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
Links
[1] https://www.ce9.uscourts.gov/jury-instructions/sites/default/files/_WPD/11.7_criminal_rev_3_2022.docx