8TH CIRCUIT CHAPTER 5

8TH CIRCUIT MODEL INSTRUCTIONS 2009
Go to Federal Model Instructions Table of Contents - Go to 8th Circuit Table of Contents

5. Final Instructions: Criminal Responsibility

        5.00     Introductory Comment
        5.01     Aiding & Abetting (18 USC 2(a))
        5.02     Causing An Offense To Be Committed (18 USC 2(b))
        5.03     Corporate Responsibility
        5.04     Personal Responsibility Of Corporate Agent
        5.05     Accessory After The Fact (18 USC 3)
        5.06A Conspiracy: Elements (18 USC 371)
        5.06B Conspiracy: "Agreement" Explained
        5.06C Conspiracy: Substantive Offense; Elements
        5.06D Conspiracy: "Overt Act" Explained
        5.06E Conspiracy: Success Immaterial
        5.06F Conspiracy: Multiple Crimes (18 USC 371)
        5.06G Conspiracy: Single/Multiple Conspiracies
        5.06H Conspiracy: Withdrawal
        5.06I    Conspiracy: Coconspirator Acts And Statements
        5.06J Conspiracy: "Co-conspirator Liability" (Pinkerton Charge)

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.00
FINAL INSTRUCTIONS: CRIMINAL RESPONSIBILITY
Introductory Comment

This section addresses situations in which a person may be found guilty of a crime even if that person did not personally carry out all of the acts constituting the substantive offense.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.01 AIDING & ABETTING¹
(18 USC 2(a))

FORECITE National™ Materials Related To This Instruction:

Chapter 64: Accomplice Liability (Aiding and Abetting, Accessory Before The Fact, Etc.)

A person may [also]² be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged,³ if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:⁴

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]⁵

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt that all of the elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

[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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way which advances some offense, does not thereby become an aider and abettor.]

Notes on Use

1. Unless the principal offense is also submitted to the jury, this instruction should be read together with the principal offense instruction as one instruction. The Burden of Proof language of Instruction 3.09 should be deleted and the Burden of Proof language from Instruction 5.01 used. If there is a self defense or entrapment defense, the appropriate language from Instruction 3.09 must be included. The instruction should look something like the following:

The crime of ________ as charged in the indictment, has ____ elements, which are:

One, ____________________________________________________________;

Two, _________________________________________________________; and

Etc., _____________________________________________________________.

A person may be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged, if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt all of the elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted that crime [and must further prove beyond a reasonable doubt that the defendant was not [entrapped] [acting in self defense], [acting in defense of _______] [as defined in Instruction No. _____]]; otherwise you must find the [that particular] defendant not guilty of this crime [under Count ____].

2. Use if the defendant's guilt on the principal offense is also being submitted to the jury.

3. This instruction should be given only when the evidence in the case shows that more than one person has performed acts necessary for the commission of an offense. In other words, a person cannot aid and abet himself in the commission of a crime.

4. Use only if there is a disputed issue with respect to whether the defendant acted before the crime was completed. This language has been repeatedly approved. See United States v. Jarboe, 513 F.2d 33, 36 (8th Cir. 1975).

5. If the principal offense requires a particular mental state, the aider and abettor must share in that mental state. United States v. Lard, 734 F.2d 1290, 1298 (8th Cir. 1984); Jarboe. The instruction must include that mental state. See United States v. Burkhalter, 583 F.2d 389, 391 (8th Cir. 1978) (knowledge that the item transferred was a firearm required, but knowledge that the principal was unlicensed was not required). United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991).

Committee Comments

Subsection 2(a) of Title 18, United States Code, applies to the entire Criminal Code. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984).

To be guilty of aiding and abetting is to be guilty as if one were a principal of the underlying offense. Aiding and abetting is not a separate crime but rather is linked to the underlying offense and shares the requisite intent of the offense.

United States v. Roan Eagle, 867 F.2d 436, 445 (8^th Cir. 1989).

The elements of aiding and abetting are generally "(1) that the defendant associated himself with the unlawful venture; (2) that he participated in it as something he wished to bring about; and (3) that he sought by his actions to make it succeed." United States v. Santana, 524 F.3d 851, 853 (8^th Cir. 2008) (quoting United States v. McCracken, 110 F.3d 535, 540 (8^th Cir. 1997)).

Association with the offense has been interpreted as meaning sharing in the state of mind of the principal. United States v. Roan Eagle, 867 F.2d at 445 n.15. Accordingly, the instruction has provided for inserting the intent or knowledge required for the principal offense, if any particular state of mind is required. See Note 4, supra.

A defendant may be convicted on the theory of aiding and abetting even where the indictment does not charge him on that theory. United States v. Beardslee, 609 F.2d 914 (8th Cir. 1979). This instruction covers either situation.

A person may be convicted of an offense on the theory of aiding and abetting even if the alleged principal has earlier been acquitted. Standefer v. United States, 447 U.S. 10 (1980).

In order to sustain the conviction of a defendant who has been charged as an aider and abettor, it is necessary that there be evidence showing an offense to have been committed by a principal and that the principal was aided or abetted by the accused, although it is not necessary that the principal be convicted or even that the identity of the principal be established.

Ray v. United States, 588 F.2d 601, 603-04 (8th Cir. 1978); Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969). See also United States v. Hudson, 717 F.2d 1211, 1214 (8^th Cir. 1983).

There must be knowing participation in the activity. United States v. Roan Eagle, 867 F.2d at 445. See also United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991), for discussion of what must be known to aid and abet a violation of 18 USC 924(c).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

A person may [also]² be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged,³ if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:⁴

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]⁵

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt that all of the elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

[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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way which advances some offense, does not thereby become an aider and abettor.]

Notes on Use

1. Unless the principal offense is also submitted to the jury, this instruction should be read together with the principal offense instruction as one instruction. The Burden of Proof language of No. 3.09 should be deleted and the Burden of Proof language from No. 5.01 used. If there is a self defense or entrapment defense, the appropriate language from No. 3.09 must be included. The instruction should look something like the following:

The crime of ________ as charged in the indictment, has ____ elements, which are:

One, ____________________________________________________________;

Two, _________________________________________________________; and

Etc., _____________________________________________________________.

A person may be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged, if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt all of the elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted that crime [and must further prove beyond a reasonable doubt that the defendant was not [entrapped] [acting in self defense], [acting in defense of _______] [as defined in Instruction No. _____]]; otherwise you must find the [that particular] defendant not guilty of this crime [under Count ____].

2. Use if the defendant's guilt on the principal offense is also being submitted to the jury.

5. If the principal offense requires a particular mental state, the aider and abettor must share in that mental state. United States v. Lard, 734 F.2d 1290, 1298 (8th Cir. 1984); Jarboe. The instruction must include that mental state. See United States v. Burkhalter, 583 F.2d 389, 391 (8th Cir. 1978) [knowledge that the item transferred was a firearm required, but knowledge that the principal was unlicensed was not required.] United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991).

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.01 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.06 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.06 (1999); Ninth Cir. Crim. Jury Instr. 5.1 (1997); United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989). See generally West Key # "Criminal Law" 59(5), 67, 814(19), 815(12), 823(16).

Section 2(a) applies to the entire Criminal Code. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984).

To be guilty of aiding and abetting is to be guilty as if one were a principal of the underlying offense. Aiding and abetting is not a separate crime but rather is linked to the underlying offense and shares the requisite intent of the offense.

United States v. Roan Eagle, 867 F.2d at 445. The appellate courts are divided as to whether accomplice liability applies to the continuing criminal enterprise (CCE) offense, 21 USC 848(a). United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987) (CCE offense cannot be aided and abetted. See also United States v. Benevento, 836 F.2d 60 (2d Cir. 1987). United States v. Ambrose, 740 F.2d 505, 508 (7th Cir. 1984) (CCE offense can be committed by aiders and abettors). See also United States v. Pino-Perez, 870 F.2d 1230, 1231 (7th Cir. 1989) to the same effect. The Eighth Circuit touched on the issue in a footnote in United States v. O'Connell, 841 F.2d 1408, 1425 n.9 (8th Cir. 1988), and assumed that an aiding and abetting instruction could be given in a CCE charge, but was not required to resolve that issue on appeal. The issue is discussed in a student article at 58 U. Chi. L. Rev. 391 (1991). The Committee takes no position on the recommendations contained in the article. The same issue may arise in conspiracy cases.

The elements of aiding and abetting are generally that the defendant must have 1) associated himself with the unlawful venture 2) participated in it as something he wished to bring about and 3) sought by his actions to make it succeed. See United States v. Lanier, 838 F.2d 281, 284 (8th Cir. 1988); United States v. Rodriguez, 812 F.2d 414, 416 (8th Cir. 1987); United States v. Sopczak, 742 F.2d 1119, 1121-22 (8th Cir. 1984); United States v. Brim, 630 F.2d 1307, 1311 (8th Cir. 1980); United States v. Hudson, 717 F.2d 1211, 1214 n.2 (8th Cir. 1983); Nye & Nissen v. United States, 336 U.S. 613, 619 (1949).

Association with the offense has been interpreted as meaning sharing in the state of mind of the principal. United States v. Roan Eagle, 867 F.2d at 445 n.15. Accordingly the instruction has provided for inserting the intent or knowledge required for the principal offense, if any particular state of mind is required. See Note 4, supra.

A person may be convicted of an offense on the theory of aiding and abetting even if the alleged principal has earlier been acquitted. Standefer v. United States, 447 U.S. 10 (1980).

In order to sustain the conviction of a defendant who has been charged as an aider and abettor, it is necessary that there be evidence showing an offense to have been committed by a principal and that the principal was aided or abetted by the accused, although it is not necessary that the principal be convicted or even that the identity of the principal be established.

Ray v. United States, 588 F.2d 601, 603-04 (8th Cir. 1978); Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969). See also United States v. Hudson, 717 F.2d at 1214.

There must be knowing participation in the activity. United States v. Roan Eagle, 867 F.2d at 445. See also United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991) for discussion of what must be known to aid and abet a violation of 18 USC 924(c).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

A person may [also]2 be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged,3 if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:4

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]5

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt that all of the elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

[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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way which advances some offense, does not thereby become an aider and abettor.]

Notes on Use

1. Unless the principal offense is also submitted to the jury, this instruction should be read together with the principal offense instruction as one instruction. The Burden of Proof language of No. 3.09 should be deleted and the Burden of Proof language from No. 5.01 used. If there is a self defense or entrapment defense, the appropriate language from No. 3.09 must be included. The instruction should look something like the following:

The crime of ________ as charged in the indictment, has ____ elements, which are:

One, ____________________________________________________________;

Two, _________________________________________________________; and

Etc., _____________________________________________________________.

A person may be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged, if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt all of the elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted that crime [and must further prove beyond a reasonable doubt that the defendant was not [entrapped] [acting in self defense], [acting in defense of _______] [as defined in Instruction No. _____]]; otherwise you must find the [that particular] defendant not guilty of this crime [under Count ____].

2. Use if the defendant's guilt on the principal offense is also being submitted to the jury.

5. If the principal offense requires a particular mental state, the aider and abettor must share in that mental state. United States v. Lard, 734 F.2d 1290, 1298 (8th Cir. 1984); Jarboe. The instruction must include that mental state. See United States v. Burkhalter, 583 F.2d 389, 391 (8th Cir. 1978) [knowledge that the item transferred was a firearm required, but knowledge that the principal was unlicensed was not required.] United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991).

Committee Comments

Section 2(a) applies to the entire Criminal Code. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984).

To be guilty of aiding and abetting is to be guilty as if one were a principal of the underlying offense. Aiding and abetting is not a separate crime but rather is linked to the underlying offense and shares the requisite intent of the offense.

A person may be convicted of an offense on the theory of aiding and abetting even if the alleged principal has earlier been acquitted. Standefer v. United States, 447 U.S. 10 (1980).

In order to sustain the conviction of a defendant who has been charged as an aider and abettor, it is necessary that there be evidence showing an offense to have been committed by a principal and that the principal was aided or abetted by the accused, although it is not necessary that the principal be convicted or even that the identity of the principal be established.

Ray v. United States, 588 F.2d 601, 603-04 (8th Cir. 1978); Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969). See also United States v. Hudson, 717 F.2d at 1214.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.01 AIDING & ABETTING1 (18 USC 2(a))

A person may [also]2 be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged,3 if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:4

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]5 For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt that all of the essential elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

[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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way which advances some offense, does not thereby become an aider and abettor.]

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 18.01 (4th ed. 1992); Fifth Circuit Pattern Jury Instructions: Criminal § 2.06 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.06 (1999); Ninth Cir. Crim. Jury Instr. 5.1 (1997); United States v. Roan Eagle, 867 F.2d 436 (8th Cir.), cert. denied, 490 U.S. 1028 (1989). See generally West Key # "Criminal Law" 59(5), 67, 814(19), 815(12), 823(16).

Section 2(a) applies to the entire Criminal Code. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984).

To be guilty of aiding and abetting is to be guilty as if one were a principal of the underlying offense. Aiding and abetting is not a separate crime but rather is linked to the underlying offense and shares the requisite intent of the offense.

United States v. Roan Eagle, 867 F.2d at 445. The appellate courts are divided as to whether accomplice liability applies to the continuing criminal enterprise (CCE) offense, 21 USC 848(a). United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987) (CCE offense cannot be aided and abetted. See also United States v. Benevento, 836 F.2d 60 (2d Cir. 1987). United States v. Ambrose, 740 F.2d 505, 508 (7th Cir. 1984) (CCE offense can be committed by aiders and abettors). See also United States v. Pino-Perez, 870 F.2d 1230, 1231 (7th Cir. 1989) to the same effect. The Eighth Circuit touched on the issue in a footnote in United States v. O'Connell, 841 F.2d 1408, 1425 n.9 (8th Cir. 1988) and assumed that an aiding and abetting instruction could be given in a CCE charge, but was not required to resolve that issue on appeal. The issue is discussed in a student article at 58 U. Chi. L. Rev. 391 (1991). The Committee takes no position on the recommendations contained in the article. The same issue may arise in conspiracy cases.

The elements of aiding and abetting are generally that the defendant must have 1) associated himself with the unlawful venture 2) participated in it as something he wished to bring about and 3) sought by his actions to make it succeed. See United States v. Lanier, 838 F.2d 281, 284 (8th Cir. 1988); United States v. Rodriguez, 812 F.2d 414, 416 (8th Cir. 1987); United States v. Sopczak, 742 F.2d 1119, 1121-22 (8th Cir. 1984); United States v. Brim, 630 F.2d 1307, 1311 (8th Cir. 1980), cert. denied, 452 U.S. 966 (1981); United States v. Hudson, 717 F.2d 1211, 1214 n.2 (8th Cir. 1983); Nye & Nissen v. United States, 336 U.S. 613, 619 (1949).

A person may be convicted of an offense on the theory of aiding and abetting even if the alleged principal has earlier been acquitted. Standefer v. United States, 447 U.S. 10 (1980).

In order to sustain the conviction of a defendant who has been charged as an aider and abettor, it is necessary that there be evidence showing an offense to have been committed by a principal and that the principal was aided or abetted by the accused, although it is not necessary that the principal be convicted or even that the identity of the principal be established.

Ray v. United States, 588 F.2d 601, 603-04 (8th Cir. 1978); Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969). See also United States v. Hudson, 717 F.2d at 1214.

There must be knowing participation in the activity. United States v. Roan Eagle, 867 F.2d at 445. See also United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991) for discussion of what must be known to aid and abet a violation of 18 USC 924(c).

Notes on Use

1. Unless the principal offense is also submitted to the jury, this instruction should be read together with the principal offense instruction as one instruction. The Burden of Proof language of No. 3.09 should be deleted and the Burden of Proof language from No. 5.01 used. If there is a self defense, coercion or entrapment defense, the appropriate language from No. 3.09 must be included. The instruction should look something like the following:

The crime of ________ as charged in the indictment, has ____ essential elements, which are:

One, ____________________________________________________________;

Two, _________________________________________________________; and

Etc., _____________________________________________________________.

A person may be found guilty of (insert principal offense) even if [he] [she] personally did not do every act constituting the offense charged, if [he] [she] aided and abetted the commission of (describe principal offense).

In order to have aided and abetted the commission of a crime a person must [, before or at the time the crime was committed,]:

(1) have known (describe principal offense) was being committed or going to be committed; [and]

(2) have knowingly acted in some way for the purpose of [causing] [encouraging] [aiding] the commission of (describe principal offense)[.] [; and]

[(3) have [intended] [known] (insert mental state required by principal offense).]

For you to find the defendant guilty of (insert principal offense) by reason of aiding and abetting, the Government must prove beyond a reasonable doubt all of the essential elements of (describe principal offense) were committed by some person or persons and that the defendant aided and abetted that crime [and must further prove beyond a reasonable doubt that defendant was not [entrapped] [coerced] [acting in self defense], [acting in defense of _______] [as defined in Instruction No. _____]]; otherwise you must find the [that particular] defendant not guilty of this crime [under Count ____].

2. Use if defendant's guilt on the principal offense is also being submitted to the jury.

4. Use only if there is a disputed issue with respect to whether the defendant acted before the crime was completed. This language has been repeatedly approved. See United States v. Jarboe, 513 F.2d 33, 36 (8th Cir.), cert. denied, 423 U.S. 849 (1975).

