THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Conspiracy To Defraud United States (18 USC 371 (Second Clause))
1. Conspiracy To Defraud United States: Elements
2. Conspiracy To Commit Tax Fraud: Five Essential Elements
3. Conspiracy Requires Two Or More Persons
4. Government Must Prove Membership
5. Conspiracy To Defraud: Knowledge Requirement
6. Conspiracy To Defraud: Requirement Of Materiality
7. Agreement On Conspiratorial Purposes
8. Conspiracy Must Actually Interfere With Or Obstruct
Government's Lawful Functions
9. Mere Failure To Disclose Income Insufficient
10. Conspiracy To Defraud, Not To Commit Offense
11. Conspiracy: Functions Of U.S. Customs Service And The Food
And Drug Administration
12. Conspirator Must Know Government Functions
13. Failure To Act Not Inherently Dishonest
14. Government Must Prove Knowledge Of Illegality
15. Conspiracy: Conviction Cannot Be Based On Ignorance
16. Unanimity On Conspiracy's Object
17. Mere Failure To Report Income Not Conspiracy
18. No Legal Requirement To Report Gifts
19. Conspiracy To Defraud Internal Revenue Service Not The
Same
20. Conspiracy To Defraud: Lesser Included Offenses
21. Conspiracy To Defraud Government; Lesser Included Offense
Of Conspiracy
To Introduce Or Deliver For Introduction Into Interstate Commerce
Misbranded
Or Adulterated Drugs
22. Defendant Must Be Acquitted If The Natural And Probable
Consequences
Of The Alleged Conduct
Would Not Have Led To A Loss
23. Multiplicity
24. "Intent To Defraud" Defined
25. Conspiracy To Defraud: There Must Be An Agreement To Carry
Out The Illegal Act
26. Conspiracy To Defraud: Government Must Prove Defendant
Knew
Purpose of The Conspiracy
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Conspiracy To Defraud United States: Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In order to establish the offense of conspiracy to defraud the United States, the government must prove the following propositions beyond a reasonable doubt:
First, that there did exist a conspiracy to impair, obstruct, or defeat a lawful function of the United States Customs Service or the United States Food & Drug Administration by dishonest means.
Second, that a member of the conspiracy did one of the overt acts described in the Indictment for the purpose of furthering or helping the conspiracy. These acts are indicated by _______ (small letters -- (a) through (ee) -- under ¶7) of Count _______.
Third, that the defendant knowingly and intentionally became a member of the charged conspiracy.
A conspiracy is a combination of two or more persons to accomplish an unlawful purpose. 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 conduct of all the alleged participants.
In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that defendant. In determining whether a person became a member of the conspiracy you may consider only the acts and statements of that person.
To be a member of the conspiracy, a person 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, from a person's own acts and statements, that he was aware of the common purpose and was a willing participant.
AUTHORITIES:
Seventh Circuit Pattern Instruction 5.08 [formerly 5.11], as modified by United States v. Olson, 978 F.2d 1472, 1478 (1992).
SAMPLE INSTRUCTION # 2:
All three defendants are charged in Count ____ of the indictment with conspiring to defraud the United States. Such a conspiracy would be a violation of Section 371 of Title 18 of the United States Code, which provides:
If two or more persons conspire ... to defraud the United States ... and one or more of such persons do any act to effect the object of the conspiracy [each shall be guilty of an offense against the United States].
AUTHORITY:
18 USC 371.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Conspiracy To Commit Tax Fraud: Five Essential Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
As I told you, the crime charged [in Count ___] is criminal conspiracy. A criminal conspiracy is a kind of criminal partnership –– an agreement or understanding between two or more people to do something unlawful. The crime may be committed even if the agreement or understanding is not successfully carried out.
