**Chapter 3.00**

**CONSPIRACY**

*Table of Instructions*

**Instruction**

3.01A Conspiracy to Commit an Offense\--Basic Elements

3.01B Conspiracy to Defraud the United States\--Basic Elements

3.02 Agreement

3.03 Defendant\'s Connection to the Conspiracy

3.04 Overt Acts

3.05 Bad Purpose or Corrupt Motive

3.06 Unindicted, Unnamed or Separately Tried Co-Conspirators

3.07 Venue

3.08 Multiple Conspiracies\--Material Variance From the Indictment

3.09 Multiple Conspiracies\--Factors in Determining

3.10 Pinkerton Liability for Substantive Offenses Committed by Others

3.11A Withdrawal as a Defense to Conspiracy

3.11B Withdrawal as a Defense to Substantive Offenses Committed by
Others

3.11C Withdrawal as a Defense to Conspiracy Based on the Statute of
Limitations

3.12 Duration of a Conspiracy

3.13 Impossibility of Success

3.14 Statements by Co-Conspirators

**3.01A CONSPIRACY TO COMMIT AN OFFENSE\--BASIC ELEMENTS**

\(1\) Count \_\_\_ of the indictment accuses the defendants of a
conspiracy to commit the crime of \_\_\_\_\_\_\_ in violation of federal
law. It is a crime for two or more persons to conspire, or agree, to
commit a criminal act, even if they never actually achieve their goal.

\(2\) A conspiracy is a kind of criminal partnership. For you to find
any one of the defendants guilty of the conspiracy charge, the
government must prove each and every one of the following elements
beyond a reasonable doubt:

\(A\) First, that two or more persons conspired, or agreed, to commit
the crime of \_\_\_\_\_\_\_.

\(B\) Second, that the defendant knowingly and voluntarily joined the
conspiracy.

\(C\) And third, that a member of the conspiracy did one of the overt
acts described in the indictment for the purpose of advancing or helping
the conspiracy.

\(3\) You must be convinced that the government has proved all of these
elements beyond a reasonable doubt in order to find any one of these
defendants guilty of the conspiracy charge.

**Use Note**

This instruction should be followed by Instructions 3.02 through 3.04,
plus those of Instructions 3.05 through 3.14 as are appropriate given
the facts of the particular case.

Paragraph (2)(C) should be deleted when the statute under which the
defendant is charged does not require proof of an overt act. In such
cases, all references to overt acts in other instructions should also be
deleted.

If the object offense is not charged and defined elsewhere in the
instructions, it must be defined at some point in the conspiracy
instructions.

**Committee Commentary 3.01A**

(current through December 31, 2007)

The Committee made no change in the instruction.

As the 1991 Commentary states, some statutes contain their own separate
conspiracy provisions that do not require an overt act. *See, e.g.,*
Salinas v. United States, 522 U.S. 52 (1997)(RICO conspiracy under 18
U.S.C. § 1962(d) does not require an overt act); United States v.
Shabani, 513 U.S. 10 (1994)(controlled substances conspiracy under 21
U.S.C. § 846 does not require an overt act); United States v. Hayter Oil
Co., 51 F.3d 1265 (6^th^ Cir. 1995)(antitrust conspiracy to fix prices
under § 1 of the Sherman Act, 15 U.S.C. § 1, does not require an overt
act). In such cases, paragraph (2)(C) should be deleted, along with all
references in other instructions to the subject of overt acts.

*1991 Edition*

The Supreme Court has long recognized that \"the commission of the
substantive offense and a conspiracy to commit it are separate and
distinct offenses.\" E.g., Pinkerton v. United States, 328 U.S. 640,
643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946). As stated by the Sixth
Circuit in United States v. Van Hee, 531 F.2d 352, 357 (6th Cir.1976),
\"a conspiracy to commit a crime is a different offense from the crime
that is the object of the conspiracy.\" An equally well-settled
corollary is that to convict a defendant of conspiracy does not require
proof that the object of the conspiracy was achieved. E.g., United
States v. Fruehauf Corp., 577 F.2d 1038, 1071 (6th Cir.), cert. denied,
439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978). \"The gist of the
crime of conspiracy is the agreement to commit an illegal act, not the
accomplishment of the illegal act.\" Id.

The purpose of this instruction is to briefly outline the basic elements
of conspiracy. See generally 18 U.S.C. s 371. It is modeled after
Federal Judicial Center Instruction 62. It follows the basic format for
defining the crime used in Instruction 2.02. It is meant to be followed
by Instructions 3.02 through 3.04, plus those of instructions 3.05
through 3.14 as are appropriate given the facts of the particular case.

Some federal statutes contain their own separate conspiracy provision
that does not require the commission of an overt act. See, e.g., 21
U.S.C. s 846. In such cases paragraph (2)(C) should be deleted, along
with all references in other instructions to the subject of overt acts.
See, e.g., United States v. Schultz, 855 F.2d 1217, 1222 (6th Cir.1988)
(\"conviction of conspiracy under 21 U.S.C. section 846 does not require
proof of an overt act\"). See also United States v. Nelson, 922 F.2d
311, 317-318 (6th Cir.1990) (No instruction on overt acts is necessary
even if the indictment lists overt acts committed in furtherance of the
conspiracy).

Generally speaking, the government need not prove any special mens rea
beyond the degree of criminal intent required for the object offense in
order to convict a defendant of conspiracy. United States v. Feola, 420
U.S. 671, 686-696, 95 S.Ct. 1255, 1264-1270, 43 L.Ed.2d 541 (1975). See
also Committee Commentary 3.05 (no instruction on bad purpose or corrupt
motive recommended). Instruction 3.03, which requires the government to
prove that the defendant knew the conspiracy\'s main purpose, and
voluntarily joined it \"intending to help advance or achieve its
goals,\" should suffice in most cases, particularly where the object
offense is also charged and defined elsewhere in the instructions.

If the object offense is not charged and defined elsewhere, it must be
defined at some point in the conspiracy instructions. See United States
v. Vaglica, 720 F.2d 388, 391 (5th Cir.1983) (\"serious\" error not to
do so). In order not to interrupt the continuity of the conspiracy
instructions, the Committee suggests that in such cases, the object
offense be defined either after the first sentence of this instruction,
or following Instruction 3.04.

**3.01B CONSPIRACY TO DEFRAUD THE UNITED STATES\--BASIC ELEMENTS**

\(1\) Count \_\_\_ of the indictment accuses the defendants of a
conspiracy to defraud the United States by dishonest means in violation
of federal law. It is a crime for two or more persons to conspire, or
agree, to defraud the United States, even if they never actually achieve
their goal.

\(2\) A conspiracy is a kind of criminal partnership. For you to find
any one of the defendants guilty of the conspiracy charge, the
government must prove each and every one of the following elements
beyond a reasonable doubt:

\(A\) First, that two or more persons conspired, or agreed, to defraud
the United States, or one of its agencies or departments, by dishonest
means. The word \"defraud\" is not limited to its ordinary meaning of
cheating the government out of money or property. \"Defraud\" also means
impairing, obstructing or defeating the lawful function of any
government agency or department by dishonest means.

\(B\) Second, the government must prove that the defendant knowingly and
voluntarily joined the conspiracy.

\(C\) And third, the government must prove that a member of the
conspiracy did one of the overt acts described in the indictment for the
purpose of advancing or helping the conspiracy.

\(3\) You must be convinced that the government has proved all of these
elements beyond a reasonable doubt in order to find any one of these
defendants guilty of the conspiracy charge.

\[(4) This crime does not require proof that the defendants intended to
directly commit the fraud themselves. Proof that they intended to use a
third party as a go-between may be sufficient. But the government must
prove that the United States or one of its agencies or departments was
the ultimate target of the conspiracy, and that the defendants intended
to defraud.\]

**Use Note**

This instruction should be followed by Instructions 3.02 through 3.04,
plus those of Instructions 3.05 through 3.14 as are appropriate given
the facts of the particular case.

Appropriate \"to defraud the United States\" language should be
substituted in Instructions 3.02 through 3.14 in place of the \"to
commit the crime of\" language that appears in those instructions.

Bracketed paragraph (4) should be included when there is evidence that a
third party served as an intermediary between the defendants and the
United States.

**Committee Commentary 3.01B**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit continues to distinguish between conspiracies under
the offense clause and conspiracies under the defraud clause of 18
U.S.C. § 371. *See, e.g.,* United States v. Khalife, 106 F.3d 1300
(6^th^ Cir. 1997); United States v. Kraig, 99 F.3d 1361 (6^th^ Cir.
1996). The court has identified some distinctions between a conspiracy
to commit an offense and a conspiracy to defraud the U.S. For example,
in *Khalife*, the court explained, "there is no 'substantive' offense
underlying a § 371 conspiracy to defraud. Thus, it is unnecessary to
refer to any substantive offense when charging a § 371 conspiracy to
defraud, and it is also unnecessary to prove the elements of a related
substantive offense." *Khalife*, 106 F.3d at 1303.

Despite broad dicta to the contrary in United States v. Minarik, 875
F.2d 1186 (6^th^ Cir. 1989), a conspiracy may usually be charged under
the defraud clause even if the object of the conspiracy was to commit
one or more specific offenses. Cases decided subsequent to *Minarik*
have limited the decision to its narrow facts. *See* United States v.
Khalife, *supra* at 1303-04 (discussing *Minarik* and subsequent cases).
For example, in *Kraig*, the court held that a defraud clause charge was
appropriate where the conspiracy alleged violation of more than one
statute. *Kraig*, 99 F.3d at 1367. In *Khalife*, the court stated the
law "does not require, in circumstances such as these, that the
conspiracy be charged only under the 'offense' clause of § 371." 106
F.3d at 1306. Indeed, a conspiracy could be charged under both prongs of
§ 371 if it had the dual objects of defrauding the United States and
committing offenses against the United States, in which case,
instructions for both prongs should be given.

*1991 Edition*

The general federal conspiracy statute, 18 U.S.C. § 371, prohibits two
distinct types of conspiracies. The first is any conspiracy to \"commit
any offense\" against the United States. The second is any conspiracy to
\"defraud the United States or any agency thereof.\" See generally
United States v. Levinson, 405 F.2d 971, 977 (6th Cir.1968), cert.
denied, 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1969). This
instruction is designed for use in connection with indictments charging
a conspiracy to defraud the United States. It should be followed by
Instructions 3.02 through 3.04, plus those of instructions 3.05 through
3.14 as are appropriate given the facts of the particular case.
Appropriate \"to defraud the United States\" language should be
substituted in Instructions 3.02 through 3.14 in place of the \"to
commit the crime of\" language that appears in those instructions.

Bracketed paragraph (4) should be included when there is evidence that
the defendants intended to accomplish the fraud by going through or
manipulating a third party. In Tanner v. United States, 483 U.S. 107,
129- 132, 107 S.Ct. 2739, 2752-2754, 97 L.Ed.2d 90 (1987), the Supreme
Court accepted the government\'s argument that a conspiracy to defraud
the United States under s 371 may be committed indirectly by the use of
third parties. \"The fact that a false claim passes through the hands of
a third party on its way \... to the United States\" does not relieve
the defendants of criminal liability. Id. at 129, 107 S.Ct. at 2752. The
Supreme Court remanded in Tanner for consideration of whether the
evidence supported the government\'s theory that the defendants
conspired to manipulate a third party in order to cause that third party
to make misrepresentations to a federal agency. Id. at 132, 107 S.Ct. at
2754. See also United States v. Gibson, 881 F.2d 318, 321 (6th Cir.1989)
(\"a conspiracy (to defraud) could be directed at the United States as a
target and yet be effected through a third party such as a private
business\").

In prosecutions under the conspiracy to defraud clause of 18 U.S.C. s
371, the United States must be the target of the conspiracy. Tanner v.
United States, supra, 483 U.S. at 128-132, 107 S.Ct. at 2751-2754.
Accord United States v. Minarik, 875 F.2d 1186, 1191 (6th Cir.1989). In
prosecutions brought under the conspiracy to commit an offense clause of
s 371, the United States need not be the target. United States v.
Gibson, supra, 881 F.2d at 321.

The term \"defraud\" has a broader meaning than simply cheating the
government out of property or money. United States v. Minarik, supra,
875 F.2d at 1190. It includes \"any conspiracy for the purpose of
impairing, obstructing or defeating the lawful function of any
department of government,\" Tanner v. United States, supra, 483 U.S. at
128, 107 S.Ct. at 2751, by \"deceit, craft, or trickery, or at least by
means that are dishonest.\" Minarik, supra at 1190- 1191, quoting
Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68
L.Ed. 968 (1924). See also United States v. Shermetaro, 625 F.2d 104,
109 (6th Cir.1980); United States v. Levinson, supra, 405 F.2d at 977.

**3.02 AGREEMENT**

\(1\) With regard to the first element\--a criminal agreement\--the
government must prove that two or more persons conspired, or agreed, to
cooperate with each other to commit the crime of \_\_\_\_\_\_\_.

\(2\) This does not require proof of any formal agreement, written or
spoken. Nor does this require proof that everyone involved agreed on all
the details. But proof that people simply met together from time to time
and talked about common interests, or engaged in similar conduct, is not
enough to establish a criminal agreement. These are things that you may
consider in deciding whether the government has proved an agreement. But
without more they are not enough.

\(3\) What the government must prove is that there was a mutual
understanding, either spoken or unspoken, between two or more people, to
cooperate with each other to commit the crime of \_\_\_\_\_\_\_. This is
essential.

\(4\) An agreement can be proved indirectly, by facts and circumstances
which lead to a conclusion that an agreement existed. But it is up to
the government to convince you that such facts and circumstances existed
in this particular case.

\[(5) One more point about the agreement. The indictment accuses the
defendants of conspiring to commit several federal crimes. The
government does not have to prove that the defendants agreed to commit
all these crimes. But the government must prove an agreement to commit
at least one of them for you to return a guilty verdict on the
conspiracy charge.\]

**Use Note**

Bracketed paragraph (5) should be included when the indictment alleges
multiple object offenses. It is unclear whether an augmented unanimity
instruction specifically requiring unanimous agreement on the same
object offense is necessary. See generally Instruction 8.03B and
Committee Commentary.

