The defendant is charged in [Count _______ of] the indictment with conspiring to [_______[ in violation of [Section _______] of [Title ___] of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to commit at least one crime as charged in the indictment; [and]

            Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it[.] [; and]

            [Third, one of the members of the conspiracy performed at least one overt act [on or after [date]] for the purpose of carrying out the conspiracy.]

            A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes.  The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.

            For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy.  It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another.  You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.

            One becomes a member of a conspiracy by knowingly participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy.  Furthermore, one who knowingly joins an existing conspiracy is as responsible for it as the originators.  On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator.  Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

            [An overt act does not itself have to be unlawful.  A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy.  The government is not required to prove that the defendant personally did one of the overt acts.]

Comment

           When the charged offense is conspiracy to defraud the United States (or any agency thereof) under the “defraud clause” of 18 U.S.C. § 371, use Instruction 11.2 (Conspiracy to Defraud the United States) in place of this general conspiracy instruction. When the charged offense is conspiracy to distribute or manufacture a controlled substance pursuant to 21 U.S.C. §§ 841(a), 846, use Instruction 12.5 (Controlled Substance—Conspiracy to Distribute or Manufacture).

            With respect to the first element in this instruction, if other jury instructions do not set out the elements of the crimes alleged to be objects of the conspiracy, the elements must be included in this or an accompanying instruction.  United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008).  Nevertheless, conspiracy to commit a crime “does not require completion of the intended underlying offense.”  United States v. Iribe, 564 F.3d 1155, 1160-61 (9th Cir. 2009).

            To prove an agreement to commit a crime, it is not sufficient for the government to prove that the defendant committed the crime in question.  It must prove that the defendant agreed with at least one other person to commit that crime.  United States v. Loveland, 825 F.3d 555 (9th Cir. 2016). “The agreement need not be explicit; it is sufficient if the conspirators knew or had reason to know of the scope of the conspiracy and that their own benefits depended on the success of the venture.”  United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004) (citing United States v. Romero, 282 F.3d 683, 687 (9th Cir. 2002)).  “An agreement to commit a crime can be explicit or tacit, and can be proved by direct or circumstantial evidence, including inferences from circumstantial evidence.”  United States v. Kaplan, 836 F.3d, 1199 (9th Cir. 2016)  (quotation marks and citation omitted).  See also United States v. Gonzalez, 906 F.3d 784, 792 (9th Cir. 2018) (noting that tacit agreement is sufficient for conspiracy conviction). A conspiracy may exist even if some members of the conspiracy cannot complete the offense, so long as the object of the conspiracy is that at least one conspirator complete the offense.  Ocasio v. United States, 578 U.S. 282, 287-92 (2016). A defendant who conspires only with a government agent is not guilty of conspiracy; however, a conspiracy conviction is permitted if at least one co-conspirator is not a government agent.  United States v. Barragan, 871 F.3d 689, 710-11 (9th Cir. 2017); see also Instruction 11.7 (Conspiracy—Sears Charge).

            Use the third element in this instruction only if the applicable statute requires proof of an overt act, e.g., 18 U.S.C. § 371 (first clause) or 18 U.S.C. § 1511(a) (conspiracy to obstruct state or local law enforcement) but omit the third element when the applicable statute does not require proof of an overt act.  See Whitfield v. United States,543 U.S. 209, 212-15 (2005) (proof of overt act not necessary for conspiracy to commit money laundering); United States v. Shabani,513 U.S. 10, 15-16 (1994) (proof of overt act not necessary for conspiracy to violate drug statutes); Gonzalez, 906 F.3d at 792 (noting that proof of overt act is not necessary for conspiracy to violate civil rights).

            As long as jurors agree that the government has proven each element of a conspiracy, they need not unanimously agree on the particular overt act that was committed in furtherance of the agreed-upon conspiracy.  See United States v. Gonzalez, 786 F.3d 714, 718-19 (9th Cir. 2015) (rejecting defendant’s argument that district court erred in failing to instruct jury that it must unanimously agree on which acts constituted conspiracy to murder underlying a VICAR charge).

