THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow
Collection Table of Contents
Conspiracy: Statements/Admissions/Hearsay
1. Hearsay And
Conspiracy
2. Co-Conspirator
Statements: General Considerations
3. Conspiracy Membership
Cannot Be Proved By Hearsay
4. Conspiracy:
Admissibility Of Out-Of-Court Statements
5. Direct Evidence Of
Conspiracy Membership Required Before Hearsay May Be Admitted
6. Conspirator’s
Statements: Jury Must Find Conspiracy Existed
7. [Deleted]
8. Conspirator Not
Liable For Acts Or Statements Of Coconspirator Before
Formation Of Conspiracy Or
After Termination Of Conspiracy
9. Statements And
Documents Binding Only On Conspirators
10. Conspiracy: Statements And
Conduct Must Be Shown To Be In Furtherance
11. Casual Admission Of
Culpability Not in Furtherance Of Conspiracy
12. Admissions of
Co-Conspirators Not in Furtherance Of Conspiracy
13. Hearsay Of Coconspirator
Made In Furtherance Of Uncharged Conspiracy
Is Not Evidence Of Defendant’s
Membership In Charged Conspiracy
14. Statements In Furtherance
Of Conspiracy Distinguished
15. Statements By Alleged
Co-Conspirator
16. Co-conspirators'
Statements
17. Source Of Co-Conspirator
Statement Must Be Identified
18. Post-Conspiracy Statements
19. Post-Conspiracy Statements
And Conduct Not Evidence Against Others
20. Conspiracy: Limiting
Instruction On Conversations Between Parties
Other Than Defendant
21. Conspiracy:
Non-Attributable Statements
22. Prosecution Use Of
Post-Arrest Statements And Conduct
23. Testimony Of
Co-Conspirator Should Be Weighed With Greater Caution And Care
24. Agreement To Cooperate
With Government: Cautionary Instruction
25. Statement By
Co-Conspirator vs. Government Agent
26. Government
Agents/Informers Not Conspirators
27. Paid Informer Not A
Co-Conspirator
28. Conspiracy: Jury Not to
Speculate On Conversations
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Hearsay And Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Hearsay statements cannot be used to prove a conspiracy for that would permit the prosecutor to invoke an important hearsay exception by presenting only hearsay proof of the conspiracy itself. The government must first make a sufficient showing by independent evidence of the existence of a conspiracy.
AUTHORITIES:
United States v. Alvarez-Porras, 643 F.2d 54, 57 (2d Cir. 1981), citing, United States v. Nixon, 418 U.S. 683, 701 [41 LEd2d 1039; 94 SCt 3090].
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Co-Conspirator Statements: General Considerations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Court has admitted statements of defendants and there are circumstances in which such statements may be evidence not only against the defendant who made the statement but also against other defendants. The Court in admitting these statements applied a different and lesser standard than the jury must apply in determining whether statements of one defendant can be considered against other defendants.
Before the statements of one defendant may be considered as evidence against another, the jury must find that these defendants were members of a conspiracy and must make that finding beyond a reasonable doubt. Further, the jury must conclude that these statements were not mere narrations but were in furtherance of the conspiracy and made during its pendency and existence.
The fact that I have allowed you to hear these statements is not evidence of any belief on my part that you should find that such a conspiracy existed nor of any conclusion on my part that any defendant was a member of any conspiracy.
AUTHORITY:
Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1179-80, footnote 93.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Conspiracy Membership Cannot Be Proved By Hearsay
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The membership of a defendant in a conspiracy cannot be proven by the hearsay statements nor acts of other alleged members of the conspiracy.
AUTHORITIES:
United States v. Alvarez, 584 F.2d 694, 697 (5th Cir. 1978).
SAMPLE INSTRUCTION # 2:
The out-of-court statement by an alleged co-conspirator is not sufficient by itself to support a jury's verdict that the defendant is a member of a conspiracy.