Specific instructions that an agreement between a defendant and a
government agent will not support a conspiracy conviction may be
required where important given the facts of the particular case.

**Committee Commentary 3.02**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit continues to recognize that the agreement required for
conspiracy need not be a formal agreement; rather, a tacit agreement or
mutual understanding is sufficient. United States v. Maliszewski, 161
F.3d 992, 1006 (6^th^ Cir. 1998), *quoting* United States v. Lloyd, 10
F.3d 1197, 1210 (6^th^ Cir. 1993). *See also* United States v. Ledezma,
26 F.3d 636, 640 (6^th^ Cir. 1994), *citing* United States v. Pearce,
912 F.2d 159, 161 (6^th^ Cir. 1990)(a tacit or *material* understanding
is sufficient)(emphasis added).

A defendant cannot be convicted of conspiracy merely because she
associated with members of the conspiracy. United States v. Ledezma,
*supra*, *citing* United States v. Lee, 991 F.2d 343, 348 (6^th^ Cir.
1993).

In United States v. Watkins, 1994 WL 464193, 1994 U.S. App. LEXIS 23886
(6^th^ Cir. 1994)(unpublished), a panel of the court quoted the third
sentence of paragraph (2) of the instruction with approval. In that
case, the district court gave the pattern instruction, and a panel of
the Sixth Circuit found no error in the district court's refusal to give
a supplemental instruction stating that mere presence at the scene of a
crime and knowledge that a crime is being committed are not sufficient.
The panel described the pattern instruction as "thorough and adequate."
United States v. Watkins, *supra*, 1994 WL at 3, 1994 LEXIS at 7,
*quoting* the third sentence of paragraph (2).

Bracketed paragraph (5) applies to cases where a single conspiracy count
includes multiple objects. Recent Supreme Court cases on unanimity and
multiple means of committing a single crime are discussed in detail in
the 2005 Committee Commentary to Instructions 8.03A and 8.03B.

Indictments charging controlled substance conspiracies under 21 U.S.C. §
846 may include multiple drugs as objects of the agreement. When an
augmented unanimity instruction is given and the jury returns a general
verdict of guilty to a charge that the conspiratorial agreement covered
multiple drugs, the general verdict is ambiguous if it cannot be
determined whether jurors agreed as to "one or another of the multiple
drugs allegedly involved in a conspiracy." United States v. Neuhausser,
241 F.3d 460, 470 (6^th^ Cir. 2001)(discussing United States v. Dale,
178 F.3d 429 (6^th^ Cir. 1999)). Under these conditions the defendant
must be sentenced as if he conspired only as to the drug with the lower
penalty. United States v. Dale, *supra* at 432-34. Under these
circumstances the judge should use a special verdict form. *See
Neuhausser*, 241 F.3d at 472 n.8 ("\[W\]e do not wish to discourage the
Government or the trial court from using separate counts, special
verdict forms, or more specific instructions in future cases involving
multiple-object conspiracies. Plainly, it is appropriate to take any
reasonable steps which might ensure that the jury properly understands
the task before it, and that its resulting verdict is susceptible of
only one interpretation.") On the other hand, if the indictment and the
instructions consistently refer to the multiple drugs using the
conjunctive "and," the general verdict is not ambiguous and the sentence
is not limited to the lesser penalty. *Id.* at 468-70.

On the question of whether a general verdict of guilty on a multi-object
conspiracy count can stand when one of the objects is disqualified as a
basis for the conviction, see Griffin v. United States, 502 U.S. 46
(1991). In *Griffin*, the Court held that the validity of the general
verdict depends on the reason that one of the objects was disqualified.
If the object was disqualified as unconstitutional or not legally
sufficient (for example, due to a statute of limitations), the verdict
had to be set aside. *Griffin*, 502 U.S. at 52-56, *citing inter alia*
Yates v. United States, 354 U.S. 298 (1957); Stromberg v. California,
283 U.S. 359 (1931); Williams v. North Carolina, 317 U.S. 287 (1942);
and Bachellar v. Maryland, 397 U.S. 564 (1970). On the other hand, if
one of the objects in a multi-object conspiracy count was disqualified
not because it was held unconstitutional or illegal but merely because
it was supported by insufficient evidence, the verdict can stand
(assuming the evidence is sufficient for any one of the objects
charged). *Griffin*, 502 U.S. at 56. The Court distinguished between
objects disqualified by legal error (a mistake about the law) which
require the verdict to be set aside, and objects disqualified by
insufficiency of proof (a mistake concerning the weight or factual
import of the evidence) which allow the verdict to stand. *Id.* at
56-59.

*1991 Edition*

18 U.S.C. § 371 states that \"two or more persons\" must conspire in
order to establish a conspiracy. This statute has been consistently
interpreted to require proof of an agreement between the defendant and
at least one other person as \"an absolute prerequisite\" to a
conspiracy conviction. E.g., United States v. Bouquett, 820 F.2d 165,
168 (6th Cir.1987). Accord United States v. Phillips, 630 F.2d 1138,
1146-1147 (6th Cir.1980); United States v. Sandy, 605 F.2d 210, 215 (6th
Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979);
United States v. Williams, 503 F.2d 50, 54 (6th Cir.1974). It is \"clear
that the crime of conspiracy cannot be committed by an individual acting
alone since, by definition, conspiracy is a group offense.\" United
States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986). See also United
States v. Bostic, 480 F.2d 965, 968 (6th Cir.1973) (\"There must be at
least two participants in a conspiracy \... (o)ne man cannot conspire
with himself.\").

Sixth Circuit decisions have repeatedly defined the nature of the
agreement that the government must prove as \"an agreement between two
or more persons to act together in committing an offense.\" E.g., United
States v. Reifsteck, 841 F.2d 701, 704 (6th Cir.1988); United States v.
Butler, 618 F.2d 411, 414 (6th Cir.), cert. denied, 447 U.S. 927, 100
S.Ct. 3024, 65 L.Ed.2d 1121 (1980); United States v. Richardson, 596
F.2d 157, 162 (6th Cir.1979); United States v. Williams, 503 F.2d 50, 54
(6th Cir.1974). See also United States v. Bostic, supra, 480 F.2d at 968
(\"(a)n agreement or understanding between two or more of the defendants
whereby they become definitely committed to cooperate for the
accomplishment of the (criminal) object\").

Because conspirators \"do not usually make oral or written agreements of
their illegal plans with exactitude,\" United States v. Duff, 332 F.2d
702, 705 (6th Cir.1964), it is well-established that the government does
not have to prove that there was any formal written or spoken agreement.
Id. Accord United States v. Frost, 914 F.2d 756, 762 (6th Cir.1990);
Blue v. United States, 138 F.2d 351, 360 (6th Cir.1943), cert. denied,
322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944). Nor must the
government prove that there was agreement on all the details of how the
crime would be carried out. E.g., United States v. Schultz, 855 F.2d
1217, 1221 (6th Cir.1988).

Pattern instructions from other circuits commonly include language that
mere association, discussion of common interests or similar conduct does
not necessarily prove, or is not enough, standing alone, to prove a
criminal agreement. See Fifth Circuit Instruction 2.21, Eighth Circuit
Instruction 5.06B, Ninth Circuit Instruction 8.05A and Eleventh Circuit
Offense Instruction 4.1. See also United States v. Davenport, 808 F.2d
1212, 1218 (6th Cir.1987) (quoting instructions that \"mere association
\..., similarity of conduct \..., assembl(y) \... and discuss(ion) (of)
common aims\" does not necessarily establish the existence of a
conspiracy).

What the government must prove \"is that the members in some way or
manner \... positively or tacitly came to a mutual understanding to try
to accomplish a common and unlawful plan.\" United States v. Duff,
supra, 332 F.2d at 706. A \"tacit or mutual understanding\" among the
parties will suffice. E.g., United States v. Pearce, 912 F.2d 159, 161
(6th Cir.1990); United States v. Hughes, 891 F.2d 597, 601 (6th
Cir.1989); United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989);
United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir.1985).

It is well-established that the government does not have to present
direct evidence of an agreement. E.g., United States v. Thompson, 533
F.2d 1006, 1009 (6th Cir.), cert. denied, 429 U.S. 939, 97 S.Ct. 353, 50
L.Ed.2d 308 (1976); United States v. Levinson, 405 F.2d 971, 985-986
(6th Cir.1968), cert. denied, 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d
744 (1969); Windsor v. United States, 286 Fed. 51, 53 (6th Cir.), cert.
denied, 262 U.S. 748, 43 S.Ct. 523, 67 L.Ed. 1212 (1923). The rationale
for this rule is that \"(s)ecrecy and concealment are essential features
of (any) successful conspiracy,\" United States v. Webb, 359 F.2d 558,
563 (6th Cir.), cert. denied, 385 U.S. 824, 87 S.Ct. 55, 17 L.Ed.2d 61
(1966), so that \"it is a rare case in which (direct) evidence may be
found.\" United States v. Richardson, supra, 596 F.2d at 162. Accord
United States v. Miller, 358 F.2d 696, 697 (6th Cir.1966). An agreement
\"may be inferred from circumstantial evidence that can reasonably be
interpreted as participation in a common plan,\" United States v.
Ellzey, supra, 874 F.2d at 328; United States v. Reifsteck, supra, 841
F.2d at 704; United States v. Bavers, supra, 787 F.2d at 1026, or \"from
acts done with a common purpose.\" United States v. Frost, 914 F.2d 756,
762 (6th Cir.1990); United States v. Ayotte, 741 F.2d 865, 867 (6th
Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514
(1984).

Bracketed paragraph (5) should be included when the indictment alleges
multiple object offenses. A single conspiracy may involve multiple
object offenses. Braverman v. United States, 317 U.S. 49, 52-54, 63
S.Ct. 99, 101- 102, 87 L.Ed. 23 (1942). But proof that the defendants
conspired to commit only one offense is sufficient to convict. See 18
U.S.C. s 371 (prohibiting two or more persons from conspiring to commit
\"any\" offense).

The Sixth Circuit has not directly addressed whether the trial court
must give an augmented unanimity instruction specifically telling the
jurors that they must unanimously agree on the same object offense in
order to convict. But the general rule in the Sixth Circuit is that no
augmented unanimity instruction is required unless special circumstances
are present. See Committee Commentary to Instruction 8.03A\--Unanimity
of Theory. In United States v. Bouquett, 820 F.2d 165, 169 (6th
Cir.1987), the Sixth Circuit rejected the defendant\'s argument that his
conspiracy conviction should be reversed because the trial court\'s
instructions permitted the jury to convict based on alternate theories
of who in particular the defendant conspired with in the context of a
single conspiracy. The Sixth Circuit held that these alternate theories
did not create \"two conceptual groupings requiring an augmented
unanimity instruction, and stated that \"this court does not require
jurors to agree unanimously as to a theory of guilt where a single
generic offense may be committed by a variety of acts.\"

Of the circuits that have drafted pattern instructions, only the Eighth
and Eleventh Circuits explicitly require the jury to reach unanimous
agreement on the same object offense. See Eighth Circuit Instruction
5.06F and Eleventh Circuit Offense Instruction 4.2. Both circuits rely
on United States v. Ballard, 663 F.2d 534, 544 (5th Cir.1981), as
authority for the proposition that such an instruction is required.

Related to this is the problem posed by cases where the jury is
instructed on multiple object offenses, and returns a general verdict of
guilty, but there was insufficient evidence to support one of the object
offenses. See Yates v. United States, 354 U.S. 298, 311-312, 77 S.Ct.
1064, 1 L.Ed.2d 1356 (1957) (a general verdict of guilty on a
multi-object count must be set aside when the verdict is \"supportable
on one ground, but not on another, and it is impossible to tell which
ground the jury selected\"). See also United States v. Beverly, 913 F.2d
337 (7th Cir.1990), cert. granted sub nom. Griffin v. United States,
\_\_\_ U.S. \_\_\_, 111 S.Ct. 951, 112 L.Ed.2d 1039 (1991) (No. 90-
6352) (same issue).

In United States v. Schultz, supra, 855 F.2d at 1221, the Sixth Circuit
approvingly cited the First Circuit\'s decision in United States v.
Anello, 765 F.2d 253, 262-263 (1st Cir.), cert. denied, 474 U.S. 996,
106 S.Ct. 411, 88 L.Ed.2d 361 (1985), for the proposition that a
conditional agreement to purchase controlled substances if the quality
is adequate is sufficient to support a conspiracy conviction. The Sixth
Circuit then went on to hold that a failure to complete the substantive
object offense as a result of disagreements among the conspirators over
the details of performance did not preclude the existence of a
conspiratorial agreement.

In United States v. S & Vee Cartage Company, Inc., 704 F.2d 914, 920
(6th Cir.), cert. denied, 464 U.S. 935, 104 S.Ct. 343, 78 L.Ed.2d 310
(1983), a corporate defendant and two of its officers were convicted of
making and conspiring to make false pension and welfare fund statements,
in violation of 18 U.S.C. s 1027 and 18 U.S.C. s 371. On appeal, the
three defendants argued that their conspiracy convictions should be
reversed on the theory that a criminal conspiracy cannot exist between a
corporation and its officers acting as agents of the corporation. The
Sixth Circuit rejected this argument, and held that in criminal cases a
corporation may be convicted of conspiring with its officers. In doing
so, the Sixth Circuit rejected agency principles that treat the acts of
corporate officers as the acts of the corporation as a single legal
entity. Accord United States v. Ames Sintering Co., 927 F.2d 232 (6th
Cir.1990); United States v. Mahar, 801 F.2d 1477, 1488 (6th Cir.1986).

