4.18.371(1) Conspiracy, 18 U.S.C. § 371; 21 U.S.C. § 846 See Statute See Statute

[Defendant] is accused of conspiring to commit a federal crime— specifically, the crime of [insert crime]. It is against federal law to conspire with someone to commit this crime.

For you to find [defendant] guilty of conspiracy, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that the agreement specified in the indictment, and not some other agreement or agreements, existed between at least two people to [substantive crime]; and

Second, that [defendant] willfully joined in that agreement; [and

Third, that one of the conspirators committed an overt act during the period of the conspiracy in an effort to further the purpose of the conspiracy.]

A conspiracy is an agreement, spoken or unspoken. The conspiracy does not have to be a formal agreement or plan in which everyone involved sat down together and worked out all the details.

But the government must prove beyond a reasonable doubt that those who were involved shared a general understanding about the crime. Mere similarity of conduct among various people, or the fact that they may have associated with each other or discussed common aims and interests does not necessarily establish proof of the existence of a conspiracy, but you may consider such factors.

To act “willfully” means to act voluntarily and intelligently and with the specific intent that the underlying crime be committed—that is to say, with bad purpose, either to disobey or disregard the law—not to act by ignorance, accident or mistake. The government must prove two types of intent beyond a reasonable doubt before [defendant] can be said to have willfully joined the conspiracy: an intent to agree and an intent, whether reasonable or not, that the underlying crime be committed. Mere presence at the scene of a crime is not alone enough, but you may consider it among other factors. Intent may be inferred from the surrounding circumstances.

Proof that [defendant] willfully joined in the agreement must be based upon evidence of [his/her] own words and/or actions. You need not find that [defendant] agreed specifically to or knew about all the details of the crime, or knew every other co-conspirator or that [he/she] participated in each act of the agreement or played a major role, but the government must prove beyond a reasonable doubt that [he/she] knew the essential features and general aims of the venture. Even if [defendant] was not part of the agreement at the very start, [he/she] can be found guilty of conspiracy if the government proves that [he/she] willfully joined the agreement later. On the other hand, a person who has no knowledge of a conspiracy, but simply happens to act in a way that furthers some object or purpose of the conspiracy, does not thereby become a conspirator.

[An overt act is any act knowingly committed by one or more of the conspirators in an effort to accomplish some purpose of the conspiracy. Only one overt act has to be proven. The government is not required to prove that [defendant] personally committed or knew about the overt act. It is sufficient if one conspirator committed one overt act at some time during the period of the conspiracy.]

The government does not have to prove that the conspiracy succeeded or was achieved. The crime of conspiracy is complete upon the agreement to commit the underlying crime [and the commission of one overt act].

Comment(s)

(1) This charge is based largely upon United States v. Rivera-Santiago, 872 F.2d 1073, 1078-80 (1st Cir. 1989), as modified by United States v. Piper, 35 F.3d 611, 614-15 (1st Cir. 1994). See also United States v. Richardson, 225 F.3d 46, 53 (1st Cir. 2000) (approving Pattern’s statement that proof of willful joinder “must” be based upon evidence of the defendant’s own words and/or actions); United States v. Boylan, 898 F.2d 230, 241-43 (1st Cir. 1990); Blumenthal v. United States, 332 U.S. 539, 557 (1947).

(2) The third element (overt act) is not required in a drug conspiracy under 21 U.S.C. § 846. United States v. Shabani, 513 U.S. 10, 11 (1994). For discussion of overt acts see United States v. Flaherty, 668 F.2d 566, 580 n.4 (1st Cir. 1981).

(3) The Government does not have to prove that the defendant intended to commit the underlying offense himself or herself. Piper, 35 F.3d at 614-15. There must be proof, however, that a second conspirator with criminal intent existed. United States v. Alzanki, 54 F.3d 994, 1003 (1st Cir. 1995).

(4) “Whether there is a single conspiracy, multiple conspiracies, or no conspiracy at all is ordinarily a factual matter for the jury to determine.” United States v. Mena-Robles, 4 F.3d 1026, 1033 (1st Cir. 1993). A multiple conspiracy instruction should be provided if “‘on the evidence adduced at trial, a reasonable jury could find more than one such illicit agreement, or could find an agreement different from the one charged.’” United States v. Brandon, 17 F.3d 409, 449 (1st Cir. 1994) (quoting Boylan, 898 F.2d at 243). The following is appropriate language that the Fifth and Ninth Circuits have used for multiple-conspiracy instructions:

If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even though you find that some other conspiracy existed. If you find that a defendant was not a member of the conspiracy charged in the indictment, then you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.

Fifth Circuit Instruction 2.21; see also Ninth Circuit Instruction 8.17.

(5) The definition of “willfully” comes from United States v. Monteiro, 871 F.2d 204, 208-09 (1st Cir. 1989). For alternate definitions see United States v. Porter, 764 F.2d 1, 17 (1st Cir. 1985), and United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1992). Specific intent is preferred. United States v. Yefsky, 994 F.2d 885, 899 (1st Cir. 1993).

(6) “A conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has ‘defeat[ed]’ the conspiracy’s ‘object.’” United States v. Jimenez Recio, ___ U.S. ___, 154 L.Ed.2d 744, No. 01-1184, 2003 LEXIS 901, at *9 (Jan. 21, 2003). Impossibility is not a defense. United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987).

(7) A conspiracy to defraud the IRS may present unique problems of “purpose” or “knowledge.” United States v. Goldberg, 105 F.3d 770, 774 (1st Cir. 1997).

(8) Note that some substantive offenses contain their own conspiracy prohibitions. See, e.g., 18 U.S.C. § 241 (civil rights conspiracy) (no overt act required, see United States v. Crochiere, 129 F.3d 233, 237-38 (1st Cir. 1997)); 18 U.S.C. § 1201(c) (kidnapping) (overt act required); 18 U.S.C. § 1951(a) (Hobbs Act) (no overt act required, see United States v. Palmer, 203 F.3d 55, 63 (1st Cir. 2000)).

(9) Withdrawal is not an affirmative defense if the conspiratorial agreement has already been made. United States v. Rogers, 102 F.3d 641, 644 (1st Cir. 1996).

(10) There must be at least two conspirators. In a Mann Act case, “[t]here is an inherent policy judgment in the [statute] not to prosecute women who do no more than consent to being transported across state lines for the purpose of prostitution.” United States v. Footman, 215 F.3d 145, 151 (1st Cir. 2000). If that is all there is, the woman is a victim, not a co-conspirator. “But that policy simply does not apply when the women assume roles in running the business.” Id. “[T]he issue is whether she agreed to further the conspiracy and took steps to do so, beyond her working as a prostitute herself and crossing state lines.” Id.

(11) If the record supports it, the defendant is entitled to an instruction “that a buyer and seller in a single drug transaction are not invariably part of a drug conspiracy. The classic example is a single sale for personal use and without prearrangement.” United States v. Martinez-Medina, 279 F.3d 105, 120 (1st Cir. 2002) (citing United States v. Moran, 984 F.2d 1299, 1302-04 (1st Cir. 1993)).

(12) The First Circuit has not decided whether the jury must be unanimous on one specific criminal object of a multi-object conspiracy. United States v. Marino, 277 F.3d 11, 32 (1st Cir. 2002).

(13) See Comment (2) to Instruction 4.21.841(a)(1) concerning enhanced penalties for drug quantity.