The crime of criminal conspiracy has five essential elements, which are:
One, that on or before [date], two or more persons reached an agreement or understanding to defraud the United States by impeding, impairing, obstructing and defeating the lawful government functions of the Internal Revenue Service. In connection with this element, it is not necessary that any single defendant have been among the original parties to the agreement or understanding. Further, in order for persons to "reach an agreement or understanding" as required by this element, it is not necessary that the agreement or understanding be in writing or in any other particular form, and it is not necessary that there be agreement or understanding, or even discussion, on all the details of how the agreement or understanding is to be carried out;
Two, that the defendant joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect. In connection with this element, you should understand that merely being present at the scene of an event, or merely acting in the same way as others, or merely associating with others, does not prove that a person has joined in an agreement or understanding. But in order to join in an agreement or understanding as required by this element, a person does not have to know all the details of the agreement or understanding, and does not have to know the identity of all the others involved. Further, it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding;
Three, that at the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding;
Four, that while the agreement or understanding was in effect, a person or persons who had joined the agreement or understanding committed one or more of the overt acts described in [or, on page ___ of] the indictment. In connection with this element, it is not necessary that the acts referred to be unlawful acts, and it is not necessary that the defendant personally committed the act, but you must agree unanimously on at least one overt act that was performed;
Five, that the act or acts described in element four, if you find beyond a reasonable doubt that such acts were committed, were intentionally committed for the purpose of carrying out or carrying forward the agreement or understanding.
To convict a defendant of criminal conspiracy, the government must prove each of these essential elements beyond a reasonable doubt as to that defendant. If the government has done so as to any defendant, you may find that defendant guilty of the crime charged [in Count ___]. On the other hand, if the government has failed to prove each of these essential elements beyond a reasonable doubt as to any defendant, you must find that defendant not guilty of the crime charged [under Count ___].
If the government has failed to prove, beyond a reasonable doubt, the existence of the conspiracy which is charged, then you must find the defendants not guilty even though some other conspiracy did exist. Likewise, if the government has failed to prove, beyond a reasonable doubt, that a defendant was a member of the conspiracy which is charged, then you must find that defendant not guilty even though he may have been a member of some other conspiracy.
AUTHORITY:
Manual of Modern Criminal Jury Instructions for the Eighth Circuit, 5.06A [formerly 8.01 (1985)], modified.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Conspiracy Requires Two Or More Persons
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering the government's evidence in this case, you may consider that Section 371 of Title 18 of the United States Code, the statute upon which this charge is based, requires a conspiracy of "two or more persons." A corporation and its employees cannot conspire in violation of this section.
AUTHORITIES:
Harris v. Warner-Lambert Co., 486 F. Supp. 125, 127 (N.D. Ga. 1980), construing 42 USC 1985(c) and citing cases in support.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Government Must Prove Membership
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before any defendant can be found guilty of the offense charged in this indictment, the government must prove beyond a reasonable doubt that there existed a conspiracy to defraud ________________and then must prove beyond a reasonable doubt the membership of any defendant in that conspiracy before that defendant can be found guilty of this crime.
AUTHORITIES:
United States v. Fried, 576 F.2d 787, 793 n.7 (9th Cir. 1978), citing United States v. Dunn, 564 F.2d 348, 356-57 (9th Cir. 1977).
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.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Conspiracy To Defraud: Knowledge Requirement
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
To be a member of a conspiracy to defraud the government, the alleged conspirator must not only act dishonestly, but must intend for (his/her) actions to impede or impair the lawful functions of the government as charged in Count ____, and the lawful functions of the government must be known to that person. Destroying records or creating false records without the intent to impair or impede known functions of the government will not support a finding that the person was a conspirator.
AUTHORITIES:
United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977).
SAMPLE INSTRUCTION # 2:
The indictment charges that the defendants conspired to defraud the _________ (agency, e.g., Pension Fund). Before you may even consider whether any defendant was a member of such a conspiracy, you must first find beyond a reasonable doubt that such a conspiracy existed. In considering the evidence, you must always bear in mind that the conspiracy charged is one to defraud the _________ (agency, e.g., Pension Fund) not one to defraud the (other agency).
If you find beyond a reasonable doubt that such a conspiracy existed, then you may consider whether any defendant was a member of that conspiracy. Before a defendant can be found guilty of being a member of that conspiracy, the government must prove that he had actual knowledge of the conspiracy and of the intended victim of the conspiracy. The knowledge of one co-conspirator cannot be attributed to another alleged co-conspirator.
AUTHORITIES:
United States v. Eaglin, 571 F.2d 1069, 1074, 1075 (7th Cir. 1977) [suitably modified; conspiracy to harbor or conceal and for willfully harboring or concealing an escaped federal prisoner under 18 USCS 371 and 1072].