It is settled that \"proof of an agreement between a defendant and a
government agent or informer will not support a conspiracy conviction.\"
United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert.
denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). Where
important given the facts of the particular case, specific instructions
on this point may be required. United States v. Nunez, 889 F.2d 1564,
1568-1570 (6th Cir.1989).

Wharton\'s Rule, which may require proof that more than two persons
conspired together, only applies to federal crimes that by definition
require voluntary concerted criminal activity by a plurality of agents.
See Iannelli v. United States, 420 U.S. 770, 777-786, 95 S.Ct. 1284, 43
L.Ed.2d 616 (1975). And it does not apply at all if there is legislative
intent to the contrary. Id. See also United States v. Finazzo, 704 F.2d
300, 305-306 (6th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77
L.Ed.2d 1392 (1983).

**3.03 DEFENDANT\'S CONNECTION TO THE CONSPIRACY**

\(1\) If you are convinced that there was a criminal agreement, then you
must decide whether the government has proved that the defendants
knowingly and voluntarily joined that agreement. You must consider each
defendant separately in this regard. To convict any defendant, the
government must prove that he knew the conspiracy\'s main purpose, and
that he voluntarily joined it intending to help advance or achieve its
goals.

\(2\) This does not require proof that a defendant knew everything about
the conspiracy, or everyone else involved, or that he was a member of it
from the very beginning. Nor does it require proof that a defendant
played a major role in the conspiracy, or that his connection to it was
substantial. A slight role or connection may be enough.

\(3\) But proof that a defendant simply knew about a conspiracy, or was
present at times, or associated with members of the group, is not
enough, even if he approved of what was happening or did not object to
it. Similarly, just because a defendant may have done something that
happened to help a conspiracy does not necessarily make him a
conspirator. These are all things that you may consider in deciding
whether the government has proved that a defendant joined a conspiracy.
But without more they are not enough.

\(4\) What the government must prove is that a defendant knew the
conspiracy\'s main purpose, and that he voluntarily joined it intending
to help advance or achieve its goals. This is essential.

\(5\) A defendant\'s knowledge can be proved indirectly by facts and
circumstances which lead to a conclusion that he knew the conspiracy\'s
main purpose. But it is up to the government to convince you that such
facts and circumstances existed in this particular case.

**Use Note**

Additional instructions may be appropriate in cases involving defendants
who were merely purchasers of stolen goods or contraband, or who were
merely suppliers of goods or other items used to commit a crime.

**Committee Commentary 3.03**

(current through December 31, 2007)

The Committee made no change in the instruction.

A panel of the Sixth Circuit has endorsed paragraph (2) of this
instruction as an accurate statement of the law. In United States v.
Gray, 1992 WL 56997, 1992 U.S. App. LEXIS 5619 (6^th^ Cir.
1992)(unpublished), the district court gave an instruction on conspiracy
under 21 U.S.C. § 846 with language almost identical to that in
paragraph (2). The panel stated, "The instruction accurately stated the
law (*citing* United States v. Betancourt, 838 F.2d 168 (6^th^ Cir.
1988)). The language complained of is identical to that contained in
this circuit's model jury instructions. \... We find that the
instruction, considered in its entirety, did not likely mislead the jury
regarding the burden of proof required." *Gray*, 1992 WL 56997 at 11,
1992 LEXIS at 33 (6^th^ Cir. 1992). Regarding the accuracy of paragraph
(2), *see also* United States v. Ross, 190 F.3d 446 (6^th^ Cir. 1999).
In *Ross*, the court stated that, "The government need not show that a
defendant participated in all aspects of the conspiracy; it need only
prove that the defendant was a party to the general conspiratorial
agreement. Although the connection between the defendant and the
conspiracy need only be slight, an agreement must be shown beyond a
reasonable doubt." *Id.* at 450, *citing* United States v. Avery, 128
F.3d 966, 971 (6^th^ Cir. 1997).

A panel of the Sixth Circuit has also endorsed paragraph (3) of this
instruction. In United States v. Chubb, 1993 WL 131922 (6^th^ Cir.
1993)(unpublished), a defendant asked the trial court to instruct that
"mere association" with the conspiracy was not enough to convict under
21 U.S.C. § 846, and the court failed to include this proffered
instruction. A panel of the Sixth Circuit stated that the proffered
instruction was a correct statement of the law and noted that it was
similar to Pattern Instruction 3.03(3). The panel stated that the
pattern instructions are not binding on district courts but are only a
guide. *Chubb,* 1993 WL 131922 at 6 n.5. The panel concluded that
failure to give the proffered instruction was not reversible error in
this case based on the other instructions given and the defendant's
theory of defense.

Generally, conspiracy law in the Sixth Circuit has not changed
significantly in recent years. This conclusion is reflected in the
court's discussion of conspiracy law below:

> The judicial iterations in conspiracy cases of the black-letter law
> concerning the manner in which a conspiracy may be proved are so
> familiar and have been repeated so often as to have become a virtual
> mantra. But we hesitate to omit them here, lest some unwritten rule of
> judicial review be offended. Hence: " \... Every member of a
> conspiracy need not be an active participant in every phase of the
> conspiracy, so long as he is a party to the general conspiratorial
> agreement. Participation in the conspiracy's common purpose and plan
> may be inferred from the defendant's actions and reactions to the
> circumstances. However, mere presence at the crime scene is
> insufficient to show participation. And the connection of the
> defendant to the conspiracy need only be slight, if there is
> sufficient evidence to establish that connection beyond a reasonable
> doubt."

United States v. Maliszewski, 161 F.3d 992, 1006 (6^th^ Cir.
1998)(citations and internal quotations omitted)(*citing* United States
v. Hernandez, 31 F.3d 354, 358 (6^th^ Cir. 1994)).

*1991 Edition*

In order to establish a defendant\'s connection to a conspiracy, the
government must prove that he \"knew of the conspiracy, and that he
knowingly and voluntarily joined it.\" United States v. Christian, 786
F.2d 203, 211 (6th Cir.1986). Accord United States v. Bibby, 752 F.2d
1116, 1124 (6th Cir.1985) (\"An essential part of any conspiracy
conviction is a showing that a particular defendant knew of and adopted
the conspiracy\'s main objective.\"), cert. denied, 475 U.S. 1010, 106
S.Ct. 1183, 89 L.Ed.2d 300 (1986). See also United States v. Hamilton,
689 F.2d 1262, 1275 (6th Cir.1982) (\"the evidence here plainly shows
that (the defendant) knew of the conspiracy and voluntarily became a
participant in it\"), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74
L.Ed.2d 971 (1983); United States v. Mayes, 512 F.2d 637, 647 (6th Cir.)
(defendant must join \"with knowledge of the conspiracy and its
purpose\"), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670
(1975); United States v. Levinson, 405 F.2d 971, 985 (6th Cir.1968)
(defendant must \"know of the conspiracy, associate himself with it and
knowingly contribute his efforts in its furtherance\"), cert. denied,
395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1969).

To convict a defendant of conspiracy, \"two different types of intent
are generally required\--the basic intent to agree, which is necessary
to establish the existence of the conspiracy, and the more traditional
intent to effectuate the object of the conspiracy.\" United States v.
United States Gypsum Co., 438 U.S. 422, 443 n. 20, 98 S.Ct. 2864, 2877
n. 20, 57 L.Ed.2d 854 (1978).

It is not uncommon for conspiracy instructions to require proof that the
defendant \"willfully\" joined the conspiracy. See for example United
States v. Davenport, 808 F.2d 1212, 1218 (6th Cir.1987); United States
v. Piccolo, 723 F.2d 1234, 1240 (6th Cir.1983), cert. denied, 466 U.S.
970, 104 S.Ct. 2342, 80 L.Ed.2d 817 (1984). To the extent that the term
\"willfully\" connotes some extra mental state beyond that required for
conviction of the substantive offense that is the object of the
conspiracy, it is inconsistent with the Supreme Court\'s decision in
United States v. Feola, 420 U.S. 671, 686-696, 95 S.Ct. 1255, 1264-1270,
43 L.Ed.2d 541 (1975) (generally speaking, the government need not prove
anything more than the degree of criminal intent necessary for the
substantive offense in order to convict a defendant of conspiracy). To
avoid confusion, the Committee has substituted the word \"voluntarily\"
for \"willfully.\"

Although the government must prove that the defendant knew the
conspiracy\'s main purpose, \"(s)ecrecy and concealment are essential
features of (a) successful conspiracy \... (and) (h)ence the law rightly
gives room for allowing the conviction of those discovered upon showing
sufficiently the essential nature of the plan and their connections with
it, without requiring evidence of knowledge of all its details.\" United
States v. Miller, 358 F.2d 696, 697 (6th Cir.1966), quoting Blumenthal
v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154
(1947). The defendant \"must know the purpose of the conspiracy, but not
necessarily the full scope thereof, the detailed plans, operation,
membership, or even the purpose of the other members of the
conspiracy.\" United States v. Warner, 690 F.2d 545, 550 (6th Cir.1982),
quoting United States v. Shermetaro, 625 F.2d 104, 108 (6th Cir.1980).
See also United States v. Chambers, 382 F.2d 910, 913 (6th Cir.1967)
(\"A person may be guilty of conspiracy even though he has limited
knowledge as to the scope of the conspiracy and no knowledge of details
of the plan or operation in furtherance thereof or of the membership in
the conspiracy or of the part played by each member and the division of
the spoils.\").

Related to this, it is not necessary that a defendant be a member of the
conspiracy from the very beginning. E.g., United States v. Stephens, 492
F.2d 1367, 1373 (6th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 93, 42
L.Ed.2d 83 (1974).

Knowledge of the existence of a conspiracy cannot be avoided by closing
one\'s eyes \"to what (is) going on about him.\" United States v. Smith,
561 F.2d 8, 13 (6th Cir.), cert. denied, 434 U.S. 958, 98 S.Ct. 487, 54
L.Ed.2d 317 (1977). In such cases, a deliberate ignorance instruction
may be appropriate. See Instruction 2.09.

A defendant\'s knowledge of a conspiracy need not be proved by direct
evidence. Circumstantial evidence will suffice. E.g., United States v.
Christian, supra, 786 F.2d at 211; United States v. Richardson, 596 F.2d
157, 162 (6th Cir.1979); United States v. Levinson, supra, 405 F.2d at
985. See also United States v. Martin, 920 F.2d 345, 348 (6th Cir.1990)
(knowledge inferred from various circumstances).

In cases involving alleged co-conspirators who were merely purchasers of
stolen goods or contraband, or suppliers of goods or other items used to
commit a crime, additional instructions may be appropriate. See United
States v. Meyers, 646 F.2d 1142, 1145 (6th Cir.1981); United States v.
Grunsfeld, 558 F.2d 1231, 1235-1237 (6th Cir.), cert. denied, 424 U.S.
872, 98 S.Ct. 219, 54 L.Ed.2d 152 (1977); United States v. Mayes, 512
F.2d 637, 646- 648 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct.
2629, 45 L.Ed.2d 670 (1975); United States v. Bostic, 480 F.2d 965,
968-969 (6th Cir.1973).

A defendant\'s connection to a conspiracy \"need only be slight, if
there is sufficient evidence to establish that connection beyond a
reasonable doubt.\" United States v. Christian, supra, 786 F.2d at 211.
\"All with criminal intent who join themselves even slightly to the
principal scheme are subject to the (conspiracy) statute\....\" Blue v.
United States, 138 F.2d 351, 359 (6th Cir.1943), cert. denied, 322 U.S.
736, 64 S.Ct. 1046, 88 L.Ed. 1570 (1944). See also United States v.
Scartz, 838 F.2d 876, 880 (6th Cir.) (nature and extent of a member\'s
involvement need only be slight), cert. denied, 488 U.S. 923, 109 S.Ct.
303, 102 L.Ed.2d 322 (1988).

Sixth Circuit decisions have repeatedly held that mere presence,
association, knowledge, approval or acquiescence is not sufficient to
convict a defendant of conspiracy. See, e.g., United States v. Pearce,
912 F.2d 159, 162 (6th Cir.1990) (\"mere association with conspirators
is not enough to establish participation in a conspiracy\"); United
States v. Christian, supra, 786 F.2d at 211 (\"(m)ere presence at the
crime scene is insufficient\"); United States v. Richardson, supra, 596
F.2d at 162 (\"(m)ere knowledge, approval of or acquiescence in the
object or purpose of the conspiracy \... is not sufficient\"); United
States v. Webb, 359 F.2d 558, 562 (6th Cir.) (\"neither association with
conspirators nor knowledge that something illegal is going on by
themselves constitute proofs of participation in a conspiracy\"), cert.
denied, 385 U.S. 824, 87 S.Ct. 55, 17 L.Ed.2d 61 (1966). Sixth Circuit
cases have also indicated that mere assistance is insufficient. See the
instructions quoted in United States v. Davenport, supra, 808 F.2d at
1218. See also Fifth Circuit Instruction 2.21 (\"a person who has no
knowledge of a conspiracy, but who happens to act in a way which
advances some purpose of the conspiracy, does not thereby become a
conspirator\").

Although these things are not enough, standing alone, to convict a
defendant of conspiracy, Sixth Circuit decisions indicate that they are
factors that the jury may properly consider. See United States v.
Christian, supra, 786 F.2d at 211 (\"Although mere presence alone is
insufficient to support a guilty verdict, presence is a material and
probative factor which the jury may consider in reaching its
decision.\").