AUTHORITY:
Cf. United States v. Aquila, 976 F.2d 1044, 1051 (7th Cir. 1992).
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 generally NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Conspiracy: Admissibility Of Out-Of-Court Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Out-of-court statements by persons who are found by the jury to have been members of a conspiracy are only admissible against another person found by the jury to be a member of the same conspiracy, if the statements were in furtherance of the conspiracy.
Statements which were merely narrative of past events and not made for the purpose of encouraging future participation or involvement of conspirators are not in furtherance of a conspiracy and are admissible only against the speaker.
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).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Direct Evidence Of Conspiracy Membership Required Before Hearsay May Be Admitted
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In assessing each defendant's connection with an alleged conspiracy, hearsay statements of other alleged co-conspirators must be excluded unless and until the jury finds, as to each defendant, upon evidence based upon his or her own statements and conduct, that he or she was a member of such conspiracy.
AUTHORITIES:
United States v. Spock, 416 F.2d 165 (1st Cir. 1969); United States v. Fellabaum, 408 F.2d 220 (7th Cir. 1969); United States v. Baker, 419 F.2d 83, 88-89 (2d Cir. 1969), cert. denied, 397 U.S. 971, 976.
SAMPLE INSTRUCTION # 2:
In assessing the evidence of the existence of a conspiracy and the defendant's connection with it, hearsay statements of other alleged co-conspirators must be excluded until the jury finds as to the defendant upon evidence based upon his own statements and conduct that he was a member of such conspiracy.
SAMPLE INSTRUCTION # 3:
A defendant's participation in a conspiracy must be shown solely by his own acts and deeds. That is, the defendant's own acts and statements must show a connection with the conspiracy sufficient to justify the admission of the acts and statements of co-conspirators against him.
AUTHORITIES:
United States v. Baker, 419 F.2d 83, 88-89 (2d Cir. 1969); United States v. Spock, 416 F.2d 165 (1st Cir. 1969); United States v. Fellabaum, 408 F.2d 220 (2d Cir. 1969).
SAMPLE INSTRUCTION # 4:
Each defendant's participation in a conspiracy must be shown solely by their own acts and deeds, that is, each defendant's own acts and statements must show a connection with the conspiracy sufficient to justify the admission of the acts and statements of co-conspirators against him.
AUTHORITIES:
United States v. Baker, 419 F.2d 83, 88-89 (2d Cir. 1969); United States v. Spock, 416 F.2d 165 (1st Cir. 1969); United States v. Fellabaum, 408 F.2d 220 (2d Cir. 1969).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Conspirator’s Statements: Jury Must Find Conspiracy Existed
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before you may consider any statements by one defendant against another, you must find that the state has proven the actual existence of a conspiracy involving both the defendant who spoke and the defendant against whom the statement is to be considered. If you do not find such a conspiracy, you may not consider those statements at all.
AUTHORITY:
Schultz v. State, 133 Wis. 215, 225, 113 NW 428 (1907).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Conspirator Not Liable For Acts Or Statements Of Coconspirator Before Formation Of Conspiracy Or After Termination Of Conspiracy
See THE SHELLOW COLLECTION: Conspiracy: General Instructions – Conspirator Not Liable For Acts Or Statements Of Coconspirator Before Formation Of Conspiracy Or After Termination Of Conspiracy.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Statements And Documents Binding Only On Conspirators
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Documents offered by the government may not be considered by the jury as evidence against __________ (name of defendant) unless the government has proven to your satisfaction that __________ (name of defendant) knew of and approved the contents of these documents or that the documents were authored by a person found to be a member of the conspiracy alleged in the indictment.
AUTHORITIES:
FR 801(d)(2)(E).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. James E. Johnson, Case No. 97-CR-211 (E.D. Wis. 1998) (approved by the Court but not given).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Conspiracy: Statements And Conduct Must Be Shown To Be In Furtherance
See THE SHELLOW COLLECTION: Conspiracy: General – Conspiracy: Conduct Must Be Shown To Be In Furtherance.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Casual Admission Of Culpability Not in Furtherance Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A statement which is nothing more than a casual admission of culpability to someone a [witness] [defendant] has individually decided to trust, is not a statement in furtherance of a conspiracy and is not binding upon anyone other than the declarant.