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
See NCJIC: Chapter 256: Mitigation Of Culpability By Mental Psychological, Medical And/Or Physical Impairment Of The Defendant.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Conspiracy To Defraud: Requirement Of Materiality
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Count ____ charges that the defendants made false statements and fraudulently failed to disclose facts to the government. In order for these alleged false statements and omissions to sustain a charge of conspiracy to defraud the government, the alleged false statements and omissions must be material. That is, a material fact is a fact that would be of importance to a reasonable person in making a decision about a particular matter or transaction.
AUTHORITIES:
United States v. Brown, 79 F.3d 1550 (11th Cir. 1996).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Circumstantial Evidence: False Statements.
RELATED NCJIC MATERIALS:
See NCJIC 34.4 [False Statements].
See NCJIC Chapter 83: Conspiracy.
See NCJIC 95.2.1 [Perjury: Definition Of "Material Matter"].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Agreement On Conspiratorial Purposes
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To sustain the conspiracy charged in Count 1, 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.
AUTHORITIES:
United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Conspiracy Must Actually Interfere With Or Obstruct Government's Lawful Functions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The government need not prove that a conspiracy to defraud the United States actually caused any monetary loss to the government, so long as the conspiracy actually did interfere with or obstruct the government's lawful functions.
AUTHORITIES:
United States v. Puerto, 730 F.2d 627, 630 (11th Cir.), cert. denied, 469 U.S. 847 (1984); In re Sealed Case, 676 F.2d 793, 815 (D.C. Cir. 1982); United States v. Del Toro, 513 F.2d 656, 664 (2d Cir.), cert. denied, 423 U.S. 826 (1975).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Mere Failure To Disclose Income Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Mere failure to disclose income would not be sufficient to show the crime of defrauding the United States under Count ____, the conspiracy charge.
AUTHORITY:
United States v. Klein, 247 F.2d 908, 916 (2d Cir. 1957), cert. denied, 355 U.S. 924 (1958).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Conspiracy To Defraud, Not To Commit Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you find that the defendant conspired to violate various laws of the United States, but have a reasonable doubt as to whether the defendant conspired to defraud the government, then you must acquit the defendant.
AUTHORITIES:
Stirone v. United States, 361 U.S. 212 (1960).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Conspiracy: Functions Of U.S. Customs Service And The Food And Drug Administration
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendants in this case are charged with conspiring to defraud the U.S. Customs Service and the U.S. Food & Drug Administration, agencies of the United States, by impairing, impeding, and defeating their lawful functions.
The Function of U.S. Customs: The United States Customs Service is the agency of the United States responsible for preventing the smuggling or importation of prohibited articles. Customs is also responsible for the collection of duties on imported merchandise.
The Function of the FDA: The United States Food & Drug Administration ("FDA") is the agency responsible for protecting the American public by insuring that drugs used in animals, particularly in animals that produce food for human consumption, are safe and effective for their intended uses. The FDA is also responsible for protecting the American public by insuring that drugs, including drugs intended for use in animals, are properly labeled.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Conspirator Must Know Government Functions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To knowingly and intentionally become a member of the charged conspiracy, the defendant must know the lawful functions of the Customs Service and the Food and Drug Administration, and must intend to impair, impede, or defeat those lawful functions through dishonest means.
AUTHORITIES:
Dennis v. United States, 384 U.S. 855, 861-62 (1966).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Failure To Act Not Inherently Dishonest
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Under Count _____, the defendant must conspire to impede or impair the functions of a government agency through dishonesty. The failure to file a new animal drug application or an investigational new animal drug application is not, by itself, dishonesty.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Government Must Prove Knowledge Of Illegality
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The object of the conspiracy alleged in the indictment is to defraud the government . Among the means which the indictment alleges were employed by the conspirators to defraud the government were ___________ (insert alleged means).
The government contends that each of these means was in itself unlawful. Accordingly, before any defendant can be found guilty of the conspiracy charged in this indictment, the government must prove beyond a reasonable doubt that such defendant had knowledge of the illegality of these alleged means. A good faith mistake as to the legality of the means would be a completely defense by any defendant. It is not necessary for a defendant to prove a good faith belief in the legality of these means, but it is necessary for the government to prove beyond a reasonable doubt that a defendant did not in good faith believe that such means were lawful.
