SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
F 415.6 CONSPIRACY: DEFENSE THEORIES
F 415.7 CONSPIRACY: PRELIMINARY FACT ISSUES [RESERVED]
F 415.8 CONSPIRACY: UNANIMITY/DUPLICITY/MULTIPLICITY
F 415.9 CONSPIRACY: LESSER OFFENSE ISSUES [RESERVED]
TABLE OF CONTENTS
F 415.6 CONSPIRACY: DEFENSE THEORIES
F 415.6 Inst 1 Merely Accompanying Or Associating With Members: Relating To All Elements Of Conspiracy
F 415.6 Inst 2 (a-c) Knowing Association Insufficient To Prove Conspiracy
F 415.6 Inst 3 Mere Awareness Of Conspiracy Not Sufficient To Convict
F 415.6 Inst 4 (a-c) Knowingly Helping To Accomplish The Conspiratorial Objective Is Insufficient
F 415.6 Inst 5 Mistake Of Law As Defense Theory To Specific Intent Element Of Conspiracy
F 415.7 CONSPIRACY: PRELIMINARY FACT ISSUES [RESERVED]
F 415.8 CONSPIRACY: UNANIMITY/DUPLICITY/MULTIPLICITY
F 415.8 Inst 1 Unanimity: Specification Of Prosecution Burden
F 415.9 CONSPIRACY: LESSER OFFENSE ISSUES [RESERVED]
Return to Series 400 Table of Contents.
F 415.6 Conspiracy: Defense Theories
F 415.6 Inst 1 Merely Accompanying Or Associating With Members: Relating To All Elements Of Conspiracy
*Modify CC 415, paragraph 11, as follows:
Alternative a:
[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 conspiracy.]
Alternative b:
[Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime knowingly and intentionally enter into a conspiratorial agreement with another person with the intent of accomplishing a discrete criminal objective is not a member of the conspiracy.]
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, paragraph 11, improperly implies that association with conspiracy members and intent to commit the crime is sufficient to prove conspiracy. Conspiracy liability also requires an agreement, and intent to agree, knowledge, and an intent to accomplish a discrete criminal objective. (See People v. Horn (1974) 12 C3d 290.)
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 415.6 Inst 2 (a-c) Knowing Association Insufficient To Prove Conspiracy
*Modify CC 415, paragraph 11, as follows [added language is underlined; deleted language is stricken]:
Alternative a:
[Someone who knows about a conspiracy and who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime but does not knowingly and intentionally enter into a conspiratorial agreement with another person with the intent of accomplishing a discrete criminal objective is not a member of the conspiracy.]
Alternative b:
You may not convict the defendant simply because [he] [she] knew of the existence of the conspiracy and intended to commit the crime during [his] [her] association with the other alleged conspirators. 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 c:
Knowledge of a conspiracy or intent to commit a crime does not make a person a member of the conspiracy or a conspirator unless he or she knowingly entered into a conspiratorial agreement with the intent of accomplishing a discrete criminal objective.
[Cf., O’Malley Grenig, & Lee, Federal Jury Practice and Instructions 31.05 [Conspiracy—Membership in an Agreement] & 3 (West, 5th ed. 2000).]
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 implies that a person who associates with members of a conspiracy with an intent to “commit the crime” is guilty of conspiracy. Conspiracy requires both a specific intent to agree or conspire and to commit the offense which is the object of the conspiracy. (People v. Horn (1974) 12 C3d 290.) Hence, even knowing association with a conspirator and intent to commit the crime is not sufficient to convict the defendant of conspiracy. To prove a conspiracy, the government must prove that the conspiracy existed, that the defendants knew of it, and that with knowledge, they voluntarily joined it. (People v. Horn, 12 C3d at 296; see also U.S. v. Sullivan (11th Cir. 1985) 763 F2d 1215, 1218; U.S. v. Badolato (11th Cir.1983) 701 F2d 915, 919-20; U.S. v. Rogers (11th Cir.1983) 701 F2d 871, 873.)
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.
CALJIC NOTE: See FORECITE F 6.13a.
F 415.6 Inst 3 Mere Awareness Of Conspiracy Not Sufficient To Convict
*Add to CC 415 as follows:
Alternative a [Based on CALCRIM 415, paragraph 11]:
Someone who merely has knowledge of a conspiracy but who has not knowingly and intentionally entered into a conspiratorial agreement with a member of the conspiracy is not a member of the conspiracy.
Alternative b:
Mere awareness of the conspiracy is not enough to establish a person’s guilt of conspiracy.
[Cf. New Jersey Model Jury Charges— Criminal Chap. 5 2C:5-2 [General Provisions: Conspiracy] p. 3, & 3 (New Jersey ICLE 4th ed. 1997).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Knowledge Of Conspiracy Not Sufficient To Convict—CALCRIM 415 implies that a person who associates with members of a conspiracy with an intent to “commit the crime” is guilty of conspiracy. Conspiracy requires both a specific intent to agree or conspire and to commit the offense which is the object of the conspiracy. (People v. Horn (1974) 12 C3d 290.) Hence, even knowing association with a conspirator and intent to commit the crime is not sufficient to convict the defendant of conspiracy. To prove a conspiracy, the government must prove that the conspiracy existed, that the defendants knew of it, and that with knowledge, they voluntarily joined it. (People v. Horn, 12 C3d at 296; see also U.S. v. Sullivan (11th Cir. 1985) 763 F2d 1215, 1218; U.S. v. Badolato (11th Cir.1983) 701 F2d 915, 919-20; U.S. v. Rogers (11th Cir.1983) 701 F2d 871, 873.)