5. If the principal offense requires a particular mental state, the aider and abettor must share in that mental state. United States v. Lard, 734 F.2d 1290, 1298 (8th Cir. 1984); Jarboe. The instruction must include that mental state. See United States v. Burkhalter, 583 F.2d 389, 391 (8th Cir. 1978) [knowledge that the item transferred was a firearm required, but knowledge that the principal was unlicensed was not required.] United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.02 CAUSING AN OFFENSE TO BE COMMITTED
(18 USC 2(b))

(No definition of "causing" is provided. The Elements instruction should be modified to indicate that the defendant voluntarily and intentionally caused any acts he did not personally do.)¹

Notes on Use

1. Thus, for example, the elements of Mail Theft, Instruction 6.18.1708A, infra, would be modified as follows:

One, the letter was in the United States mail;

Two, the defendant voluntarily and intentionally caused John Doe to take the letter from the mail;

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the letter.

Note that the defendant must have the state of mind required by the principal offense. See United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978).

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.01 (5th ed. 2000). See generally West Key # "Criminal Law" 62.

Section 2(a) and 2(b) offenses may overlap.

Section 2(b) merely "removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality is guilty." The statute makes it "unnecessary that the intermediary who commits the forbidden act have a criminal intent." United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976).

United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978). See also United States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984).

A person who is legally incapable of committing an offense as a principal because he does not have the required status (e.g. a bank employee under 8 USC 656 can commit that offense by causing an intermediary who has such status to do the acts. United States v. Tobon-Builes, 706 F.2d 1092, 1099-1100 (11th Cir. 1983); United States v. Ruffin, 613 F.2d 408, 413-14 (2d Cir. 1979).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

(No definition of "causing" is provided. The Elements instruction should be modified to indicate that the defendant voluntarily and intentionally caused any acts he did not personally do.)¹

Notes on Use

1. Thus, for example, the elements of Mail Theft, Instruction 6.18.1708A, infra, would be modified as follows:

One, the letter was in the United States mail;

Two, the defendant voluntarily and intentionally caused John Doe to take the letter from the mail;

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the letter.

Note that the defendant must have the state of mind required by the principal offense. See United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978).

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.01 (5th ed. 2000). See generally West Key # "Criminal Law" 62.

Section 2(a) and 2(b) offenses may overlap.

Section 2(b) merely "removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality is guilty." The statute makes it "unnecessary that the intermediary who commits the forbidden act have a criminal intent." United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976).

United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978). See also United States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984).

A person who is legally incapable of committing an offense as a principal because he does not have the required status (e.g. a bank employee under 18 USC 656) can commit that offense by causing an intermediary who has such status to do the acts. United States v. Tobon-Builes, 706 F.2d 1092, 1099-1100 (11th Cir. 1983); United States v. Ruffin, 613 F.2d 408, 413-14 (2d Cir. 1979).

(For 2006 version see below)

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2006 Version

(No definition of "causing" is provided. The Elements instruction should be modified to indicate that the defendant voluntarily and intentionally caused any acts he did not personally do.)1

Notes on Use

1. Thus, for example, the elements of Mail Theft, Instruction 6.18.1708A, infra, would be modified as follows:

One, the letter was in the United States mail;

Two, the defendant voluntarily and intentionally caused John Doe to take the letter from the mail;

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the letter.

Note that the defendant must have the state of mind required by the principal offense. See United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978).

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.01 (5th ed. 2000). See generally West Key # "Criminal Law" 62.

Section 2(a) and 2(b) offenses may overlap.

Section 2(b) merely "removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality is guilty." The statute makes it "unnecessary that the intermediary who commits the forbidden act have a criminal intent." United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976).

United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978). See also United States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984).

For 2000 version see below

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2000 Version

5.02 CAUSING AN OFFENSE TO BE COMMITTED (18 USC 2(b))

(No definition of "causing" is provided. The Elements instruction should be modified to indicate that defendant voluntarily and intentionally caused any acts he did not personally do.)1

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 18.01 (4th ed. 1992). See generally West Key # "Criminal Law" 62.

Section 2(a) and 2(b) offenses may overlap.

Section 2(b) merely "removes all doubt that one who puts in motion or assists in the illegal enterprise or causes the commission of an indispensable element of the offense by an innocent agent or instrumentality is guilty." The statute makes it "unnecessary that the intermediary who commits the forbidden act have a criminal intent." United States v. Rapoport, 545 F.2d 802, 806 (2d Cir. 1976).

United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978). See also United States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984), cert. denied, 469 U.S. 1220 (1985).

Notes on Use

1. Thus, for example, the elements of Mail Theft, No. 6.18.1708A, infra, would be modified as follows:

One, the letter was in the United States mail;

Two, the defendant voluntarily and intentionally caused John Doe to take the letter from the mail;

Three, in so doing the defendant intended to deprive the addressee temporarily or permanently of the letter.

Note that the defendant must have the state of mind required by the principal offense. See United States v. Rucker, 586 F.2d 899, 905 (2d Cir. 1978).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.03 CORPORATE RESPONSIBILITY

FORECITE National™ Materials Related To This Instruction:

69.1 Personal Responsibility Of Corporate Agent

Defendant[s] (insert name[s]) [is] [are] [a] corporation[s]. A corporation may be found guilty of a criminal offense.

A corporation can act only through its agents -- that is, its directors, officers, employees, and other persons authorized to act for it.

To find a corporate defendant guilty you must find beyond a reasonable doubt that:

One, each element of the crime charged against the corporation was committed by one or more of its agents; and

Two, in committing those acts the agent[s] intended, at least in part, to benefit the corporation; and

Three, each act was within the scope of employment of the agent who committed it.

For an act to be within the scope of an agent's employment it must relate directly to the performance of the agent's general duties for the corporation. It is not necessary that the act itself have been authorized by the corporation.

If an agent was acting within the scope of his employment, the fact that the agent's act was illegal, contrary to his employer's instructions or against the corporation's policies will not relieve the corporation of responsibility for it.

[You may, however, consider the existence of corporate policies and instructions and the diligence of efforts to enforce them in determining whether the agent was acting with intent to benefit the corporation or within the scope of his employment.]¹

[If you find that an act of an agent was not committed within the scope of the agent's employment or with intent to benefit the corporation, then you must consider whether the corporation later approved the act. An act is approved if, after it is performed, another agent of the corporation, having full knowledge of the act and acting within the scope of his employment and with the intent to benefit the corporation, approves the act by his words or conduct. A corporation is responsible for any act or omission approved by its agents.]²

Notes on Use

1. This bracketed paragraph should only be given if there is evidence of such instructions or policies and enforcement efforts. As noted in the comments below, the Committee does not believe that current case law supports an instruction stating that any act of a corporate agent in violation of corporate rules or policies is outside the scope of employment.

2. This bracketed paragraph should be given only if there is evidence of ratification. "Ratification is an express or implied adoption or confirmation, with knowledge of all material matters by one person of an act performed in his behalf by another who at that time assumed to act as his agent but lacked authority to do so." Federal Enterprises v. Greyhound Leasing & Fin., 849 F.2d 1059, 1062 n.5 (8th Cir. 1988), quoting Missouri cases.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.05 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal §§ 5.03, 5.04 (1999); Ninth Cir. Crim. Jury Instr. 3.19 (formerly 3.17 (1997)); see also "Corporate Crime: Regulating Corporate Behavior through Criminal Sanctions," 92 Harv. L. Rev. 1227, 1247 (1979). See generally West Key # "Corporations" 526.

"Generally a corporation is responsible for the criminal acts of its officers, agents and employees committed within the scope of their employment and for the benefit of the corporation." United States v. Richmond, 700 F.2d 1183, 1195 n.7 (8th Cir. 1983) (citing United States v. Cincotta, 689 F.2d 238 (1st Cir. 1982), and United States v. Demauro, 581 F.2d 50, 53 (2d Cir. 1978)). See also New York Central & H. R.R. v. United States, 212 U.S. 481, 493-95 (1909); Egan v. United States, 137 F.2d 369, 379 (8th Cir. 1943); United States v. Beusch, 596 F.2d 871, 877-78 (9th Cir. 1979), and United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004-07 (9th Cir. 1972).

"Scope of employment" is not confined to its strict agency definition, but applies to acts directly related to the performance of duties which the officer or agent has the broad authority to perform. Continental Baking Company v. United States, 281 F.2d 137, 149-50 (6th Cir. 1960); United States v. Carter, 311 F.2d 934, 941-42 (6th Cir. 1963); United States v. Koppers Co., Inc., 652 F.2d 290, 298 (2d Cir. 1981). It includes acts on the corporation's behalf in performance of the agent's general line of work. United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 407 (4th Cir. 1985); United States v. Armour & Co., 168 F.2d 342, 344 (3d Cir. 1948); Hilton Hotels, 467 F.2d at 1004. "Thus, scope of employment in practice means little more than that the act occurred while the offending employee was carrying out a job-related activity." 92 Harv. L. Rev., supra, at 1250. See Egan, 137 F.2d at 379-80, for an application of this definition.

Some courts in criminal cases have attempted to define "scope of employment" in terms of "actual" and "apparent" authority. See, e.g., Continental Baking, 281 F.2d at 150-51; United States v. American Radiator and Standard Sanitary Corp., 433 F.2d 174, 204-05 (3d Cir. 1970); United States v. Basic Const. Co., 711 F.2d 570, 572-73 (4th Cir. 1983); United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 737-38 (5th Cir. 1984); Seventh Circuit Federal Jury Instructions: Criminal § 5.03 (1999). "Actual" authority is broken down into "express" and "implied" authority. However, as Continental Baking points out, these concepts and their definitions are most helpful and relevant in deciding certain contract and tort questions in civil cases and do not properly address the true basis for criminal liability. 281 F.2d at 149-50. See also United States v. Carter, 311 F.2d at 941-42. In criminal cases, analyzing "scope of employment" in terms of "authority" collides with the rule that the corporation can be liable "without proof that the conduct was within the agent's actual authority, and even though it may have been contrary to express instructions." United States v. Hilton Hotels Corporation, 467 F.2d at 1004.

Intent to benefit the corporation is treated as a separate element in this instruction. It is sometimes treated as part of the definition of "scope of employment." See United States v. Automated Medical Laboratories, Inc., 770 F.2d at 407.

If the act is done within the course of employment and with intent to benefit the corporation, the corporation is criminally liable even if the act was unlawful, Egan, 137 F.2d at 379; United States v. American Radiator and Standard Sanitary Corp., 433 F.2d at 204-05; United States v. Automated Medical Laboratories, Inc., 770 F.2d at 407, or was done contrary to instructions or policies. Egan, id.; American Radiator, id.; Automated Medical Laboratories, Inc., id.; Hilton Hotels, 467 F.2d at 1044; United States v. Beusch, 596 F.2d at 877; United States v. Harvey L. Young & Sons, Inc., 464 F.2d 1295, 1297 (10th Cir. 1972). Cf. 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.05 (5th ed. 2000), which includes a statement that a corporate agent is not acting within the scope of his employment when he performs an act which the corporation has forbidden. The Committee does not believe this portion of No. 18.05 is supported by current case law.

The jury may, however, consider the existence of such policies or instructions in determining whether the agent was acting for the benefit of the corporation. United States v. Beusch, 596 F.2d at 878; United States v. Basic Const. Co., 711 F.2d at 573. The fact that an employee did not follow instructions "may be a factor militating against corporate criminal responsibility but rises no higher." United States v. Harvey L. Young & Sons, Inc., 464 F.2d at 1297. Merely stating or publishing such instructions and policies without diligently enforcing them is not enough to place the acts of an agent who violates them outside the scope of his employment. Beusch, 596 F.2d at 878.

The agent need only intend in part to benefit the corporation. He may also intend to benefit himself. United States v. Gold, 743 F.2d 800, 823 (11th Cir. 1984); United States v. Automated Medical Laboratories, Inc., 770 F.2d at 407. It is not necessary that the actions have actually benefitted the corporation. Id.; United States v. Carter, 311 F.2d at 942. However, there is no corporate liability where the agent acts solely for his personal gain, directly contrary to the interests of the corporation. Standard Oil Company of Texas v. United States, 307 F.2d 120 (5th Cir. 1962).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

Defendant[s] (insert name[s]) [is] [are] [a] corporation[s]. A corporation may be found guilty of a criminal offense.

A corporation can act only through its agents -- that is, its directors, officers, employees, and other persons authorized to act for it.

To find a corporate defendant guilty you must find beyond a reasonable doubt that:

One, each element of the crime charged against the corporation was committed by one or more of its agents; and

Two, in committing those acts the agent[s] intended, at least in part, to benefit the corporation; and

Three, each act was within the scope of employment of the agent who committed it.

For an act to be within the scope of an agent's employment it must relate directly to the performance of the agent's general duties for the corporation. It is not necessary that the act itself have been authorized by the corporation.

If an agent was acting within the scope of his employment, the fact that the agent's act was illegal, contrary to his employer's instructions or against the corporation's policies will not relieve the corporation of responsibility for it.

[You may, however, consider the existence of corporate policies and instructions and the diligence of efforts to enforce them in determining whether the agent was acting with intent to benefit the corporation or within the scope of his employment.]¹

[If you find that an act of an agent was not committed within the scope of the agent's employment or with intent to benefit the corporation, then you must consider whether the corporation later approved the act. An act is approved if, after it is performed, another agent of the corporation, having full knowledge of the act and acting within the scope of his employment and with the intent to benefit the corporation, approves the act by his words or conduct. A corporation is responsible for any act or omission approved by its agents.]²

Notes on Use

1. This bracketed paragraph should only be given if there is evidence of such instructions or policies and enforcement efforts. As noted in the comments above, the Committee does not believe that current case law supports an instruction stating that any act of a corporate agent in violation of corporate rules or policies is outside the scope of employment.

2. This bracketed paragraph should only be given if there is evidence of ratification. "Ratification is an express or implied adoption or confirmation, with knowledge of all material matters by one person of an act performed in his behalf by another who at that time assumed to act as his agent but lacked authority to do so." Federal Enterprises v. Greyhound Leasing & Fin., 849 F.2d 1059, 1062 n.5 (8th Cir. 1988), quoting Missouri cases.

Committee Comments

"Generally a corporation is responsible for the criminal acts of its officers, agents and employees committed within the scope of their employment and for the benefit of the corporation." United States v. Richmond, 700 F.2d 1183, 1195 n.7 (8th Cir. 1983) (citing United States v. Cincotta, 689 F.2d 238 (1st Cir. 1982) and United States v. Demauro, 581 F.2d 50, 53 (2d Cir. 1978)). See also New York Central & H. R.R. v. United States, 212 U.S. 481, 493-95 (1909); Egan v. United States, 137 F.2d 369, 379 (8th Cir. 1943); United States v. Beusch, 596 F.2d 871, 877-78 (9th Cir. 1979) and United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004-07 (9th Cir. 1972).

Some courts in criminal cases have attempted to define "scope of employment" in terms of "actual" and "apparent" authority. See, e.g., Continental Baking, 281 F.2d at 150-51; United States v. American Radiator and Standard Sanitary Corp., 433 F.2d 174, 204-05 (3d Cir. 1970); United States v. Basic Const. Co., 711 F.2d 570, 572-73 (4th Cir. 1983); United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 737-38 (5th Cir. 1984); Seventh Circuit Federal Jury Instructions: Criminal § 5.03 (1999). "Actual" authority is broken down into "express" and "implied" authority. However, as Continental Baking points out, these concepts and their definitions are most helpful and relevant in deciding certain contract and tort questions in civil cases and do not properly address the true basis for criminal liability. 281 F.2d at 149-50. See also United States v. Carter, 311 F.2d at 941-42. In criminal cases analyzing "scope of employment" in terms of "authority" collides with the rule that the corporation can be liable "without proof that the conduct was within the agent's actual authority, and even though it may have been contrary to express instructions." United States v. Hilton Hotels Corporation, 467 F.2d at 1004.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

Defendant[s] (insert name[s]) [is] [are] [a] corporation[s]. A corporation may be found guilty of a criminal offense.

A corporation can act only through its agents -- that is, its directors, officers, employees, and other persons authorized to act for it.

To find a corporate defendant guilty you must find beyond a reasonable doubt that:

One, each element of the crime charged against the corporation was committed by one or more of its agents; and

Two, in committing those acts the agent[s] intended, at least in part, to benefit the corporation; and

Three, each act was within the scope of employment of the agent who committed it.

For an act to be within the scope of an agent's employment it must relate directly to the performance of the agent's general duties for the corporation. It is not necessary that the act itself have been authorized by the corporation.

If an agent was acting within the scope of his employment, the fact that the agent's act was illegal, contrary to his employer's instructions or against the corporation's policies will not relieve the corporation of responsibility for it.