AUTHORITIES:
United States v. Murdoch, 290 U.S. 389 (1933); People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938); United States v. Barker, 514 F.2d 208, 234, 265 (1975) (Baseline, C.J., concurring and Wiley, J., dissenting). See also discussion in United States v. Ehrlich man, 546 F.2d 910, 919 n.17-22 (D.C. Cir. 1976).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
See NCJIC: Chapter 256: Mitigation Of Culpability By Mental Psychological, Medical And/Or Physical Impairment Of The Defendant.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Conspiracy: Conviction Cannot Be Based On Ignorance
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
There is evidence in this record that the agents of the Internal Revenue Service concluded that the payments by subcontractors to were neither unlawful under Federal statutes nor under the laws of the State of . A defendant cannot be convicted of a federal criminal conspiracy where he was ignorant of the federal implications of his acts for to permit such a conviction would be to enlarge the agreement beyond the terms as they were understood by the parties.
AUTHORITIES:
United States v. Cramming, 123 F.2d 271, 273 (2d Cir. 1941), discussed in United States v. Fella, 420 U.S. 671, 688-693 (1975), see also United States v. Fella, ibid, n. 23-25.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC 45.1.4 [Ignorance Of The Law Instruction Improper When Required To Prove Willfulness Or Intentional Violation Of A Known Legal Duty].
See NCJIC 47.4 [Deliberate Ignorance/Willful Blindness].
See NCJIC Chapter 83: Conspiracy.
See NCJIC 83.2.9 [Conspiracy: Deliberate Ignorance].
See NCJIC 252.8.1.1 [Mistake Or Ignorance May Negate An Element Of The Offense].
See NCJIC 252.9.4 [Ignorance Of The Law Due To Unavailable Law].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Unanimity On Conspiracy's Object
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before you may convict on Count 1, the conspiracy charge, you must agree unanimously either that the conspiracy encompassed a plan to defraud both the Customs Service and the Food and Drug Administration, or that the conspiracy encompassed a plan to defraud one of those agencies. If the conspiracy concerned just one of those agencies, you must agree unanimously which agency that was.
AUTHORITIES:
Seventh Circuit Instructions 4.03 [formerly vol. II, p. 90]; United States v. Beros, 833 F.2d 455, 461 (3d Cir. 1987).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 273.10.5 [Jury Unanimity: Conspiracy].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Mere Failure To Report Income Not Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Mere failure to disclose income would not be sufficient to show the crime of defrauding the United States under the conspiracy charge.
AUTHORITY:
United States v. Klein, 247 F.2d 908, 916 (2d Cir. 1957), cert. denied, 355 U.S. 924 (1958).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. No Legal Requirement To Report Gifts
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendants are charged with conspiring to defraud the United States by failing to report certain items of property on their income tax returns. The defendants contend that those items of property were gifts, and I am instructing you that gifts need not have been reported, as a matter of law. Accordingly, if you conclude that the property items at issue were gifts to a particular defendant, then there was no conspiracy to defraud the United States, and you must find that defendant not guilty on both the conspiracy count and the false statement on income tax return charges.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Conspiracy To Defraud Internal Revenue Service Not The Same
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Count ____ of the indictment charges a conspiracy to defraud the United States through impeding the functions of the Customs Service and the Food & Drug Administration. A conspiracy to defraud the Internal Revenue Service of income taxes is not charged in Count ____. You may not base a conviction for Count ____ upon a finding that the defendant conspired to impair or defeat the functions of the Internal Revenue Service.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Conspiracy To Defraud: Lesser Included Offenses
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The offenses alleged in Count(s) _____ include lesser offenses. If you find a defendant not guilty of any of the offenses charged in Count(s) _____, or if you cannot unanimously agree that a defendant is guilty as to any crime charged in Count(s) _____ , then as to that charged offense, you must proceed to determine whether the defendant is guilty or not guilty of the lesser included offense.
To convict a defendant of a lesser included offense for any of the charges in Count(s) _____, the government must prove all the same elements as would be necessary for Count(s) _____, except that the government need not prove that the defendant acted with intent to defraud or mislead.
If after your consideration, you have concluded that the government has not proved the elements of the lesser included offense beyond a reasonable doubt, then you must return a verdict of not guilty.
