SERIES 3500 POST-TRIAL: CONCLUDING
F 3500.4.1 Conspiracy
TABLE OF CONTENTS
F 3500.4.1 Inst 1 (a & b) Unanimity As To Objective Of Conspiracy
F 3500.4.1 NOTES
F 3500.4.1 Note 1 Conspiracy: Unanimity As To Overt Acts—Multiple Agreements
F 3500.4.1 Note 2 Conspiracy: Unanimity As To Overt Acts— Statute Of Limitations
F 3500.4.1 Note 3 Conspiracy: Unanimity As To Overt Acts—Withdrawal
F 3500.4.1 Note 4 Conspiracy: Unanimity As To Overt Acts— When Some Overt Acts Were Committed Before Defendant Joined Conspiracy
F 3500.4.1 Note 5 Conspiracy: Unanimity As To Overt Acts—When One Overt Act Was Committed After Conspiracy Terminated
Return to Series 3500 Table of Contents.
F 3500.4.1 Inst 1 (a & b) Unanimity As To Objective Of Conspiracy
*Add to CC 3500:
Alternative a:
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.]
[Source: 8th Circuit Model Jury Instructions—Criminal 5.06F [Conspiracy: Multiple Offenses] (2000).]
Alternative b:
You must unanimously agree as to at least one objective which the alleged conspirators agreed to accomplish. However, the prosecution is not required to prove that the defendant agreed to accomplish all of the objectives alleged.
[See U.S. v. Castro (9th Cir.1989) 887 F2d 988, 993; cf. Criminal Jury Instructions for the District of Columbia 4.93, comment [Conspiracy: Basic Instruction] p. 519 (Bar Association of the District of Columbia, 4th ed. 1993).]
Points and Authorities
People v. Vargas (2001) 91 CA4th 506, 556-562 concluded that because the agreement is the conspiracy, unanimity as to the object of the agreement is not necessary. However, this opinion fails to recognize that the intent and object of the agreement are essential components of the agreement itself. Without a specification of the intent and object of the conspiracy, there can be no agreement. Hence, an agreement to commit several different offenses may be viewed by the jury as separate individual agreements to commit each individual offense. Accordingly, unanimity should be required.
Indeed, Vargas conflicts with decisions from other jurisdictions which hold that when a single count contemplates the commission of more than one underlying offense, the jury must determine, as an essential element of the crime of conspiracy, the particular underlying offense or offenses the defendant conspired to commit. (See State v. Toth (CT 1993) 618 A2d 536, 543-547; see also U.S. v. Ballard (5th Cir. 1981) 663 F2d 534, 544 [jury must reach unanimous agreement on the same object offense for a conspiracy].)
Courts generally recommend, and in many instances require, a special unanimity instruction as to multiple object conspiracies. (U.S. v. Theodoropoulos (3d Cir.1989) 866 F2d 587, 597 [specific unanimity instruction, as to which of several weapons defendant used, was proper, even if not mandatory under Braverman v. U.S. (1942) 317 US 49, 54 [87 LEd 23; 63 SCt 99 in cocaine trafficking conspiracy trial].) “A unanimity instruction as to the particular objects of a charged conspiracy is appropriate ‘where it appears that a conviction might rest upon different jurors having found the existence of different facts …’ ” (U.S. v. Castro (9th Cir.1989) 887 F2d 988, 993, (quoting) U.S. v. Frazin (9th Cir. 1986) 780 F2d 1461, 1468; Griffin v. U.S. (1991) 502 US 46, 60 [112 SCt 466; 116 LEd 371] (concurrence of Justice Blackmun) [urging use of special interrogatories to eliminate the risk of non-unanimity]; U.S. v. Feldman (9th Cir.1988) 853 F2d 648, 653; U.S. v. Sturman (7th Cir. 1995) 49 F3d 1275, 1282; U.S. v. Gordon (9th Cir. 1988) 844 F2d 1397, 1400-01.)
In sum, “the judge must instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which incident or incidents they find the defendant guilty.” (Hack v. U.S. (DC App. 1982) 445 A2d 634, 641; see also U.S. v. Alvarez (11th Cir. 1984) 735 F2d 461, 465-66 [conspiracy conviction reversed where conspiracy count alleged two objectives and no unanimity instruction was given]; U.S. v. Mangieri (DC Cir. 1982) 692 F2d 1270, 1281; Davis v. U.S. (DC App. 1982) 448 A2d 242; see McSorley, Portable Guide to Federal Conspiracy Law—Developing Strategies for Criminal and Civil Cases (ABA, 1996) Chapter 4, p. 47.)
This instruction may also be required by the federal constitutional rights to due process and trial by jury. (See FORECITE F 17.01 n4.)
Identification Of Parties— See FORECITE F 100.2 Note 1.
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 12.2 [Duplicity/Unanimity]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.01d.
F 3500.4.1 NOTES
F 3500.4.1 Note 1 Conspiracy: Unanimity As To Overt Acts— Multiple Agreements
People v. Russo (2001) 25 C4th 1124, 1134-37 held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required if the evidence suggests that there were multiple agreements
CALJIC NOTE: See FORECITE F 17.01 n30.
F 3500.4.1 Note 2 Conspiracy: Unanimity As To Overt Acts—Statute Of Limitations
People v. Russo (2001) 25 C4th 1124, 1134-37 held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when there is an issue concerning the statute of limitations.
CALJIC NOTE: See FORECITE F 17.01 n31.
F 3500.4.1 Note 3 Conspiracy: Unanimity As To Overt Acts—Withdrawal
People v. Russo (2001) 25 C4th 1124, 1134-37 held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when there is an issue concerning withdrawal. (See also FORECITE F 6.20 n1.)
CALJIC NOTE: See FORECITE F 17.01 n32.
F 3500.4.1 Note 4 Conspiracy: Unanimity As To Overt Acts—When Some Overt Acts Were Committed Before Defendant Joined Conspiracy
People v. Russo (2001) 25 C4th 1124, 1134-37 held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when some overt acts were committed before the defendant joined the conspiracy. (See also FORECITE F 6.10g.)
CALJIC NOTE: See FORECITE F 17.01 n33.
F 3500.4.1 Note 5 Conspiracy: Unanimity As To Overt Acts—When One Overt Act Was Committed After Conspiracy Terminated
People v. Russo (2001) 25 C4th 1124, 1134-37 held that jury unanimity is not required as to the overt act element of conspiracy. (PC 182.) Nevertheless, unanimity may be required when an overt act was committed after the conspiracy terminated. (See also FORECITE F 6.21a and F 6.10a.)
CALJIC NOTE: See FORECITE F 17.01 n34.