What the government must prove to convict has been variously described.
In United States v. Richardson, supra, 596 F.2d at 162, the Sixth
Circuit said that there must be proof of \"an intention and agreement to
cooperate in the crime.\" Accord United States v. Williams, 503 F.2d 50,
54 (6th Cir.1974). In United States v. Webb, supra, 359 F.2d at 562, the
Sixth Circuit said that there must be proof of the defendant\'s
\"agreement to or participation in a plan to violate the law.\" And in
United States v. Bostic, supra, 480 F.2d at 968, the Sixth Circuit said
that there must be \"intentional participation in the transaction with a
view to the furtherance of the common design and purpose.\"

**3.04 OVERT ACTS**

\(1\) The third element that the government must prove is that a member
of the conspiracy did one of the overt acts described in the indictment
for the purpose of advancing or helping the conspiracy.

\(2\) The indictment lists overt acts. The government does not have to
prove that all these acts were committed, or that any of these acts were
themselves illegal.

\(3\) But the government must prove that at least one of these acts was
committed by a member of the conspiracy, and that it was committed for
the purpose of advancing or helping the conspiracy. This is essential.

\[(4) One more thing about overt acts. There is a limit on how much time
the government has to obtain an indictment. This is called the statute
of limitations. For you to return a guilty verdict on the conspiracy
charge, the government must convince you beyond a reasonable doubt that
at least one overt act was committed for the purpose of advancing or
helping the conspiracy after.\]

**Use Note**

This instruction should be omitted when the statute under which the
defendant is charged does not require proof of an overt act.

It is unclear whether an augmented unanimity instruction specifically
requiring unanimous agreement on the same overt act is necessary. See
generally Instruction 8.03A and Committee Commentary.

Bracketed paragraph (4) should be included when compliance with the
statute of limitations is an issue. Appropriate modifications should be
made when evidence has been presented that there were two separate and
successive conspiracies, one of which does not fall within the five year
statute of limitations period for conspiracy.

**Committee Commentary 3.04**

(current through December 31, 2007)

The Committee made no change in the instruction.

As the 1991 Commentary states, an overt act is an essential element of
the general federal conspiracy statute, 18 U.S.C. § 371. As the
Commentary further states, other conspiracy statutes do not require an
overt act. *See* United States v. Whitfield, 543 U.S. 209 (2005)(money
laundering conspiracy under 18 U.S.C. § 1956(h)); Salinas v. United
States, 522 U.S. 52 (1997)(RICO conspiracy under 18 U.S.C. § 1962(d));
United States v. Shabani, 513 U.S. 10 (1994)(controlled substances
conspiracy under 21 U.S.C. § 846); United States v. Hayter Oil Co., 51
F.3d 1265 (6^th^ Cir. 1995)(antitrust conspiracy to fix prices under § 1
of the Sherman Act, 15 U.S.C. § 1).

Paragraph (3) of this instruction was quoted with approval in United
States v. Rashid, 274 F.3d 407, 415 (6^th^ Cir. 2001)(rejecting an
instruction that required the defendant to commit an overt act).

Among the sets of pattern instructions, only the Eighth and Ninth
Circuits explicitly require the jury to reach unanimous agreement on a
specific overt act. See Eighth Circuit Instruction 5.06D Conspiracy:
"Overt Act"--Explained (2003 ed.); Ninth Circuit Instruction 8.16
Conspiracy--Elements (2003 ed.). *Cf.* 2005 Committee Commentary to
Instructions 8.03B and 8.03C.

*1991 Edition*

Proof of an overt act is an essential element of any conspiracy
prosecution brought under 18 U.S.C. § 371. E.g., United States v.
Reifsteck, 841 F.2d 701, 704 (6th Cir.1988); United States v. Williams,
503 F.2d 50, 54 (6th Cir.1974). For a general explanation of the overt
act requirement, see Sandroff v. United States, 174 F.2d 1014, 1018-1019
(6th Cir.1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584
(1950). The language of the proposed instruction is modeled after
language used in Federal Judicial Center Instruction 62.

Some federal statutes contain their own separate conspiracy provision
that does not require the commission of an overt act. See for example 21
U.S.C. § 846. In such cases this instruction should be omitted. See,
e.g., United States v. Schultz, 855 F.2d 1217, 1222 (6th Cir.1988)
(\"conviction of conspiracy under 21 U.S.C. section 846 does not require
proof of an overt act\"). See also United States v. Nelson, 922 F.2d
311, 317-318 (6th Cir.1990) (No instruction on overt acts is necessary
even if the indictment lists overt acts committed in furtherance of the
conspiracy).

The government is only required to prove one overt act committed in
furtherance of the conspiracy in order to convict. See United States v.
Nowak, 448 F.2d 134, 140 (6th Cir.1971) (approving instruction requiring
that \"at least one overt act as set forth in the indictment was
committed\"), cert. denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731
(1972); Sandroff v. United States, supra, 174 F.2d at 1018-1019
(approving instruction that \"there need be but one overt act\"
established); Wilkes v. United States, 291 Fed. 988, 995 (6th Cir.1923)
(\"(I)t was not necessary to conviction to prove that more than one of
the overt acts charged in the indictment had been committed\"), cert.
denied, 263 U.S. 719, 44 S.Ct. 181, 68 L.Ed. 523 (1924).

\"(I)t (is) not necessary that any overt act charged in a conspiracy
indictment constitute in and of itself a separate criminal offense.\"
United States v. Cooper, 577 F.2d 1079, 1085 (6th Cir.), cert. denied,
439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978). See also Sandroff v.
United States, supra, 174 F.2d at 1018 (\"An overt act \... need not
necessarily be a criminal act, nor a crime that is the object of the
conspiracy, but \... (it) must be done in furtherance of the object of
the agreement.\"); United States v. Reifsteck, supra, 841 F.2d at 704
(\"(E)ach overt act taken to effect the illegal purpose of the
conspiracy need not be illegal in itself.\"). Acts which, when viewed in
isolation, are in themselves legal, \"lose that character when they
become constituent elements of an unlawful scheme.\" United States v.
Van Hee, 531 F.2d 352, 357 (6th Cir.1976).

The Sixth Circuit has not directly addressed whether the trial court
must give an augmented unanimity instruction specifically telling the
jurors that they must unanimously agree on the same overt act in order
to convict. But the general rule in the Sixth Circuit is that no
augmented unanimity instruction is required unless special circumstances
are present. See the Committee Commentary to Instruction
8.03A\--Unanimity of Theory. In United States v. Bouquett, 820 F.2d 165,
169 (6th Cir.1987), the Sixth Circuit rejected the defendant\'s argument
that his conspiracy conviction should be reversed because the trial
court\'s instructions permitted the jury to convict based on alternate
theories of who in particular the defendant conspired within the context
of a single conspiracy. The Sixth Circuit held that these alternate
theories did not create \"two conceptual groupings\" requiring an
augmented unanimity instruction, and stated that \"this court does not
require jurors to agree unanimously as to a theory of guilt where a
single generic offense may be committed by a variety of acts.\"

Of the circuits that have drafted pattern instructions, only the Eighth
and Ninth Circuits explicitly require the jury to reach unanimous
agreement on the same overt act. See Eighth Circuit Instruction 5.06D
and Ninth Circuit Instruction 8.05A.

Bracketed paragraph (4) should be included when compliance with the
statute of limitations is an issue. The statute of limitations for
prosecutions initiated under 18 U.S.C. s 371 is five years from the date
of the commission of the last overt act in furtherance of the
conspiracy. Fiswick v. United States, 329 U.S. 211, 216, 67 S.Ct. 224,
227, 91 L.Ed. 196 (1946); United States v. Zalman, 870 F.2d 1047, 1057
(6th Cir.1989). Other circuits have held, or indicated, that overt acts
not alleged in the indictment can be used to prove that a conspiracy
continued into the statute of limitations period, as long as fair notice
principles are satisfied. See, e.g., United States v. Read, 658 F.2d
1225, 1239 (7th Cir.1981); United States v. Lewis, 759 F.2d 1316, 1344
(8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357
(1985); United States v. Elliott, 571 F.2d 880, 911 (5th Cir.1978). The
proposed instruction is based on the Seventh Circuit\'s decision in
United States v. Nowak, 448 F.2d 134, 140 (7th Cir.1971) (instruction
that \"one or more of the overt acts occurred after February 6, 1964\"
was a sufficient instruction on the statute of limitations defense),
cert. denied, 404 U.S. 1039, 92 S.Ct. 714, 30 L.Ed.2d 731 (1972).

When evidence has been presented that there were two separate and
successive conspiracies, one of which does not fall within the five year
statute of limitations period for conspiracy, appropriate modifications
should be made in bracketed paragraph (4). See United States v. Zalman,
supra, 870 F.2d at 1057. See also Instructions 3.08 and 3.09.

**3.05 BAD PURPOSE OR CORRUPT MOTIVE**

(No Instruction Recommended)

**Committee Commentary 3.05**

(current through December 31, 2007)

The Committee made no change in its approach, and continues to recommend
that no instruction on bad purpose or corrupt motive be given. The
Committee also concluded that no change in or addition to the 1991
Commentary is warranted.

*1991 Edition*

In United States v. Feola, 420 U.S. 671, 686-696, 95 S.Ct. 1255, 43
L.Ed.2d 541 (1975), the Supreme Court held that generally speaking, the
government need not prove anything more than the degree of criminal
intent necessary for the substantive offense in order to convict a
defendant of conspiracy. The Court noted in passing that requiring some
additional degree of criminal intent beyond that required for the
substantive offense would come close to embracing the severely
criticized \"corrupt motive\" doctrine, which in some states requires
proof of a motive to do wrong to convict a defendant of conspiracy.

Based on Feola, the Committee recommends that no instruction be given
regarding any bad purpose or corrupt motive beyond the degree of
criminal intent required for the substantive offense. See generally
United States v. Prince, 529 F.2d 1108, 1111-1112 (6th Cir.), cert.
denied, 429 U.S. 838, 97 S.Ct. 108, 50 L.Ed.2d 105 (1976).

**3.06 UNINDICTED, UNNAMED OR SEPARATELY TRIED CO-CONSPIRATORS**

\(1\) Now, some of the people who may have been involved in these events
are not on trial. This does not matter. There is no requirement that all
members of a conspiracy be charged and prosecuted, or tried together in
one proceeding.

\[(2) Nor is there any requirement that the names of the other
conspirators be known. An indictment can charge a defendant with a
conspiracy involving people whose names are not known, as long as the
government can prove that the defendant conspired with one or more of
them. Whether they are named or not does not matter.\]

**Use Note**

This instruction should be used when some of the potential conspirators
are not on trial.

Bracketed paragraph (2) should be included when some of the potential
conspirators are unnamed.

Instructions 2.01(3) and 8.08(2) further caution the jurors that the
possible guilt of others is not a proper matter for their consideration.

**Committee Commentary 3.06**

(current through December 31, 2007)

The Committee made no change in the instruction.

In United States v. Anderson, 76 F.3d 685 (6^th^ Cir. 1996), the court
held that "an individual's conviction for conspiracy may stand, despite
acquittal of other alleged coconspirators, when the indictment refers to
unknown or unnamed conspirators and there is sufficient evidence to show
the existence of a conspiracy between the convicted defendant and these
other conspirators." *Id.* at 688-89, *citing* United States v. Sandy,
605 F.2d 210 (6th Cir. 1979).

*1991 Edition*

It is \"immaterial\" that all members of a conspiracy are not charged in
an indictment. United States v. Sandy, 605 F.2d 210, 216 (6th Cir.),
cert. denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979). \"It
is not necessary, to sustain a conviction for a conspiracy, that all
co-conspirators be charged.\" United States v. Sachs, 801 F.2d 839, 845
(6th Cir.1986).

It is also well-settled that \"a valid indictment may charge a defendant
with conspiring with persons whose names are unknown.\" E.g., United
States v. Piccolo, 723 F.2d 1234, 1239 (6th Cir.1983), cert. denied, 466
U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 817 (1984). See also United States
v. English, 925 F.2d 154, 159 (6th Cir.1991) (Absent a specific showing
of surprise or prejudice, there is no requirement that an indictment or
a bill of particulars identify the supervisees necessary for a
continuing criminal enterprise conviction). A defendant \"may be
indicted and convicted despite the names of his co-conspirators
remaining unknown, as long as the government presents evidence to
establish an agreement between two or more persons.\" United States v.
Rey, 923 F.2d 1217, 1222 (6th Cir.1991).

**3.07 VENUE**

\(1\) Now, some of the events that you have heard about happened in
other places. There is no requirement that the entire conspiracy take
place here in \_\_\_\_\_\_\_. But for you to return a guilty verdict on
the conspiracy charge, the government must convince you that either the
agreement, or one of the overt acts, took place here in \_\_\_\_\_\_\_.

\(2\) Unlike all the other elements that I have described, this is just
a fact that the government only has to prove by a preponderance of the
evidence. This means the government only has to convince you that it is
more likely than not that part of the conspiracy took place here.

\(3\) Remember that all the other elements I have described must be
proved beyond a reasonable doubt.

**Use Note**

This instruction should be used when venue is an issue.

**Committee Commentary 3.07**

(current through December 31, 2007)

The Committee made no change in the instruction.

In United States v. Turner, 936 F.2d 221 (6^th^ Cir. 1991), a drug
conspiracy prosecution under 21 U.S.C. § 846, the court stated:

> Conspiracy and drug importation are "continuous crimes"; that is, they
> are not completed until the drugs reach their final destination, and
> venue is proper "in any district along the way." *United States v.
> Lowery*, 675 F.2d 593, 594 (4^th^ Cir. 1982); *see also United States
> v. Scaife*, 749 F.2d 338, 346 (6^th^ Cir. 1984)(venue is proper in
> conspiracy prosecutions in any district where an overt act in
> furtherance of the conspiracy takes place).

*Turner,* 936 F.2d at 226. In United States v. Baylis, 1999 WL 993919,
1999 U.S. App. LEXIS 26646 (6^th^ Cir. 1999)(unpublished), a panel of
the court stated, "Conspiracy may be prosecuted in any district in which
the agreement was formed, or an act in furtherance of the conspiracy
occurred." 1999 WL 993919 at 3, 1999 LEXIS 26646 at 9, *citing Turner*,
936 F.2d at 226 and Federal Rule of Criminal Procedure 18. *See also* 18
U.S.C. § 3237(a).