            When there is evidence that an overt act occurred outside the applicable limitations period, include the bracketed material within the third element.  See United States v. Fuchs, 218 F.3d 957, 961-62 (9th Cir. 2000) (plain error not to require jury to find that overt act occurred within statute of limitations).

            See Instruction 6.27 (Specific Issue Unanimity).  When the evidence establishes multiple conspiracies, failure to give a specific unanimity instruction may be plain error and the court may have a duty to sua sponte give the instruction requiring the jurors to unanimously agree on which conspiracy the defendant participated in.  United States v. Lapier, 796 F.3d 1090 (9th Cir. 2015) (failure to give specific unanimity instruction was plain error because half of jury could have found defendant guilty of joining one conspiracy while other half of jury could have found defendant guilty of joining second, completely independent conspiracy).

            The Supreme Court has held that “[a] conspiracy does not automatically terminate simply because the Government, unbeknownst to some of the conspirators, has ‘defeated’ the conspiracy’s ‘object’.”  United States v. Jimenez Recio, 537 U.S. 270, 274 (2003).

             See Instruction 4.8 (Knowingly). 

Revised June 2024

            The defendant is charged in [Count _______ of] the indictment with conspiring to defraud the United States by obstructing the lawful functions of [specify government agency] by deceitful or dishonest means in violation of Section 371 of Title 18 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, beginning on or about [date], and ending on or about [date], there was an agreement between two or more persons to defraud the United States by obstructing the lawful functions of [specify government agency] by deceitful or dishonest means as charged in the indictment;

            Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it; and

            Third, one of the members of the conspiracy performed at least one overt act [on or after [date]] for the purpose of carrying out the conspiracy.

            An agreement to defraud is an agreement to deceive or cheat.

            A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed.

            For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy.  It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another.  You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit.

            One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy.  Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators.  On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator.  Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.

            An overt act does not itself have to be unlawful.  A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy.  The government is not required to prove that the defendant personally did one of the overt acts.

Comment 

           Use this instruction when the charged offense is conspiracy to defraud the United States under the “defraud clause” of 18 U.S.C. § 371; otherwise use Instruction 11.1 (Conspiracy— Elements).

            In United States v. Caldwell, 989 F.2d 1056 (9th Cir. 1993), the Ninth Circuit held that defrauding the government under 18 U.S.C. § 371 “means obstructing the operation of any government agency by any ‘deceit, craft or trickery, or at least by means that are dishonest.”’  Id. at 1058-59.  Thus, an instruction that permitted conviction if a defendant merely agreed to defraud the United States by obstructing the Internal Revenue Service in ascertaining and collecting taxes, but did not require proof of deceit or dishonesty, was insufficient and required reversal.  To “convict someone under the ‘defraud clause’ of 18 U.S.C. § 371, the government need only show (1) he entered into an agreement (2) to obstruct a lawful function of the government (3) by deceitful or dishonest means and (4) at least one overt act in furtherance of the conspiracy.”  Id.; accord United States v. Rodman, 776 F.3d 638, 642 (9th Cir. 2015).  Moreover, the conspiracy “need not aim to deprive the government of property,” and neither “the conspiracy’s goal nor the means used to achieve it” need to be illegal.  Caldwell, 989 F.2d at 1058-59.

            In United States v. Miller, the Ninth Circuit held that intent to defraud for purposes of wire fraud (18 U.S.C. § 1343) and mail fraud (18 U.S.C. § 1341) requires the intent to both “deceive and cheat – in other words, to deprive the victim of money or property by means of deception.” 953 F.3d 1095, 1103 (9th Cir. 2020) (emphasis in original).

            If the evidence supports an argument the defendant did not act with the requisite intent to defraud because of a good faith misunderstanding about the requirements of law, consider modifying the fifth paragraph of the instruction as follows:

An agreement to defraud is an agreement to deceive or to cheat, but one who acts on an honest and good faith misunderstanding as to the requirements of the law does not act with an intent to defraud simply because [his] [her] understanding of the law is wrong or even irrational.  Nevertheless, merely disagreeing with the law does not constitute a good faith misunderstanding of the law because all persons have a duty to obey the law whether or not they agree with it.

