If the other member(s) of the conspiracy alleged to have committed the substantive offense(s) have not yet been prosecuted or charged, or has (have) been acquitted, or is (are) not known, the trial judge should include the bracketed language within the second requirement. Conspiracy Need Not Be Charged for Pinkerton Liability. In United States v. Lopez, 271 F.3d 472 (3d Cir. 2001), the Third Circuit held that, “[[i]t is not required that a conspiracy be charged in the indictment for Pinkerton liability to apply, as long as the evidence at trial establishes beyond a reasonable doubt that a conspiracy existed and that the substantive offense was committed in furtherance of the conspiracy.” Id. at 480-81. (“Though this is our first opportunity to address this issue, we have little difficulty following our sister circuit courts of appeals in determining that a conspiracy need not be charged in order for Pinkerton's doctrine to apply.”) (citations omitted). The instruction provided here assumes that the indictment does charge conspiracy. In cases where the government asserts Pinkerton co-conspirator’s responsibility without a separate conspiracy charge, the trial judge should modify the First requirement to state: “First, a conspiracy existed and (name) was a member of that conspiracy,” and should also give the jury Instructions with respect to the elements of conspiracy. See Instructions 6.18.371A-6.18.371K. (Revised 1/14) 7.04 Withdrawal as a Defense to Substantive Offense Committed by (Name) has argued that (he) (she) is not guilty of (state offense), which was allegedly committed by (his) (her) co-conspirator, because (name) withdrew from the conspiracy before the co-conspirator committed that offense. If you find, based on the evidence, that (name) withdrew from the conspiracy before (his) (her) committed (state offense), then you must find (name) not guilty of that offense. In to withdraw from the conspiracy, (name) must have taken some clear, definite and affirmative action to terminate (his) (her) participation, to abandon the illegal objective, and to disassociate (himself) (herself) from the agreement.
First: That acts constituting the offense(s) charged were committed by (name of other person); Second: That (name of defendant) had the mental state required for the offense that (he) (she) caused (name of other person) to commit. In this case that means the government must prove beyond a reasonable doubt that (name) acted (state the mental state required for the offense charged); and Third: That (name) willfully caused (name of other person) to commit the acts constituting (state offense charged). In this case that means the government must prove beyond a reasonable doubt that (name) willfully caused (name of other person) to (state the acts required for the offense charged). To find that (name) “caused” this other person to commit those acts, you must find that the government proved beyond a reasonable doubt that (name) brought about those acts. As I stated, the government must prove beyond a reasonable doubt that (name of other person) committed the acts constituting the offense. However, it is not necessary for you to find that (name of other person) is (himself) (herself) guilty of the offense as a matter of criminal law. For example, there may be a situation in which a person commits all of the acts which comprise a federal crime, but is not responsible for the crime because of, for example, mental impairment or youth, or is not guilty of the crime because he or she acted innocently, and did not have the mental state required to commit that crime. Nevertheless, (name) may be guilty of