations].
See NCJIC 83.3.9.2 [Conspiracy: Defense Theory That Overt Act Did Not Occur Within Statute Of Limitation].
See NCJIC 257.9 [Statute Of Limitations].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
37. Pinkerton: Not Applicable To Attempts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Ordinarily, once a jury has found a defendant to have joined a conspiratorial agreement, that defendant is responsible for crimes committed by others in the conspiracy provided that the crimes were in furtherance of the conspiracy and reasonably foreseeable by the defendant.
This rule does not apply to attempts. A defendant is not guilty of an attempt merely because a fellow conspirator committed that crime even though the attempt was in furtherance of the conspiracy and it was reasonably foresee able to the defendant that the attempt would be committed.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC 63.1 [Pinkerton Liability: Defense Theories].
See generally NCJIC Chapter 83: Conspiracy.
See also NCJIC 83.3.1.11 [Conspiracy: Defense Theory Challenging A Charge Of Attempted Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
38. Conduct/Acts Prior To Charged Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government produced evidence of acts which occurred before ______ (date). The indictment charges that this was the date when the alleged conspiracy was formed. While acts and conversations before ______ (same date) may be evidence that a person intended to form or enter into a conspiracy, they are not evidence of the conspiracy and cannot be considered as such by the jury. They may be evidence of the defendant's state of mind prior to ______ (same date), but they are not proof of the conspiracy charged.
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.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
39. Proof Of Single Conspiracy Required
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Before the defendant can be found guilty of Count ___, the government must prove beyond a reasonable doubt that (he/she) was a member of a single conspiracy. If the evidence in this case creates in your mind a reasonable doubt that it was a single conspiracy and that it may have been more than one conspiracy, then, regardless of the other evidence against the defendant, you must find (him/her) not guilty of Count ____.
SAMPLE INSTRUCTION # 2:
In considering the evidence in this case, you should consider whether the government has proven that the defendant was a member of a single conspiracy or whether the government has merely proven that there were a number of conspiracies in which the defendant may have had membership or participated. The charge in this case and the government's theory as recited in its opening statement is that there was a single conspiracy and that the defendant was a member of it. Unless the government has proven this beyond a reasonable doubt, you must find the defendant not guilty.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.8 [Multiple Conspiracy: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
40. Conspiracy: Duplicate Charges
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If you find that Counts I and II charge the same conspiracy and that this conspiracy had as its objects ___________ (objects e.g., the importation, possession and distribution of a narcotic form of heroin), then you must inform the Court of this finding and the Court will eliminate one of these charges from your consideration.
SAMPLE INSTRUCTION # 2:
If you find that Counts I and II charge the defendants with the same conspiracy, that is, that there was one overall conspiracy to _______ (object, e.g., import, possess with intent to distribute, and distribute heroin), then each of the defendants must be acquitted on Counts I and II.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.8.3 [Defense Theory That Multiple Charged Conspiracies Are Only One Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
41. Conspiracy To Violate Multiple Statutes: Jury Must Specify Single Statute Defendant Conspired To Violate
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
As I have previously instructed you, these defendants are charged with conspiring to violate ______ (number) separate criminal statutes. If each of you finds beyond a reasonable doubt that a defendant has conspired to violate one of those criminal statutes, but you are all unable to unanimously specify one single statute which all of you agree that the 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 __________ (crime, e.g., distribute) but was innocent of __________ (crime, e.g., engaging in or aiding and abetting the use of communications facilities), and if the other six jurors found that defendant guilty of the __________ (crime, e.g., communications facilities claim) but innocent of either of the conspiracies to __________ (crime, e.g., 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.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 273.6.1 [Jury Unanimity: Different Statutory Offenses Charged In Single Count].
See NCJIC 273.10.5 [Jury Unanimity: Conspiracy].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
42. Multiple Conspiracies
See THE SHELLOW COLLECTION: Multiplicity – Multiple Conspiracies.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
43. Jury May Consider Acquittal Of Co-Conspirator
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the evidence in this case, you may consider as a fact that in a different trial the government attempted, but was unable, to prove that __________ (name of co-conspirator) conspired to _________ (crime, e.g., sell cocaine) from _______ (date) to __________ (name of defendant).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.3.1 [Defense Theory That The Alleged Coconspirator Has Not Been Proven Guilty Of Conspiracy].
See NCJIC 83.3.3.8 ["Rule Of Consistency:" Acquittal Of Codefendants Does Not Bar Later Conviction Of Severed Coconspirator].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
44. Conspiracy To Commit Perjury
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is the defendant's position that (he/she) did not conspire or agree with anyone to give false testimony at the trial of ______________ and in fact did not know to what ______________ (who, e.g., the other witnesses) had testified until __________ (time, e.g., many months or even years) after the trial. The defendant says that __________ (name of third party) never asked (him/her) to commit perjury and that _____________ (act e.g., the charges that he made to third party’s Visa cards) were not in payment for (his/her) testimony and in fact were repaid by (him/her).