*1991 Edition*

A conspiracy prosecution may be brought in the district where the
agreement was made, or in any district where an overt act in furtherance
of the conspiracy was committed. E.g., United States v. Miller, 358 F.2d
696, 697 (6th Cir.1966); Sandroff v. United States, 174 F.2d 1014,
1018-1019 (6th Cir.1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94
L.Ed. 584 (1950). Unlike true elements, venue is merely a fact that only
needs to be proved by a preponderance of the evidence. United States v.
Charlton, 372 F.2d 663, 665 (6th Cir.), cert. denied, 387 U.S. 936, 87
S.Ct. 2062, 18 L.Ed.2d 999 (1967). And any objection to venue may be
waived if not raised in the district court. United States v. English,
925 F.2d 154, 158 (6th Cir.1991).

**3.08 MULTIPLE CONSPIRACIES\--MATERIAL VARIANCE FROM THE INDICTMENT**

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

\(2\) Some of the defendants have argued that there were really two
separate conspiracies\--one between \_\_\_\_\_\_\_ to commit the crime
of \_\_\_\_\_\_\_; and another one between \_\_\_\_\_\_\_ to commit the
crime of \_\_\_\_\_\_\_.

\(3\) To convict any one of the defendants of the conspiracy charge, the
government must convince you beyond a reasonable doubt that the
defendant was a member of the conspiracy charged in the indictment. If
the government fails to prove this, then you must find that defendant
not guilty of the conspiracy charge, even if you find that he 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 was a member of the conspiracy charged in the
indictment.

**Use Note**

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. It should be followed by Instruction 3.09, which explains
the factors the jury should consider in determining whether a single or
multiple conspiracies existed.

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.

**Committee Commentary 3.08**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit has cited Instruction 3.08(3)-(4) approvingly in
affirming a conviction based on a similar instruction. *See* United
States v. Blackwell, 459 F.3d 739, 765 (6th Cir. 2006) (noting that
instruction at issue "mirrors in substance" the pattern instructions and
differs as to "only one sentence" in concluding that trial court's
instruction was not misleading or erroneous).

The Sixth Circuit has stated that Instruction 3.08 "should \[be\] given"
when "there \[is\] evidence of multiple conspiracies and a possible
variance\...." United States v. Maliszewski, 161 F.3d 992, 1014 (6^th^
Cir. 1998). *See also* United States v. Sanchez, 928 F.2d 1450, 1456
(6th Cir. 1991). The court has also reiterated that the question of
whether the evidence shows a single conspiracy or multiple conspiracies
is usually a question of fact to be resolved by the jury under proper
instructions. United States v. Segines, 17 F.3d 847, 856 (6^th^ Cir.
1994); United States v. Grunsfeld, 558 F.2d 1231, 1238 (6^th^ Cir.
1977).

As long as the evidence supports only a single conspiracy, it is not
error to refuse a multiple conspiracy instruction. United States v.
Lash, 937 F.2d 1077, 1086-87 (6^th^ Cir. 1991), *citing* United States
v. Baker, 855 F.2d 1353, 1357 (8^th^ Cir. 1988), United States v. Toro,
840 F.2d 1221, 1236-37 (5^th^ Cir. 1988), and United States v. Martino,
664 F.2d 860, 875 (2d Cir. 1981). *Accord*, United States v. Ghazaleh,
58 F.3d 240, 245 (6^th^ Cir. 1995); United States v. Paulino, 935 F.2d
739, 748 (6^th^ Cir. 1991). When the evidence supports only a single
conspiracy, giving a multiple conspiracy instruction containing an
erroneous statement of the law has been deemed an "error of no
consequence." *Maliszewski*, 161 F.3d at 1014.

*1991 Edition*

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,
55 S.Ct. 629, 630-631, 79 L.Ed. 1314 (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, 773-774, 66 S.Ct. 1239, 1252-1253, 90 L.Ed. 1557
(1946) (there must be some leeway for conspiracy cases where the
evidence differs from the exact specifications in the indictment).

Whether single or multiple conspiracies have been proved is usually a
question of fact to be resolved by the jury under proper instructions.
See United States v. Schultz, 855 F.2d 1217, 1222 (6th Cir.1988); United
States v. Rios, 842 F.2d 868, 872 (6th Cir.1988), cert. denied, 488 U.S.
1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989); United States v. Battista,
646 F.2d 237, 243 (6th Cir.), cert. denied, 454 U.S. 1046, 102 S.Ct.
586, 70 L.Ed.2d 488 (1981); and United States v. Grunsfeld, 558 F.2d
1231, 1238 (6th Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 219, 54
L.Ed.2d 152 (1977). When no evidence is presented warranting an
instruction on multiple conspiracies, none need be given. United States
v. Levinson, 405 F.2d 971, 989 (6th Cir.1968), cert. denied, 395 U.S.
958, 89 S.Ct. 2097, 23 L.Ed.2d 744 (1969). But \"when the evidence is
such that the jury could within reason find more than one conspiracy,
the trial court should give the jury a multiple conspiracy
instruction.\" United States v. Warner, 690 F.2d 545, 551 (6th
Cir.1982). Accord United States v. Davenport, 808 F.2d 1212, 1217 (6th
Cir.1987).

This instruction is patterned after instructions quoted by the Sixth
Circuit in United States v. Hughes, 895 F.2d 1135, 1140 n. 6 (6th
Cir.1990). Where one single conspiracy is charged, \"proof of different
and disconnected ones will not sustain a conviction.\" United States v.
Bostic, 480 F.2d 965, 968 (6th Cir.1973). See also United States v.
Borelli, 336 F.2d 376, 382 (2d Cir.1964), cert. denied, 379 U.S. 960, 85
S.Ct. 647, 13 L.Ed.2d 555 (1965).

See generally Fifth Circuit Instruction 2.22, Eighth Circuit Instruction
5.06G, Ninth Circuit Instruction 8.05B, Eleventh Circuit Offense 4.3 and
Federal Judicial Center Instruction 64.

This instruction should be followed by Instruction 3.09, which explains
the factors the jury should consider in determining whether a single or
multiple conspiracies existed.

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.

**3.09 MULTIPLE CONSPIRACIES\--FACTORS IN DETERMINING**

\(1\) In deciding whether there was more than one conspiracy, you should
concentrate on the nature of the agreement. To prove a single
conspiracy, the government must convince you that each of the members
agreed to participate in what he knew was a group activity directed
toward a common goal. There must be proof of an agreement on an overall
objective.

\(2\) But a single conspiracy may exist even if all the members did not
know each other, or never sat down 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. These are all things that you may consider in deciding
whether there was more than one conspiracy, but they are not necessarily
controlling.

\(3\) Similarly, just because there were different sub-groups 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. Again, you may consider these things, but they are not
necessarily controlling.

\(4\) What is controlling is whether the government has proved that
there was an overall agreement on a common goal. That is the key.

**Use Note**

This instruction should be used with Instruction 3.08. Paragraphs (2)
and (3) should be tailored to the facts of the particular case. For
example, when there is no evidence that the membership of the group may
have changed, that language should be deleted.

**Committee Commentary 3.09**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit continues to rely on United States v. Warner, 690 F.2d
545 (6th Cir.1982) to distinguish single and multiple conspiracies.
*See, e.g.,* United States v. Wilson, 168 F.3d 916, 923-24 (6th Cir.
1999); United States v. Paulino, 935 F.2d 739, 748 (6^th^ Cir. 1991);
and United States v. Sanchez, 928 F.2d 1450, 1456 (6th Cir. 1991).

The Sixth Circuit's treatment of the subsidiary issues discussed in the
third paragraph of the 1991 Commentary also remains consistent. The
government need not prove an actual agreement to establish a single
conspiracy. United States v. Segines, 17 F.3d 847, 856 (6^th^ Cir.
1994), *citing* United States v. Davenport, 808 F.2d 1212, 1215-16 (6th
Cir.1987); United States v. Paulino, *supra* at 748, *citing Warner,*
690 F.2d 545 (6th Cir.1982). *Accord*, United States v. Maliszewski, 161
F.3d 992, 1015 (6^th^ Cir. 1998), *citing Segines*, 17 F.3d at 856. The
conspirators need not have direct association to establish a single
conspiracy. United States v. Rugerio, 20 F.3d 1387, 1391 (6^th^ Cir.
1994), *citing Sanchez*, 928 F.2d at 1457 (6th Cir. 1991). A single
conspiracy may be proved although the defendants did not know every
other member of the conspiracy, *see* *Paulino*, 935 F.2d 739, 748
(6^th^ Cir. 1991), and although each member did not know of or become
involved in all of the activities in furtherance of the conspiracy,
*see* United States v. Maliszewski, *supra* at 1014 *citing* United
States v. Moss, 9 F.3d 543 at 551 (6^th^ Cir. 1993). In other words, to
establish a single conspiracy, "It is not necessary for each conspirator
to participate in every phase of the criminal venture, provided there is
assent to contribute to a common enterprise." United States v. Ghazaleh,
58 F.3d 240, 245 (6^th^ Cir. 1995), *quoting* United States v. Hughes,
895 F.2d 1135, 1140 (6^th^ Cir. 1990). A single conspiracy can be proved
regardless of changes in conspiracy membership. *See* *Wilson* at 924,
*citing Warner,* 690 F.2d 545; United States v. Rugerio, *supra*,
*citing* United States v. Rios, 842 F.2d 868, 872 (6th Cir.1988).

In United States v. Sanchez, *supra*, the court stated, "\[A\] single
conspiracy is not transposed into a multiple one simply by lapse of
time, change in membership, or a shifting emphasis on its locale of
operations." 928 F.2d at 1456, *quoting* United States v. Heinemann, 801
F.2d 86, 92 (2d Cir. 1986). This articulation has been repeated with
approval several times. *See* *Segines*, 17 F.3d at 856, *citing
Sanchez*, 928 F.2d at 1456; *Maliszewski*, 161 F.3d at 1014-1015,
*citing Segines*, 17 F.3d at 856. More recently the court summarized the
law in these words: "In short, case law makes plain that evidence of
multiple players and multiple locales does not equate with evidence of
multiple conspiracies." *Maliszewski*, 161 F.3d at 1015 (6^th^ Cir.
1998).

The court also continues to find that the existence of distinct
sub-groups within a conspiracy does not necessarily mean there are
multiple conspiracies. *See, e.g.,* *Wilson*, *supra* at 924, *citing
Warner,* 690 F.2d at 550 n.8 and *Rugerio*, 20 F.3d at 1392.

The Sixth Circuit continues to rely on *Warner*, 690 F.2d 545 (6th
Cir.1982), in discussing chain conspiracies in drug cases. *See, e.g.,*
United States v. Paulino, *supra* at 748, *citing Warner,* 690 F.2d at
548-49.

*1991 Edition*

The leading Sixth Circuit case on the factors to be considered in
determining whether single or multiple conspiracies existed is United
States v. Warner, 690 F.2d 545 (6th Cir.1982). See United States v.
Rios, 842 F.2d 868, 872-873 (6th Cir.1988), cert. denied, 488 U.S. 1031,
109 S.Ct. 840, 102 L.Ed.2d 972 (1989); United States v. Davenport, 808
F.2d 1212, 1215-1216 (6th Cir.1987); and United States v. McLernon, 746
F.2d 1098, 1107-1108 (6th Cir.1984), all citing and quoting Warner
extensively with approval. In Warner, the Sixth Circuit generally
described the principles governing the resolution of whether single or
multiple conspiracies existed as follows:

\"In determining whether the evidence showed single or multiple
conspiracies, we must bear in mind that the essence of the crime of
conspiracy is agreement. \'(I)n order to prove a single conspiracy, the
government must show that each alleged member agreed to participate in
what he knew to be a collective venture directed toward a common
goal\'.\" Id. at 548-549.

In United States v. Sutton, 642 F.2d 1001, 1017 (6th Cir.1980), cert.
denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 995 (1981), the Sixth
Circuit similarly stated that \"(t)o find a single conspiracy, we \...
must look for agreement on an overall objective.\" See also United
States v. Mayes, 512 F.2d 637, 643 (6th Cir.) (\"essential continuity
and singleness of purpose\"), cert. denied, 422 U.S. 1008, 95 S.Ct.
2629, 45 L.Ed.2d 670 (1975); United States v. Vida, 370 F.2d 759, 767
(6th Cir.1966) (\"one broad and continuing endeavor\"), cert. denied,
387 U.S. 910, 87 S.Ct. 1695, 18 L.Ed.2d 630 (1967).

In Warner, the Sixth Circuit also dealt with a number of subsidiary
issues relating to this subject. With regard to the proof of an
agreement, the Sixth Circuit stated that the government is not required
to prove \"an actual agreement among the various conspirators\" in order
to establish a single conspiracy. Id. at 549. See also United States v.
Butler, 618 F.2d 411, 416 (6th Cir.) (\"the law does not require that
all conspirators be physically present at the moment agreement is
reached \... (a)greement among conspirators may take place seriatim\"),
cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980);
United States v. Perry, 550 F.2d 524, 533 (9th Cir.) (\"The government
does not have to prove that all of the defendants met together at the
same time and ratified the agreement.\"), cert. denied, 434 U.S. 827, 98
S.Ct. 104, 54 L.Ed.2d 85 (1977).

With regard to knowledge of the other members of the conspiracy and the
activities they performed, the Sixth Circuit stated in Warner that \"a
single conspiracy does not become multiple conspiracies simply because
each member of the conspiracy did not know every other member, or
because each member did not know of or become involved in all of the
activities in furtherance of the conspiracy.\" Id. at 549. See also
United States v. Mayes, supra, 512 F.2d at 642 (\"it is common for
willing participants not to be acquainted with all of the members of the
organization, or even to know the nature of every aspect of the
operation\").