[You may, however, consider the existence of corporate policies and instructions and the diligence of efforts to enforce them in determining whether the agent was acting with intent to benefit the corporation or within the scope of his employment.]1

[If you find that an act of an agent was not committed within the scope of the agent's employment or with intent to benefit the corporation, then you must consider whether the corporation later approved the act. An act is approved if, after it is performed, another agent of the corporation, having full knowledge of the act and acting within the scope of his employment and with the intent to benefit the corporation, approves the act by his words or conduct. A corporation is responsible for any act or omission approved by its agents.]2

Notes on Use

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 18.05 (5th ed. 2000); Seventh Circuit Federal Jury Instructions: Criminal §§ 5.03, 5.04 (1999); Ninth Cir. Crim. Jury Instr. 3.19 (1997); see also "Corporate Crime: Regulating Corporate Behavior through Criminal Sanctions," 92 Harv. L. Rev. 1227, 1247 (1979). See generally West Key # "Corporations" 526.

"Generally a corporation is responsible for the criminal acts of its officers, agents and employees committed within the scope of their employment and for the benefit of the corporation." United States v. Richmond, 700 F.2d 1183, 1195 n.7 (8th Cir. 1983) (citing United States v. Cincotta, 689 F.2d 238 (1st Cir. 1982) and United States v. Demauro, 581 F.2d 50, 53 (2d Cir. 1978)). See also New York Central & H. R.R. v. United States, 212 U.S. 481, 493-95 (1909); Egan v. United States, 137 F.2d 369, 379 (8th Cir. 1943); United States v. Beusch, 596 F.2d 871, 877-78 (9th Cir. 1979) and United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004-07 (9th Cir. 1972).

Some courts in criminal cases have attempted to define "scope of employment" in terms of "actual" and "apparent" authority. See, e.g., Continental Baking, 281 F.2d at 150-51; United States v. American Radiator and Standard Sanitary Corp., 433 F.2d 174, 204-05 (3d Cir. 1970); United States v. Basic Const. Co., 711 F.2d 570, 572-73 (4th Cir. 1983); United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 737-38 (5th Cir. 1984); Seventh Circuit Federal Jury Instructions: Criminal § 5.03 (1999). "Actual" authority is broken down into "express" and "implied" authority. However, as Continental Baking points out, these concepts and their definitions are most helpful and relevant in deciding certain contract and tort questions in civil cases and do not properly address the true basis for criminal liability. 281 F.2d at 149-50. See also United States v. Carter, 311 F.2d at 941-42. In criminal cases analyzing "scope of employment" in terms of "authority" collides with the rule that the corporation can be liable "without proof that the conduct was within the agent's actual authority, and even though it may have been contrary to express instructions." United States v. Hilton Hotels Corporation, 467 F.2d at 1004.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.03 CORPORATE RESPONSIBILITY

Defendant[s] (insert name[s]) [is] [are] [a] corporation[s]. A corporation may be found guilty of a criminal offense.

A corporation can act only through its agents -- that is, its directors, officers, employees, and other persons authorized to act for it.

To find a corporate defendant guilty you must find beyond a reasonable doubt that:

One, each essential element of the crime charged against the corporation was committed by one or more of its agents; and

Two, in committing those acts the agent[s] intended, at least in part, to benefit the corporation; and

Three, each act was within the scope of employment of the agent who committed it.

For an act to be within the scope of an agent's employment it must relate directly to the performance of the agent's general duties for the corporation. It is not necessary that the act itself have been authorized by the corporation.

If an agent was acting within the scope of his employment, the fact that the agent's act was illegal, contrary to his employer's instructions or against the corporation's policies will not relieve the corporation of responsibility for it.

[You may, however, consider the existence of corporate policies and instructions and the diligence of efforts to enforce them in determining whether the agent was acting with intent to benefit the corporation or within the scope of his employment.]1

[If you find that an act of an agent was not committed within the scope of the agent's employment or with intent to benefit the corporation, then you must consider whether the corporation later approved the act. An act is approved if, after it is performed, another agent of the corporation, having full knowledge of the act and acting within the scope of his employment and with the intent to benefit the corporation, approves the act by his words or conduct. A corporation is responsible for any act or omission approved by its agents.]2

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 12.08 (4th ed. 1992); Seventh Circuit Federal Jury Instructions: Criminal §§ 5.03, 5.04 (1999); Ninth Cir. Crim. Jury Instr. 3.17 (1997); see also "Corporate Crime: Regulating Corporate Behavior through Criminal Sanctions," 92 Harv. L. Rev. 1227, 1247 (1979). See generally West Key # "Corporations" 526.

"Generally a corporation is responsible for the criminal acts of its officers, agents and employees committed within the scope of their employment and for the benefit of the corporation." United States v. Richmond, 700 F.2d 1183, 1195 n.7 (8th Cir. 1983) (citing United States v. Cincotta, 689 F.2d 238 (1st Cir.), cert. denied, 459 U.S. 991 (1982) and United States v. Demauro, 581 F.2d 50, 53 (2d Cir. 1978)). See also New York Central & H. R.R. v. United States, 212 U.S. 481, 493-95 (1909); Egan v. United States, 137 F.2d 369, 379 (8th Cir.), cert. denied, 320 U.S. 788 (1943); United States v. Beusch, 596 F.2d 871, 877-78 (9th Cir. 1979) and United States v. Hilton Hotels Corporation, 467 F.2d 1000, 1004-07 (9th Cir. 1972), cert. denied, 409 U.S. 1125 (1973).

"Scope of employment" is not confined to its strict agency definition, but applies to acts directly related to the performance of duties which the officer or agent has the broad authority to perform. Continental Baking Company v. United States, 281 F.2d 137, 149-150 (6th Cir. 1960); United States v. Carter, 311 F.2d 934, 941-42 (6th Cir.), cert. denied, 373 U.S. 915 (1963); United States v. Koppers Co., Inc., 652 F.2d 290, 298 (2d Cir.), cert. denied, 454 U.S. 1083 (1981). It includes acts on the corporation's behalf in performance of the agent's general line of work. United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 407 (4th Cir. 1985); United States v. Armour & Co., 168 F.2d 342, 344 (3d Cir. 1948); Hilton Hotels, 467 F.2d at 1004. "Thus, scope of employment in practice means little more than that the act occurred while the offending employee was carrying out a job-related activity." 92 Harv. L. Rev., supra, at 1250. See Egan, 137 F.2d at 379-380 for an application of this definition.

Some courts in criminal cases have attempted to define "scope of employment" in terms of "actual" and "apparent" authority. See, e.g., Continental Baking, 281 F.2d at 150-51; United States v. American Radiator and Standard Sanitary Corp., 433 F.2d 174, 204-05 (3d Cir. 1970), cert. denied, 401 U.S. 948 (1971); United States v. Basic Const. Co., 711 F.2d 570, 572-73 (4th Cir.), cert. denied, 464 U.S. 956 (1983); United States v. Bi-Co Pavers, Inc., 741 F.2d 730, 737-38 (5th Cir. 1984); Seventh Circuit Federal Jury Instructions: Criminal § 5.03 (1999). "Actual" authority is broken down into "express" and "implied" authority. However, as Continental Baking points out, these concepts and their definitions are most helpful and relevant in deciding certain contract and tort questions in civil cases and do not properly address the true basis for criminal liability. 281 F.2d at 149-150. See also United States v. Carter, 311 F.2d at 941-42. In criminal cases analyzing "scope of employment" in terms of "authority" collides with the rule that the corporation can be liable "without proof that the conduct was within the agent's actual authority, and even though it may have been contrary to express instructions." United States v. Hilton Hotels Corporation, 467 F.2d at 1004.

If the act is done within the course of employment and with intent to benefit the corporation, the corporation is criminally liable even if the act was unlawful, Egan, 137 F.2d at 379; United States v. American Radiator and Standard Sanitary Corp., 433 F.2d at 204-05; United States v. Automated Medical Laboratories, Inc., 770 F.2d at 407, or was done contrary to instructions or policies. Egan, id.; American Radiator, id.; Automated Medical Laboratories, Inc., id.; Hilton Hotels, 467 F.2d at 1044; United States v. Beusch, 596 F.2d at 877; United States v. Harvey L. Young & Sons, Inc., 464 F.2d 1295, 1297 (10th Cir. 1972). Cf. 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 18.05 (4th ed. 1992), which includes a statement that a corporate agent is not acting within the scope of his employment when he performs an act which the corporation has forbidden. The Committee does not believe this portion of No. 18.05 is supported by current case law.

The agent need only intend in part to benefit the corporation. He may also intend to benefit himself. United States v. Gold, 743 F.2d 800, 823 (11th Cir. 1984), cert. denied, 469 U.S. 1217 (1985); United States v. Automated Medical Laboratories, Inc., 770 F.2d at 407. It is not necessary that the actions have actually benefitted the corporation. Id.; United States v. Carter, 311 F.2d at 942. However, there is no corporate liability where the agent acts solely for his personal gain, directly contrary to the interests of the corporation. Standard Oil Company of Texas v. United States, 307 F.2d 120 (5th Cir. 1962).

Notes on Use

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.04 PERSONAL RESPONSIBILITY OF CORPORATE AGENT

A person is responsible for acts which [he] [she] performs, or causes to be performed, on behalf of a corporation, just as [he] [she] is responsible for acts performed on [his] [her] own behalf. This is so even if [he] [she] acted on instructions of a superior. [But a person is not responsible for the acts performed by other people on behalf of a corporation, even if those persons are officers, employees or other agents of the corporation.]¹

Notes on Use

1. Do not use the last sentence if a conspiracy involving other corporate employees or agents is charged.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 5.02 (1999). See generally West Key # "Criminal Law" 58.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

A person is responsible for acts which [he] [she] performs, or causes to be performed, on behalf of a corporation, just as [he] [she] is responsible for acts performed on [his] [her] own behalf. This is so even if [he] [she] acted on instructions of a superior. [But a person is not responsible for the acts performed by other people on behalf of a corporation, even if those persons are officers, employees or other agents of the corporation.]¹

Notes on Use

1. Do not use the last sentence if a conspiracy involving other corporate employees or agents is charged.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 5.02 (1999). See generally West Key # "Criminal Law" 58.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

A person is responsible for acts which [he] [she] performs, or causes to be performed, on behalf of a corporation, just as [he] [she] is responsible for acts performed on [his] [her] own behalf. This is so even if [he] [she] acted on instructions of a superior. [But a person is not responsible for the acts performed by other people on behalf of a corporation, even if those persons are officers, employees or other agents of the corporation.]1

Notes on Use

1. Do not use the last sentence if a conspiracy involving other corporate employees or agents is charged.

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 5.02 (1999). See generally West Key # "Criminal Law" 58.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.04 PERSONAL RESPONSIBILITY OF CORPORATE AGENT

A person is responsible for acts which [he] [she] performs, or causes to be performed, on behalf of a corporation, just as [he] [she] is responsible for acts performed on [his] [her] own behalf. This is so even if [he] [she] acted on instructions of a superior. [But a person is not responsible for the acts performed by other people on behalf of a corporation, even if those persons are officers, employees or other agents of the corporation.]1

Committee Comments

See Seventh Circuit Federal Jury Instructions: Criminal § 5.02 (1999). See generally West Key # "Criminal Law" 58.

Notes on Use

1. Do not use the last sentence if a conspiracy involving other corporate employees or agents is charged.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.05 ACCESSORY AFTER THE FACT
(18 USC 3)

FORECITE National™ Materials Related To This Instruction:

Chapter 68: Accessory After The Fact

As I told you, the crime charged in [Count __] [this case] is being an accessory after the fact to (describe principal offense, e.g., the kidnaping of Jane Doe.) A defendant may be found guilty of being an accessory after the fact even though [he] [she] did not personally commit the crime of (describe principal offense).

The crime of being an accessory after the fact, as charged in [Count __ of] the indictment, has three elements, which are:

One, (name[s] of principal[s]) had committed the offense of (describe principal offense).¹

Two, the defendant knew that (name[s] of principal[s]) had committed the offense of (describe principal offense); and

Three, after the crime of (describe principal offense) had been committed by (name[s] of principal[s]), the defendant helped² [him] [her] [them], in order to prevent [his] [her] [their] arrest, trial or punishment.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

To assist you in determining whether the crime of (describe offense) was committed by some other person or persons, as required by Element One above, you are advised that the elements of (describe offense) are as follows:³

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

Notes on Use

1. This must be a federal offense.

2. The language of the statute is "receives, relieves, comforts or assists."

3. List the elements of the offense to which the defendant is alleged to have been an accessory after the fact. See Instruction 3.09, supra, and Section 6, infra.

Committee Comments

See 1A Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 22.03 (5th ed. 2000) ; Seventh Circuit Federal Jury Instructions: Criminal § 5.07 (1999); Ninth Cir. Crim. Jury Instr. 5.2 (1997); United States v. Bissonette, 586 F.2d 73, 76 (8th Cir. 1978). See generally West Key # "Criminal Law" 74-77, 79-80, 82, 814(19), 815(12), 823(16).

An accessory after the fact is one who, knowing that a substantive offense has been committed by another, receives, relieves, comforts or assists the principal in order to hinder or delay the principal's apprehension, trial or punishment. Skelly v. United States, 76 F.2d 483, 487 (10th Cir. 1935).

Knowledge is an element for being an accessory after the fact under 18 USC 3 (1976). Knowledge requires knowing that an offense has been committed, but it does not require knowledge that a warrant has been issued. United States v. Bissonette, 586 F.2d at 76. (Knowledge of the issuance of a warrant is required where the charge is harboring a fugitive under 18 USC 1071. Id. at 77; United States v. Udey, 748 F.2d 1231 (8th Cir. 1984).) Knowledge may be inferred from circumstantial evidence. Bissonette, 586 F.2d at 76.

Assistance given to the offender must be after the fact because if it was given before or during the commission of the offense, the person assisting would be an aider and abettor. United States v. Balano, 618 F.2d 624, 631 (10th Cir. 1979); United States v. Barlow, 470 F.2d 1245, 1253 (D.C. Cir. 1972).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

As I told you, the crime charged in [Count __] [this case] is being an accessory after the fact to (describe principal offense, e.g., the kidnaping of Jane Doe.) A defendant may be found guilty of being an accessory after the fact even though [he] [she] did not personally commit the crime of (describe principal offense).

The crime of being an accessory after the fact, as charged in [Count __ of] the indictment, has three elements, which are:

One, (name[s] of principal[s]) had committed the offense of (describe principal offense).¹

Two, the defendant knew that (name[s] of principal[s]) had committed the offense of (describe principal offense); and

Three, after the crime of (describe principal offense) had been committed by (name[s] of principal[s]), the defendant helped² [him] [her] [them], in order to prevent [his] [her] [their] arrest, trial or punishment.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

To assist you in determining whether the crime of (describe offense) was committed by some other person or persons, as required by Element One above, you are advised that the elements of (describe offense) are as follows:³

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

Notes on Use

1. This must be a federal offense.

2. The language of the statute is "receives, relieves, comforts or assists."

3. List the elements of the offense to which the defendant is alleged to have been an accessory after the fact. See Instruction 3.09, supra, and Section 6, infra.

Committee Comments

Knowledge is an element for being an accessory after the fact under 18 USC 3 (1976). Knowledge requires knowing that an offense has been committed, but it does not require knowledge that a warrant has been issued. United States v. Bissonette, 586 F.2d at 76. (Knowledge of the issuance of a warrant is required where the charge is harboring a fugitive under 18 USC 1071; Id. at 77; United States v. Udey, 748 F.2d 1231 (8th Cir. 1984).) Knowledge may be inferred from circumstantial evidence. Bissonette, 586 F.2d at 76.

Assistance given to the offender must be after the fact, because if it was given before or during the commission of the offense the person assisting would be an aider and abettor. United States v. Balano, 618 F.2d 624, 631 (10th Cir. 1979); United States v. Barlow, 470 F.2d 1245, 1253 (D.C. Cir. 1972).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

As I told you, the crime charged in [Count __] [this case] is being an accessory after the fact to (describe principal offense, e.g., the kidnaping of Jane Doe.) A defendant may be found guilty of being an accessory after the fact even though [he] [she] did not personally commit the crime of (describe principal offense).

The crime of being an accessory after the fact, as charged in [Count __ of] the indictment, has three elements, which are:

One, (name[s] of principal[s]) had committed the offense of (describe principal offense).1

Two, the defendant knew that (name[s] of principal[s]) had committed the offense of (describe principal offense); and

Three, after the crime of (describe principal offense) had been committed by (name[s] of principal[s]), the defendant helped2 [him] [her] [them], in order to prevent [his] [her] [their] arrest, trial or punishment.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

To assist you in determining whether the crime of (describe offense) was committed by some other person or persons, as required by Element One above, you are advised that the elements of (describe offense) are as follows:3

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

Notes on Use

1. This must be a federal offense.

2. The language of the statute is "receives, relieves, comforts or assists."

3. List the elements of the offense to which the defendant is alleged to have been an accessory after the fact. See Instruction 3.09, supra, and Section 6, infra.

Committee Comments

Knowledge is an element for being an accessory after the fact under 18 USC 3 (1976). Knowledge requires knowing that an offense has been committed, but it does not require knowledge that a warrant has been issued. United States v. Bissonette, 586 F.2d at 76. (Knowledge of the issuance of a warrant is required where the charge is harboring a fugitive under 18 USC 1071; Id. at 77; United States v. Udey, 748 F.2d 1231 (8th Cir. 1984).) Knowledge may be inferred from circumstantial evidence. Bissonette, 586 F.2d at 76.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.05 ACCESSORY AFTER THE FACT (18 USC 3)

As I told you, the crime charged in [Count __] [this case] is being an accessory after the fact to (describe principal offense, e.g., the kidnaping of Jane Doe.) A defendant may be found guilty of being an accessory after the fact even though [he] [she] did not personally commit the crime of (describe principal offense).