This language is derived by analogy to cases recognizing a “good faith” defense when the government must prove a defendant “willfully” violated tax laws.  See Instruction 4.6 (Willfully) for violations of 26 U.S.C. §§ 201, 7203, 7206, and 7207; but see United States v. Hickey, 580 F. 3d 922, 931 (9th Cir. 2009) (no good faith instruction needed when jury properly instructed on intent to defraud).

           As long as jurors agree that the government has proven each element of a conspiracy, they need not unanimously agree on the particular overt act that was committed in furtherance of the agreed-upon conspiracy. See United States v. Gonzalez, 786 F.3d 714, 718-19 (9th Cir. 2015) (rejecting defendant’s argument that district court erred in failing to instruct jury that it must unanimously agree on which act constituted conspiracy to murder underlying a VICAR charge).

Revised March. 2024

             You must decide whether the conspiracy charged in the indictment existed, and, if it did, who at least some of its members were.  If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even though you may find that some other conspiracy existed.  Similarly, if you find that any defendant was not a member of the charged conspiracy, then you must find that defendant not guilty, even though that defendant may have been a member of some other conspiracy.

Comment

            Use this instruction when the indictment charges a single conspiracy, and the evidence indicates two or more possible conspiracies.  See United States v. Perry, 550 F.2d 524, 533 (9th Cir. 1997).

            This instruction obviates the need for further instructions on multiple conspiracies.  United States v. Si, 343 F.3d 1116, 1126-27 (9th Cir. 2003).  Given in combination with a proper conspiracy instruction, this instruction is adequate to cover a multiple conspiracy defense.  United States v. Bauer, 84 F.3d 1549, 1560-61 (9th Cir. 1996); United States v. Job, 851 F.3d 889, 905 (9th Cir. 2017). 

            See United States v. Singh, 924 F.3d 1030, 1053 (9th Cir. 2019) (approving multiple conspiracy instruction that reflected defendant’s theory of case). 

Revised June 2019

            A conspiracy may continue for a long period of time and may include the performance of many transactions.  It is not necessary that all members of the conspiracy join it at the same time, and one may become a member of a conspiracy without full knowledge of all the details of the unlawful scheme or the names, identities, or locations of all of the other members.

            Even though a defendant did not directly conspire with [the other defendant] [or] [other conspirators] in the overall scheme, the defendant has, in effect, agreed to participate in the conspiracy if the government proves each of the following beyond a reasonable doubt:

First, the defendant directly conspired with one or more conspirators to carry out at least one of the objects of the conspiracy;

Second, the defendant knew or had reason to know that other conspirators were involved with those with whom the defendant directly conspired; and

Third, the defendant had reason to believe that whatever benefits the defendant might get from the conspiracy were probably dependent upon the success of the entire venture.

            It is not a defense that a person’s participation in a conspiracy was minor or for a short period of time.

Comment

            A person may be a member of a conspiracy even though the person does not know all of the purposes of or participants in the conspiracy.  United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir. 1980); United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977).

            A single conspiracy can be established even though it took place during a long period of time during which new members joined and old members dropped out.  United States v. Green, 523 F.2d 229, 233 (2d Cir. 1975).  See also United States v. Perry, 550 F.2d 524, 528 (9th Cir. 1997) (holding that law of conspiracy does not require government “to prove that all of the defendants met together at the same time and ratified the illegal scheme”); United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978) (holding that proof that defendant “knew he was plotting in concert with others to violate the law was sufficient to raise the necessary inference that he joined in the overall agreement”).

            To prove a conspiracy “the evidence must show that ‘each defendant knew, or had reason to know, that his benefits were probably dependent on the success of the entire operation.’”  United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999) (quoting United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977)). 

Revised Apr. 2019

            Once a person becomes a member of a conspiracy, that person remains a member until that person withdraws from it.  One may withdraw by doing acts which are inconsistent with the purpose of the conspiracy and by making reasonable efforts to tell the co-conspirators about those acts.  You may consider any definite, positive step that shows that the conspirator is no longer a member of the conspiracy to be evidence of withdrawal.