With regard to changes in membership, the Sixth Circuit stated in Warner
that \"(n)ew parties may join the agreement at any time while others may
terminate their relationship. \... (the parties are not always
identical, but this does not mean that there are separate
conspiracies.\" Id. at 549 n. 7. See also United States v. Rios, supra,
842 F.2d at 873 (\"a single conspiracy does not become multiple
conspiracies simply because of personnel changes or because its members
are cast in different roles\"); United States v. Vida, supra, 370 F.2d
at 767 (finding a single conspiracy even though \"(i)ndividual
defendants were entering and leaving the operation as it continued its
course\").

Related to this, it is \"not necessary that each member of the
conspiracy be a member of it from the beginning so long as each joins it
while it is still in operation.\" United States v. Stephens, 492 F.2d
1367, 1373 (6th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 93, 42
L.Ed.2d 83 (1974). Accord United States v. Warner, supra, 690 F.2d at
549 n. 7 (\"The fact that (some of the defendants) entered the
conspiracy relatively late does not preclude our finding that they were
part of the single conspiracy alleged in the indictment.\"). \"All with
criminal intent who join themselves \... to the principal scheme are
subject to the statute, although they were not parties to the scheme at
its inception.\" Blue v. United States, 138 F.2d 351, 359 (6th
Cir.1943), cert. denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570
(1944).

In United States v. Warner, supra, 690 F.2d at 550 n. 8, the Sixth
Circuit also stated that just because a conspiracy can be divided into
\"distinct sub-groups\" does not mean that there is more than one
conspiracy. \"As long as the different sub-groups are committing acts in
furtherance of one overall plan, the jury can still find a single,
continuing conspiracy.\" Id. See also United States v. Cambindo
Valencia, 609 F.2d 603, 624 (2d Cir.1979) (\"mere territorial
separation\.... does not necessarily establish discrete conspiracies\"),
cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980).

In United States v. Mayes, supra, 512 F.2d at 642, the SixthCircuit
stated that just because a conspiracy \"continued over a long period of
time and contemplated the commission of many illegal acts (does not)
transform the single conspiracy into several conspiracies.\" As stated
by the Supreme Court in Braverman v. United States, 317 U.S. 49, 52, 63
S.Ct. 99, 101, 87 L.Ed. 23 (1942), \"a single agreement to commit an
offense does not become several conspiracies because it continues over a
period of time\.... (t)here may be such a single continuing agreement to
commit several offenses.\" In Braverman, the Supreme Court also stated
that \"one agreement cannot be taken to be several agreements and hence
several conspiracies because it envisages the violation of several
statutes rather than one.\" See also United States v. Hughes, 895 F.2d
1135, 1140 (6th Cir.1990) (a conspirator need not have agreed to commit
every crime within the scope of the conspiracy so long as it is
reasonable to infer that each crime was intended to further the
enterprise\'s affairs, and it is not necessary for each conspirator to
participate in every phase of the criminal venture provided there is
assent to contribute to a common enterprise).

In United States v. Warner, supra, 690 F.2d at 549-550, the defendant
argued that the evidence presented at his trial showed at least two
separate drug distribution conspiracies instead of the single conspiracy
alleged in the indictment. The Sixth Circuit rejected this argument, in
part on the ground that in so-called \"chain\" conspiracies, a single
agreement \"can be inferred from the interdependent nature of the
criminal enterprise.\" The Sixth Circuit explained that \"(b)ecause the
success of participants on each level of distribution is dependent upon
the existence of other levels of distribution, each member of the
conspiracy must realize that he is participating in a joint
enterprise.\" Applying these principles to the facts of the case, the
Sixth Circuit stated that \"the evidence shows that the two groups of
dealers were dependent upon one another for their success, a factor
which indicates that they were a part of a single conspiracy.\"

In Kotteakos v. United States, 328 U.S. 750, 754-755, 66 S.Ct. 1239,
1242- 1243, 90 L.Ed. 1557 (1946), the Supreme Court held that the
commission of similar crimes by the alleged conspirators and their
connection to a common \"hub\" was not sufficient to establish a single
conspiracy. Where none of the alleged conspirators benefit from the
others\' participation, like \"separate spokes meeting in a common
center,\" but \"without the rim of the wheel to enclose the spokes,\"
there are multiple, not single conspiracies, even if the \"spokes\" and
the \"hub\" commit similar criminal acts. The government must show that
there was a \"single enterprise,\" not \"several, though similar \...
separate adventures of like character.\" Id. at 768-769, 66 S.Ct. at
1249-1250. See also United States v. Sutherland, 656 F.2d 1181, 1190
(5th Cir.1981) (absent evidence that the spokes were dependent on or
benefited from each others\' participation, or that there was some
interaction between them, government\'s proofs were insufficient to
establish a single conspiracy), cert. denied, 455 U.S. 949, 102 S.Ct.
1451, 71 L.Ed.2d 663 (1982).

The Committee believes that the concepts of mutual dependence and
\"chain\" vs. \"hub\" conspiracies are more appropriate for arguments by
counsel than for instructions by the court.

In United States v. Castro, 908 F.2d 85, 88 (6th Cir.1990), the Sixth
Circuit stated that in drug trafficking conspiracies, \"importers,
wholesalers, purchasers of cutting materials, and persons who \'wash\'
money are all as necessary to the success of the venture as the
retailer.\" For this reason, the Sixth Circuit refused to find that
evidenceof currency collections connected with the drug trafficking at
issue constituted a material variance from the charged conspiracy,
particularly in light of additional evidence of the defendants\'
knowledge and intent. Cf. United States v. Todd, 920 F.2d 399, 406 (6th
Cir.1990) (Money-laundering is integrally related to the success of a
drug distribution conspiracy, but there must be a \"sufficient link\"
between a defendant\'s money-laundering activities and the drug
distribution conspiracy to convict the defendant of the conspiracy.)

**3.10 PINKERTON LIABILITY FOR SUBSTANTIVE OFFENSES COMMITTED BY
OTHERS**

\(1\) Count \_\_\_ of the indictment accuses the defendants of
committing the crime of \_\_\_\_\_\_\_.

\(2\) There are two ways that the government can prove the defendants
guilty of this crime. The first is by convincing you that they
personally committed or participated in this crime. The second is based
on the legal rule that all members of a conspiracy are responsible for
acts committed by the other members, as long as those acts are committed
to help advance the conspiracy, and are within the reasonably
foreseeable scope of the agreement.

\(3\) In other words, under certain circumstances, the act of one
conspirator may be treated as the act of all. This means that all the
conspirators may be convicted of a crime committed by only one of them,
even though they did not all personally participate in that crime
themselves.

\(4\) But for you to find any one of the defendants guilty of
\_\_\_\_\_\_\_ based on this legal rule, you must be convinced that the
government has proved each and every one of the following elements
beyond a reasonable doubt:

\(A\) First, that the defendant was a member of the conspiracy charged
in Count \_\_\_ of the indictment.

\(B\) Second, that after he joined the conspiracy, and while he was
still a member of it, one or more of the other members committed the
crime of \_\_\_\_\_\_\_.

\(C\) Third, that this crime was committed to help advance the
conspiracy.

\(D\) And fourth, that this crime was within the reasonably foreseeable
scope of the unlawful project. The crime must have been one that the
defendant could have reasonably anticipated as a necessary or natural
consequence of the agreement.

\(5\) This does not require proof that each defendant specifically
agreed or knew that the crime would be committed. But the government
must prove that the crime was within the reasonable contemplation of the
persons who participated in the conspiracy. No defendant is responsible
for the acts of others that go beyond the fair scope of the agreement as
the defendant understood it.

\(6\) If you are convinced that the government has proved all of these
elements, say so by returning a guilty verdict on this charge. If you
have a reasonable doubt about any one of them, then the legal rule that
the act of one conspirator is the act of all would not apply.

**Use Note**

This instruction should be used when the government is attempting to
convict a defendant of a substantive crime committed by other members of
a conspiracy, and there is also some evidence that the defendant
personally committed or participated in the commission of the
substantive offense.

The language in paragraph (2) should be modified to delete all
references to personal commission or participation when only one
defendant is on trial and there is no evidence that he personally
committed or participated in the commission of the substantive offense.

When more than one defendant is on trial, and there is no evidence that
one or more defendants personally participated in the substantive
offense, paragraph (2) should be modified to identify which defendants
could be convicted on a personal participation theory, and which
defendants could not.

In the rare case where no conspiracy is charged but one is proved, the
instruction should be modified to include language discussing the
uncharged conspiracy.

**Committee Commentary 3.10**

(current through December 31, 2007)

The Committee made no change in the instruction.

The Sixth Circuit continues to rely on Pinkerton v. United States, 328
U.S. 640 (1946). *See, e.g.,* United States v. Odom, 13 F.3d 949, 959
(6th Cir. 1994) ("Once a conspiracy is shown to exist, the Pinkerton
doctrine permits the conviction of one conspirator for the substantive
offense of other conspirators committed during and in furtherance of the
conspiracy, even if the offense is not an object of the conspiracy.")
(*citing* United States v. Christian, 942 F.2d 363, 367 (6th Cir.
1991)).

In the rare case where the indictment includes no conspiracy count but a
conspiracy is proved, the instruction should be modified to include
language discussing the uncharged conspiracy. In United States v. Budd,
496 F.3d 517 (6th Cir. 2007), the court held that "a district court may
properly provide a *Pinkerton* instruction regarding a substantive
offense, even when the defendant is not charged with the offense of
conspiracy." *Id.* at 528. In *Budd*, the defendant had in fact been
convicted of conspiracy in a previous trial, and the court emphasized
that a conspiracy must be proved before a *Pinkerton* instruction
regarding a substantive offense is proper.

In contrast, in United States v. Henning, 286 F.3d 914 (6th Cir. 2002),
the district court gave Pattern Instruction 3.10, and the defendant was
convicted on one § 371 conspiracy count and five counts of substantive
bank crimes. *Id.* at 919. The district court granted a post-trial
motion to acquit the defendant on the conspiracy charge due to
insufficient evidence. The Sixth Circuit held that the district court
should automatically have considered the viability of the substantive
bank crime convictions because of the close relationship between the
substantive and conspiracy crimes created by the *Pinkerton*
instruction. *Id.* at 920. The failure to consider the substantive
convictions was plain error and the convictions were reversed. *Id.* at
923. The court limited its holding to the unique facts of the case.
*Id.* at 922 n.11. In *Budd*, the court distinguished *Henning* and
explained, "It was not the absence of a conspiracy *charge* that led
this court to reverse in *Henning*; it was the absence of a conspiracy."
*Budd, supra* at 528.

*1991 Edition*

This instruction is designed for use when there is some evidence that
would support a conviction based on a co-conspirator liability theory,
and some evidence that a defendant personally committed or participated
in a substantive offense.

In Pinkerton v. United States, 328 U.S. 640, 645-648, 66 S.Ct. 1180,
1183- 1185, 90 L.Ed. 1489 (1946), the Supreme Court held that even
though there was no evidence that one of two conspirators participated
directly in the commission of the substantive offenses charged in the
indictment, that conspirator could still be convicted of the substantive
offenses based on the principle that the \"act of one partner (committed
in furtherance of the conspiracy) may be the act of all.\" Accord United
States v. Martin, 920 F.2d 345, 348 (6th Cir.1990) (\"The Pinkerton
doctrine permits conviction of a conspirator for the substantive
offenses of other conspirators committed during and in furtherance of
the conspiracy.\"); United States v. Adamo, 742 F.2d 927, 943-944 (6th
Cir.1984) (\"Once a person becomes a member of a conspiracy, he or she
may \'be held responsible for all that may be \... done\' by co-
conspirators.\"), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d
975 (1985); United States v. Chambers, 382 F.2d 910, 914 (6th Cir.1967))
(\"Where the substantive offense is committed by one or more
conspirators in furtherance of an unlawful activity, all members of the
conspiracy are guilty of the substantive offense.\").

The instruction requires the prosecution to prove that the substantive
offense was committed after the defendant joined the conspiracy, and
while he was still a member of it. Although there is some authority for
the proposition that a person who joins a conspiracy may be held
responsible for acts committed before he joined it, see, e.g., United
States v. Cimini, 427 F.2d 129, 130 (6th Cir.), cert. denied, 400 U.S.
911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970), that authority is questionable
in light of the United States Supreme Court\'s decision in Levine v.
United States, 383 U.S. 265, 266-267, 86 S.Ct. 925, 925-926 15 L.Ed.2d
737 (1966). In Levine, the Supreme Court accepted the Solicitor
General\'s concession that an individual \"cannot be held criminally
liable for substantive offenses committed by members of the conspiracy
before that individual had joined or after he had withdrawn from the
conspiracy.\"

The Supreme Court has indicated that it would not hold co-conspirators
liable for a substantive offense committed by other members of the
conspiracy if the substantive offense \"was not in fact done in
furtherance of the conspiracy, did not fall within the scope of the
unlawful project, or was merely a part of \... the plan which could not
be reasonably foreseen as a necessary or natural consequence of the
unlawful agreement.\" Pinkerton, supra, 328 U.S. at 647- 648, 66 S.Ct.
at 1184-1185. In United States v. Etheridge, 424 F.2d 951, 965 (6th
Cir.1970), cert. denied, 400 U.S. 1000, 91 S.Ct. 464, 27 L.Ed.2d 452
(1971), the Sixth Circuit treated this statement from Pinkerton as
creating three separate limitations on the rule that the act of one
co-conspirator is the act of all, and Instruction 3.10 does the same.
Cf. United States v. Frost, 914

F.2d 756, 762 (6th Cir.1990) (\"(A) court need not inquire into the
individual culpability of a particular conspirator, so long as the
substantive crime was a reasonably foreseeable consequence of the
conspiracy.\")

In Pinkerton, the Supreme Court stated that the act of one co-
conspirator may be the act of all \"without any new agreement
specifically directed to that act.\" Id., 328 U.S. at 646-647, 66 S.Ct.
at 1183-1184. And in Etheridge, the Sixth Circuit held that even though
a defendant had no knowledge of a particular substantive offense, he
could still be convicted of that offense if it was \"within the
reasonable contemplation of those who formulated and participated\" in
the conspiracy. Id., 424 F.2d at 965.