The crime of being an accessory after the fact, as charged in [Count __ of] the indictment, has three essential elements, which are:

One, (name[s] of principal[s]) had committed the offense of (describe principal offense).1

Two, the defendant knew that (name of principal) had committed the offense of (describe principal offense); and

Three, after the crime of (describe principal offense) had been committed by (name[s] of principal[s]), the defendant helped2 [him] [her] [them], in order to prevent [his] [her] [their] arrest, trial or punishment.

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

To assist you in determining whether the crime of (describe offense) was committed by some other person or persons, as required by Element One above, you are advised that the elements of (describe offense) are as follows:3

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., __________________________________________________________________.

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 22.03, 22.04 (4th ed. 1990); Seventh Circuit Federal Jury Instructions: Criminal § 5.07 (1999); Ninth Cir. Crim. Jury Instr. 5.2 (1997); United States v. Bissonette, 586 F.2d 73, 76 (8th Cir. 1978). See generally West Key # "Criminal Law" 74-77, 79-80, 82, 814(19), 815(12), 823(16).

Knowledge is an essential element for being an accessory after the fact under 18 USC 3 (1976). Knowledge requires knowing that an offense has been committed, but it does not require knowledge that a warrant has been issued. United States v. Bissonette, 586 F.2d at 76. (Knowledge of the issuance of a warrant is required where the charge is harboring a fugitive under 18 USC 1071; Id. at 77; United States v. Udey, 748 F.2d 1231 (8th Cir. 1984), cert. denied, 472 U.S. 1017 (1985).) Knowledge may be inferred from circumstantial evidence. Bissonette, 586 F.2d at 76.

Notes on Use

1. This must be a federal offense.

2. The language of the statute is "receives, relieves, comforts or assists."

3. List the essential elements of the offense to which the defendant is alleged to have been an accessory after the fact. See No. 3.09, supra, and Section 6, infra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06A CONSPIRACY: ELEMENTS
(18 USC 371)

The crime of conspiracy¹ as charged in [Count __ of] the indictment, has four² elements, which are:

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding [to (insert offense, e.g., transport stolen property across state lines)] [to defraud the United States by (describe means, e.g., impeding, impairing, obstructing and defeating the lawful governmental functions of the Internal Revenue Service in the ascertainment, computation, assessment and collection of income taxes)];

Two, the defendant voluntarily and intentionally 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;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more of the following acts: (list overt acts for which there is sufficient evidence³) for the purpose of carrying out or carrying forward the agreement or understanding.

(Insert paragraph describing Government’s burden of proof, see Instruction 3.09, supra.)

Notes on Use

1. The general conspiracy statute is 18 USC 371. At least 24 other conspiracy statutes are found in Titles 15, 18 and 21.

2. Conspiracies charged under 18 USC 371 require an overt act which is covered in Element Four. An overt act is not required in conspiracies charged under 15 USC 1, 18 USC 241, 286, 384 and 1951 and 21 USC 846. When one of these conspiracies is charged, Element Four should be omitted. See Instruction 6.21.846A; United States v. Shabani, 513 U.S. 10 (1994) (21 USC 846 does not require proof of an overt act).

3. The government may prove uncharged overt acts to satisfy this element. United States v. Sellers, 603 F.2d 53 (8th Cir. 1979), vacated, 447 U.S. 932 (1980), aff'd in relevant part, 628 F.2d 1085 (8th Cir. 1980).

Committee Comments

See 1A and 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 18.02, 31.01-.11 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.08 (1999); Ninth Cir. Crim. Jury Instr. 8.5.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); see also United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Brown, 584 F.2d 252, 260 (8th Cir. 1978). See generally West Key # "Conspiracy" .23.

"The offense of conspiracy consists of an agreement between [two or more persons] to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir. 1985); United States v. Brown, 604 F.2d 557, 560 (8th Cir. 1979) (citing United States v. Skillman, 442 F.2d 542, 547 (8th Cir. 1971), and United States v. Jackson, 549 F.2d 517, 530 (8th Cir. 1977)).

A single defendant can be indicted and convicted of conspiracy, provided that an unlawful agreement with others is proved, Kitchell v. United States, 354 F.2d 715, 720 n.8 (1st Cir. 1966), although if the other conspirator(s) have actually been acquitted of that conspiracy there can be no conviction of the sole remaining alleged conspirator. United States v. Peterson, 488 F.2d 645 (5th Cir. 1974). In an instance where all other named conspirators have been acquitted, but there is evidence that the conspiracy involved other, unnamed conspirators, conviction of the sole remaining named conspirator is permissible. United States v. Allen, 613 F.2d 1248 (3d Cir. 1980); United States v. Artuso, 618 F.2d 192 (2d Cir. 1980).

One who joins an existing conspiracy is guilty of conspiracy and adopts the prior acts of the other conspirators. United States v. Green, 600 F.2d 154 (8th Cir. 1979); United States v. Lemm, 680 F.2d 1193, 1204 (8th Cir. 1982). A new conspiracy is not created each time a new member joins, or an old member quits, an existing conspiracy. United States v. Burchinal, 657 F.2d 985, 990 (8th Cir. 1981); United States v. Heater, 689 F.2d 783, 788 (8th Cir. 1982). A defendant must know of the existence of the conspiracy. Without such knowledge he cannot be guilty even if his acts furthered the conspiracy. United States v. Falcone, 311 U.S. 205, 210 (1940).

Proof of association or acquaintanceship alone is not enough to establish a conspiracy; however, it has a sufficient bearing on the issue to make it admissible. United States v. Apker, 705 F.2d 293, 298 (8th Cir. 1983); United States v. Brown, 584 F.2d at 259-60.

The government need show that only one of the conspirators engaged in one overt act in furtherance of the conspiracy. United States v. Hermes, 847 F.2d 493, 495 (8th Cir. 1988).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The crime of conspiracy¹ as charged in [Count __ of] the indictment, has four² elements, which are:

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding [to (insert offense, e.g., transport stolen property across state lines)] [to defraud the United States by (describe means, e.g., impeding, impairing, obstructing and defeating the lawful governmental functions of the Internal Revenue Service in the ascertainment, computation, assessment and collection of income taxes)];

Two, the defendant voluntarily and intentionally 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;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more of the following acts: (list overt acts for which there is sufficient evidence³) for the purpose of carrying out or carrying forward the agreement or understanding.

(Insert paragraph describing Government’s burden of proof, see Instruction 3.09, supra.)

Notes on Use

1. The general conspiracy statute is 18 USC 371. At least 24 other conspiracy statutes are found in Titles 15, 18 and 21.

Committee Comments

See 1A and 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 18.02, 31.01-.11 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.08 (1999); Ninth Cir. Crim. Jury Instr. 8.16 (formerly 8.5.1 (1997)); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); see also United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Brown, 584 F.2d 252, 260 (8th Cir. 1978). See generally West Key # "Conspiracy" 23.

"The offense of conspiracy consists of an agreement between [two or more persons] to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir. 1985); United States v. Brown, 604 F.2d 557, 560 (8th Cir. 1979) (citing United States v. Skillman, 442 F.2d 542, 547 (8th Cir. 1971) and United States v. Jackson, 549 F.2d 517, 530 (8th Cir. 1977)).

The government need show that only one of the conspirators engaged in one overt act in furtherance of the conspiracy. United States v. Hermes, 847 F.2d 493, 495 (8th Cir. 1988).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The crime of conspiracy1 as charged in [Count __ of] the indictment, has four2 elements, which are:

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding [to (insert offense, e.g., transport stolen property across state lines)] [to defraud the United States by (describe means, e.g., impeding, impairing, obstructing and defeating the lawful governmental functions of the Internal Revenue Service in the ascertainment, computation, assessment and collection of income taxes)];

Two, the defendant voluntarily and intentionally 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;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more of the following acts: (list overt acts for which there is sufficient evidence3) for the purpose of carrying out or carrying forward the agreement or understanding.

(Insert paragraph describing Government’s burden of proof, see Instruction 3.09, supra.)

Notes on Use

1. The general conspiracy statute is 18 USC 371. At least 24 other conspiracy statutes are found in Titles 15, 18 and 21.

2. Conspiracies charged under 18 USC 371 require an overt act which is covered in Element Four. An overt act is not required in conspiracies charged under 15 USC 1, 18 USC § 241, 286, 384 and 1951 and 21 USC 846. When one of these conspiracies is charged, Element Four should be omitted. See Instruction 6.21.846A; United States v. Shabani, 513 U.S. 10 (1994) (21 USC 846 does not require proof of an overt act).

Committee Comments

See 1A and 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 18.02, 31.01-.11 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.08 (1999); Ninth Cir. Crim. Jury Instr. 8.16 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); see also United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Brown, 584 F.2d 252, 260 (8th Cir. 1978). See generally West Key # "Conspiracy" .23.

"The offense of conspiracy consists of an agreement between [two or more persons] to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir. 1985); United States v. Brown, 604 F.2d 557, 560 (8th Cir. 1979) (citing United States v. Skillman, 442 F.2d 542, 547 (8th Cir. 1971) and United States v. Jackson, 549 F.2d 517, 530 (8th Cir. 1977)).

The government need show that only one of the conspirators engaged in one overt act in furtherance of the conspiracy. United States v. Hermes, 847 F.2d 493, 495 (8th Cir. 1988).

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06A CONSPIRACY: ESSENTIAL ELEMENTS (18 USC 371)

The crime of conspiracy1 as charged in [Count __ of] the indictment, has four2 essential elements, which are:

One, on or before (insert date), two [or more] persons reached an agreement or came to an understanding [to (insert offense, e.g., transport stolen property across state lines)] [to defraud the United States by (describe means, e.g., impeding, impairing, obstructing and defeating the lawful governmental functions of the Internal Revenue Service in the ascertainment, computation, assessment and collection of income taxes)];

Two, the defendant voluntarily and intentionally 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;

Three, at the time the defendant joined in the agreement or understanding, [he] [she] knew the purpose of the agreement or understanding; and

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more of the following acts: (list overt acts for which there is sufficient evidence3) for the purpose of carrying out or carrying forward the agreement or understanding.

(Insert paragraph describing Government’s burden of proof, see Instruction 3.09, supra.)

Committee Comments

See 1 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Civil and Criminal § 18.02 (4th ed. 1992); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 28.01-28.11, at (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.08 (1999); Ninth Cir. Crim. Jury Instr. 8.5.1 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); see also United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Brown, 584 F.2d 252, 260 (8th Cir. 1978), cert. denied, 440 U.S. 910 (1979). See generally West Key # "Conspiracy" .23.

"The offense of conspiracy consists of an agreement between [two or more persons] to commit an offense, attended by an act of one or more of the conspirators to effect the object of the conspiracy." United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir. 1985); United States v. Brown, 604 F.2d 557, 560 (8th Cir. 1979) (citing United States v. Skillman, 442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833 (1971) and United States v. Jackson, 549 F.2d 517, 530 (8th Cir.), cert. denied, 430 U.S. 985 (1977)).

A single defendant can be indicted and convicted of conspiracy, provided that an unlawful agreement with others is proved, Kitchell v. United States, 354 F.2d 715, 720 n.8 (1st Cir.), cert. denied, 384 U.S. 1011 (1966), although if the other conspirator(s) have actually been acquitted of that conspiracy there can be no conviction of the sole remaining alleged conspirator. United States v. Peterson, 488 F.2d 645 (5th Cir.), cert. denied, 419 U.S. 828 (1974). In an instance where all other named conspirators have been acquitted, but there is evidence that the conspiracy involved other, unnamed conspirators, conviction of the sole remaining named conspirator is permissible. United States v. Allen, 613 F.2d 1248 (3d Cir. 1980); United States v. Artuso, 618 F.2d 192 (2d Cir.), cert. denied, 449 U.S. 861 (1980).

One who joins an existing conspiracy is guilty of conspiracy and adopts the prior acts of the other conspirators. United States v. Green, 600 F.2d 154 (8th Cir. 1979); United States v. Lemm, 680 F.2d 1193, 1204 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983). A new conspiracy is not created each time a new member joins, or an old member quits, an existing conspiracy. United States v. Burchinal, 657 F.2d 985, 990 (8th Cir.), cert. denied, 454 U.S. 1086 (1981); United States v. Heater, 689 F.2d 783, 788 (8th Cir. 1982). A defendant must know of the existence of the conspiracy. Without such knowledge he cannot be guilty even if his acts furthered the conspiracy. United States v. Falcone, 311 U.S. 205, 210 (1940).

The government need show that only one of the conspirators engaged in one overt act in furtherance of the conspiracy. United States v. Hermes, 847 F.2d 493, 495 (8th Cir. 1988).

Notes on Use

1. The general conspiracy statute is 18 USC 371. At least 24 other conspiracy statutes are found in Titles 15, 18 and 21.

2. Conspiracies charged under 18 USC 371 require an overt act which is covered in Element Four. An overt act is not required in conspiracies charged under 15 USC 1, 18 USC§ 241, 286, 384 and 1951 and 21 USC 846. When one of these conspiracies is charged, Element Four should be omitted. See Instruction 6.21.846A; United States v. Shabani, 513 U.S. 10, 115 S. Ct. 382 (1994) (21 USC 846 does not require proof of an overt act).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06B CONSPIRACY: "AGREEMENT" EXPLAINED

FORECITE National™ Materials Related To This Instruction:

83.3.12 Agreement: Defense Theories

The Government must prove that the defendant reached an agreement or understanding with at least one other person. [It makes no difference whether that person is a defendant or named in the indictment. You do not have to find that all of the persons charged were members of the conspiracy.]¹

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

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. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

You must decide, after considering all of the evidence, whether the conspiracy alleged in [the indictment] [Count ___ of the indictment] existed. If you find that the alleged conspiracy did exist, you must also decide whether the [defendant] [defendant whose case you are considering] voluntarily and intentionally joined the conspiracy, either at the time it was first formed or at some later time while it was still in effect. In making that decision, you must consider only evidence of [the defendant’s] [that defendant’s] own actions and statements. You may not consider actions and pretrial statements of others [, except to the extent that pretrial statements of others describe something that had been said or done by [the] [that] defendant].²

Notes on Use

1. Use such part or parts of this paragraph as are pertinent to the case. Where the other conspirators are not named, the jury may be instructed that there is no requirement that the other conspirators be named as long as the jury finds beyond a reasonable doubt that there are other coconspirators. United States v. Collins, 552 F.2d 243 (8th Cir. 1977).

2. This paragraph is consistent with the court’s ruling in Bourjaily v. United States, 483 U.S. 171 (1987), and United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982). See also United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995); United States v. Hagmann, 950 F.2d 175, 180 (5th Cir. 1991); United States v. de Ortiz, 907 F.2d 629, 635 (7th Cir. 1990) (en banc).

Committee Comments

SSee 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 31.04, 31.05, 31.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997). See generally West Key # "Criminal Law" 59(l)-(4).

Agreement among the coconspirators to pool their resources is the essence of the crime. Iannelli v. United States, 420 U.S. 770, 777 (1975). To prove the existence of an agreement, proof of a formal agreement is not necessary - proof of a common plan or tacit understanding is sufficient. United States v. Powell, 853 F.2d 601, 604 (8th Cir. 1988); United States v. Campbell, 848 F.2d 846, 851 (8th Cir. 1988); United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984); Nilva v. United States, 212 F.2d 115, 121 (8th Cir. 1954).

Mere knowledge of an illegal act or association with an individual engaged in illegal conduct is not enough to prove a person has joined a conspiracy. United States v. Raymond, 793 F.2d 928, 932 (8th Cir. 1986). However, the defendants need not have knowledge of every detail or part of a conspiracy as long as the evidence overall shows that the defendants agreed to the essential nature of the conspiracy. Blumenthal v. United States, 332 U.S. 539, 557 (1947).

The Eighth Circuit has held that once the government has established existence of a conspiracy, even slight evidence connecting a particular defendant to the conspiracy may be sufficient proof of the defendant's involvement in the conspiracy. United States v. Reeves, 83 F.3d 203 (8th Cir. 1996).

However, "slight evidence" is a standard for appellate review and this term should not be included in jury instructions. United States v. Cooper, 567 F.2d 252, 253 (3d Cir. 1977).

