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F 6.13 n1 Association Alone Does Not Prove Membership In Conspiracy (PC 182).
Ninth Circuit Note
See U.S. v. Bautista-Avila (9th Cir. 1993) 6 F3d 1360, 1362.
F 6.13a
Conspiracy: Knowing Association Insufficient
*Add to CJ 6.13:
This is true even if the defendant knew of the existence of the conspiracy during [his] [her] association with said person[s]. You may not find that defendant committed the crime of conspiracy unless all the required elements, upon which I have previously instructed you, have been proven beyond a reasonable doubt.
ALTERNATIVE INSTRUCTION:
Presence of a person at the location of an alleged conspiracy’s activities, while the activities are taking place, and knowing that they are taking place, cannot support a conspiracy conviction without proof beyond a reasonable doubt that the person intentionally participated in the conspiracy. It is extremely imprudent to remain knowingly in the presence of an ongoing criminal conspiracy, but imprudence is not a crime. Sometimes youthful inexperience and lack of common sense, impecuniousness, or personal relationships may bring the innocent into continuing proximity with the guilty, but acquittal is required in the absence of evidence of intentional participation.
[Source adapted from U.S. v. Herrera-Gonzalez (9th Cir. 2001) 263 F3d 1092, 1097-98.]
Points and Authorities
Conspiracy requires a specific intent to agree or conspire and the specific intent to commit the offense which is the object of the conspiracy. (People v. Horn (74) 12 C3d 290, 296 [115 CR 516].) Hence, even knowing association with a conspirator is not sufficient to convict the defendant of conspiracy. For example, in U.S. v. Vaandering (9th Cir. 1995) 50 F3d 696, 702, the following instruction was held to be correct: “… a person does not become a member [of the conspiracy] merely by associating with one or more person who are conspirators, nor merely by knowing of the existence of a conspiracy.”
F 6.13b
Conspiracy Must Be Based On Acts and Statements Of The Defendant
*Add to CJ 6.13:
In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants. However, in determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.
Points and Authorities
(Federal Criminal Jury Instructions Of The 7th Circuit (1980) Inst No. 5.11; see also, U.S. v. Rawwad (1st Cir. 1986) 807 F2d 294, 296; U.S. v. Monteiro (1st Cir. 1989) 871 F2d 204, 208.)