AUTHORITIES:
United States v. Moore, 522 F.2d 1068, 1077 (9th Cir. 1975).
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 28: Out Of Court Statements By Defendant.
See generally NCJIC Chapter 83: Conspiracy.
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
See NCJIC 83.4.3.4 [Conspiracy: Defense Theory That Statements As To The Existence Of Conspiracy ("Spilling The Beans") Do Not Further The Conspiracy].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Hearsay Of Coconspirator Made In Furtherance Of Uncharged Conspiracy Is Not Evidence Of Defendant’s Membership In Charged Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If you find that the defendant was a member of a conspiracy which is not charged in the indictment, the hearsay, out-of-court statements of an alleged co-conspirator made in furtherance of that uncharged conspiracy, may not be considered by you as evidence of defendant's involvement in one of the conspiracies charged.
AUTHORITIES:
United States v. Papia, 560 F.2d 827, 838 (7th Cir. 1977).
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. Willie Williams, Case No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 2:
If you find that the defendant was a member of a conspiracy which is not charged in the indictment, the hearsay, out-of-court statement of an alleged co-conspirator made in furtherance of that uncharged conspiracy, is not evidence of the defendant's involvement in the conspiracy charged.
AUTHORITIES:
United States v. Papia, 560 F.2d 827, 838 (7th Cir. 1977).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Willie Williams, 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Conspiracy: Membership/Participation.
See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Conspiracy.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 83: Conspiracy.
See generally NCJIC 83.3.6 [Defendant's Membership In Conspiracy: Defense Theories].
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Admissions Of Co-Conspirators Not In Furtherance Of Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Admissions of a co-conspirator, mere conversation between conspirators, or merely narrative declarations of past activities, if they do not further the common objectives of the conspiracy, are not in furtherance of the conspiracy. A statement which merely furthers the personal interest of the speaker but not the common objectives of a conspiracy is not a statement in furtherance of the conspiracy and may not be considered by the jury to be such.
AUTHORITY:
United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); United States v. Napue, No. 84-CR-155 (N.D. Ill. 1984); United States v. Kramer, 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 generally NCJIC Chapter 83: Conspiracy.
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Statements In Furtherance Of Conspiracy Distinguished
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
[If the jury finds beyond a reasonable doubt that persons are members of the same conspiracy, then statements by one of such persons which are in furtherance of the conspiracy, and during its pendency, constitute statements of each of the other persons found to be members of this conspiracy. The jury must decide whether the government has proven the conspiracy, charged in the indictment, whether it has proven that the defendant was a member of conspiracy, and finally which statements were made by persons in furtherance of that unlawful agreement.]
Admissions of a co-conspirator, mere conversation between conspirators, or merely narrative declarations of past activities, if they do not further the common objectives of the conspiracy, are not in furtherance of the conspiracy. A statement which merely furthers the personal interest of the speaker but not the common objectives of a conspiracy is not a statement in furtherance of the conspiracy and may not be considered by the jury to be such.
AUTHORITIES:
United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982) [bracketed material deleted].
SAMPLE INSTRUCTION # 2:
If the jury finds beyond a reasonable doubt that persons are members of the same conspiracy, then statements by one of such persons which are in furtherance of that conspiracy, and during its course, constitute statements of each of the other persons found to be members of that conspiracy. The jury must decide whether the government has proven the conspiracy charged in the complaint, whether it has proven that the defendant was a member of that conspiracy, and finally which statements were made by persons in furtherance of such unlawful agreement.
Admissions of a co-conspirator, mere conversation between conspirators, or merely narrative declarations of past activities, if they do not advance the common objectives of the conspiracy, are not in furtherance of the conspiracy and thus may not be considered by you unless made by the defendant himself. A statement which merely furthers the personal interest of the speaker but not the common objectives of a conspiracy is not a statement in furtherance of the conspiracy and may not be considered by the jury.