The conspirators need not know or even have contact with each other. United States v. Michaels, 726 F.2d 1307, 1311 (8th Cir. 1984); Blumenthal v. United States, 332 U.S. at 557-58. It is sufficient that a conspirator knows that the purpose and complexity of the scheme would require the aid and assistance of the additional persons. United States v. Rosado-Fernandez, 614 F.2d 50, 53 (5th Cir. 1980); United States v. Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

The Government must prove that the defendant reached an agreement or understanding with at least one other person. [It makes no difference whether that person is a defendant or named in the indictment. You do not have to find that all of the persons charged were members of the conspiracy.]¹

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

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. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

You must decide, after considering all of the evidence, whether the conspiracy alleged in [the indictment] [Count ___ of the indictment] existed. If you find that the alleged conspiracy did exist, you must also decide whether the [defendant] [defendant whose case you are considering] voluntarily and intentionally joined the conspiracy, either at the time it was first formed or at some later time while it was still in effect. In making that decision, you must consider only evidence of [the defendant’s] [that defendant’s] own actions and statements. You may not consider actions and pretrial statements of others [, except to the extent that pretrial statements of others describe something that had been said or done by [the] [that] defendant].²

Notes on Use

1. Use such part or parts of this paragraph as are pertinent to the case. Where the other conspirators are not named the jury may be instructed that there is no requirement that the other conspirators be named as long as the jury finds beyond a reasonable doubt that there are other coconspirators. United States v. Collins, 552 F.2d 243 (8th Cir. 1977).

2. This paragraph is consistent with the court’s ruling in Bourjaily v. United States, 483 U.S. 171 (1987) and United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982). See also United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995); United States v. Hagmann, 950 F.2d 175, 180 (5th Cir. 1991); United States v. de Ortiz, 907 F.2d 629, 635 (7th Cir. 1990) (en banc).

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 31.04, 31.05, 31.07 (5th ed. 2000); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997). See generally West Key # "Criminal Law" 59(l)-(4).

Agreement among the coconspirators to pool their resources is the essence of the crime. Iannelli v. United States, 420 U.S. 770, 777 (1975). To prove the existence of an agreement, proof of a formal agreement is not necessary -- proof of a common plan or tacit understanding is sufficient. United States v. Powell, 853 F.2d 601, 604 (8th Cir. 1988); United States v. Campbell, 848 F.2d 846, 851 (8th Cir. 1988); United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984); Nilva v. United States, 212 F.2d 115, 121 (8th Cir. 1954).

Mere knowledge of an illegal act or association with an individual engaged in illegal conduct is not enough to prove a person has joined a conspiracy. United States v. Raymond, 793 F.2d 928, 932 (8th Cir. 1986). However, the defendants need not have knowledge of every detail or part of a conspiracy, as long as the evidence overall shows that the defendants agreed to the essential nature of the conspiracy. Blumenthal v. United States, 332 U.S. 539, 557 (1947).

However, "slight evidence" is a standard for appellate review and this term should not be included in jury instructions. United States v. Cooper, 567 F.2d 252, 253 (3d Cir. 1977).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The Government must prove that the defendant reached an agreement or understanding with at least one other person. [It makes no difference whether that person is a defendant or named in the indictment. You do not have to find that all of the persons charged were members of the conspiracy.]1

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

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. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

You must decide, after considering all of the evidence, whether the conspiracy alleged in [the indictment] [Count ___ of the indictment] existed. If you find that the alleged conspiracy did exist, you must also decide whether the [defendant] [defendant whose case you are considering] voluntarily and intentionally joined the conspiracy, either at the time it was first formed or at some later time while it was still in effect. In making that decision, you must consider only evidence of [the defendant’s] [that defendant’s] own actions and statements. You may not consider actions and pretrial statements of others [, except to the extent that pretrial statements of others describe something that had been said or done by [the] [that] defendant].2

Notes on Use

Committee Comments

Agreement among the coconspirators to pool their resources is the essence of the crime. Iannelli v. United States, 420 U.S. 770, 777 (1975). To prove the existence of an agreement, proof of a formal agreement is not necessary -- proof of a common plan or tacit understanding is sufficient. United States v. Powell, 853 F.2d 601, 604 (8th Cir. 1988); United States v. Campbell, 848 F.2d 846, 851 (8th Cir. 1988); United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984); Nilva v. United States, 212 F.2d 115, 121 (8th Cir. 1954).

Mere knowledge of an illegal act or association with an individual engaged in illegal conduct is not enough to prove a person has joined a conspiracy. United States v. Raymond, 793 F.2d 928, 932 (8th Cir. 1986). However, the defendants need not have knowledge of every detail or part of a conspiracy, as long as the evidence overall shows that the defendants agreed to the essential nature of the conspiracy. Blumenthal v. United States, 332 U.S. 539, 557 (1947).

However, "slight evidence" is a standard for appellate review and this term should not be included in jury instructions. United States v. Cooper, 567 F.2d 252, 253 (3d Cir. 1977).

For 2000 version see below

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2000 Version

5.06B CONSPIRACY: "AGREEMENT" EXPLAINED

The Government must prove that defendant reached an agreement or understanding with at least one other person. [It makes no difference whether that person is a defendant or named in the indictment. You do not have to find that all of the persons charged were members of the conspiracy.]1

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

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. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

You must decide, after considering all of the evidence, whether the conspiracy alleged in [the indictment] [Count ___ of the indictment] existed. If you find that the alleged conspiracy did exist, you must also decide whether the [defendant] [defendant whose case you are considering] voluntarily and intentionally joined the conspiracy, either at the time it was first formed or at some later time while it was still in effect. In making that decision, you must consider only evidence of [the defendant’s] [that defendant’s] own actions and statements. You may not consider actions and pretrial statements of others [, except to the extent that pretrial statements of others describe something that had been said or done by [the] [that] defendant].2

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 28.04, 28.05, 28.07 (4th ed. 1990); Fifth Circuit Pattern Jury Instructions: Criminal § 2.20 (1997); Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997). See generally West Key # "Criminal Law" 59(l)-(4).

Agreement among the coconspirators to pool their resources is the essence of the crime. Iannelli v. United States, 420 U.S. 770, 777 (1975). To prove the existence of an agreement, proof of a formal agreement is not necessary -- proof of a common plan or tacit understanding is sufficient. United States v. Powell, 853 F.2d 601, 604 (8th Cir. 1988); United States v. Campbell, 848 F.2d 846, 851 (8th Cir. 1988); United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984), cert. denied, 471 U.S. 1115 (1985); Nilva v. United States, 212 F.2d 115, 121 (8th Cir.), cert. denied, 348 U.S. 825 (1954).

Mere knowledge of an illegal act or association with an individual engaged in illegal conduct is not enough to prove a person has joined a conspiracy. United States v. Raymond, 793 F.2d 928, 932 (8th Cir. 1986). However, defendants need not have knowledge of every detail or part of a conspiracy, as long as the evidence overall shows that defendants agreed to the essential nature of the conspiracy. Blumenthal v. United States, 332 U.S. 539, 557 (1947).

However, "slight evidence" is a standard for appellate review and this term should not be included in jury instructions. United States v. Cooper, 567 F.2d 252, 253 (3d Cir. 1977).

The conspirators need not know or even have contact with each other. United States v. Michaels, 726 F.2d 1307, 1311 (8th Cir.), cert. denied, 469 U.S. 820 (1984); Blumenthal v. United States, 332 U.S. at 557-58. It is sufficient that a conspirator knows that the purpose and complexity of the scheme would require the aid and assistance of the additional persons. United States v. Rosado- Fernandez, 614 F.2d 50, 53 (5th Cir. 1980); United States v. Wilson, 506 F.2d 1252, 1257 (7th Cir. 1974).

Notes on Use

2. This paragraph is consistent with the court’s ruling in Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775 (1987) and United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982). See also United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995); United States v. Hagmann, 950 F.3d 175, 180 (5th Cir. 1991); United States v. de Ortiz, 907 F.2d 629, 635 (7th Cir. 1990) (en banc).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06C CONSPIRACY: SUBSTANTIVE OFFENSE: ELEMENTS¹

[To assist you in determining whether there was an agreement or understanding to (name substantive offense, e.g., transport stolen property across state lines), you are advised that the elements of (name offense) are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., _________________________________________________________________.²

Keep in mind that the indictment charges a conspiracy to commit (name offense) and not that (name offense) was committed.]³

[Count __ of the indictment charges defendant[s] (name[s]) [and others who are not presently defendants in this case] with the charge of conspiracy to commit (name substantive offense, e.g., mail fraud). Earlier in these instructions I defined the elements of (name of offense, e.g., mail fraud) in relation to the charges that the defendant (describe conduct, e.g., willfully participated in a scheme to defraud). You may use those definitions in considering whether the defendants conspired to commit (name offense, e.g., mail fraud), keeping in mind that the charges in Count __ charge a conspiracy to commit (name offense, e.g., mail fraud) and not that (name offense, e.g., mail fraud) was committed.]⁴

Notes on Use

1. Use this instruction if a conspiracy to commit a substantive offense has been charged.

2. List elements of offense which was the object of the conspiracy. See Instruction 3.09, supra, and Section 6, infra.

3. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is not charged elsewhere in the indictment.

4. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is also charged in the indictment and submitted to the jury.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

[To assist you in determining whether there was an agreement or understanding to (name substantive offense, e.g., transport stolen property across state lines), you are advised that the elements of (name offense) are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., _________________________________________________________________.²

Keep in mind that the indictment charges a conspiracy to commit (name offense) and not that (name offense) was committed.]³

[Count __ of the indictment charges defendant[s] (name[s]) [and others who are not presently defendants in this case] with the charge of conspiracy to commit (name substantive offense, e.g., mail fraud). Earlier in these instructions I defined the elements of (name of offense, e.g., mail fraud) in relation to the charges that the defendant (describe conduct, e.g., willfully participated in a scheme to defraud). You may use those definitions in considering whether the defendants conspired to commit (name offense, e.g., mail fraud), keeping in mind that the charges in Count __ charge a conspiracy to commit (name offense, e.g., mail fraud) and not that (name offense, e.g., mail fraud) was committed.]⁴

Notes on Use

1. Use this instruction if a conspiracy to commit a substantive offense has been charged.

2. List elements of offense which was the object of the conspiracy. See Instruction 3.09, supra, and Section 6, infra.

3. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is not charged elsewhere in the indictment.

4. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is also charged in the indictment and submitted to the jury.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

[To assist you in determining whether there was an agreement or understanding to (name substantive offense, e.g., transport stolen property across state lines), you are advised that the elements of (name offense) are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., _________________________________________________________________.2

Keep in mind that the indictment charges a conspiracy to commit (name offense) and not that (name offense) was committed.]3

[Count __ of the indictment charges defendant[s] (name[s]) [and others who are not presently defendants in this case] with the charge of conspiracy to commit (name substantive offense, e.g., mail fraud). Earlier in these instructions I defined the elements of (name of offense, e.g., mail fraud) in relation to the charges that the defendant (describe conduct, e.g., willfully participated in a scheme to defraud). You may use those definitions in considering whether the defendants conspired to commit (name offense, e.g., mail fraud), keeping in mind that the charges in Count __ charge a conspiracy to commit (name offense, e.g., mail fraud) and not that (name offense, e.g., mail fraud) was committed.]4

Notes on Use

1. Use this instruction if a conspiracy to commit a substantive offense has been charged.

2. List elements of offense which was the object of the conspiracy. See Instruction 3.09, supra, and Section 6, infra.

3. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is not charged elsewhere in the indictment.

4. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is also charged in the indictment and submitted to the jury.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06C CONSPIRACY: SUBSTANTIVE OFFENSE: ELEMENTS1

[To assist you in determining whether there was an agreement or understanding to (name substantive offense, e.g., transport stolen property across state lines), you are advised that the elements of (name offense) are:

One, __________________________________________________________________;

Two, ______________________________________________________________; and

Etc., _________________________________________________________________.2 Keep in mind that the indictment charges a conspiracy to commit (name offense) and not that (name offense) was committed.]3

[Count __ of the indictment charges the defendant[s] (name[s]) [and others who are not presently defendants in this case] with the charge of conspiracy to commit (name substantive offense, e.g., mail fraud). Earlier in these instructions I defined the elements of (name of offense, e.g., mail fraud) in relation to the charges that the defendant (describe conduct, e.g., willfully participated in a scheme to defraud). You may use those definitions in considering whether the defendants conspired to commit (name offense, e.g., mail fraud), keeping in mind that the charges in Count __ charge a conspiracy to commit (name offense, e.g., mail fraud) and not that (name offense, e.g., mail fraud) was committed.]4

Notes on Use

1. Use this instruction if a conspiracy to commit a substantive offense has been charged.

2. List essential elements of offense which was the object of the conspiracy. See Instruction 3.09, supra, and Section 6, infra.

3. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is not charged elsewhere in the indictment.

4. Use this paragraph if a conspiracy to violate a federal statute is charged and the substantive offense is also charged in the indictment and submitted to the jury.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06D CONSPIRACY: "OVERT ACT" - EXPLAINED¹

FORECITE National™ Materials Related To This Instruction:

83.3.4 Overt Acts: Defense Theories

It is not necessary that the act done in furtherance of the conspiracy be in itself unlawful. It may be perfectly innocent in itself.

It is not necessary that the defendant have personally committed the act, known about it, or witnessed it. It makes no difference which of the conspirators did the act. This is because a conspiracy is a kind of "partnership" so that under the law each member is an agent or partner of every other member and each member is bound by or responsible for the acts of every other member done to further their scheme.

[It is not necessary that the Government prove, beyond a reasonable doubt, that more than one act was done in furtherance of the conspiracy. It is sufficient if the Government proves beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done.]

Notes on Use

1. Use if evidence has been admitted on more than one overt act.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 31.03, 31.07 (5th ed. 2000). See generally West Key # "Conspiracy" 27.

The overt act itself need not be criminal in nature. United States v. Hermes, 847 F.2d 493, 496 (8th Cir. 1988). An overt act may be perfectly innocent in itself. United States v. Donahue, 539 F.2d 1131, 1136 (8th Cir. 1976). The overt act need not involve more than one of the conspirators. United States v. Bass, 472 F.2d 207, 213 (8th Cir. 1973).

The overt act found by the jury must have taken place within the statute of limitations. If this is an issue, the jury should be appropriately instructed. United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir. 1976).

The Government is not limited in its proof to establishing overt acts specified in the indictment, nor must the Government prove every overt act alleged. United States v. Lewis, 759 F.2d 1316, 1344 (8th Cir. 1985).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

It is not necessary that the act done in furtherance of the conspiracy be in itself unlawful. It may be perfectly innocent in itself.

It is not necessary that the defendant have personally committed the act, known about it, or witnessed it. It makes no difference which of the conspirators did the act. This is because a conspiracy is a kind of "partnership" so that under the law each member is an agent or partner of every other member and each member is bound by or responsible for the acts of every other member done to further their scheme.

[It is not necessary that the Government prove, beyond a reasonable doubt, that more than one act was done in furtherance of the conspiracy. It is sufficient if the Government proves beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done.]

Notes on Use

1. Use if evidence has been admitted on more than one overt act.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 31.03, 31.07 (5th ed. 2000). See generally West Key # "Conspiracy" 27.

The overt act found by the jury must have taken place within the statute of limitations. If this is an issue the jury should be appropriately instructed. United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir. 1976).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

It is not necessary that the act done in furtherance of the conspiracy be in itself unlawful. It may be perfectly innocent in itself.

It is not necessary that the defendant have personally committed the act, known about it, or witnessed it. It makes no difference which of the conspirators did the act. This is because a conspiracy is a kind of "partnership" so that under the law each member is an agent or partner of every other member and each member is bound by or responsible for the acts of every other member done to further their scheme.

[It is not necessary that the Government prove, beyond a reasonable doubt, that more than one act was done in furtherance of the conspiracy. It is sufficient if the Government proves beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done.]

Notes on Use

1. Use if evidence has been admitted on more than one overt act.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal §§ 31.03, 31.07 (5th ed. 2000). See generally West Key # "Conspiracy" 27.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06D CONSPIRACY: "OVERT ACT" - EXPLAINED1

It is not necessary that the act done in furtherance of the conspiracy be in itself unlawful. It may be perfectly innocent in itself.

It is not necessary that defendant have personally committed the act, known about it, or witnessed it. It makes no difference which of the conspirators did the act. This is because a conspiracy is a kind of "partnership" so that under the law each member is an agent or partner of every other member and each member is bound by or responsible for the acts of every other member done to further their scheme.

[It is not necessary that the Government prove, beyond a reasonable doubt, that more than one act was done in furtherance of the conspiracy. It is sufficient if the Government proves beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done.]

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 28.03, 28.07 (4th ed. 1990). See generally West Key # "Conspiracy" 27.

The overt act found by the jury must have taken place within the statute of limitations. If this is an issue the jury should be appropriately instructed. United States v. Alphonso-Perez, 535 F.2d 1362 (2d Cir. 1976).

Notes on Use

1. Use if evidence has been admitted on more than one overt act.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06E CONSPIRACY: SUCCESS IMMATERIAL

It is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.08 (5th ed. 2000).

There is likewise no requirement that the defendant benefitted from the unlawful plan. United States v. Kibby, 848 F.2d 920, 922 (8th Cir. 1988).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

It is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.08 (5th ed. 2000).

There is likewise no requirement that the defendant have benefitted from the unlawful plan. United States v. Kibby, 848 F.2d 920, 922 (8th Cir. 1988).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

It is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.08 (5th ed. 2000).

There is likewise no requirement that the defendant have benefitted from the unlawful plan. United States v. Kibby, 848 F.2d 920, 922 (8th Cir. 1988).

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06E CONSPIRACY: SUCCESS IMMATERIAL

It is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.1 (1997); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 28.08 (4th ed. 1990).

