More Jury Instructions Modified After Smith v. United States

After the Supreme Court decision in Smith v. United States, 568 U.S. _, 133 S.Ct. 714, 184 L.Ed.2d 570 (Jan. 9, 2013), which clarified the burden to establish withdrawal from a conspiracy lies with the defendant and not the government, additional courts have modified their model jury instructions including the Third, Seventh and Ninth Circuits

As reported earlier in the year in the Federal Evidence Blog the Supreme Court resolved a circuit split concerning the burden of proof to establish withdrawal from a conspiracy. See generally Supreme Court Watch: Deciding The Burden Of Proof On Conspiracy Withdrawal. In a unanimous decision authored by Justice Antonin Scalia, the Supreme Court held that the defendant holds the burden to prove withdrawal and the government does not bear any burden to disprove withdrawal. See Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013). Previously, the circuits were "divided on which party bears the burden of proving or disproving a defense of withdrawal prior to the limitations period." Smith, 133 S.Ct. 718 (noting division among the circuits as recognized by the D.C. Circuit).

Revised Seventh Circuit Model Jury Instruction

The Seventh Circuit was the first to modify its model jury instructions consistent with the Supreme Court decision. See Revised Conspiracy Withdrawal Jury Instructions 5.13, 5.14(A) and 5.14(B) (updated Feb. 4, 2013); see also Seventh Circuit Issues Revised Conspiracy Withdrawal Instructions Following Smith v. United States.

Revised Ninth Circuit Model Jury Instruction

After the Smith decision, the Federal Evidence Blog observed tht the Ninth Circuit jury instruction would need to be modied along with others. See Supreme Court Watch: Deciding The Burden Of Proof On Conspiracy Withdrawal. In April 2013, the Ninth Circuit issued a revised model jury instruction:

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].

Ninth Circuit Manual of Model Criminal Jury Instructions § 8.24 (Withdrawal from Conspiracy) (Rev. April 2013). The accompanying comments note that the revision in light of Smith changes the prior "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."

Revised Third Circuit Model Jury Instruction

In May 2013, the Third Circuit also revised its model instruction, which now provides:

(Name) has argued that (he) (she) is not guilty of the conspiracy charged in the indictment because (he) (she) withdrew from the conspiracy. If you find, based on the evidence, that (name) withdrew from the conspiracy before (date, X years before the government obtained the indictment charging the conspiracy), then you must find (name) not guilty of conspiracy.

In order 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. Withdrawal requires proof that (name) changed (his) (her) intent about participating in the agreement. If the evidence only shows that (name) stopped activities in furtherance of the conspiracy, or stopped cooperating with the conspiracy, or merely was inactive for a period of time, that is not enough to find that (name) withdrew from the conspiracy.

(Name) has the burden of proving by a preponderance of the evidence that [he] [she] withdrew from the conspiracy before (date, X years before the government obtained the indictment charging the conspiracy). Preponderance of the evidence is a lower standard than proof beyond a reasonable doubt. To prove something by a preponderance of the evidence means to prove that it is more likely true than not true. If you put the credible evidence that is favorable to (name) and the credible evidence that is favorable to the government on opposite sides of a scale, the scale would have to tip somewhat on (name’s) side in order for you to find that (name) is not guilty because of withdrawal before (date). However, if the scale tips in favor of the government, or if the credible evidence appears to be equally balanced, or if you cannot say on which side the credible evidence is heavier, then you must decide that (name) has not proved the defense of withdrawal before (date) by a preponderance of the evidence. In making this determination, you should consider all of the evidence presented during the trial, regardless of who offered it. You should evaluate the evidence and its credibility according to the instructions I gave you earlier.

You should also remember that the fact that (name) raised this defense does not relieve the government of the burden of proving all the elements of the offense(s) charged beyond a reasonable doubt.

Third Ciruit Model Criminal Jury Instructions § 6.18.371J-2 (Conspiracy – Withdrawal as a Defense to Conspiracy Based on the Statute of Limitations) (Rev. May 2013). The accompanying comments to the revised instruction note that it modifies the prior instruction that "stated, in accordance with Third Circuit case law, that the government had the burden of proof on withdrawal when the defense raised was withdrawal before the commission of an overt and also withdrawal as a defense based on the statute of limitations." The new Instruction 6.18.371J-2 "reflects the Smith decision by placing the burden of proving withdrawal as a statute of limitations defense on the defendant in an 18 U.S.C. § 371 conspiracy case."

However, the comments note an open issue following the Smith decision:

In Smith, the Court did not address the situation in which withdrawal is raised as a defense to conspiracy because it is alleged to have occurred before the commission of an overt act. ... [B]ecause it is not clear from the Smith opinion how the Supreme Court might rule on the burden of proof where the defense is withdrawal before the commission of an overt act, this instruction provides alternatives regarding burden of proof.

Other Model Jury Instructions

Other courts which had imposed the burden of establishing withdrawal on the defendant even before the Smith have updated the commentary to their instructions. For example, the Sixth Circuit did not change its model instruction. However, it has provided further support for its instruction by citing to the Smith decision. Compare Sixth Circuit Pattern Criminal Jury Instruction § 3.11A (Withdrawal as a Defense to Conspiracy) (Updated April 1, 2013) with Sixth Circuit Pattern Criminal Jury Instruction § 3.11A (Withdrawal as a Defense to Conspiracy) (Updated as of June 10, 2011). Other circuits, including the First, Second, Fourth and D.C. Circuits, do not have model jury instructions.

Conclusion

The Smith decision was issued on January 9, 2013. The case provides an example on how the circuits respond to a significant changge in the law by modifying their jury instructions. On this important conspiracy issue, the instructions provide guidance to the jury in deciding whether a withdrawal from a conspiracy has occurred.

For other jury instructions, see the Federal Jury Instructions Resource Page.

_________________


Subscribe Now To The Federal Evidence Review

** Less Than $25 Per Month ** Limited Time Offer **

subscribe today button



Federal Rules of Evidence
PDF