AUTHORITIES:
Schmuck v. United States, 489 U.S. 705 (1989).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Chapter 265: Lesser Included Offenses: General Principles.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Conspiracy To Defraud Government; Lesser Included Offense Of Conspiracy To Introduce Or Deliver For Introduction Into Interstate Commerce Misbranded Or Adulterated Drugs
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The Crime of Conspiracy to Defraud the Government, with which the defendants are charged in Count 1 of the Indictment, includes the lesser offense of conspiracy to introduce or deliver for introduction into interstate commerce misbranded or adulterated drugs.
If you find a defendant not guilty of the crime of conspiracy to defraud the government charged in Count 1 of the Indictment, or if you cannot unanimously agree that the defendant is guilty of that crime, then you must proceed to determine whether the defendant is guilty or not guilty of the lesser offense of conspiracy to introduce or deliver for introduction into interstate commerce adulterated or misbranded drugs.
The elements of the lesser included offense of conspiracy to deliver or introduce for delivery into interstate commerce adulterated or misbranded drugs, are the same as the elements of the offense of conspiracy to defraud the government, except that for this lesser included offense, the conspirators must agree upon the introduction or delivery into interstate commerce of adulterated or misbranded drugs as the object of their conspiracy.
If, after considering all the evidence, you have concluded that the government has not established the elements of the lesser included offense beyond a reasonable doubt, then you must acquit the defendant.
AUTHORITIES:
Schmuck v. United States, 489 U.S. 705 (1989).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Chapter 265: Lesser Included Offenses: General Principles.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Defendant Must Be Acquitted If The Natural And Probable Consequences Of The Alleged Conduct Would Not Have Led To A Loss
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Although the government need not prove that the (agency) was actually defrauded in order to prove a conspiracy, the defendants must be acquitted if the natural and probable consequences of their alleged conduct would not have led to a loss by (agency). This is another way of saying that if the alleged conduct of the defendants did not impair the _________ (insert harm e.g., collateral of the (agency) and the security of its mortgage), then the defendants must be acquitted of this conspiracy.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 65: Natural And Probable Consequences.
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Multiplicity
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
If you conclude, based on all the evidence, that the __________ (name of defendant(s)), or one of them, in fact devised a scheme with the intent to defraud ________ (entity, e.g., Bank One) as charged in Counts ___ and ___ of the indictment, but you conclude that there was only one scheme and that all acts were part of that one scheme, then you may convict that defendant of either Count ____ or Count ____, but not of both.
AUTHORITY:
U.S. Const., amend. V (double jeopardy clause); see also Braverman v. United States, 317 U.S. 49, 52-54 (1942) (single conspiracy may have multiple objects; one conviction only [where the object of the conspiracy is to evade or defeat the payment of a federal tax]).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC 276.8.1 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)].
See NCJIC Macro 12.3 Multiplicity.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
24. "Intent To Defraud" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
An intent to defraud is an intent to deceive or cheat.
AUTHORITIES:
Model Criminal Jury Instructions for the Ninth Circuit, No. 3.17 [formerly No. 3.15 (1992)]; United States v. Cloud, 872 F.2d 846, 852 (9th Cir.) [18 USC 371 (bank fraud)], cert. denied, 493 U.S. 1002 (1989).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
25. Conspiracy To Defraud: There Must Be An Agreement To Carry Out The Illegal Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to convict, you must find beyond a reasonable doubt that each defendant agreed to defraud _______ (name of entity). The law requires more than a conspiracy to attempt to arrange to defraud _______ (name of entity); it requires an agreement to carry out the illegal act.
AUTHORITIES:
United States v. Milcher-Lopez, 627 F.2d 886 (9th Cir. 1980).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 83: Conspiracy.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
26. Conspiracy To Defraud: Government Must Prove Defendant Knew Purpose of The Conspiracy
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
To prove participation in the conspiracy charged in this indictment, the prosecution is required to show that each defendant agreed to effectuate the conspiracy's central criminal design: the defrauding of the .
Specifically, the government must show that each defendant knew that this was the purpose of the conspiracy and that (he/she) knew that the others were involved and that (his/her) own benefits from (his/her) dealings with them were probably dependent upon the success of the entire venture.
AUTHORITIES:
United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Conspiracy.
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See NCJIC Chapter 83: Conspiracy.
See NCJIC: Chapter 256: Mitigation Of Culpability By Mental Psychological, Medical And/Or Physical Impairment Of The Defendant.
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Offense Clause [Essential Elements].
See NCJIC Federal Model Instructions by Offense: 18 USC 371: Conspiracy: Defraud Clause.