There is likewise no requirement that the defendant have benefitted from the unlawful plan. United States v. Kibby, 848 F.2d 920, 922 (8th Cir. 1988).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06F CONSPIRACY: MULTIPLE CRIMES¹
(18 USC 371)

FORECITE National™ Materials Related To This Instruction:

83.2.6 Conspiracy: Variance

273.10.5.5 Jury Unanimity As To Multiple Object Conspiracies

The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those crimes. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those crimes. In that event, to return a verdict of guilty, you must unanimously agree which of the [two] [three, etc.] crimes was the subject of the conspiracy. If you are unable to unanimously agree, you cannot find the defendant guilty of conspiracy. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]²

Notes on Use

1. For use only where the indictment has charged a single conspiracy to commit multiple crimes.

2. Where evidence at trial shows two alternative drugs were involved in a multi-drug conspiracy, a special verdict form is required; otherwise, the sentencing court must use the relevant drug conversion which yields the most favorable sentencing result for the defendants. United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994) (citing the principle as also applying to 21 USC 856); United States v. Page-Bey, 960 F.2d 724, 727-28 (8th Cir. 1992) (no plain error given the evidence at trial and the fact that it would have made no difference in the sentence if the jury had found that the defendant was involved with only one of the charged substances); United States v. Watts, 950 F.2d 508, 515 (8th Cir. 1991).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

5.06F CONSPIRACY: MULTIPLE OFFENSES¹
(18 USC 371)

The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the [two] [three, etc.] offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]²

Notes on Use

1. For use only where the indictment has charged a conspiracy with multiple objects.

2. Where evidence at trial shows two alternative drugs were involved in a multi-drug conspiracy, a special verdict form is required, otherwise, the sentencing court must use the relevant drug conversion which yields the most favorable sentencing result for the defendants. United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994) (citing the principle as also applying to 21 USC 856); United States v. Page-Bey, 960 F.2d 724, 727-28 (8th Cir. 1992) (no plain error given the evidence at trial and the fact that it would have made no difference in the sentence if the jury had found that the defendant was involved with only one of the charged substances); United States v. Watts, 950 F.2d 508, 515 (8th Cir. 1991).

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.2 (1997).

United States v. Ballard, 663 F.2d 534, 544 (5th Cir. 1981), reh’g denied, 680 F.2d 352 (5th Cir. 1982) requires this instruction in order to assure a unanimous verdict when a single conspiracy embraces multiple alleged objects.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the [two] [three, etc.] offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]2

Notes on Use

1. For use only where the indictment has charged a conspiracy with multiple objects.

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.2 (1997).

For 2000 version see below

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2000 Version

5.06F CONSPIRACY: MULTIPLE OFFENSES1

The indictment charges a conspiracy to commit [two] [three, etc.] separate crimes or offenses. It is not necessary for the Government to prove a conspiracy to commit [both] [all] of those offenses. It would be sufficient if the Government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; but, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the [two] [three, etc.] offenses was the subject of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty. [In this case, you must decide which of the controlled substances, if any, [each] defendant conspired to [manufacture] [distribute] [possess with intent to distribute] and record your unanimous verdict on the form provided.]2

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.2 (1997).

Notes on Use

1. For use only where the indictment has charged a conspiracy with multiple objects.

2. Where evidence at trial shows two alternative drugs were involved in a multi-drug conspiracy, a special verdict form is required, otherwise, the sentencing court must use the relevant drug conversion which yields the most favorable sentencing result for the defendants. United States v. Baker, 16 F.3d 854, 858 (8th Cir. 1994) (citing the principle as also applying to 21 USC 856); United States v. Page-Bey, 960 F.2d 724, 727-28 (8th Cir. 1992) (no plain error given the evidence at trial and the fact that it would have made no difference in the sentence if the jury had found that defendant was involved with only one of the charged substances); United States v. Watts, 950 F.2d 508, 515 (8th Cir. 1991).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06G CONSPIRACY: SINGLE/MULTIPLE CONSPIRACIES

FORECITE National™ Materials Related To This Instruction:

83.2.6 Conspiracy: Variance

(1) The indictment charges that the defendants were members of one single conspiracy to commit the crime of _______.¹

(2) One of the issues you must decide is whether there were really two (or more) separate conspiracies -- one [between] [among] ________ and _______ to commit the crime of _________, and another one [between] [among] ________ and _______ to commit the crime of _________.²

(3) The Government must convince you beyond a reasonable doubt that each defendant was a member of the conspiracy charged in the indictment. If the Government fails to prove this as to a defendant, then you must find that the defendant not guilty of the conspiracy charge, even if you find that [he] [she] was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict.

(4) But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.³

[A single conspiracy may exist even if all the members did not know each other, or never met together, or did not know what roles all the other members played. And a single conspiracy may exist even if different members joined at different times, or the membership of the group changed. Similarly, just because there were different subgroups operating in different places, or many different criminal acts committed over a long period of time, does not necessarily mean that there was more than one conspiracy. These are factors you may consider in determining whether more than one conspiracy existed.]

Notes on Use

1. If a multiple conspiracy instruction is given, 5.06B, which explains agreement, may need some revision. The bracketed paragraph, which relates in part to the question of agreement, may be tailored to the facts of the particular case.

2. If the court concludes that a multiple conspiracy instruction is required by the evidence but that the specificity called for by the model instruction is not appropriate, the following shorter version may be given:

If the United States has failed to prove beyond a reasonable doubt the existence of the conspiracy which is charged, then you must find the defendant not guilty, even though some other conspiracy did exist or might have existed. Likewise, if the United States has failed to prove beyond a reasonable doubt that the defendant was a member of the conspiracy which is charged, then you must find the defendant not guilty even though [he] [she] may have been a member of some other conspiracy. But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.

This alternative is based upon an instruction approved in United States v. Adipietro, 983 F.2d 1468, 1475 n.7 (8th Cir. 1993); United States v. Sawyers, 963 F.2d 157, 161 (8th Cir. 1992); and United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir. 1990).

3. The possible existence of separate conspiracies may require the drafting of special instructions limiting the jury's consideration of statements made by co-conspirators to members of a particular conspiracy. Further, in separate but jointly tried conspiracies, limiting instructions are required to prevent guilt of those participating in one conspiracy from being transferred to those participating in a separate conspiracy. United States v. Varelli, 407 F.2d 735, 747 (7th Cir. 1969); United States v. Jackson, 696 F.2d at 585-86; United States v. Snider, 720 F.2d 985, 990 (8th Cir. 1983).

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.09 (5th ed. 2000). See generally West Key # "Conspiracy" 23.

This instruction should be used when there is some evidence that multiple conspiracies may have existed, and a finding that multiple conspiracies existed would constitute a material variance from the indictment. See generally Berger v. United States, 295 U.S. 78, 81-82 (1935) (proof that two or more conspiracies may have existed is not fatal unless there is a material variance that results in substantial prejudice); Kotteakos v. United States, 328 U.S. 750, 773-74 (1946) (there must be some leeway for conspiracy cases where the evidence differs from the exact specifications in the indictment); United States v. Lucht, 18 F.3d 541, 552 (8th Cir. 1994). In these circumstances, an instruction is necessary to ensure a unanimous verdict on one conspiracy. United States v. Gordon, 844 F.2d 1397, 1400-02 (9th Cir. 1988).

If there is evidence that supports multiple conspiracies, then whether a conspiracy is one scheme or several is primarily a jury question. United States v. England, 966 F.2d 403, 406 (8th Cir. 1992); United States v. Wilson, 497 F.2d 602 (8th Cir. 1974).

With respect to single versus multiple conspiracies, the Eighth Circuit has set forth the following guidelines:

The general test is whether there was "one overall agreement" to perform various functions to achieve the objectives of the conspiracy. A conspirator need not know all of the other conspirators or be aware of all the details of the conspiracy, so long as the evidence is sufficient to show knowing contribution to the furtherance of the conspiracy.

United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984); United States v. Adipietro, 983 F.2d 1468, 1475 (8th Cir. 1993); United States v. Askew, 958 F.2d 806, 810 (8th Cir. 1992); United States v. Spector, 793 F.2d 932, 935-36 (8th Cir. 1986). Moreover, "[t]he existence of a single agreement can be inferred if the evidence revealed that the alleged participants shared 'a common aim or purpose' and 'mutual dependence and assistance existed.'" United States v. DeLuna, 763 F.2d 897, 918 (8th Cir. 1985) (quoting United States v. Jackson, 696 F.2d 578, 582-83 (8th Cir. 1982)); United States v. Crouch, 46 F.3d 871, 874 (8th Cir. 1995).

The involvement of a number of separate transactions does not establish the existence of separate conspiracies. Spector, 793 F.2d at 935. Likewise, "`[m]ultiple groups and the performance of separate crimes or acts do not rule out the possibility that one overall conspiracy exists.'" United States v. Dijan, 37 F.3d 398, 402 (8th Cir. 1994) (quoting United States v. Roark, 924 F.2d 1426, 1429 (8th Cir. 1991)). Further, "`[a] division of labor among conspirators in pursuit of a common goal does not necessitate a finding of discrete schemes.'" United States v. Askew, 958 F.2d at 810 (quoting United States v. Gomberg, 715 F.2d 843, 846 (3d Cir. 1983)). However, a mere overlap of personnel or knowledge of another's illegal conduct is not by itself proof of a single conspiracy. United States v. Peyro, 786 F.2d 826, 829 (8th Cir. 1986).

Whether an indictment charges one or more than one conspiracy is determined under a "totality of the circumstances test" under which the following factors are considered:

(1) time;

(2) persons acting as coconspirators;

(3) the statutory offenses charged in the indictments;

(4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and

(5) places where the events alleged as part of the conspiracy took place.

"The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object." United States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985) (addressing a double jeopardy claim).

(For 2008 version see below).

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2008 Version

(1) The indictment charges that the defendants were members of one single conspiracy to commit the crime of _______.¹

(2) One of the issues you must decide is whether there were really two (or more) separate conspiracies -- one [between] [among] ________ and _______ to commit the crime of _________, and another one [between] [among] ________ and _______ to commit the crime of _________.²

(3) The Government must convince you beyond a reasonable doubt that each defendant was a member of the conspiracy charged in the indictment. If the Government fails to prove this as to a defendant, then you must find that the defendant not guilty of the conspiracy charge, even if you find that [he] [she] was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict.

(4) But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.³

[A single conspiracy may exist even if all the members did not know each other, or never met together, or did not know what roles all the other members played. And a single conspiracy may exist even if different members joined at different times, or the membership of the group changed. Similarly, just because there were different subgroups operating in different places, or many different criminal acts committed over a long period of time, does not necessarily mean that there was more than one conspiracy. These are factors you may consider in determining whether more than one conspiracy existed.]

Notes on Use

If the United States has failed to prove beyond a reasonable doubt the existence of the conspiracy which is charged, then you must find the defendant not guilty, even though some other conspiracy did exist or might have existed. Likewise, if the United States has failed to prove beyond a reasonable doubt that the defendant was a member of the conspiracy which is charged, then you must find the defendant not guilty even though [he] [she] may have been a member of some other conspiracy. But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.09 (5th ed. 2000). See generally West Key # "Conspiracy" 23.

With respect to single versus multiple conspiracies, the Eighth Circuit has set forth the following guidelines:

The general test is whether there was "one overall agreement" to perform various functions to achieve the objectives of the conspiracy. A conspirator need not know all of the other conspirators or be aware of all the details of the conspiracy, so long as the evidence is sufficient to show knowing contribution to the furtherance of the conspiracy.

Whether an indictment charges one or more than one conspiracy is determined under a "totality of the circumstances test" under which the following factors are considered:

(1) time;

(2) persons acting as coconspirators;

(3) the statutory offenses charged in the indictments;

(4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and

(5) places where the events alleged as part of the conspiracy took place.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

(1) The indictment charges that the defendants were members of one single conspiracy to commit the crime of _______.1

(2) One of the issues you must decide is whether there were really two (or more) separate conspiracies -- one [between] [among] ________ and _______ to commit the crime of _________, and another one [between] [among] ________ and _______ to commit the crime of _________.2

(3) The Government must convince you beyond a reasonable doubt that each defendant was a member of the conspiracy charged in the indictment. If the Government fails to prove this as to a defendant, then you must find that the defendant not guilty of the conspiracy charge, even if you find that [he] [she] was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict.

(4) But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.3

[A single conspiracy may exist even if all the members did not know each other, or never met together, or did not know what roles all the other members played. And a single conspiracy may exist even if different members joined at different times, or the membership of the group changed. Similarly, just because there were different subgroups operating in different places, or many different criminal acts committed over a long period of time, does not necessarily mean that there was more than one conspiracy. These are factors you may consider in determining whether more than one conspiracy existed.]

Notes on Use

If the United States has failed to prove beyond a reasonable doubt the existence of the conspiracy which is charged, then you must find the defendant not guilty, even though some other conspiracy did exist or might have existed. Likewise, if the United States has failed to prove beyond a reasonable doubt that the defendant was a member of the conspiracy which is charged, then you must find the defendant not guilty even though [he] [she] may have been a member of some other conspiracy. But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.

Committee Comments

See 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.09 (5th ed. 2000). See generally West Key # "Conspiracy" 23.

With respect to single versus multiple conspiracies, the Eighth Circuit has set forth the following guidelines:

The general test is whether there was "one overall agreement" to perform various functions to achieve the objectives of the conspiracy. A conspirator need not know all of the other conspirators or be aware of all the details of the conspiracy, so long as the evidence is sufficient to show knowing contribution to the furtherance of the conspiracy.

Whether an indictment charges one or more than one conspiracy is determined under a "totality of the circumstances test" under which the following factors are considered:

(1) time;

(2) persons acting as coconspirators;

(3) the statutory offenses charged in the indictments;

(4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and

(5) places where the events alleged as part of the conspiracy took place.

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06G CONSPIRACY: SINGLE/MULTIPLE CONSPIRACIES

(1) The indictment charges that the defendants were members of one single conspiracy to commit the crime of _______.1

(2) One of the issues you must decide is whether there were really two (or more) separate conspiracies -- one [between] [among] ________ and _______ to commit the crime of _________, and another one [between] [among] ________ and _______ to commit the crime of _________.2

(3) The Government must convince you beyond a reasonable doubt that each defendant was a member of the conspiracy charged in the indictment. If the Government fails to prove this as to a defendant, then you must find that defendant not guilty of the conspiracy charge, even if you find that [he] [she] was a member of some other conspiracy. Proof that a defendant was a member of some other conspiracy is not enough to convict.

(4) But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.3

[A single conspiracy may exist even if all the members did not know each other, or never met together, or did not know what roles all the other members played. And a single conspiracy may exist even if different members joined at different times, or the membership of the group changed. Similarly, just because there were different subgroups operating in different places, or many different criminal acts committed over a long period of time, does not necessarily mean that there was more than one conspiracy. These are factors you may consider in determining whether more than one conspiracy existed.]

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 28.09 (4th ed. 1990). See generally West Key # "Conspiracy" 23.

This instruction should be used when there is some evidence that multiple conspiracies may have existed, and a finding that multiple conspiracies existed would constitute a material variance from the indictment. See generally Berger v. United States, 295 U.S. 78, 81-82 (1935) (proof that two or more conspiracies may have existed is not fatal unless there is a material variance that results in substantial prejudice); Kotteakos v. United States, 328 U.S. 750, 773-74 (1946) (there must be some leeway for conspiracy cases where the evidence differs from the exact specifications in the indictment); United States v. Lucht, 18 F.3d 541, 552 (8th Cir.), cert. denied, 513 U.S. 949 (1994). In these circumstances, an instruction is necessary to ensure a unanimous verdict on one conspiracy. United States v. Gordon, 844 F.2d 1397, 1400-02 (9th Cir. 1988).

If there is evidence that supports multiple conspiracies, then whether a conspiracy is one scheme or several is primarily a jury question. United States v. England, 966 F.2d 403, 406 (8th Cir.), cert. denied, 506 U.S. 1025 (1992); United States v. Wilson, 497 F.2d 602 (8th Cir.), cert. denied, 419 U.S. 1069 (1974).

With respect to single versus multiple conspiracies, the Eighth Circuit has set forth the following guidelines:

The general test is whether there was "one overall agreement" to perform various functions to achieve the objectives of the conspiracy. A conspirator need not know all of the other conspirators or be aware of all the details of the conspiracy, so long as the evidence is sufficient to show knowing contribution to the furtherance of the conspiracy.

United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984), cert. denied, 471 U.S. 1115 (1985); United States v. Adipietro, 983 F.2d 1468, 1475 (8th Cir. 1993); United States v. Askew, 958 F.2d 806, 810 (8th Cir. 1992); United States v. Spector, 793 F.2d 932, 935-36 (8th Cir. 1986), cert. denied, 479 U.S. 1031 (1987). Moreover, "[t]he existence of a single agreement can be inferred if the evidence revealed that the alleged participants shared 'a common aim or purpose' and 'mutual dependence and assistance existed.'" United States v. DeLuna, 763 F.2d 897, 918 (8th Cir.), cert. denied, 474 U.S. 980 (1985) (quoting United States v. Jackson, 696 F.2d 578, 582-83 (8th Cir. 1982), cert. denied, 460 U.S. 1073 (1983)); United States v. Crouch, 46 F.3d 871, 874 (8th Cir. 1995).