In United States v. Borelli, 336 F.2d 376, 385-386 (2d Cir.1964), cert.
denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), the Second
Circuit held that when the evidence is ambiguous as to the scope of the
agreement made by a particular defendant and the issue has practical
importance to the case, a special instruction should be given focusing
the jury\'s attention on this issue. Quoting from United States v.
Peoni, 100 F.2d 401, 403 (2d Cir.1938), the Second Circuit stated that
\"(n)obody is liable in conspiracy except for the fair import of the
concerted purpose or agreement as he understands it\". See also United
States v. United States Gypsum Co., 438 U.S. 422, 463 n. 36, 98 S.Ct.
2864, 2886 n. 36, 57 L.Ed.2d 854 (1978) (quoting a similar requested
instruction, and stating that the district court\'s actual instructions
differed in only \"minor and immaterial\" respects).

When only a single defendant is on trial and there is no evidence that
he personally committed or participated in the commission of the
substantive offense, the language in paragraph (2) should be modified to
delete all references to personal commission or participation.

When more than one defendant is on trial, and there is no evidence that
one or more defendants personally participated in the substantive
offense, paragraph (2) should be modified to identify which defendants
could be convicted on a personal participation theory, and which
defendants could not.

**3.11A WITHDRAWAL AS A DEFENSE TO CONSPIRACY**

\(1\) One of the defendants, \_\_\_\_\_\_\_, has raised the defense that
he withdrew from the agreement before any overt act was committed.
Withdrawal can be a defense to a conspiracy charge. But \_\_\_\_\_\_\_
has the burden of proving to you that he did in fact withdraw.

\(2\) To prove this defense, \_\_\_\_\_\_\_ must prove each and every
one of the following things:

\(A\) First, that he completely withdrew from the agreement. A partial
or temporary withdrawal is not enough.

\(B\) Second, that he took some affirmative step to renounce or defeat
the purpose of the conspiracy. An affirmative step would include an act
that is inconsistent with the purpose of the conspiracy and is
communicated in a way that is reasonably likely to reach the other
members. But some affirmative step is required. Just doing nothing, or
just avoiding the other members of the group, would not be enough.

\(C\) The third thing that \_\_\_\_\_\_\_ must prove is that he withdrew
before any member of the group committed one of the overt acts described
in the indictment. Once an overt act is committed, the crime of
conspiracy is complete. And any withdrawal after that point is no
defense to the conspiracy charge.

\(3\) If \_\_\_\_\_\_\_ proves these three elements, then you must find
him not guilty.

\(4\) The fact that \_\_\_\_\_\_\_ has raised this defense does not
relieve the government of its burden of proving that there was an
agreement, that he knowingly and voluntarily joined it, and that an
overt act was committed. Those are still things that the government must
prove in order for you to find \_\_\_\_\_\_\_ guilty of the conspiracy
charge.

**Use Note**

This instruction should be used when there is some evidence that a
defendant withdrew before any overt act was committed, and withdrawal
has been raised as a defense to the conspiracy charge itself.

This instruction does not appear to be appropriate when the conspiracy
charged does not require proof of an overt act.

**Committee Commentary 3.11A**

(current through December 31, 2007)

The Committee modified paragraph (2)(B) of this instruction. Previously,
that paragraph provided:

> \(B\) Second, that he took some affirmative step to renounce or defeat
> the purpose of the conspiracy. This would include **things like
> voluntarily going to the police or other law enforcement officials and
> telling them about the plan; or telling the other members of the
> conspiracy that he did not want to have anything more to do with it;
> or any other** affirmative acts that are inconsistent with the purpose
> of the conspiracy, and that are communicated in a way that is
> reasonably likely to reach the other members. But some affirmative
> step is required. Just doing nothing, or just avoiding the other
> members of the group, would not be enough.

The Committee deleted the language in bold type. The rationale for
deleting these examples of withdrawal was that they are potentially
confusing. See the 1991 Commentary, discussing United States v. United
States Gypsum Co., 438 U.S. 422 (1978) and United States v. Battista,
646 F.2d 237 (6^th^ Cir. 1981).

Paragraph (2)(B) continues to provide that withdrawal includes an
affirmative act that is inconsistent with the purpose of the conspiracy
"and" that is communicated in a way likely to reach the other members.
However, the defense is not limited to situations where communication of
withdrawal to other members of the conspiracy occurs. For example,
withdrawal may be established by notifying the authorities. The
instruction should be tailored to fit the facts of the case.

As noted in the 1991 Commentary, the defendant must prove some
affirmative action to withdraw from the conspiracy; mere cessation of
activity is not sufficient. United States v. Lash, 937 F.2d at 1083,
*citing* United States v. Battista, *supra* at 246; *United States
Gypsum Co., supra* at 464-65 and Hyde v. United States, 225 U.S. 347,
369 (1912). If there is evidence that the defendant acquiesced in the
conspiracy after the affirmative act to withdraw, it remains a jury
question whether there was withdrawal. *Lash*, 937 F.2d at 1084, *citing
Hyde*, 225 U.S. at 371. In *Lash* the court explained that the
defendant's "subsequent acts neutralized his withdrawal and indicated
his continued acquiescence. Continued acquiescence negates withdrawal,
leaving \[the defendant\] liable\...." *Lash*, 937 F.2d at 1084, *citing
Hyde*, 225 U.S. at 371-72.

The court continues to hold that withdrawal is an affirmative defense
which the defendant has the burden of proving. *See Lash*, 937 F.2d at
1083, *citing* United States v. Battista, *supra*. In United States v.
Dents, 1992 WL 317151 at 4, 1992 U.S. App. LEXIS 28982 at 11 (6^th^ Cir.
1992)(unpublished), the panel specifically rejected the Seventh
Circuit's conclusion in United States v. Read, 658 F.2d 1225 (7^th^ Cir.
1981), that the burden of disproving withdrawal was on the government.
As to the standard of proof, in In re Winship, it was identified as a
preponderance. 397 U.S. 358, 371-72 (1970)(Harlan, J., concurring). The
Sixth Circuit has also identified the standard as a preponderance of the
evidence but only in an unpublished case. See United States v. Eck, 11
Fed. Appx. 527, 532, 2001 WL 630057 at 5, 2001 U.S. App. LEXIS 11408 at
16 (6^th^ Cir. 2001)(unpublished).

*1991 Edition*

This instruction should be used when there is some evidence that a
defendant withdrew before any overt act was committed, and withdrawal
has been raised as a defense to the conspiracy charge itself. Some
conspiracies do not require the commission of an overt act in order for
the conspiracy to be complete. See for example 21 U.S.C. s 846. In such
cases, once a defendant joins the conspiracy, the concept of withdrawal
as a defense to the conspiracy charge \"would appear to be
inapplicable.\" See the Committee Commentary to Federal Judicial Center
Instruction 63.

In the Sixth Circuit, the members of a conspiracy \"continue to be co-
conspirators until there has been an affirmative showing that they have
withdrawn.\" E.g., United States v. Mayes, 512 F.2d 637, 642-643 (6th
Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670
(1975). Withdrawal remains a strict affirmative defense that the
defendant must prove. Chiropractic Cooperative Association of Michigan
v. American Medical Association, 867 F.2d 270, 274-275 (6th Cir.1989);
United States v. McLernon, 746 F.2d 1098, 1114 (6th Cir.1984); United
States v. Hamilton, 689 F.2d 1262, 1268-1269 (6th Cir.1982), cert.
denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983); United
States v. Battista, 646 F.2d 237, 246 (6th Cir.1980), cert. denied, 454
U.S. 1046, 102 S.Ct. 586, 70 L.Ed.2d 488 (1981); Blue v. United States,
138 F.2d 351, 360 (6th Cir.1943), cert. denied, 322 U.S. 736, 64 S.Ct.
1046, 88 L.Ed. 1570 (1944). But see the Seventh Circuit\'s decision in
United States v. Read, 658 F.2d 1225, 1236 (7th Cir.1981) (overruling
prior decisions and holding that once a defendant comes forward with
some evidence of withdrawal, the burden of persuasion is on the
government to disprove withdrawal beyond a reasonable doubt). See also
Ninth Circuit Instruction 8.05D (\"The government has the burden of
proving that the defendant did not withdraw from the conspiracy\"), and
Federal Judicial Center Instruction 63 (\"So you may find \_\_\_\_\_\_\_
guilty only if the government has proved beyond a reasonable doubt that
he was a member of the conspiracy at the time an overt act was
committed\"). The standard of proof that the defendant must meet to
carry his burden has not been delineated.

A partial withdrawal is not sufficient to establish this defense. See
United States v. Battista, supra, 646 F.2d at 246 (quoting instruction
that the defendant must \"completely\" disassociate himself from the
conspiracy). And some \"affirmative action to disavow or defeat the
purposes of the conspiracy\" is required. Id. Accord United States v.
Edgecomb, 910 F.2d 1309, 1312 (6th Cir.1990). Mere cessation of
activity, or termination of one\'s relationship with the other
co-conspirators, is not enough. See United States v. Adamo, 742 F.2d
927, 943-944 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971,
83 L.Ed.2d 975 (1985); United States v. Wirsing, 719 F.2d 859, 862 n. 5
(6th Cir.1983); United States v. Borelli, 336 F.2d 376, 388 (2d
Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555
(1965).

Jury instructions quoted or approved in the decided cases commonly
include examples of the kinds of affirmative steps considered sufficient
to constitute a withdrawal. See for example, United States v. United
States Gypsum Co, 438 U.S. 422, 463-464, 98 S.Ct. 2864, 2886-2887, 57
L.Ed.2d 854 (1978); United States v. Battista, supra, 646 F.2d at 246.
See also Seventh Circuit Instruction 5.12. These examples include such
things as notifying the authorities, or effectively communicating the
withdrawal to the other members of the conspiracy. See Battista, supra
at 246 (quoted instruction containing these two examples \"was in accord
with the law of this circuit\"). But in United States Gypsum Co., the
Supreme Court held that jury instructions which limited the ways in
which a defendant could withdraw to either informing the authorities, or
notifying the other members of the conspiracy of an intention to
withdraw, constituted reversible error. The Court stated that other
affirmative acts inconsistent with the object of the conspiracy and
communicated in a manner reasonably calculated to reach the other co-
conspirators have generally been regarded as sufficient to establish
withdrawal. Id. at 463-464, 98 S.Ct. at 2886-2887.

The final paragraph of this instruction is designed to remind the jury
that the government retains the burden of proving the basic elements of
conspiracy even though the defendant has raised withdrawal as an
affirmative defense.

**3.11B WITHDRAWAL AS A DEFENSE TO SUBSTANTIVE OFFENSES COMMITTED BY
OTHERS**

\(1\) One of the defendants, \_\_\_\_\_\_\_, has raised the defense that
he withdrew from the conspiracy before the crime of \_\_\_\_\_\_\_ was
committed. Withdrawal can be a defense to a crime committed after the
withdrawal. But \_\_\_\_\_\_\_ has the burden of proving to you that he
did in fact withdraw.

\(2\) To prove this defense, \_\_\_\_\_\_\_ must prove each and every
one of the following things:

\(A\) First, that he completely withdrew from the conspiracy. A partial
or temporary withdrawal is not sufficient.

\(B\) Second, that he took some affirmative step to renounce or defeat
the purpose of the conspiracy. An affirmative step would include an act
that is inconsistent with the purpose of the conspiracy and is
communicated in a way that is reasonably likely to reach the other
members. But some affirmative step is required. Just doing nothing, or
just avoiding the other members, would not be enough.

\(C\) The third thing that \_\_\_\_\_\_\_ must prove is that he withdrew
before the crime of \_\_\_\_\_\_\_ was committed. Once that crime was
committed, any withdrawal after that point would not be a defense.

\(3\) Withdrawal is not a defense to the conspiracy charge itself. But
the fact that \_\_\_\_\_\_\_ has raised this defense does not relieve
the government of proving that there was an agreement, that he knowingly
and voluntarily joined it, that an overt act was committed, that the
crime of \_\_\_\_\_\_\_ was committed to help advance the conspiracy and
that this crime was within the reasonably foreseeable scope of the
unlawful project. Those are still things that the government must prove
in order for you to find \_\_\_\_\_\_\_ guilty of \_\_\_\_\_\_\_.

**Use Note**

This instruction should be used when the evidence shows that any
withdrawal came after an overt act was committed, and withdrawal has
been raised as a defense to a substantive offense committed by another
member of the conspiracy.

**Committee Commentary 3.11B**

(current through December 31, 2007)

The Committee modified paragraph (2)(B) of this instruction. Previously,
that paragraph provided:

> \(B\) Second, that he took some affirmative step to renounce or defeat
> the purpose of the conspiracy. This would include **things like
> voluntarily going to the police or other law enforcement officials and
> telling them about the plan; or telling the other members of the
> conspiracy that he did not want to have anything more to do with it;
> or any other** affirmative acts that are inconsistent with the purpose
> of the conspiracy, and that are communicated in a way that is
> reasonably likely to reach the other members. But some affirmative
> step is required. Just doing nothing, or just avoiding the other
> members of the group, would not be enough.

The Committee deleted the language in bold type. The rationale for
deleting these examples of withdrawal was that they are potentially
confusing. See the 1991 Commentary, discussing United States v. United
States Gypsum Co., 438 U.S. 422 (1978) and United States v. Battista,
646 F.2d 237 (6^th^ Cir. 1981).

