SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 415.4 CONSPIRACY: BURDEN OF PROOF ISSUES
F 415.5 CONSPIRACY: ELEMENTS
TABLE OF CONTENTS
F 415.4 CONSPIRACY: BURDEN OF PROOF ISSUES
F 415.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 415.4 Inst 2 Conspiracy: Withdrawal Before Commission Of Overt Act—Prosecution Burden
F 415.4 Inst 3 Instructions Should Not Assume A Conspiracy Has Been Proven
F 415.4 Inst 4 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A “Common Purpose”
F 415.4 Inst 5 Restating Prosecution’s Burden In Conjunction With Inference Instruction
F 415.4 Inst 6 Unanimity: Specification Of Prosecution Burden
F 415.5 CONSPIRACY: ELEMENTS
F 415.5 Inst 1 Commission Of Conspiracy Rather Than Membership
F 415.5 Inst 2 Conspiracy: Separate Enumerations Of Intent And Agreement Elements
F 415.5 Inst 3 Prosecution Must Prove All Elements Of Target Crime
F 415.5 Inst 4 Overt Act Must Be Committed After Defendant And Alleged Co-Conspirator(s) Have Entered Into The Conspiratorial Agreement
F 415.5 Inst 5 Overt Act Must Be Independent Of The Agreement
F 415.5 Inst 6 Separate Enumeration Of Combined Elements
Return to Series 400 Table of Contents.
F 415.4 Conspiracy: Burden Of Proof Issues
F 415.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 415.4 Inst 2 Conspiracy: Withdrawal Before Commission Of Overt Act—Prosecution Burden
See FORECITE F 420.4 Inst 1.
F 415.4 Inst 3 Instructions Should Not Assume A Conspiracy Has Been Proven
See FORECITE F 415.3 Inst 2.
F 415.4 Inst 4 Improper To Instruct That Agreement May Be Inferred From Conduct Indicating A “Common Purpose”
See FORECITE F 415.3 Inst 2.
F 415.4 Inst 5 Restating Prosecution‘s Burden In Conjunction With Inference Instruction
*Add to CC 415, paragraph 4:
Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Essential Fact Instruction—If the inference language in CALCRIM 415, paragraph 4, is retained (but see FORECITE F 415.3 Inst 2), the prosecution‘s burden of proof should be restated. (See e.g., CC 376; see also In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].)
Use Of The Term “Defendant“—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.4 Inst 6 Unanimity: Specification Of Prosecution Burden
See FORECITE F 415.8 Inst 1.
F 415.5 Conspiracy: Elements
F 415.5 Inst 1 Commission Of Conspiracy Rather Than Membership
*Modify CC 415, paragraph 1, sentence 2 as follows [added language is underlined; deleted language is stricken]:
(He/She) may also be guilty if (he/she) is a member of a conspiracy conspired with another person or persons to commit the crime.]
*Modify paragraph 11 as follows:
[Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the guilty of conspiracy.]
*Modify paragraph 12 as follows:
[Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the is guilty of conspiracy.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Membership In Conspiracy Requires Proof Of All Requisite Elements—Framing the defendant‘s liability in terms of being “a member of a conspiracy“ is imprecise because the required elements are expressed in terms of conspiring to commit the crime, not merely being a “member“ of a conspiracy. (Compare CC 416.) (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; Franklin v. Francis (1985) 471 US 307, 313-15 [85 LEd2d 344].)
[See also FORECITE F 415.5 Inst 6.]
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.5 Inst 2 Conspiracy: Separate Enumerations Of Intent And Agreement Elements
*Modify CC 415, Element 1, and add new Element 2 as follows [added language is underlined; deleted language is stricken]:
1. The defendant intended to agree and did agree with [one or more of] (the other defendant[s]/ [or] __________ <insert name[s] or description[s] of co-participant[s]>) to commit __________ <insert alleged crime[s]>;
2. The defendant intended to agree and did agree with [one or more of] (the other defendant[s]/ [or] __________ <insert name[s] or description[s] of co-participant[s]>) to commit __________ <insert alleged crime[s]>;
[Renumber remaining Elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Separate Enumeration—Both intent to agree and actually agreeing are separate elements of conspiracy. (See People v. Horn (1974) 12 C3d 290; see also FORECITE F 415.5 Inst 6.) Hence, those elements should be separately enumerated. (See FORECITE F 3500.2 Inst 1.)