The involvement of a number of separate transactions does not establish the existence of separate conspiracies. Spector, 793 F.2d at 935. Likewise, "`[m]ultiple groups and the performance of separate crimes or acts do not rule out the possibility that one overall conspiracy exists.'" United States v. Dijan, 37 F.3d 398, 402 (8th Cir. 1994) (quoting United States v. Roark, 924 F.2d 1426, 1429 (8th Cir. 1991)). Further, "`[a] division of labor among conspirators in pursuit of a common goal does not necessitate a finding of discrete schemes.'" United States v. Askew, 958 F.2d at 810 (quoting United States v. Gomberg, 715 F.2d 843, 846 (3d Cir. 1983), cert. denied, 465 U.S. 1078 (1984)). However, a mere overlap of personnel or knowledge of another's illegal conduct is not by itself proof of a single conspiracy. United States v. Peyro, 786 F.2d 826, 829 (8th Cir. 1986).

Whether an indictment charges one or more than one conspiracy is determined under a "totality of the circumstances test" under which the following factors are considered:

(1) time;

(2) persons acting as coconspirators;

(3) the statutory offenses charged in the indictments;

(4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and

(5) places where the events alleged as part of the conspiracy took place.

Notes on Use

If the United States has failed to prove beyond a reasonable doubt the existence of the conspiracy which is charged, then you must find the defendant not guilty, even though some other conspiracy did exist or might have existed. Likewise, if the United States has failed to prove beyond a reasonable doubt that the defendant was a member of the conspiracy which is charged, then you must find the defendant not guilty even though [he] [she] may have been a member of some other conspiracy. But proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the Government also proved that [he] [she] was a member of the conspiracy charged in the indictment.

This alternative is based upon an instruction approved in United States v. Adipietro, 983 F.2d 1468, 1475 n.7 (8th Cir. 1993); United States v. Sawyers, 963 F.2d 157, 161 (8th Cir.), cert. denied, 506 U.S. 1006 (1992); and United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir.), cert. denied, 496 U.S. 942 (1990).

3. The possible existence of separate conspiracies may require the drafting of special instructions limiting the jury's consideration of statements made by co-conspirators to members of a particular conspiracy. Further, in separate but jointly tried conspiracies, limiting instructions are required to prevent guilt of those participating in one conspiracy from being transferred to those participating in a separate conspiracy. United States v. Varelli, 407 F.2d 735, 747 (7th Cir. 1969), cert. denied, 405 U.S. 1040 (1972); United States v. Jackson, 696 F.2d at 585-86; United States v. Snider, 720 F.2d 985, 990 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984).

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06H CONSPIRACY: WITHDRAWAL¹

FORECITE National™ Materials Related To This Instruction:

83.3.11 Conspiracy: Withdrawal As Defense Theory

If a person enters into an agreement but withdraws from that agreement before anyone has committed an act in furtherance of it, then the crime of conspiracy was not complete at that time and the person who withdrew must be found not guilty of the conspiracy.

In order for you to find that a person withdrew from a conspiracy, you must find that person took a definite, positive step to disavow or defeat the purpose of the conspiracy. Merely stopping activities or a period of inactivity is not enough. That person must have taken such action before any member of the scheme had committed any act in furtherance of the conspiracy.

The defendant has the burden of proving that [he] [she] withdrew by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing. [If the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the defendant. The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented.]

Notes on Use

1. This defense is available only to those conspiracies which require the commission of an overt act as an element.

This instruction, if used, should immediately follow the last paragraph of Instruction 5.06A, supra.

Committee Comments

Withdrawal requires an affirmative act to defeat or disavow the purpose of the conspiracy. Hyde v. United States, 225 U.S. 347, 369 (1912). "In order to withdraw from a conspiracy, a defendant ‘must demonstrate that he took affirmative action to withdraw from the conspiracy by making a clean breast to the authorities or by communicating his withdrawal in a manner reasonably calculated to reach his coconspirators.’ United States v. Zimmer, 299 F.3d 710, 718 (8th Cir. 2002) (citing United States v. Granados, 962 F.2d 767, 773 (8th Cir.1992), United States v. Askew, 958 F.2d 806, 812-13 (8th Cir.1992)) A cessation of activities, alone, is not sufficient to establish a withdrawal from the conspiracy. Zimmer, 299 F.3d at 718 (citing Granados, 962 F.2d at 773)." United States v. Jackson, 345 F.3d 638. 648 (8^th Cir. 2003).

To constitute a defense withdrawal must come before the commission of an overt act. Thus, an instruction on withdrawal is never appropriate in a conspiracy prosecution under a conspiracy statute which does not require proof of an overt act. See United States v. Francis, 916 F.2d 464 (8^th Cir. 1990); United States v. Grimmett, 150 F.3d 958 (8^th Cir. 1998).

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

If a person enters into an agreement but withdraws from that agreement before anyone has committed an act in furtherance of it, then the crime of conspiracy was not complete at that time and the person who withdrew must be found not guilty of the conspiracy.

In order for you to find that a person withdrew from a conspiracy, you must find that person took a definite, positive step to disavow or defeat the purpose of the conspiracy. Merely stopping activities or a period of inactivity is not enough. That person must have taken such action before any member of the scheme had committed any act in furtherance of the conspiracy.

The defendant has the burden of proving that [he] [she] withdrew by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing. [If the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the defendant. The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented.]

Notes on Use

1. This defense is available only to those conspiracies which require the commission of an overt act as an element.

This instruction, if used, should immediately follow the last paragraph of Instruction 5.06A, supra.

Committee Comments

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

If a person enters into an agreement but withdraws from that agreement before anyone has committed an act in furtherance of it, then the crime of conspiracy was not complete at that time and the person who withdrew must be found not guilty of the conspiracy.

In order for you to find that a person withdrew from a conspiracy, you must find that person took a definite, positive step to disavow or defeat the purpose of the conspiracy. Merely stopping activities or a period of inactivity is not enough. That person must have taken such action before any member of the scheme had committed any act in furtherance of the conspiracy.

The defendant has the burden of proving that [he] [she] withdrew by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing. [If the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the defendant. The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented.]

Notes on Use

1. This defense is available only to those conspiracies which require the commission of an overt act as an element.

This instruction, if used, should immediately follow the last paragraph of Instruction 5.06A, supra.

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.4 [now OI 13.4](1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.12 (1999); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.11 (5th ed. 2000). United States v. Jimenez, 622 F.2d 753 (5th Cir. 1980). See generally West Key # "Conspiracy" 40.4.

Withdrawal requires an affirmative act to defeat or disavow the purpose of the conspiracy; mere cessation of activity is insufficient. Hyde v. United States, 225 U.S. 347, 368-69 (1912); United States v. Lewis, 759 F.2d 1316, 1343 (8th Cir. 1985); United States v. Hamilton, 689 F.2d 1262, 1268 (6th Cir. 1982); United States v. Cohen, 516 F.2d 1358, 1364 (8th Cir. 1975). See also United States v. Boyd, 610 F.2d 521, 528 (8th Cir. 1980). To withdraw, a conspirator must show that he took "affirmative action, either making a clean breast to the authorities or communicating his withdrawal in a manner reasonably calculated to reach co-conspirators." United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978). These are only two possible methods of withdrawal. United States v. United States Gypsum Co., 438 U.S. 422 (1978). However, a mere cessation of activities or periods of inactivity are not sufficient to make the required showing.

In order to be entitled to an instruction on withdrawal, a defendant must have presented some evidence that he acted affirmatively to defeat or disavow the purpose of the conspiracy. United States v. Wedelstedt, 589 F.2d 339 (8th Cir. 1978). The burden of proof that the defendant withdrew is on the defendant. United States v. Boyd, 610 F.2d 521, 528 (8th Cir. 1979); United States v. Jiminez, 622 F.2d at 757. But see United States v. Read, 658 F.2d 1225 (7th Cir. 1981).

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06H CONSPIRACY: WITHDRAWAL1

If a person enters into an agreement but withdraws from that agreement before anyone has committed an act in furtherance of it, then the crime of conspiracy was not complete at that time and the person who withdrew must be found not guilty of the conspiracy.

In order for you to find that a person withdrew from a conspiracy, you must find that person took a definite, positive step to disavow or defeat the purpose of the conspiracy. Merely stopping activities or a period of inactivity is not enough. That person must have taken such action before any member of the scheme had committed any act in furtherance of the conspiracy.

The defendant has the burden of proving that [he] [she] withdrew by [the greater weight] [a preponderance] of the evidence. To prove something by [the greater weight] [a preponderance] of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing. [If the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the defendant. [The greater weight] [a preponderance] of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented.]

Committee Comments

See Eleventh Circuit Pattern Jury Instructions: Criminal (Offense) § 11.4 (1997); Seventh Circuit Federal Jury Instructions: Criminal § 5.12 (1999); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 28.11 (4th ed. 1990). United States v. Jimenez, 622 F.2d 753 (5th Cir. 1980). See generally West Key # "Conspiracy" 40.4.

Withdrawal requires an affirmative act to defeat or disavow the purpose of the conspiracy; mere cessation of activity is insufficient. Hyde v. United States, 225 U.S. 347, 368-69 (1912); United States v. Lewis, 759 F.2d 1316, 1343 (8th Cir.), cert. denied, 474 U.S. 994 (1985); United States v. Hamilton, 689 F.2d 1262, 1268 (6th Cir. 1982), cert. denied, 459 U.S. 1117 (1983); United States v. Cohen, 516 F.2d 1358, 1364 (8th Cir. 1975). See also United States v. Boyd, 610 F.2d 521, 528 (8th Cir.), cert. denied, 444 U.S. 1089 (1980). To withdraw, a conspirator must show that he took "affirmative action, either making a clean breast to the authorities or communicating his withdrawal in a manner reasonably calculated to reach co-conspirators." United States v. Parnell, 581 F.2d 1374, 1384 (10th Cir. 1978), cert. denied, 439 U.S. 1076 (1979). These are only two possible methods of withdrawal. United States v. United States Gypsum Co., 438 U.S. 422 (1978). However, a mere cessation of activities or periods of inactivity are not sufficient to make the required showing.

To constitute a defense withdrawal must come before the commission of an overt act. Thus, an instruction on withdrawal is never appropriate in a conspiracy prosecution under a conspiracy statute which does not require proof of an overt act. See United States v. Nicoll, 664 F.2d 1308 (5th Cir.), cert. denied, 457 U.S. 1118 (1982).

In order to be entitled to an instruction on withdrawal, a defendant must have presented some evidence that he acted affirmatively to defeat or disavow the purpose of the conspiracy. United States v. Wedelstedt, 589 F.2d 339 (8th Cir. 1978), cert. denied, 442 U.S. 916 (1979). The burden of proof that defendant withdrew is on the defendant. United States v. Boyd, 610 F.2d 521, 528 (8th Cir. 1979), cert. denied, 444 U.S. 1089 (1980); United States v. Jiminez, 622 F.2d at 757. But see United States v. Read, 658 F.2d 1225 (7th Cir. 1981).

Notes on Use

1. This defense is available only to those conspiracies which require the commission of an overt act as an essential element.

This instruction, if used, should immediately follow the last paragraph of Instruction 5.06A, supra.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06I CONSPIRACY: CO-CONSPIRATOR ACTS AND STATEMENTS¹

FORECITE National™ Materials Related To This Instruction:

83.3.11 Conspiracy: Withdrawal As Defense Theory

83.3.13.3 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants

83.3.6.7 Conspiracy: Membership Must Be Based On Acts and Statements Of The Defendant

83.4 Conspiracy: Hearsay Statements Of Coconspirator

You may consider acts knowingly done and statements knowingly made by a defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant even though they were done or made in the absence of and without the knowledge of the defendant.¹ This includes acts done or statements made before the defendant had joined the conspiracy, for a person who knowingly, voluntarily and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy.

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]^{2, 3}

Notes on Use

1. This instruction conforms to the Court's ruling in Bourjaily v. United States, 483 U.S. 171 (1987). The court decides the admissibility of conspiratorial statements and the jury should not reexamine this ruling. United States v. de Ortiz, 907 F.2d 629, 633 (7th Cir. 1990) (en banc); United States v. Petrozzielo, 548 F.2d 20, 23 (1st Cir. 1977); United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977); United States v. Enright, 579 F.2d 980, 986-87 (6th Cir. 1978); United States v. Gantt, 617 F.2d 831, 845-46 (D.C. Cir. 1980); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.06 (5th ed. 2000).

2. This instruction can be used in other situations involving joint conduct such as with respect to co-schemers in a mail fraud case. In such a situation, "conspirator" should be changed to "schemer," and "conspiracy" to "scheme." See Instruction 4.07, supra.

3. An explicit limiting instruction must be given if evidence of acts or statements by any co-conspirator made before or after the conspiracy began or ended has been admitted. See United States v. Snider, 720 F.2d 985, 999 (8th Cir. 1983).

See also Grunewald v. United States, 353 U.S. 391 (1957); United States v. Steele, 685 F.2d 793, 800-01 (3d Cir. 1982); United States v. Del Valle, 587 F.2d 699 (5th Cir. 1979); United States v. Payne, 635 F.2d 643, 645 (7th Cir. 1980). Basically, this line of cases holds that, unless the conspiracy includes an agreement to cover up the conspiracy, once the central purposes of the conspiracy have been accomplished, statements made to cover up the conspiracy are not statements made in furtherance of the conspiracy and cannot be admitted against the other conspirators.

Committee Comments

See United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982). See also West Key # "Criminal Law" 422(1); "Conspiracy" 41.

A. Admissibility.

Rule 801(d)(2)(E) governs the admissibility of co-conspirator statements. That rule provides that a statement is not hearsay if it is offered against a party and constitutes "a statement by a co-conspirator of [the] party during the course and in furtherance of the conspiracy." Such an out-of-court declaration is admissible against a defendant under this rule if the government demonstrates (1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declarations were made during the course of and in furtherance of the conspiracy. United States v. Bell, 573 F.2d 1040, 1043 (8th Cir. 1978).

FRE 104(a) requires the district court to apply a preponderance of the evidence standard in assessing the admissibility of evidence. Bourjaily v. United States, 483 U.S. 171, 176 (1987); United States v. Meeks, 857 F.2d 1201, 1203 (8th Cir. 1988). In making its determination as to the admissibility of co-conspirator statements, the district court may consider any relevant evidence, including the hearsay statements sought to be admitted. Bourjaily, 483 U.S. at 176-79; Meeks, 857 F.2d at 1203.

Although the statements themselves may be considered in determining their admissibility, most courts have held that there must be at least some independent evidence (other than the statements) of the existence of the conspiracy before the statements are admitted. United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir. 1989); United States v. Lindemann, 85 F.3d 1232, 1238, 1239 (7th Cir. 1996); United States v. Clark, 18 F.3d 1337, 1340-41 (6th Cir. 1994); United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir. 1993); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988); United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987).

In Bourjaily, it was further held that there can be no separate Confrontation Clause challenges to the admissibility of a co-conspirator's out-of-court statement once it is deemed admissible under Rule 801(d)(2)(E). 483 U.S. at 181-84. Thus, the unavailability of the declarant need not be demonstrated, United States v. Inadi, 475 U.S. 387 (1986), nor need the court make a separate inquiry into the reliability of the statement. Bourjaily, 483 U.S. at 183-84. (Prior to Inadi and Bourjaily, this circuit had recognized the two-pronged Confrontation Clause inquiry. See United States v. Massa, 740 F.2d 629, 638-41 (8th Cir. 1984).)

The procedural steps to be utilized when the admissibility of a co-conspirator's statement is at issue are set forth in the Bell opinion, 573 F.2d at 1044.

B. Jury Instructions.

The admission of co-conspirator statements into a trial traditionally gave rise to three different jury instructions. One instruction advised the jury it could consider statements of co-conspirators made in the absence of and without the knowledge of the defendant or before he was a member. See instruction set out in United States v. Shigemura, 682 F.2d at 705 (first two sentences of first instruction on page 705). This is still a valid instruction. As held in United States v. Treadwell, 760 F.2d 327, 338 (D.C. Cir. 1985), such an instruction can be helpful because:

A lay jury is unlikely to have knowledge or understanding of the vicarious liability principles underlying use of co-conspirator acts and statements or in what circumstances the acts and statements of one person may be imputed to another.

A second instruction sanctioned by this circuit cautioned the jury on the weight to be given to and credibility of a co-conspirator's statement. See Shigemura, 682 F.2d at 705 (third sentence of first instruction on page 705); United States v. Bell, 573 F.2d at 1044; United States v. Baykowski, 615 F.2d 767, 772 (8th Cir. 1980). Such an instruction was approved in Bell, and failure to give such an instruction was disapproved in Baykowski.

However, Supreme Court decisions holding that reliability can be inferred would eliminate any reason to caution the jury on the weight and credibility to be accorded co-conspirator statements. Ohio v. Roberts, 448 U.S. 56, 66 (1980), held that: "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." The Bourjaily opinion held that the co-conspirator exception to the hearsay rule meets the "firmly rooted" test and that, under Roberts, a court need not make an independent inquiry into the reliability of such statements.