Hence, even knowing association with a conspirator is not sufficient to convict the defendant of conspiracy. (See U.S. v. Dean (5th Cir. 1995) 59 F3d 1479, 1486; see also Lacaze v. U.S. (5th Cir. 1968) 391 F2d 516, 519; U.S. Bautista-Avila (9th Cir. 1993) 6 F3d 1360, 1362; U.S. v. Fox (9th Cir. 1990) 902 F2d 1508, 1517; U.S. v. Hernandez (11th Cir. 1998) 141 F3d 1042, 1055 [knowledge alone is an insufficient basis for a conspiracy conviction]; U.S. v. Knowles (11th Cir. 1995) 66 F3d 1146, 1156; Trautz v. Weisman (S.D.N.Y. 1992) 809 FSupp 239, 246; Raimi v. Furlong (FL 1997) 702 So2d 1273, 1285 [mere knowledge of the conspiracy is insufficient]; Acquah v. State (MD 1996) 686 A2d 690, 701; Jones v. State (MD 1969) 259 A2d 807, 813; State v. Mouzon (SC 1997) 485 SE2d 918, 922-23; 16 Am. Jur.2d, Conspiracy, §42; South Dakota Pattern Jury Instructions—Criminal, SDCL 3-2-8, comment [Conspiracy-Association Not Agreement] (State Bar of South Dakota, 1996) [“Mere knowledge, acquiescence, or approval of the act without cooperation or agreement to cooperate, is not enough to constitute one party to a conspiracy … .” ].)
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 415.6 Inst 4 (a-c) Knowingly Helping To Accomplish The Conspiratorial Objective Is Insufficient
Alternative a:
*Modify CC 415, paragraph 12,as follows [added language is underlined]:
[Evidence that a person knowingly 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 conspiracy.]
Alternative b:
*Add to CC 415:
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 c:
*Add to CC 415:
This is true even if the person committing the act knew of the existence of the alleged conspiracy at the time the act was committed. You may not find the defendant committed the crime of conspiracy unless all of the required elements, upon which I have previously instructed you, have been proven 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.]
Knowingly Helping Conspiracy Is Not Sufficient—“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” ].) Hence, conduct of the defendant which furthers the objective of the conspiracy is not sufficient to make a person a conspirator even if the person knew about the conspiracy and voluntarily helped to further its objectives. (See People v. Horn (1974) 12 C3d 290, 296; see also U.S. v. Falcone (1940) 311 US 205, 210-11 [61 SCt 204; 85 LEd 128]; U.S. v. Benz (11th Cir. 1984) 740 F2d 903, 910-11.)
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 415.6 Inst 5 Mistake Of Law As Defense Theory To Specific Intent Element Of Conspiracy
*Add to CC 415:
The prosecution must prove that the defendant committed the crime of conspiracy. The defendant contends (he/she) did not commit conspiracy because (he/she) did not intend to violate the _______________ <insert object of conspiracy e.g., marijuana law> due to (his/her) good faith mistaken belief that (he/she) was not violating that law.
The prosecution must prove that the defendant committed every element of the crime of conspiracy including that the defendant specifically intended to violate the _______________ <insert object of conspiracy e.g., marijuana law> law.
The defendant does not need to prove (he/she) did not intent to violate the _______________ <insert object of conspiracy e.g., marijuana law> law.
If you have a reasonable doubt about whether the defendant specifically intended to violate the _______________ <insert object of conspiracy e.g., marijuana law> or about any other essential fact or element necessary to prove the defendant guilt of conspiracy, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Mistake Of Law Applies To Specific Intent Element Of Conspiracy—See People v. Urziceanu (2005) 132 CA4th 747, 775-80; see also FORECITE F 3407 Inst 3.
Right To Pinpoint Instruction On Defense Theory—See FORECITE F 315.1.2 Inst 2.
Use Of CALCRIM 3400 To Instruct On Subject Not Covered By CALCRIM—See FORECITE F 315.1.2 Inst 2.
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 415.7 Conspiracy: Preliminary Fact Issues [Reserved]
F 415.8 Conspiracy: Unanimity/Duplicity/Multiplicity
F 415.8 Inst 1 Unanimity: Specification Of Prosecution Burden
*Modify CC 415, paragraph 6, sentence 2 and paragraph 11 as follows:
[Replace “agree” with “find 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.]
Jurors Must “Find” Not Simply “Agree” That The Prosecution Has Met Its Burden Of Proof— It is vague and imprecise to simply express juror unanimity in terms of whether the jurors “agree.” The only agreement that is sufficient to convict is one in which all jurors have “found” all essential facts and elements of the charge beyond a reasonable doubt. (See In re Winship (1970) 397 US 358, 363 [90 SCt 1068; 25 LEd2d 368].)
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.
F 415.9 Conspiracy: Lesser Offense Issues [Reserved]