AUTHORITIES:
United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981); United States v. Kramer, No. 81-CR-106 (E.D. Wis. 1982), modified.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Statements By Alleged Co-Conspirator
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
A statement by an alleged co-conspirator of the defendant may not be considered by you as evidence against the defendant unless you find, by a preponderance of the evidence, that there was a conspiracy, that the declaring of the statement was a member of the conspiracy, that the defendant was a member of the same conspiracy as the declaring, and that the declaring's statement was made in furtherance of the conspiracy. Proof that the declaring was a member of the same conspiracy as the defendant must come from independent evidence other than the statements which have been introduced against the defendant.
AUTHORITIES:
United States v. Santiago, 582 F.2d 1128, 1130 (7th Cir. 1978); United States v. Shelton, 669 F.2d 446 (7th Cir.), cert. denied sub nom. Bledsoe v. United States, 102 S.Ct. 1989 (1982); United States v. West, 670 F.2d 675 (7th Cir. 1982).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Co-conspirators' Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
I have allowed you to hear out-of-court statements by persons the government claims conspired with __________ (alleged con-conspirator). In deciding what weight to give those statements, you must determine first whether __________ (alleged con-conspirator) and the speaker had a criminal agreement at the time the statement was made. In deciding whether there was a criminal agreement involving the speaker, you may use any evidence you heard, including the statement itself if you wish; but in deciding whether __________ (alleged con-conspirator) was a member of that agreement, you may consider only his words and actions. If you find that they did not have a criminal agreement, you must disregard the statement entirely.
If you find that __________ (alleged con-conspirator) and the speaker did have a criminal agreement when the statement was made, you then must decide whether that statement was made in furtherance of the criminal agreement. A statement that tends to defeat the criminal plan, or is not related to the speaker's agreement with __________ (alleged con-conspirator), may not be considered.
Finally, if you decide both that the statement was made while the speaker and __________ (alleged con-conspirator) had a criminal agreement and that the statement furthered the goals of that agreement, you must decide what weight to give the statement. In making that decision, you may wish to consider whether the government could have called the speaker as a witness here, so that you could hear and see the speaker yourself, and whether the government has shown that the speaker personally knew the things he described. You should weigh any impression you have about the truthfulness of the speaker, and of the witness who reported the out-of-court statement. You should consider also any corroborating evidence.
AUTHORITY:
FRE 801(d)(2)(E), 104(a); Bargello v. United States, 486 U.S. 171, 180 (1987) (after co-conspirator's statement admitted, opponent still may challenge probative value on grounds related to admissibility and declaring's credibility); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978); United States v. Campbell, 845 F.2d 782, 788 (8th Cir. 1988).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Greene, Criminal No. 92-32 (S.D. Iowa 1992).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Source Of Co-Conspirator Statement Must Be Identified
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Statements by a co-conspirator which are alleged to be in furtherance of a conspiracy and during its pendency are admissible against other co-conspirators only if the source of the statement is identified.
In other words, if the witness cannot specify who made the out-of-court statement, then the statement is not admissible against other co-conspirators regardless of whether it is made in furtherance of a conspiracy and during its pendency. A statement is admissible against a co-conspirator only if the source of the statement can be specifically identified as a particular co-conspirator.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982).
SAMPLE INSTRUCTION # 2:
Statements by a co-conspirator which are alleged to be in furtherance of a conspiracy and during its pendency are admissible against other co-conspirators only if the source of the statement is identified. That is, if the witness cannot specify who made the out-of-court statement, then the statement is not admissible against other co-conspirators regardless of whether it is made in furtherance of a conspiracy and during its pendency. That is, a statement is admissible against a co-conspirator only if the source of the statement can be specifically identified as a particular co-conspirator.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982); United States v. Matta, No. 82-CR-20 (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 generally NCJIC Chapter 83: Conspiracy.