See also United States v. Regilio, 669 F.2d 1169, 1176 (7th Cir. 1981), holding that the community of interest of co-conspirators evidences likelihood of reliability. In Regilio, the court found no error in the refusal to give a co-conspirator statement instruction which ended as follows:

If you find that the statement was made, you may give the statement such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care, particularly since the statement in question was not under oath or subject to cross-examination.

669 F.2d at 1178. The court held that, unlike accomplice testimony, out-of-court co-conspirator declarations "are not inherently unreliable because when the statement is made the declarant, unlike a testifying accomplice, has no reason to inculpate his co-conspirator falsely."

After Bourjaily it would appear that the only cautionary instruction the jury should be given with respect to such statements would go to the credibility of the witness who testifies to the statements, and then only if an accomplice, informant or immunized witness instruction is applicable. See Instructions 6.03-.05, infra. In a conspiracy prosecution, the testimony of an accomplice/co-conspirator is not per se unreliable and it is for the jury to decide how much weight such testimony should be given. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Evans, 697 F.2d 240, 245 (8th Cir. 1983).

It would seem that a cautionary instruction with respect to the statement itself would not come into play unless the credibility of the declarant had been attacked under FRE 806. Then the jury could be given a standard credibility instruction tailored to apply to the nontestifying declarant.

(For 2008 version see below).

*******************************************************************************************************************************************

2008 Version

You may consider acts knowingly done and statements knowingly made by a defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant even though they were done or made in the absence of and without the knowledge of the defendant.¹ This includes acts done or statements made before the defendant had joined the conspiracy, for a person who knowingly, voluntarily and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy.

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]^{2, 3}

Notes on Use

1. This instruction conforms to the Court's ruling in Bourjaily v. United States, 483 U.S. 171 (1987). The Court decides the admissibility of conspiratorial statements and the jury should not reexamine this ruling. United States v. de Ortiz, 907 F.2d 629, 633 (7th Cir. 1990) (en banc); United States v. Petrozzielo, 548 F.2d 20, 23 (1st Cir. 1977); United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977); United States v. Enright, 579 F.2d 980, 986, 987 (6th Cir. 1978); United States v. Gantt, 617 F.2d 831, 845, 846 (D.C. Cir. 1980); 2 Kevin F. O’Malley, et al., Federal Jury Practice and Instructions: Criminal § 31.06 (5th ed. 2000).

2. This instruction can be used in other situations involving joint conduct such as with respect to co-schemers in a mail fraud case. In such a situation, "conspirator" should be changed to "schemer" and "conspiracy" to "scheme." See Instruction 4.07, supra.

Committee Comments

See United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982). See also West Key # "Criminal Law" 422(1); "Conspiracy" 41.

A. Admissibility.

In Bourjaily, it was further held that there can be no separate Confrontation Clause challenges to the admissibility of a co-conspirator's out-of-court statement once it is deemed admissible under Rule 801(d)(2)(E). 483 U.S. at 181-84. Thus, the unavailability of the declarant need not be demonstrated, United States v. Inadi, 475 U.S. 387 (1986), nor need the court make a separate inquiry into the reliability of the statement. Bourjaily, 483 U.S. at 183-84. [Prior to Inadi and Bourjaily this circuit had recognized the two-pronged Confrontation Clause inquiry. See United States v. Massa, 740 F.2d 629, 638-41 (8th Cir. 1984).]

The procedural steps to be utilized when the admissibility of a co-conspirator's statement is at issue are set forth in the Bell opinion, 573 F.2d at 1044.

B. Jury Instructions.

The admission of co-conspirator statements into a trial traditionally gave rise to three different jury instructions. One instruction advised the jury it could consider statements of co-conspirators made in the absence of and without the knowledge of the defendant or before he was a member. See instruction set out in United States v. Shigemura, 682 F.2d at 705 [first two sentences of first instruction on page 705]. This is still a valid instruction. As held in United States v. Treadwell, 760 F.2d 327, 338 (D.C. Cir. 1985), such an instruction can be helpful because:

A lay jury is unlikely to have knowledge or understanding of the vicarious liability principles underlying use of co-conspirator acts and statements or in what circumstances the acts and statements of one person may be imputed to another.

A second instruction sanctioned by this circuit cautioned the jury on the weight to be given to and credibility of a co-conspirator's statement. See Shigemura, 682 F.2d at 705 [third sentence of first instruction on page 705]; United States v. Bell, 573 F.2d at 1044; United States v. Baykowski, 615 F.2d 767, 772 (8th Cir. 1980). Such an instruction was approved in Bell, and failure to give such an instruction was disapproved in Baykowski.

However, Supreme Court decisions holding that reliability can be inferred would eliminate any reason to caution the jury on the weight and credibility to be accorded co-conspirator statements. Ohio v. Roberts, 448 U.S. 56, 66 (1980) held that: "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." The Bourjaily opinion held that the co-conspirator exception to the hearsay rule meets the "firmly rooted" test and that, under Roberts, a court need not make an independent inquiry into the reliability of such statements.

If you find that the statement was made, you may give the statement such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care, particularly since the statement in question was not under oath or subject to cross-examination.

After Bourjaily it would appear that the only cautionary instruction the jury should be given with respect to such statements would go to the credibility of the witness who testifies to the statements, and then only if an accomplice, informant or immunized witness instruction is applicable. See Instructions 6.03-.05, infra. In a conspiracy prosecution the testimony of an accomplice/co-conspirator is not per se unreliable and it is for the jury to decide how much weight such testimony should be given. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Evans, 697 F.2d 240, 245 (8th Cir. 1983).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

You may consider acts knowingly done and statements knowingly made by a defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant even though they were done or made in the absence of and without the knowledge of the defendant.1 This includes acts done or statements made before the defendant had joined the conspiracy, for a person who knowingly, voluntarily and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy.

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]2, 3

Notes on Use

2. This instruction can be used in other situations involving joint conduct such as with respect to co-schemers in a mail fraud case. In such a situation, "conspirator" should be changed to "schemer" and "conspiracy" to "scheme." See Instruction 4.07, supra.

Committee Comments

See United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982). See also West Key # "Criminal Law" 422(1); "Conspiracy" 41.

A. Admissibility.

In Bourjaily, it was further held that there can be no separate Confrontation Clause challenges to the admissibility of a co-conspirator's out-of-court statement once it is deemed admissible under Rule 801(d)(2)(E). 483 U.S. at 181-84. Thus, the unavailability of the declarant need not be demonstrated, United States v. Inadi, 475 U.S. 387 (1986), nor need the court make a separate inquiry into the reliability of the statement. Bourjaily, 483 U.S. at 183-84. [Prior to Inadi and Bourjaily this circuit had recognized the two-pronged Confrontation Clause inquiry. See United States v. Massa, 740 F.2d 629, 638-41 (8th Cir. 1984).]

The procedural steps to be utilized when the admissibility of a co-conspirator's statement is at issue are set forth in the Bell opinion, 573 F.2d at 1044.

B. Jury Instructions.

The admission of co-conspirator statements into a trial traditionally gave rise to three different jury instructions. One instruction advised the jury it could consider statements of co-conspirators made in the absence of and without the knowledge of the defendant or before he was a member. See instruction set out in United States v. Shigemura, 682 F.2d at 705 [first two sentences of first instruction on page 705]. This is still a valid instruction. As held in United States v. Treadwell, 760 F.2d 327, 338 (D.C. Cir. 1985), such an instruction can be helpful because:

A lay jury is unlikely to have knowledge or understanding of the vicarious liability principles underlying use of co-conspirator acts and statements or in what circumstances the acts and statements of one person may be imputed to another.

A second instruction sanctioned by this circuit cautioned the jury on the weight to be given to and credibility of a co-conspirator's statement. See Shigemura, 682 F.2d at 705 [third sentence of first instruction on page 705]; United States v. Bell, 573 F.2d at 1044; United States v. Baykowski, 615 F.2d 767, 772 (8th Cir. 1980). Such an instruction was approved in Bell, and failure to give such an instruction was disapproved in Baykowski.

However, Supreme Court decisions holding that reliability can be inferred would eliminate any reason to caution the jury on the weight and credibility to be accorded co-conspirator statements. Ohio v. Roberts, 448 U.S. 56, 66 (1980) held that: "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." The Bourjaily opinion held that the co-conspirator exception to the hearsay rule meets the "firmly rooted" test and that, under Roberts, a court need not make an independent inquiry into the reliability of such statements.

If you find that the statement was made, you may give the statement such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care, particularly since the statement in question was not under oath or subject to cross-examination.

After Bourjaily it would appear that the only cautionary instruction the jury should be given with respect to such statements would go to the credibility of the witness who testifies to the statements, and then only if an accomplice, informant or immunized witness instruction is applicable. See Instructions 6.03-.05, infra. In a conspiracy prosecution the testimony of an accomplice/co-conspirator is not per se unreliable and it is for the jury to decide how much weight such testimony should be given. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Evans, 697 F.2d 240, 245 (8th Cir. 1983).

For 2000 version see below

******************************************************************************************************************

2000 Version

5.06I CONSPIRACY: CO-CONSPIRATOR ACTS AND STATEMENTS1

You may consider acts knowingly done and statements knowingly made by a defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant even though they were done or made in the absence of and without the knowledge of the defendant.1 This includes acts done or statements made before the defendant had joined the conspiracy, for a person who knowingly, voluntarily and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy.

[Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.]2, 3

Committee Comments

See United States v. Shigemura, 682 F.2d 699, 705 (8th Cir. 1982), cert. denied, 459 U.S. 1111 (1983). See also West Key # "Criminal Law" 422(1); "Conspiracy" 41.

A. Admissibility.

Although the statements themselves may be considered in determining their admissibility, most courts have held that there must be at least some independent evidence (other than the statements) of the existence of the conspiracy before the statements are admitted. United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir. 1989); United States v. Lindemann, 85 F.3d 1232, 1238, 1239 (7th Cir. 1996); United States v. Clark, 18 F.3d 1337, 1340-41 (6th Cir.), cert. denied, 513 U.S. 852 (1994); United States v. Sepulveda, 15 F.3d 1161, 1181 (1st Cir. 1994); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988); United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987).

In Bourjaily, it was further held that there can be no separate Confrontation Clause challenges to the admissibility of a co-conspirator's out-of-court statement once it is deemed admissible under Rule 801(d)(2)(E). 483 U.S. at 181-84. Thus, the unavailability of the declarant need not be demonstrated, United States v. Inadi, 475 U.S. 387 (1986), nor need the court make a separate inquiry into the reliability of the statement. Bourjaily, 483 U.S. at 183-84. [Prior to Inadi and Bourjaily this circuit had recognized the two-pronged Confrontation Clause inquiry. See United States v. Massa, 740 F.2d 629, 638-641 (8th Cir. 1984), cert. denied, 471 U.S. 1115 (1985).]

The procedural steps to be utilized when the admissibility of a co-conspirator's statement is at issue are set forth in the Bell opinion, 573 F.2d at 1044.

B. Jury Instructions.

The admission of co-conspirator statements into a trial traditionally gave rise to three different jury instructions. One instruction advised the jury it could consider statements of co-conspirators made in the absence of and without the knowledge of defendant or before he was a member. See instruction set out in United States v. Shigemura, 682 F.2d at 705 [first two sentences of first instruction on page 705]. This is still a valid instruction. As held in United States v. Treadwell, 760 F.2d 327, 338 (D.C. Cir. 1985), cert. denied, 474 U.S. 1064 (1986), such an instruction can be helpful because:

A lay jury is unlikely to have knowledge or understanding of the vicarious liability principles underlying use of co-conspirator acts and statements or in what circumstances the acts and statements of one person may be imputed to another.

A second instruction sanctioned by this circuit cautioned the jury on the weight to be given to and credibility of a co-conspirator's statement. See Shigemura, 682 F.2d at 705 [third sentence of first instruction on page 705]; United States v. Bell, 573 F.2d at 1044; United States v. Baykowski, 615 F.2d 767, 772 (8th Cir. 1980). Such an instruction was approved in Bell, and failure to give such an instruction was disapproved in Baykowski.

However, Supreme Court decisions holding that reliability can be inferred would eliminate any reason to caution the jury on the weight and credibility to be accorded co-conspirator statements. Ohio v. Roberts, 448 U.S. 56, 66 (1980) held that: "Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." The Bourjaily opinion held that the co-conspirator exception to the hearsay rule meets the "firmly rooted" test and that, under Roberts, a court need not make an independent inquiry into the reliability of such statements.

See also United States v. Regilio, 669 F.2d 1169, 1176 (7th Cir. 1981), cert. denied, 457 U.S. 1133 (1982) holding that the community of interest of co-conspirators evidences likelihood of reliability. In Regilio, the court found no error in the refusal to give a co-conspirator statement instruction which ended as follows:

If you find that the statement was made, you may give the statement such weight as you feel it deserves, keeping in mind that it must be considered with caution and great care, particularly since the statement in question was not under oath or subject to cross-examination.

After Bourjaily it would appear that the only cautionary instruction the jury should be given with respect to such statements would go to the credibility of the witness who testifies to the statements, and then only if an accomplice, informant or immunized witness instruction is applicable. See §§ 6.03-6.05, supra. In a conspiracy prosecution the testimony of an accomplice/co-conspirator is not per se unreliable and it is for the jury to decide how much weight such testimony should be given. United States v. Sopczak, 742 F.2d 1119, 1121 (8th Cir. 1984); United States v. Evans, 697 F.2d 240, 245 (8th Cir.), cert. denied, 460 U.S. 1086 (1983).

A third instruction on the standard of admissibility, former 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 28.06 (4th ed. 1990), is no longer in use because this threshold question of admissibility is a question of law.

Notes on Use

1. This instruction conforms to the Court's ruling in Bourjaily v. United States, 483 U.S. 171 (1987). The Court decides the admissibility of conspiratorial statements and the jury should not reexamine this ruling. United States v. de Ortiz, 907 F.2d 624, 633 (7th Cir. 1990) (en banc); United States v. Petrozzielo, 548 F.2d 20, 23 (1st Cir. 1977); United States v. Stancich, 550 F.2d 1294 (2d Cir. 1977); United States v. Enright, 579 F.2d 980, 986, 987 (6th Cir. 1978); United States v. Gantt, 617 F.2d 831, 845, 846 (D.C. Cir. 1980); 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 28.06 (4th ed. 1990).

2. This instruction can be used in other situations involving joint conduct such as with respect to co-schemers in a mail fraud case. In such a situation, "conspirator" should be changed to "schemer" and "conspiracy" to "scheme." See No. 4.07, supra.

3. An explicit limiting instruction must be given if evidence of acts or statements by any co-conspirator made before or after the conspiracy began or ended has been admitted. See United States v. Snider, 720 F.2d 985, 999 (8th Cir. 1983), cert. denied, 465 U.S. 1107 (1984).

See also Grunewald v. United States, 353 U.S. 391 (1957); United States v. Steele, 685 F.2d 793, 800-01 (3d Cir.), cert. denied, 459 U.S. 908 (1982); United States v. Del Valle, 587 F.2d 699 (5th Cir.), cert. denied, 442 U.S. 909 (1979); United States v. Payne, 635 F.2d 643, 645 (7th Cir. 1980), cert. denied, 451 U.S. 972 (1981). Basically, this line of cases holds that, unless the conspiracy includes an agreement to cover up the conspiracy, once the central purposes of the conspiracy have been accomplished, statements made to cover up the conspiracy are not statements made in furtherance of the conspiracy and cannot be admitted against the other conspirators.

8TH CIRCUIT MODEL INSTRUCTIONS 2009

5.06J CONSPIRACY: "CO-CONSPIRATOR LIABILITY"
(Pinkerton Charge)

Each member of a conspiracy is responsible for crimes committed by other members of the conspiracy, if the government proves each of the following elements beyond a reasonable doubt:

One, (name of person) committed the crime of [e.g. kidnaping], [as set forth in instruction number __];

Two, (name of person) was a member of [the] the conspiracy at the time the [e.g. kidnaping] was committed;

Three, (name of person) committed the crime of [e.g. kidnaping] in furtherance of the conspiracy;

Four, the [e.g., kidnaping] was within the scope of the conspiracy, or was reasonably foreseeable as a necessary or natural consequence of the conspiracy;¹ and

Five, (name of the defendant) was also a member of the conspiracy at the time of the [e.g. kidnaping].

[Insert paragraph describing Government’s burden of proof; see Instruction 3.09 supra]

Notes on Use

1. Use when the Government pursues a theory of co-conspirator liability. Where this instruction is appropriate, it should be given in conjunction with other applicable conspiracy instructions under this chapter. United States v. Lucas, 932 F.2d 1210 (8^th Cir. 1991).

Committee Comments

This instruction incorporates the Pinkerton principle of co-conspirator liability. Pinkerton v. United States, 328 U.S. 640, 645-47 (1946). This instruction is supported by United States v. Pierce, 479 F.3d 546 (8^th Cir. 2006); United States v. Navarrete-Barron, 192 F.3d 786, 792-93 (8^th Cir. 1999); United States v. Golter, 880 F.2d 91, 93 (8th Cir.1989).