If the evidence you have heard in support of the defendant’s position creates in your mind a reasonable doubt that (he/she) conspired with any of the persons named in Count ____, then, as a matter of law, you must find (him/her)guilty of that Count.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Chapter 95: Perjury And Related Offenses.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
45. Conspiracy And Lesser Included Offenses
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The law permits the jury to find the accused guilty of any lesser offense which is necessarily included in the crime charged in the indictment whenever such a course is consistent with the facts found by the jury from the evidence in the case, and with the law as given in the instructions of the Court.
So, if the jury should unanimously find any accused "Not Guilty" of the crime charged in the indictment, then the jury must proceed to determine the guilt or innocence of that accused as to any lesser offense which is necessarily included in the crime charged.
The crime of __________, which is charged in the superseding indictment, necessarily includes the lesser offense of __________. Likewise, the crime of conspiracy to __________, which is charged in the superseding indictment, necessarily includes the lesser offense of conspiracy to __________.
The jury will bear in mind that the burden is always upon the prosecution to prove beyond a reasonable doubt every essential element of any lesser offense which is necessarily included in any crime charged in the indictment. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Brown, No. CR83-310(C)M (W.D. Wash. 1983).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.6 [Conspiracy: Lesser Offense].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
46. Conspiracy: Frame Up Defense Theory; Jury Must Acquit If Defendant’s Theory Creates Reasonable Doubt
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You are instructed that it is the defendant's theory of this case that __________ (name of third party) conspired with other persons to frame (him/her) for a _________ (type of conspiracy e.g., cocaine conspiracy). If the facts adduced in support of the defendant's theory, create in your mind a reasonable doubt of his guilt of this charge, then you must find the defendant not guilty of this offense.
AUTHORITIES:
United States v. Vole, 435 F.2d 774, 776 (7th Cir. 1970) [This instruction refused; conspiracy conviction reversed].
SAMPLE INSTRUCTION # 2:
You are instructed that is [defendant's] theory of the case that __________________ [e.g., ______________ and ______________ conspired together to frame defendant for a cocaine conspiracy]. If the facts adduced in support of the defendant's theory create in your mind a reasonable doubt of (his/her) guilt of this charge, then you must find the defendant not guilty of this offense.
AUTHORITY:
United States v. Vole, 435 F.2d 774, 777-78 (7th Cir. 1970).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3 [Conspiracy: Defenses And Defense Theories].
See NCJIC Chapter 250: Defenses And Defense Theories: General Issues.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
47. Conspiracy: Defense Theory Of Mistake Of Identity
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
It is the defendant's theory of this case that it was __________ (name of third party) and not the defendant who ___________ (act, e.g., delivered e.g., 1,000 pounds of marijuana to Aspen, Colorado) on or about ________ (date).
It is further (his/her) theory that (he/she) neither conspired with those to whom (he/she)____________ (act e.g., sold marijuana) nor with those from whom (he/she) ___________ (act, e.g., purchased it).
If the evidence you have heard in support of the defendant's theory creates in your mind a reasonable doubt of his guilt, then you must find (him/er) not guilty.
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.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 31.2.15 [Mistaken Identity: Right To Instruction On Prosecution Burden].
See NCJIC 31.2.16 [Mistaken Identity Relationship To Presumption Of Innocence].
See NCJIC 51.2.3 [Mistaken Identity By Eyewitness].
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3 [Conspiracy: Defenses And Defense Theories].
See NCJIC Chapter 250: Defenses And Defense Theories: General Issues.
See NCJIC 251.7 [Mistaken Identity (Eyewitness Identification)].
See NCJIC 251.9 [Third Party Guilt].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
48. Agreement On Conspiratorial Purposes To Impair Or Impede Governmental Function
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To sustain the conspiracy charged in Count ______, the government must prove beyond a reasonable doubt that the defendant conspired with another to impair and impede at least one of the lawful functions specified in the Indictment. If the evidence shows a conspiracy to impair or impede a lawful function not specified in the Indictment, you must acquit. If the evidence shows individual efforts to impair or impede governmental functions, but no agreement with another to impair or impede specified governmental functions, you must acquit.
AUTHORITY:
United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
See also THE SHELLOW COLLECTION: 18 USC 371 – Agreement On Conspiratorial Purposes.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.12 [Agreement: Defense Theories].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
49. Conspiracy To Violate Federal Tax Law
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence that agents of the Internal Revenue Service knew that various subcontractors had deducted as business expenses payments which they made to ____________ and that these agents either did not question the deductibility of these payments or concluded that such payments were properly deductible, is evidence that these payments were neither in violation of the laws of the states in which they were made nor violations of any law of the United States.
However, the determination of this matter by the Internal Revenue Service is not binding upon you and the law as to conspiracy is as I have instructed you.
The jury may take into account any findings or reasons given by such agents in determining the weight to be given such evidence.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
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