Paragraph (2)(B) continues to provide that withdrawal includes an
affirmative act that is inconsistent with the purpose of the conspiracy
"and" that is communicated in a way likely to reach the other members.
However, the defense is not limited to situations where communication of
withdrawal to other members of the conspiracy occurs. For example,
withdrawal may be established by notifying the authorities. The
instruction should be tailored to fit the facts of the case.

As long as a defendant has not taken some affirmative action to withdraw
from the conspiracy, the defendant remains liable for all
co-conspirators' actions in furtherance of the conspiracy. *See* United
States v. Hayter Oil Co., Inc., 51 F.3d 1265, 1271 (6^th^ Cir. 1995),
*citing* Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); United
States v. Lash, 937 F.2d 1077, 1083-84 (6^th^ Cir. 1991).

*1991 Edition*

This instruction should be used when the evidence shows that any
withdrawal came after the conspiracy was completed by the commission of
an overt act, and a defendant is raising withdrawal as a defense to a
substantive offense committed by a fellow co-conspirator. See
Instruction 3.10 on Pinkerton liability.

See the Committee Commentary to Instruction 3.11A for a complete
discussion of the law of withdrawal.

**3.11C WITHDRAWAL AS A DEFENSE TO CONSPIRACY BASED ON THE STATUTE OF
LIMITATIONS**

\(1\) One of the defendants, \_\_\_\_\_\_\_, has raised the defense that
he withdrew from the conspiracy before \_\_\_\_\_\_\_, and that the
statute of limitations ran out before the government obtained an
indictment charging him with the conspiracy.

\(2\) The statute of limitations is a law that puts a limit on how much
time the government has to obtain an indictment. This can be a defense,
but \_\_\_\_\_\_\_ has the burden of proving to you that he did in fact
withdraw, and that he did so before \_\_\_\_\_\_\_.

\(3\) To prove this defense, \_\_\_\_\_\_\_ must establish each and
every one of the following things:

\(A\) First, that he completely withdrew from the conspiracy. A partial
or temporary withdrawal is not sufficient.

\(B\) Second, that he took some affirmative step to renounce or defeat
the purpose of the conspiracy. An affirmative step would include an act
that is inconsistent with the purpose of the conspiracy and is
communicated in a way that is reasonably likely to reach the other
members. But some affirmative step is required. Just doing nothing, or
just avoiding contact with the other members, would not be enough.

\(C\) The third thing that \_\_\_\_\_\_\_ must prove is that he withdrew
before \_\_\_\_\_\_\_.

\(4\) If \_\_\_\_\_\_\_ proves these three elements, then you must find
him not guilty.

\(5\) The fact that \_\_\_\_\_\_\_ has raised this defense does not
relieve the government of its burden of proving that there was an
agreement, that he knowingly and voluntarily joined it, and that an
overt act was committed. Those are still things that the government must
prove in order for you to find \_\_\_\_\_\_\_ guilty of the conspiracy
charge.

**Use Note**

This instruction should be used when there is some evidence that a
defendant withdrew from a conspiracy before the limiting date.

**Committee Commentary 3.11C**

(current through December 31, 2007)

The Use Note was changed to refer to "the limiting date" rather than to
a five-year limitation period in order to accommodate different
limitations periods.

The Committee modified paragraph (3)(B) of this instruction. Previously,
that paragraph provided:

> \(B\) Second, that he took some affirmative step to renounce or defeat
> the purpose of the conspiracy. This would include **things like
> voluntarily going to the police or other law enforcement officials and
> telling them about the plan; or telling the other members of the
> conspiracy that he did not want to have anything more to do with it;
> or any other** affirmative acts that are inconsistent with the purpose
> of the conspiracy, and that are communicated in a way that is
> reasonably likely to reach the other members. But some affirmative
> step is required. Just doing nothing, or just avoiding the other
> members of the group, would not be enough.

The Committee deleted the language in bold type. The rationale for
deleting these examples of withdrawal was that they are potentially
confusing. See the 1991 Commentary, discussing United States v. United
States Gypsum Co., 438 U.S. 422 (1978) and United States v. Battista,
646 F.2d 237 (6^th^ Cir. 1981).

Paragraph (3)(B) continues to provide that withdrawal includes an
affirmative acts that is inconsistent with the purpose of the conspiracy
"and" that is communicated in a way likely to reach the other members.
However, the defense is not limited to situations where communication of
withdrawal to other members of the conspiracy occurs. For example,
withdrawal may be established by notifying the authorities. The
instruction should be tailored to fit the facts of the case.

In United States v. Lash, 937 F.2d 1077, 1083 (6^th^ Cir. 1991), the
court noted that withdrawal from a conspiracy prior to the relevant
statute of limitations date would be a complete defense.

*1991 Edition*

This instruction should be used when there is some evidence that a
defendant withdrew from the conspiracy more than five years before the
date of the indictment.

Generally speaking, the statute of limitations for prosecutions under 18
U.S.C. s 371 is five years from the date of the last overt act committed
in furtherance of the conspiracy. See United States v. Zalman, 870 F.2d
1047, 1057 (6th Cir.), cert. denied, \_\_\_ U.S. \_\_\_, 109 S.Ct. 3248,
106 L.Ed.2d 594 (1989). But a defendant\'s withdrawal from a conspiracy
starts the statute of limitations running as to him. See Chiropractic
Cooperative Association of Michigan v. American Medical Association, 867
F.2d 270, 272-275 (6th Cir.1989) (a claimed withdrawal before the
applicable statute of limitations period presents a question of fact
that should not be resolved by way of summary judgment). See also Hyde
v. United States, 225 U.S. 347, 368-370, 32 S.Ct. 793, 802-803, 56 L.Ed.
1114 (1912) (implicitly recognizing that the statute of limitations
begins to run as soon as there has been an affirmative act of
withdrawal); United States v. Read, 658 F.2d 1225, 1233 (7th Cir.1981)
(\"A defendant\'s withdrawal from the conspiracy starts the running of
the statute of limitations as to him. If the indictment is filed more
than five years after a defendant withdraws, the statute of limitations
bars prosecution for \... the conspiracy.\"). Without explanation, the
Seventh Circuit recommends that no instruction be given on this subject.
See Seventh Circuit Instruction 5.13.

See the Committee Commentary to Instruction 3.11A for a complete
discussion of the law relating to withdrawal.

**3.12 DURATION OF A CONSPIRACY**

\(1\) One of the questions in this case is whether \_\_\_\_\_\_\_. This
raises the related question of when a conspiracy comes to an end.

\(2\) A conspiracy ends when its goals have been achieved. But sometimes
a conspiracy may have a continuing purpose, and may be treated as an
ongoing, or continuing, conspiracy. This depends on the scope of the
agreement.

\(3\) If the agreement includes an understanding that the conspiracy
will continue over time, then the conspiracy may be a continuing one.
And if it is, it lasts until there is some affirmative showing that it
has ended. On the other hand, if the agreement does not include any
understanding that the conspiracy will continue, then it comes to an end
when its goals have been achieved. This, of course, is all for you to
decide.

**Use Note**

This instruction should be used when an issue relating to the duration
of a conspiracy has been raised.

**Committee Commentary 3.12**

(current through December 31, 2007)

The Committee made no change in the instruction.

Generally, a separate agreement to conceal a conspiracy will not extend
the duration of a conspiracy for purposes of the statute of limitations.
United States v. Lash, 937 F.2d 1077, 1082 (6^th^ Cir. 1991), *citing*
Grunewald v. United States, 353 U.S. 391 at 401-05 (1957). However, if
the acts of concealment occur as an integral part of the conspiracy
before its objectives have been finally attained, such acts may extend
the life of the conspiracy. *Lash*, 937 F.2d at 1082, *citing* United
States v. Howard, 770 F.2d 57, 60-61 (6^th^ Cir. 1985)(en banc).

For conspiracies under § 1 of the Sherman Act, 15 U.S.C. § 1, which do
not require an overt act, the government need only show that the
agreement existed within the statute of limitations. United States v.
Hayter Oil Co., Inc., 51 F.3d 1265, 1270 (6^th^ Cir. 1995), *citing*
United States v. Socony-Vaccuum Oil Co., 310 U.S. 150, 223-24 n.59
(1940) and United States v. Cooperative Theatres of Ohio, Inc., 845 F.2d
1367, 1373 (6th Cir. 1988).

*1991 Edition*

The duration of a conspiracy may be relevant to various issues that a
jury may have to decide. These include: statute of limitations issues,
see Instruction 3.04(4); single vs. multiple conspiracy issues, see
Instructions 3.08 and 3.09; and whether co-conspirators are responsible
for substantive offenses committed by other members of the conspiracy,
see Instruction 3.10(4)(B). Conspiracy is a continuing crime which is
not completed at the conclusion of the agreement. United States v.
Edgecomb, 910 F.2d 1309, 1312 (6th Cir.1990).

The language of this instruction is based on the Sixth Circuit\'s
decisions in United States v. Hamilton, 689 F.2d 1262, 1268 (6th
Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971
(1983); United States v. Mayes, 512 F.2d 637, 642 (6th Cir.), cert.
denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975); and United
States v. Etheridge, 424 F.2d 951, 964 (6th Cir.1970), cert. denied, 400
U.S. 1000, 91 S.Ct. 464, 27 L.Ed.2d 452 (1971).

**3.13 IMPOSSIBILITY OF SUCCESS**

\(1\) One last point about conspiracy. It is no defense to a conspiracy
charge that success was impossible because of circumstances that the
defendants did not know about. This means that you may find the
defendants guilty of conspiracy even if it was impossible for them to
successfully complete the crime that they agreed to commit.

**Use Note**

This instruction should be used when impossibility of success has been
raised as an issue.

**Committee Commentary 3.13**

(current through December 31, 2007)

The Committee made no change in the instruction.

When conspirators do not know the government has intervened, and the
conspiracy is bound to fail, the conspiracy does not automatically
terminate simply because the government has defeated its object. United
States v. Jimenez Recio, 537 U.S. 270, 274 (2003).

*1991 Edition*

In United States v. Hamilton, 689 F.2d 1262, 1269 (6th Cir.1982), cert.
denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983), the Sixth
Circuit rejected the defendants\' argument that statements made to a co-
conspirator who had become a government agent were not made in
furtherance of the conspiracy. The Sixth Circuit held that such
statements are admissible even when the conspirator to whom the
statements were made was acting under the direction and surveillance of
government agents. The Sixth Circuit then buttressed this holding by
reference to \"the principle that \'it is no defense that success was
impossible because of unknown circumstances\'.\" But Cf. United States
v. Howard, 752 F.2d 220, 229 (6th Cir.1985) (\"A conspiracy is deemed to
have ended when \... achievement of the objective has \... been rendered
impossible.\").

**3.14 STATEMENTS BY CO-CONSPIRATORS**

(No Instruction Recommended)

**Committee Commentary 3.14**

(current through December 31, 2007)

The Committee made no change in its approach on this instruction and
continues to recommend that no instruction be given.

In United States v. Wilson, 168 F.3d 916 (6^th^ Cir. 1999), the court
elaborated on the district judge's responsibility for deciding whether
co-conspirators' statements are admissible. "Before a district court may
admit statements of a co-conspirator, three factors must be established:
(1) that the conspiracy existed; (2) that the defendant was a member of
the conspiracy; and (3) that the co-conspirator's statements were made
in furtherance of the conspiracy. This three-part test is often referred
to as an Enright finding." *Id.* at 920, *citing* United States v.
Monus, 128 F.3d 376, 392 (6^th^ Cir. 1997) *and* United States v.
Enright, 579 F.2d 980, 986-87 (6^th^ Cir. 1978). The party offering the
statement carries the burden of proof on these factors by a
preponderance. *Wilson*, 168 F.3d at 921, *citing* Bourjaily v. United
States, 483 U.S. 171, 176 (1987). The district court may consider the
hearsay statements themselves in deciding whether a conspiracy existed.
*Wilson*, 168 F.3d at 921, *citing Bourjaily*, 483 U.S. at 181 and Fed.
R. Evid. 801 (advisory committee note on 1997 amendment to Rule 801).
The district judge's ruling on the statements' admissibility under Fed.
R. Evid. 801(d)(2)(E) is generally reviewed for clear error, but if an
evidentiary objection is not made at the time of the testimony, the
ruling is reviewed for plain error. *Wilson*, 168 F.3d at 920, *citing*
United States v. Gessa, 971 F.2d 1257, 1261 (6^th^ Cir. 1992)(en banc)
*and* United States v. Cowart, 90 F.3d 154, 157 (6^th^ Cir. 1996).

*1991 Edition*

The rule in the Sixth Circuit is that the trial judge alone is
responsible for deciding whether statements by co-conspirators are
admissible, and that the question of admissibility should not be
submitted to the jury. E.g., United States v. Mitchell, 556 F.2d 371,
377 (6th Cir.), cert. denied, 434 U.S. 925, 98 S.Ct. 406, 54 L.Ed.2d 284
(1977). Instructions that the jury may only consider a co-conspirator\'s
statement if the jury first finds that a conspiracy existed and that the
defendant was a member of it have repeatedly been held to be
\"altogether unnecessary.\" E.g., United States v. Enright, 579 F.2d
980, 986-987 (6th Cir.1978). Accord, United States v. Swidan, 888 F.2d
1076, 1081 (6th Cir.1989). The judge should not advise the jury of the
government\'s burden of proof on the preliminary question of
admissibility, or the judge\'s determination that the government has met
its burden. United States v. Vinson, 606 F.2d 149, 153 (6th Cir.1979),
cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980).
Instead, the judge should admit the statements, subject only to
instructions on the government\'s ultimate burden of proof beyond a
reasonable doubt, and on the weight and credibility to be given
statements by co-conspirators. Id.

Special instructions limiting the consideration of statements made by
co- conspirators may be required when the evidence would support a
finding that multiple conspiracies existed. See Use Note and Committee
Commentary to Instruction 3.08.