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Post-Conspiracy Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There can be no furtherance of a conspiracy that has ended. Therefore, the declarations of a conspirator [are not to be considered against] [do not bind] co-conspirators if made after the conspiracy has ended.
AUTHORITIES:
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 83: Conspiracy.
See generally NCJIC 83.3.9 [Duration: Defense Theories].
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Post-Conspiracy Statements And Conduct Not Evidence Against Others
See THE SHELLOW COLLECTION: Conspiracy: Evidence – Post-Conspiracy Conduct Not Evidence Against Others.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Conspiracy: Limiting Instruction On Conversations Between Parties Other Than Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Under most circumstances, the rules of evidence and the United States Constitution require a court to exclude evidence of conversations to which a defendant is not as party. However, when a defendant is claimed to be a member of a conspiracy, conversations among others who are claimed to be members of the same conspiracy may be considered by a jury if the statements made by these persons are in furtherance of the conspiracy.
Casual admissions and narratives of past activities by persons claimed to be members of a conspiracy are not in furtherance of the conspiracy and under most circumstances are not admitted. However, when these casual conversations may help a jury to understand the context of a defendant's own statements, the Court will allow the jury to hear them.
The jury should bear in mind that the Court has allowed the jury to hear these casual conversations, narratives of past activities and admissions only for this limited purpose. When a witness repeats on the witness stand what he or she previously stated in a out of court conversation, the jury may not consider the out of court conversation in weighing whether the testimony of the witness is truthful.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Conspiracy: Non-Attributable Statements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You are instructed that none of the statements attributed to may be considered by you as the declarations of a co-conspirator.
AUTHORITY:
United States v. Williamson, 450 F.2d 585, 590-591 (5th 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 generally NCJIC Chapter 83: Conspiracy.
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Prosecution Use Of Post-Arrest Statements And Conduct
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Ordinarily, a conspiracy ends upon the arrest of one or more of the co-conspirators. In order for the government to utilize acts and declarations of alleged co-conspirators after one of these alleged co-conspirators has been arrested, it is necessary that the government prove to your satisfaction that the same conspiracy which existed prior to the arrest of the defendant existed after his arrest and that the same intent was shared by the alleged co-conspirators.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Testimony Of Co-Conspirator Should Be Weighed With Greater Caution And Care
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The testimony of one who claims that he or she conspired with a defendant should always be weighed with greater caution and care than the testimony of an ordinary witness.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. Agreement To Cooperate With Government: Cautionary Instruction
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence that persons who claimed they were members of a conspiracy met and discussed the government's investigation before they agreed to cooperate with the government may permit the inference that they agreed to present the same version to the government in return for concessions which they hoped to receive.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
25. Statement By Co-Conspirator vs. Government Agent
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The evidence upon this trial is that defendant ______________ made numerous statements concerning other persons who were allegedly involved in activities with him.
In determining whether these statements are evidence against other defendants, you must first determine whether they were made during the pendency of a conspiracy and whether they were in furtherance of it. Second, if you find that these statements were made during the pendency of a conspiracy and apparently in furtherance of it, you should then consider whether they were made by ______________ at a time when he believed that he was acting on behalf of either the government of the United States or that of [state or other jurisdiction]. If he held such a belief, then his statements were not those of a co-conspirator and could not under any circumstances be evidence against anyone at this trial.
SAMPLE INSTRUCTION # 2:
The evidence upon this trial is that defendant ________ made numerous statements concerning other persons who were allegedly involved in activities with him. In determining whether these statements are evidence against other defendants, you must first determine whether they were made during the pendency of a conspiracy and whether they were in furtherance of it. Only if you find that these statements were during the pendency of a conspiracy and apparently in furtherance of it should you then consider whether they were made by at a time when he believed that he was acting on behalf of either the government of the United States or that of the Commonwealth of Pennsylvania. If he held such a belief, then his statements were not those of a co-conspirator and could not under any circumstances be evidence against anyone at this trial.