Use Of The Term “Defendant“—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.5 Inst 3 Prosecution Must Prove All Elements Of Target Crime
Alternative a:
*Modify CC 415, Element 1, as follows [added language is underlined]:
1. The defendant intended to agree and did agree with [one or more of] (the other defendant[s]/ [or] ________ <insert name[s] or description[s] of co-participant[s]>) to commit ________ <insert alleged crime[s]> as [that] [those] crimes are defined in instruction number[s] _______ [and ________] of these instructions;
Alternative b:
*Add to CC 415, Element 1, as follows:
To prove the agreement was to commit the _______________ <insert __________> the prosecution must prove beyond a reasonable doubt that the agreement intended that:
[Insert elements tailored to intended perpetrator and alleged facts.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 415 erroneously fails to require the jurors to find all the elements of the target crimes. (See People v. Prettyman (1996) 14 C4th 248, 269-70; see also FORECITE F 402.5 Inst 5.)
No Reference To “The People“—The defendant objects to use of the term “the People“ in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant“ C The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.5 Inst 4 Overt Act Must Be Committed After Defendant And Alleged Co-Conspirator(s) Have Entered Into The Conspiratorial Agreement
*Modify CC 415, paragraph 6, sentence 2, as follows [added language is underlined; deleted language is stricken]:
The overt act must happen after the defendant and _______________ <name[s] of alleged co-conspirators> has have agreed to commit the crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 415 requires the overt act to be after the “defendant agreed to commit the crime.“ However, the defendant‘s agreement alone does not establish a conspiracy. There must also be agreement by the other alleged co-conspirator. (See FORECITE F 415.5 Inst 6.)
Hence, if the overt act is committed prior to the co-conspirator‘s agreement, then there is no conspiracy.
Use Of The Term “Defendant“—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.5 Inst 5 Overt Act Must Be Independent Of The Agreement
*Modify CC 415, paragraph 6, sentence 7, as follows [added language is underlined; deleted language is stricken]:
The overt act must be more than independent of the acts of agreeing which make up the agreement or planning to commit the crime, but it does not have to be a criminal act itself.
Points and Authorities
CALCRIM 415’s use of the term “more than“ fails to accurately describe the independence required of an overt act. (See People v. Williams (1979) 97 CA3d 382, 392 [“ … allegation of an overt act [must] show[] on its face that such act was independent of the alleged conspiracy … “ ]; see also U.S. v. Pomranz (5th Cir. 1995) 43 F3d 156, 160; Raymark Industries, Inc. v. Stemple (D.Kan.1988) 714 FSupp 460, 477; U.S. v. Grossman (E.D.N.Y.1931) 55 F2d 408, 410; People v. Ribowsky (NY 1991) 568 NE2d 1197, 1202; People v. Bongarzone (NY 1986) 500 NYS2d 532, 536; People v. DeCabia (NY 1958) 172 NYS2d 1004, 1006.)
F 415.5 Inst 6 Separate Enumeration Of Combined Elements
*Replace CC 415, Elements, with the following:
1. The defendant and _______________ <name of alleged co-conspirator> intentionally entered into an agreement;
2. The agreement included a plan or scheme to commit the crime of ________ <insert alleged criminal objective of the conspiracy>;
3. The defendant and _______________ <name of alleged co-conspirator> knew and mutually understood the essential nature of the agreement‘s plan or scheme;
4. When they entered into the agreement, the defendant and _______________ <name of alleged co-conspirator> both intended that the crime of ________ <insert alleged criminal objective of the conspiracy> be committed.
[Renumber Remaining Elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Requirement That Compound Elements Be Separately Enumerated—Elements 1 and 2 of CALCRIM 415 combine four discrete elements: (1) intentionally entering into an agreement; (2) the criminal purpose of the agreement; (3) knowledge and mutual understanding of the agreement; and (4) intent to commit the crime which is the object of the agreement. Discrete elements such as these should be separately enumerated. (See FORECITE F 3500.2 Inst 1.)
The Parties Must Intentionally Enter Into An Agreement—“Since it is the agreement that is criminalized, it is vital to ‘determine what kind of agreement or understanding existed as to each defendant [citation],‘ and whether there was, in fact, any agreement, i.e., meeting of the minds on the essential nature of the plan or scheme. If there is no ‘meeting of minds‘ as to the object, there is no prosecutable agreement and hence no conspiracy. [Citation.]“ (McSorley, Portable Guide to Federal Conspiracy Law—Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, §A(6); see also Krulewitch v. U.S. (1949) 336 US 440, 448 [69 SCt 716; 93 LEd 790] (Jackson, J., concurring); U.S. v. Elder (2nd Cir. 1996) 88 F3d 127, 129; U.S. v. Toler (11th Cir 1998) 144 F3d 1423, 1426; McDowll v. Jones (8th Cir. 1993) 990 F2d 433, 434 [meeting of minds essential for conspiracy under 42 USC 1985]; Acquah v. State (MD 1996) 686 A2d 690, 701.)