            If you find that the government has proved beyond a reasonable doubt each element of a conspiracy and that the defendant was a member of the conspiracy, the burden is on the defendant to prove by a preponderance of the evidence that [he] [she] withdrew from the conspiracy before the overt act—on which you all agreed—was committed by some member of the conspiracy.  A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.  This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of the conspiracy and that the defendant was a member of the conspiracy. 

            If you find that the defendant withdrew from the conspiracy, you must find the defendant not guilty of [specify crime charged].

Comment

            This instruction has been modified to place the burden on the defendant to prove by a preponderance of the evidence his or her withdrawal from the conspiracy.  The earlier version of the instruction placed the burden on the government to prove that the defendant did not withdraw from the conspiracy before the overt act was committed by some member of the conspiracy.  In Smith v. United States, 568 U.S. 106 (2013), the Court held that “establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place.”  Id. at 110.

            Use this instruction only when the conspiracy charged in the indictment requires proof of an overt act.  If the statute of limitations is a defense to a conspiracy requiring proof of an overt act, the instruction should be modified to require the defendant to prove withdrawal before the limitations period begins.  Id. at 107 (“A defendant who withdraws outside the relevant statute-of-limitations period has a complete defense to prosecution.”).

Revised Apr. 2019

            Each member of the conspiracy is responsible for the actions of the other conspirators performed during the course and in furtherance of the conspiracy.  If one member of a conspiracy commits a crime in furtherance of a conspiracy, the other members have also, under the law, committed that crime.

            Therefore, you may find the defendant guilty of [specify crime] as charged in [Count ___] of the indictment if the government has proved each of the following elements beyond a reasonable doubt:

            First, a person named in [Count _______] of the indictment committed the crime of [specify crime] as alleged in that count;

            Second, the person was a member of the conspiracy charged in [Count _______] of the indictment;

            Third, the person committed the crime of [specify crime] in furtherance of the conspiracy;

            Fourth, the defendant was a member of the same conspiracy at the time the offense charged in [Count _______] was committed; and

            Fifth, the offense fell within the scope of the unlawful agreement and could reasonably have been foreseen to be a necessary or natural consequence of the unlawful agreement.

Comment

            The Pinkerton charge derives its name from Pinkerton v. United States, 328 U.S. 640 (1946), which held that a defendant could be held liable for a substantive offense committed by a co-conspirator as long as the offense occurred within the course of the conspiracy, was within the scope of the agreement, and could reasonably have been foreseen as a necessary or natural consequence of the unlawful agreement.  United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202 (9th Cir. 2000); United States v. Henry, 984 F.3d 1343, 1355-1356 (9th Cir. 2021).

            When this instruction is appropriate, it should be given in addition to Instruction 11.1 (Conspiracy—Elements).

            This instruction is based upon United States v. Alvarez-Valenzuela, 231 F.3d 1198 at 1202-03, in which the Ninth Circuit approved of the 1997 version of Instruction 8.5.5 (Conspiracy—Pinkerton Charge) (now Instruction 11.6), and United States v. Montgomery, 150 F.3d 983, 996-97 (9th Cir. 1998).  See also United States v. Gonzalez, 906 F.3d 784, 791-92 (9th Cir. 2018); United States v. Gadson, 763 F.3d 1189, 1216-17 (9th Cir. 2014).

            This instruction was found adequate in a case in which three separate conspiracies were charged.  See United States v. Moran, 493 F.3d 1002, 1009-10 (9th Cir. 2007).  However, given the potential for ambiguity where more than one conspiracy is charged, the court should consider giving separate Pinkerton instructionsfor each conspiracy charged.

Revised Mar. 2021

            Before being convicted of conspiracy, an individual must conspire with at least one co–conspirator.  There can be no conspiracy when the only person with whom the defendant allegedly conspired was a government [agent] [informant] who secretly intended to frustrate the conspiracy.

Comment

            A defendant who conspires only with a government agent is not guilty of conspiracy; however, a conspiracy conviction is permitted if at least one co-conspirator is not a government agent.  United States v. Barragan, 871 F.3d 689, 710-11 (9th Cir. 2017); See also Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965) (“there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy”); Instruction 11.7 (Conspiracy—Sears Charge). 

 Revised Dec. 2017