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
26. Government Agents/Informers Not Conspirators
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A person while acting as a government informer is not a conspirator, and (his/her) acts and statements cannot be imputed to any other persons. In determining whether a person is a government informer or not, you must view the testimony from the perspective of the alleged informer. If (he/she) subjectively believed that (he/she) was acting on behalf of a federal or state law enforcement agency, then (he/she) did not have the specific intent to act as a member of an unlawful conspiracy, and (his/her) acts and declarations cannot be attributed to other persons.
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); United States v. Williamson, 450 F.2d 585, 590-591 (5th Cir. 1971); Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
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).
SAMPLE INSTRUCTION # 2:
In considering the evidence in this case and in particular in considering whether a conspiracy existed of which the defendants were members, I instruct you that you must disregard the statements and acts of ______________.
A government informer is not a conspirator and (his/her) acts and statements cannot under any circumstances be imputed to other persons.
AUTHORITIES:
United States v. Felon, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
SAMPLE INSTRUCTION # 3:
A person while acting as a government informer is not a conspirator, and (his/her) acts and statements cannot under any circumstances be imputed to any other person.
AUTHORITIES:
United States v. Felon, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139 (5th Cir. 1965).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 4:
A person who is acting on behalf of the government is not a conspirator, and his acts and statements cannot under any circumstances be imputed to any other person.
AUTHORITIES:
United States v. Felton, 908 F.2d 186, 188 n.3 (7th Cir. 1990); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 5:
You heard evidence of a conversation between __________ (name of person) and __________ (name of informer). As I have previously instructed you, __________ (name of informer) was a police informer at the time of that conversation and for that reason what he said to __________ (name of person) is not evidence against [defendant].
Further, only those statements of __________ (name of person) which were in furtherance of his alleged conspiracy with [defendant] may be considered as evidence. Casual conversation concerning __________ (name of person) 's past activities or casual admissions of __________ (name of person) 's guilt are not in furtherance of a conspiracy and may not be considered as evidence against [defendant] in this case.
SAMPLE INSTRUCTION # 6:
The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act. There can be no true criminal agreement if an individual conspires to violate the law with only one other person and that person is a police officer, government agent or informer secretly acting in an undercover capacity on behalf of a law enforcement agency.
Thus, you cannot convict a defendant of conspiracy even if you find beyond a reasonable doubt that (he/she) conspired with [government agent] unless you also are convinced beyond a reasonable doubt that the prosecution has also proven that this defendant agreed to commit the particular crime charged with at least one other alleged co-conspirator besides [government agent].
AUTHORITIES:
United States v. Escobar de Bright, 742 F.2d 1196, 1198-1200 (9th Cir. 1984); United States v. Moss, 591 F.2d 428, 434 n.8 (8th Cir. 1979); United States v. Chase, 372 F.2d 453, 459 (4th Cir.), cert. denied, 387 U.S. 907 (1967); Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965); United States v. Wray, 8 F.2d 429 (N.D. Ga. 1925).
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 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
27. Paid Informer Not A Co-Conspirator
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The conduct of an informer who is compensated on the basis of the results (he/she) obtains should be scrutinized by you carefully and evidence concerning (his/her) conduct and statements should be weighed with care before accepted by you as true. A government informer is not a conspirator and (hi/her)s acts and statements cannot under any circumstances be imputed to any other person. Therefore you are instructed that none of the statements attributed to [informer] are admissible or may be considered by you as declarations of a co-conspirator.
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 generally NCJIC Chapter 83: Conspiracy.
See NCJIC 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].
See generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
28. Conspiracy: Jury Not to Speculate On Conversations
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
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).
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 generally NCJIC 83.4 [Conspiracy: Hearsay Statements Of Coconspirator].
Cf. NCJIC 83.4.2.8 [Hearsay Statements Of Coconspirator: Whether Court Or Jury Determines Admissibility].