See also People v. Horn (1974) 12 C3d 290, 296.
The Agreement Must Have A Discrete Criminal Purpose—“The core of a conspiracy is an agreement to commit an unlawful act.“ (U.S. v. Esparsen (10th Cir. 1991) 930 F2d 1461, 1471; see also U.S. v. Kelly (3rd Cir. 1989) 892 F2d 255, 258 [“The essence of a conspiracy is an agreement“ ].) To find a single conspiracy, the jury must be convinced beyond a reasonable doubt that the alleged co-conspirators‘ agreement encompassed a common, illicit goal. (See U.S. v. Dickey (10th Cir. 1984) 736 F2d 571, 582.) Thus, to establish that a defendant was a member of the broad, single conspiracy alleged, it must be proven that he or she had a “unity of purpose or a common design and understanding“ with the co-conspirators and with the intent to commit the offense which was the object of the conspiracy. (U.S. v. Fox (10th Cir. 1990) 902 F2d 1508, 1514 [quoting U.S. v. Kendall (10th Cir.1985) 766 F2d 1426, 1531]; see also U.S. v. Wexler (3rd Cir. 1988) 838 F2d 88, 91; U.S. v. Coleman (3rd Cir. 1987) 811 F2d 804, 808; U.S. v. Ammar (3rd Cir. 1983) 714 F2d 238, 246 [guidelines for admitting co-conspirator statements into evidence].)
The Parties Must Have Knowledge And Mutual Understanding Of The Agreement—“Knowledge of the objective of a conspiracy is an essential element of a conspiracy conviction.“ (U.S. v. Krasovich (9th Cir. 1987) 819 F2d 253, 255.) “Without the knowledge, the intent cannot exist … . Furthermore, to establish the intent, the evidence of knowledge must be clear, not equivocal … .“ (Ingram v. U.S. (1959) 360 US 672, 680 [79 SCt 1314; 3 LEd2d 1503] [internal quotes and citations omitted, quoting Direct Sales v. U.S. (1943) 319 US 703, 711 [63 SCt 1265; 87 LEd 1647]]; see also U.S. v. Christian (6th Cir. 1986) 786 F2d 203, 211; U.S. v. Bibby (6th Cir. 1985) 752 F2d 1116, 1124; Turner v. State (TX 1986) 720 SW2d 161.)
“Since it is the agreement that is criminalized, it is vital to ‘determine what kind of agreement or understanding existed as to each defendant [citation],‘ and whether there was, in fact, any agreement, i.e., meeting of the minds on the essential nature of the plan or scheme. If there is no ‘meeting of minds‘ as to the object, there is no prosecutable agreement and hence no conspiracy. [Citation.]“ (McSorley, Portable Guide to Federal Conspiracy Law—Developing Strategies for Criminal and Civil Cases (ABA, 2003) Chapter 2, §A(6); see also People v. Hardeman (1966) 244 CA2d 1, 19; Krulewitch v. U.S. (1949) 336 US 440, 448 [69 SCt 716; 93 LEd 790] (Jackson, J., concurring); U.S. v. Elder (2nd Cir. 1996) 88 F3d 127, 129; U.S. v. Toler (11th Cir 1998) 144 F3d 1423, 1426; McDowll v. Jones (8th Cir. 1993) 990 F2d 433, 434 [meeting of minds essential for conspiracy under 42 USC 1985]; Acquah v. State (MD 1996) 686 A2d 690, 701; but see People v. Manson (1976) 61 CA3d 102, 126 [not necessary to “directly“ show “the proverbial meeting of the minds“ ].)
The Parties Must Intend That The Crime Encompassed By The Agreement Be Committed—See People v. Horn (1974) 12 C3d 290, 296.
The Mental Elements Must Be Formed By Both The Defendant And The Alleged Co-Conspirator—See above.
Use Of The Term “Defendant“—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
WARNING! Federal Constitutional Claims May Be Lost Without Proper Federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
